State Of West Bengal & Anr vs Mahua Sarkar

3 stated that a family friend had taken the vehicle for a marriage

ceremony. The driver had without his permission and

knowledge carried the articles which later on were seized by

the forest officials. After receipt of the reply, the stand taken

was verified and ultimately it was found that the vehicle was

used for illicit procurement of timber. An appeal was

preferred before the District Judge, Jalpaiguri who dismissed

the appeal and confirmed the findings of the authorized

officer. Writ petition was filed before the High Court.

4. Primary stand taken was that the owner had no

knowledge about the commission of offence under the Act

and, therefore, confiscation was illegal. The High Court inter-

alia observed as follows and directed release of the confiscated

vehicle:

4

"It is settled law that unless the driver of the vehicle acted as an agent of the owner of the said vehicle and indulged in carrying forest produce in illegally and that too with the knowledge and connivance of the owner neither the vehicle could be confiscated nor the owner could be prosecuted for such alleged offence."

5. In support of the appeal, learned counsel for the

appellants submitted that the impugned order is not

sustainable in law. The onus was on the owner of the vehicle

to establish that he had no knowledge about the carrying of

illegal timber. Additionally, the statement given by the owner

was at great variance with the statement given by the driver

and the other occupants of the vehicle at the time of seizure.

There is no appearance on behalf of the respondent in spite of

service of notice.

6. At this juncture, it will be relevant to quote Sections 59

(A) and 59(B) of the Act as inserted by the Amendment Act.

The provisions read as follows:

"59-A. Confiscation by Forest officer of

5 forest produce in the case of forest offence believed to have been committed- (1) Notwithstanding anything contained in the foregoing provisions of this chapter or in any other law for the time being in force, where a forest-officer is believed to have been committed in respect of the timber or other forest-produce which is the property of the State Government, the Forest Officer or the Police-officer seizing the timber or other forest produce under sub-section (1) of Section 52 shall, without any unreasonable delay, produce the same, together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence before an officer of a rank not inferior to that of an Assistant Con- servator of Forest authorised by the State Government in this behalf by notification in the official Gazette (hereinafter referred as the authorized officer).

(2) The State Government may for any local area, authorize one or more officers under sub-section (1).

(3) Where any timber or other forest produce which is the property of the State Government is produced before an authorized officer under sub-section (1) and the authorized officer is satisfied that a forest offence has been committed in respect of such property, he may, whether or not a prosecution is instituted for the commission of such offence, or other confiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence.

6 (4)(a) Where the authorized officer, after passing the order of confiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle as aforesaid under sub-section (3), is of opinion that it is expedient in the public interest so to do, he may order such property or any part thereof and such tools, ropes, chains, boats, vehicles and cattle to be sold by public auction.

(b) Where the order of confiscation of any property or tools, ropes, chains, boats, vehicles or cattle under sub-section (3) is set aside or annulled under Section 59C or Section 59-D, the proceeds of sale by auction shall, after deduction of the expenses of auction and all other incidental expenses relating thereto, if any, be paid to the owner of such property or tools, ropes, chains, boats, vehicles or cattle or to the person from where the same was seized as may be specified in the order under Section 59-C or Section 59-D.

59-B. Issue of notice before confiscation-(1) No order confiscating any property or tools, ropes, chains, boats, vehicles or cattle shall be made under Section 59-D except after giving a notice in writing to the owner of, or the person from whom, such property or tools, ropes, chains, boats, vehicles or cattle have been seized for showing cause as to why the same should not be confiscated and considering his objections, if any:

Provided that no order confiscating any motor vehicle shall be made except after giving

7 a notice in writing to the registered owner thereof if, in the opinion of the authorized officer, it is practicable to do so and considering his objections, if any.

Explanation- "Motor Vehicle" shall have the same meaning as in the Motor Vehicles Act, 1939 (4 of 1939).

(2) Without prejudice to the provisions of sub-section (1), no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Section 59-A if the owner thereof proves to the satisfaction of the authorized officer that such tool, rope, chain, boat, vehicle or cattle was used in carrying the timber or other forest produce without the knowledge or connivance of the owner himself or his agent, if any, or the person in charge thereof and that each of them had taken all reasonable and necessary precautions against such use."

