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High Court Of Orissa
P. C. NAIK, PRADIPTA RAY
STATE OF ORISSA - Appellant
Versus
JAGADISH CHANDRA JENA - Respondent
ORIGINAL JURDN. CASE 2653 Of 1996
Decided On : 04/09/1998
FOREST ACT - SECTION 56 (2-C) - CONFISCATION OF VEHICLE - BURDEN OF PROOF - INTERPRETATION OF SECTION 56 (2-C) - PRESUMPTION OF KNOWLEDGE OR CONNIVANCE - STRICT LIABILITY - ACQUITTAL IN FOREST OFFENCE - NOTICE UNDER SECTION 56 (2-B) (A) - SUFFICIENCY.
Fact of the Case:
A vehicle was seized for transporting timber without a transit permit. The owner of the vehicle was acquitted in the forest offence case, but the Authorised Officer passed an order of confiscation under Section 56 (2-a) of the Orissa Forest Act, 1972. The owner challenged the confiscation order in appeal, and the District Judge set aside the order on the grounds that the notice under Section 56 (2-b) (a) was not properly served and that the owner was acquitted in the forest offence case.
Finding of the Court:
The High Court held that the burden of proof in a confiscation proceeding under Section 56 of the Act is on the owner of the vehicle to prove that the vehicle was used without his knowledge or connivance or that of his agent or any person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use. The Court further held that the acquittal of the owner in the forest offence case is not a material factor for the purpose of Section 56 of the Act as the responsibility contemplated therein is a vicarious one.
Issues: 1. Whether the burden of proof in a confiscation proceeding under Section 56 of the Act is on the owner of the vehicle to prove that the vehicle was used without his knowledge or connivance or that of his agent or any person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use? 2. Whether the acquittal of the owner in the forest offence case is a material factor for the purpose of Section 56 of the Act?
Ratio Decidendi: 1. The Court held that the burden of proof in a confiscation proceeding under Section 56 of the Act is on the owner of the vehicle to prove that the vehicle was used without his knowledge or connivance or that of his agent or any person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use. The Court relied on the express words of Section 56 (2-c) of the Act, which place the burden on the person charged and, therefore, the general principles of criminal law that a man is presumed to be innocent till he is proved guilty, are not attracted and have to step aside and give way to the presumption flowing from the special provision contained in the statute. 2. The Court held that the acquittal of the owner in the forest offence case is not a material factor for the purpose of Section 56 of the Act as the responsibility contemplated therein is a vicarious one. The Court observed that the scope and purpose of Rule 21 of the Rules and that of Section 56 of the Act are totally different. Rule 21 of the Rules envisages an offence against the person who contravenes the provisions of the said Rules whereas Section 56 of the Act relates to confiscation of the properties used for committing a forest offence.
Final Decision: The High Court allowed the writ application, set aside the impugned judgment of the District Judge, and remitted the matter to the District Judge for re-hearing the appeal and passing a fresh order in the light of the observations made by the Court.
P. C. NAIK, J.
( 1 ) AN order of confiscation passed by the Authorised Officer-cum-Divisional Forest Officer, Baripada Division, Baripada, having been set aside in appeal with a direction to release the vehicle bearing registration number WGB 6909, the State is before us for quashing the same and restoring the order of confiscation.
( 2 ) THE impugned order (Annexure-1) is assailed by the petitioner-State, inter alia, on the ground that it proceeds on an erroneous interpretation of Section 55 (2-c) of the Orissa Forest Act, 1972 (in short, 'the Act') and due to failure on the part of the learned District Judge, Balasore to take notice of the material on record. Elaborating the contention, Mr. Jairaj Behera, the learned Additional Government Advocate submitted that the learned District Judge has proceeded on an assumption that the burden to establish the guilt is on the prosecution whereas under Section 56 (2-c), it is on the person who has been charged. It is further submitted that the finding that non-service of the notice to show cause on the person charged, is also erroneous as the Court has proceeded on an erroneous presumption that a notice in writing informing him of the grounds on which it is proposed to confiscate the vehicle in question was not served. Our attention is invited to Annexure-3, a memo dated 17-9-1990 wherein the action proposed and the grounds on which it is proposed find place. A seizure-list dated 20-1-1990 was also enclosed to this memo which was sent by registered post with acknowledgment due. Accordingly, it is submitted that the impugned order cannot be sustained and is liable to be quashed.
( 3 ) WHILE refuting the contentions advanced by the learned Additional Government Advocate, Mr. Mukherji, learned Senior Advocate appearing on behalf of the opposite party No. 1, contends that the impugned order is proper and calls for no interference. By making a reference to Section 56 (2-c) of the Act, the learned Counsel contends that before the vehicle in question can be confiscated, what is required to be proved is that the owner/his agent/the person charged against, either had the knowledge that the vehicle in question had been used for commission of the offence or there was connivance in the commission of the offence. It is submitted that in the case at hand, none of the statutory requirements is fulfilled.
( 4 ) THE case of opposite party No. 1 is that on 19-1-1990 the vehicle in question was parked at Indian Oil Petrol Pump at Kantai of Midnapore district within the State of West Bengal wherefrom it was stolen and in spite of efforts, it could not be found out. An F. I. R. was lodged at Cantai Police Station regarding the theft of the vehicle and accordingly, P. S. Case No. 15/90 for an offence under Section 579, I. P. C. was registered giving rise to C. M. Case No. 60/90 in the Court of the Sub-Divisional Judicial Magistrate, Midnapore in the State of West Bengal. It is, therefore, submitted that the person who had stolen the property might have been involved in forest offence for which the petitioner cannot, in any way, be held responsible. It is further submitted that as the vehicle in question had been stolen, the question of there being any connivance of the owner in the commission of the forest offence, is completely ruled out.
( 5 ) MR. Mukherji has also drawn our attention to Annexure-A/2 which is an order passed by the Sub-Divisional Judicial Magistrate, Nilgiri, whereby the owner of the vehicle has been acquitted of the offence under Section 21 of the Orissa Timber and other Forest Produce Transit Rules, 1980 (in short, 'the Rules' ). According to the learned Senior Advocate Mr. Mukherji, since in the impugned order it has been held that the owner was not present at the time of detection of the offence when the vehicle was seized, it goes to show that the owner is no way connected with the said offence and as such, the proceedings under Sec. 56 (2-c) of the Act for confiscation of the
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