IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.25222/2012(GM-FOR) BETWEEN:
FAIROZ KHAN, AGED ABOUT 28 YEARS, S/O SAMIULLA KHAN, DOOR NO.199, 3RD CROSS 2ND STAGE, M. G. ROAD, UDAYAGIRI, MYSORE-19.
... PETITIONER (BY SRI M. T. NANAIAH, SENIOR COUNSEL A/W SRI BALASUBRAMANYA B.M., ADVOCATE) AND:
THE AUTHORIZED OFFICER AND DY. CONSERVATOR OF FOREST MANDYA DIVISION, MANDYA, MANDYA.
... RESPONDENT (BY SRI VASANTH V FERNANDES, HCGP) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-E, DATED 20.5.2011 PASSED BY THE RESPONDENT - AUTHORIZED OFFICER & DEPUTY CONSERVATOR TO FOREST, MANDYA DIVISION MANDYA BY ORDERING TO CONFISCATE OF THE VEHICLE BEARING REGISTRARION NO.KA-01/B-6191 & ANNEXURE-F DATED 6.3.12, PASSED BY THE ADDITIONAL SESSIONS JUDGE, MANDYA IN CRL. A.NO.35/11.
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has filed the present writ petition against the concurrent findings of facts recorded by the respondent - Authorized Officer and Deputy Conservator of Forests, exercising the powers under the provisions of Section 71-A of the Karnataka Forest Act,1963 (‘the Act’ for short) and confiscating 1008 kilograms of sandalwood which was being transporting in the goods truck bearing Regn. No.KA-01-B-6191 from Mysore to Delhi without any permit or licence, as per the order dated 20.5.2011, which was confirmed by the learned Addl. District & Sessions Judge, Mandya exercising the powers under the Appellate Authority in Criminal Appeal No.35/2011 by the Judgment dated 6.3.2012.
2. It is the case of the prosecution that on the credible information received by the CPI, Mandya Rural Police on 23.6.2005 at 00-30 hours that the goods truck bearing Regn. No.KA-01-B-6191 carrying sandalwood illegally, the CPI and his staff went to Honakere village, near Mahadeshwar Saw Mill at about 1.30 p.m. At that time, the said goods truck bearing Regn. NO.KA-01-B-6191 came there. They stopped the vehicle and inspected the same. On their inspection, they found 1008 kilograms of sandalwood in the said vehicle. It was covered under Distin and Dettol medicine boxes of Mysore Rekit Ben Kaisar Company. The sandalwood was found to be worth Rs.3,02,400/-. It was being transported in the vehicle without any licence or permit. The said property and the vehicle were seized under the mahazar. Accordingly, a forest case was registered in Crime No.187/2005 for the offences punishable under Sections 86 and 87 of the Act and Section 379 of the Indian Penal Code. Thereafter the respondent - Authorized Officer had initiated confiscation proceedings.
3. The petitioner had challenged the initiation of the proceedings by the Authorized Officer, in Writ Petition No.19969/2005 before this Court. The said writ petition was disposed off with a direction to the Authorized Officer to dispose off the matter within eight weeks. Again, the petitioner approached this Court for release of the said vehicle to his interim custody. Subsequently, the vehicle came to be released to the petitioner as interim custody, pending confiscation proceedings.
4. The respondent - Authorized Office recorded a finding that the prosecution has proved that on 23.6.2005 in the early morning, 1008 kilograms of sandalwood covered under Distin and Dettol medicine boxes was being transported in the goods truck bearing Regn. No.KA-01-B- 6191 illegally without any licence or permit from Mysore to Delhi and the same was seized by the Police at Hanakere village near Mahadeshwara Saw Mill. The Authorized Officer has also recorded a finding that the owner of the vehicle has failed to prove that the vehicle was involved in the accident without his knowledge. Accordingly, the respondent – Authorized Officer proceeded to pass the orders under Section 71-A of the Act for confiscation of 1008 kilograms of sandalwood along with the lorry to the State Government as per Annexure-E dated 20.5.2011.