7. A bare reading of sub-Section (2) of Section 59-B makes

the position clear that no order confiscating any tool, rope

chain, boat, vehicle or cattle shall be made under Section 59-A

if the owner thereof proves to the satisfaction of the authorized

officer that such tool, rope, chain, boat, vehicle or cattle was

used in carrying the timber or other forest produce without

the knowledge or connivance of the owner himself or his

8 agent, if any, or the person in charge thereof and that each of

them had taken all reasonable and necessary precautions

against such use.

8. The language used is very clear. It is the owner who has

to prove that the vehicle was used in carrying timber or other

forest produce without his knowledge or connivance or that of

his agent.

9. The requirement is mandatory that the owner has to

prove that he had no knowledge or had not connived. It is a

matter which is within his knowledge. Mere assertion without

anything else will not suffice. There is another requirement

that either he or his agent, if any, or the person in-charge

thereof had taken all reasonable and necessary precaution

against such use. This aspect has to be established by the

concerned person by sufficient material. As noted above,

mere assertion in that regard could not be sufficient.

9

10. The Forest Officer and the Appellate Authority clearly

noted that the owner failed to establish his alleged lack of

knowledge or connivance or taking necessary precaution. The

High Court came to an abrupt conclusion and held that

without knowledge of the owner of the vehicle driver was

carrying forest produce illegally. The High Court held that

unless the driver of the vehicle acted as an agent of the owner

of the said vehicle and indulged in carrying forest produce

illegally and that too with the knowledge and connivance of

the owner, neither the vehicle could be confiscated nor could

the owner be prosecuted for such alleged offence.

11. Both the forest officer and the Appellate Authority

categorically held that the lack of knowledge as asserted was

not established. High Court did not record any finding that all

possible care had been taken to prevent such misuse.

12. The High Court has not even analysed the factual

position and only concluded that the vehicle was being used

for carrying illegal timber without the knowledge and

10 connivance of the owner. It has not even referred to the

materials which weighed with the forest officer and the first

Appellate Authority to conclude that the onus in law on the

owner has not been discharged.

13. In State of Karnataka v. K. Krishnan (2000(7) SCC 80), it

was inter alia noted as follows:

"6. Chapter VI of the Act makes provision for control of timber and other forest produce in transit. The authorised officer has the power to seize any forest produce together with all tools, boats, vehicles or cattle or any other property used in connection with the commission of an offence in respect of any forest produce. An authorised officer has also the power to release the property seized under Section 62. All timber or forest produce, which is not the property of the Government and in respect of which a forest offence has been committed and all tools, boats, vehicles and cattle used in committing any forest offence are liable to forfeiture by the State Government subject to the provisions of Section 71-G of the Act. Section 71-A authorizes the Forest Officer to order confiscation of the seized property in certain cases. Any person aggrieved by an order passed under Section 71-A or Section 71-C has the right to file an appeal to the Sessions Judge having jurisdiction over the area in

11 which the property to which the order relates has been seized.

7. Learned counsel appearing for the appellant State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the authorised officer or the appellate authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattle, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the appellate authority from passing appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect mother earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural

12 wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.

8. The approach adopted both by the Authorised Officer and the High Court completely ignores the importance of the forests and the purpose of the object for which the Act was made. As the appellant State has not prayed for quashing the order of the Authorised Officer we refrain to deal with that even though we do not approve of it. We are, however, satisfied that the High Court had adopted a very casual approach while disposing of the petition under Section 482 of the Code of Criminal Procedure. Besides that the order impugned is contrary to law, we have our reservations with respect to the powers of the High Court under Section 482 Cr.P.C in

13 the matter which we do not express in this case.

14. The position in law was again reiterated in State of West

Bengal v. Gopal Sarkar (2002 (1) SCC 495). The High Court

was not justified in setting aside the confiscation. But there is

another aspect which needs to be noted. The vehicle in

question was released pursuant to the High Court's order.

Though the appeal is allowed, there is no point in directing

restoration of the vehicle. We direct that a sum of

Rs.20,000/- shall be deposited by the respondent within three

months from today so that the restoration of the vehicle shall

not be necessary. The amount shall be deposited with the

concerned Forest department of the State of West Bengal. The

appeal is allowed to the aforesaid extent. No costs.

..............................

...J. (DR. ARIJIT PASAYAT)

.................................J. (P. SATHASIVAM)

14 New Delhi:

February 27, 2008

15 16