5. Aggrieved by the said order, the petitioner filed appeal before the learned District Judge as contemplated under the provisions of Section 71-D of the Act. The learned Addl. District Judge, Mandya considering the entire material on record has framed two points for determination and recorded a finding that the petitioner failed to prove that he was not given sufficient opportunity to cross- examine CWs.5 and 6 and thereby, it has vitiated the entire proceedings and further held that the petitioner failed to prove that the impugned order of confiscating vehicle No.KA-01/B-6191 is perverse, capricious, against the evidence on record and the law and therefore liable to be interfered. Accordingly by the impugned order dated 6.3.2012 dismissed the appeal and confirmed the order passed by the Authorized officer. Hence, the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri M.T. Nanaiah, learned senior counsel appearing for the petitioner contended with vehemence that the order passed by the Authorized Officer and confirmed by the District Judge are contrary to the material on record and both the orders are liable to be quashed. He further contended that during the enquiry, all the panch witnesses have turned hostile and no independent and reliable evidence has been led by the prosecution in support of its case except the Circle Inspector of Police and Investigating Officer and therefore, no case has been made out by the prosecution to confiscate the vehicle. He would further contend that admittedly in the present case, the panch witnesses have clearly stated that driver of the vehicle is temporary driver sent by the Transporter on contract basis. This fact has not at all been considered by the Authorized Officer as well as the learned District Judge. The order passed by the Authorized Officer confiscating the vehicle is contrary to the dictum of the Hon’ble Supreme Court in the case of Balu Sonba Shinde vs. State of Maharashtra reported in AIR 2002 SC 3137.
8. He would further contend that it is the duty of the prosecution as per the provisions of the Act to prove that the said offence has been committed with the knowledge and connivance of the owner of the vehicle and then only, the vehicle has to be confiscated into the State. On perusal of the entire evidence on record, it is crystal clear no such offence has taken place with the knowledge and connivance of the owner (present petitioner) of the vehicle and hence vehicle is not liable to be confiscated and the proceedings against the petitioner are liable to be dropped.
9. He would further contend that during the course of investigation, the Investigation Officer has recorded statement of the accused to the effect that the owner – Fairoz Khan (present petitioner) has sent the vehicle for transportation and the said statement cannot be used against any of the accused unless guilt is admitted. The statements said to have been recorded and obtained signature by force and torture as stated by DW.3 who was driver of the vehicle on the date of the incident. It is against the guidelines issued by the Hon’ble Supreme Court in the case of B.A. Ramaiah vs. State of A.P. reported in AIR 1997 SC 496.
10. He further contended that the witnesses CW.5 – Chowdesh and CW.9 – Ravi were examined in part by the prosecution and they have not been subjected for cross- examination and therefore their evidence is not helpful to the prosecution. Even in their evidence it is stated on that day, the original driver of the vehicle was sick and temporary driver was sent on the said vehicle and this fact has not at all been considered by the Authorized Officer as well as the learned District Judge. He also contended that the owner examined three witnesses to prove that goods truck was not involved in the offence occurred on the alleged date of the accident. The same has not been considered by the Authorized Officer as well as the learned District Judge.
11. He would further contend that the petitioner who is the owner of the vehicle has taken all necessary precautions as contemplated under the provisions of Section 71-B(2) of the Act. The Authorized Officer and the learned District Judge have not considered both oral and documentary evidence in the proper prospective. Therefore the impugned orders passed by the Authorized Officer as well as the learned District Judge cannot be sustained. Therefore, he sought to allow the writ petition.
12. Per contra, Sri Vasanth V. Fernandes, learned High Court Government Pleader sought to justify the impugned orders and contended that the Authorized Officer considering the entire oral and documentary evidence on record, has come to the conclusion that the petitioner has not discharged his duties as contemplated under the provisions of Section 71-B(2) of the Act. He would further contend that no owner will allow an unknown driver or a temporary driver to travel along with drugs worth about lakhs and there is no convincing evidence adduced or produced by the owner to prove that he has taken all precautions to avoid misuse of the vehicle as contemplated under the provisions of the Act. In the absence of any concrete evidence, the impugned order passed by the Authorized Officer, which is confirmed by the learned District Judge, cannot be interfered by this Court exercising the powers under the writ jurisdiction. Therefore, he sought to dismiss the writ petition.
13. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully.
14. It is an undisputed fact that on the credible information received by the CPI, Mandya Rural Police on 23.6.2005 at 00.30 hours that the goods truck bearing Regn. No.KA-01-B-6191 carrying sandalwood illegally, the CPI and his staff went to Hanakere village, near Mahadeshwara Saw Mill. At that time, the said vehicle came there and they stopped the vehicle and inspected the same. On their inspection of the said vehicle, 1008 kilograms of sandalwood covered under the Distin and Dettol medicine boxes of Mysore Rekit Ben Kaisar Company worth Rs.3,02,400/- was found in the said vehicle. It was being transported in the vehicle without any licence or permit from Mysore to Delhi. The said property and vehicle were seized under mahzar and case registered in Crime No.187/2005 for the offences punishable under the provisions of Sections 86 and 87 of the Act r/w Section 379 of the Indian Penal Code. Thereafter, the proceedings are initiated by the Authorized Officer exercising the powers under Section 71-A of the Act and proceeded to held enquiry as contemplated.
15. The Authorized officer considering both oral and documentary evidence, has recorded a categorical finding as under:
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16. The respondent - Authorized Officer while passing the impugned order has relied upon the dictum of this Court in the case of Ramesh N. Dixith vs. State of Karnataka reported in ILR 1985 KAR 2571, wherein it is observed as under:
The burden to some extent on the owner to prove that if at all his vehicle had been used to commit the alleged offence that was without his knowledge of his agent, if any and of the person of the said vehicle and that each of them had taken all reasonable and necessary precautions against such use.
17. The respondent – Authorized Officer has also relied upon the dictum of the Hon’ble Supreme Court in SLP No.3046/2003 dated 11.12.2000, wherein the Hon’ble Supreme Court has held as under:
“The Court cannot shut their eyes and ignore their obligation indicated in the Act enacted for the purpose of protecting and safeguarding both the forest and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere.
From the above diction of this Court, we find when a vehicle is involved in a forest offence the same is not to be released to the offenders or the claimant as a matter of routine till the culmination of the proceeding which may include confiscation of such vehicle.”
Ultimately, the respondent – Authorized Officer come to the conclusion that the petitioner being the owner of the goods truck has not discharged his duties and that he has not taken all reasonable and necessary precautions against misuse of the vehicle. Accordingly by the impugned order dated 20.5.2011, the respondent – Authorized Officer confiscated both the vehicle and the property.
18. It is also not in dispute that aggrieved by the said order, the petitioner filed appeal before the learned Addl. Sessions Judge, Mandya in Criminal Appeal No.35/2011 under Section 71-D of the Act. The learned Judge considering the entire material on record framed the following points for determination:
1) Whether the appellant proves that he has not been given sufficient opportunity to cross- examine C.W.5 and 6 and thereby, it has vitiated the entire proceedings?
2) Whether the appellant proves that impugned order of confiscating of vehicle No.KA-01/B- 6191 is perverse, capricious, against to the evidence on record and the law, and, therefore, it is liable to be dismissed?
3) What order?
19. After considering the entire oral and documentary evidence on record, the appellate Court has recorded a finding that as per Section 71B(2) of the Act, the burden to prove that the sandalwood article was transported in the vehicle without the knowledge or connivance of the owner himself, his agent and the person in-charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such acts, is on the owner (present petitioner). Therefore, burden is on the owner to prove that the vehicle was used without the knowledge or connivance of himself, his agent, or the person in-charge of the vehicle and he had taken all necessary precautions against its misuse. The explanation can be accepted if it is an acceptable one. The reasons assigned have not been proved.
20. The appellate Court has further recorded a finding that it is also important to note that the medicine company has clarified while getting its goods released that they had entrusted the transportation of their goods to a authorized transporter M/s Karnataka Road Line, Bangalore as per the agreement dated 10.4.2005. The vehicle in question was engaged by the said transportation company, which came to their premises, got loaded and left the premises at 6.15 p.m. Therefore, no blame could be attributed to the transporter.
21. Having regard to the facts and circumstances and the evidence available on record, the Appellate Court found that the confiscating authority came to a right conclusion that it has been proved beyond reasonable doubt that the vehicle was carrying sandalwood weighing 1008 kilograms without any license or permit. To prove the sickness of the original driver of the lorry, no documentary evidence was produced and the D.L. of the said person or documents for having appointed him as a lorry driver and documents for having paid salary or allowance to him, were not produced by the appellant (present petitioner).
22. The appellate Court further recorded a finding that it is also found from the criminal case records that the accused – Sadiq Pasha was not found to be having a Driving Licence when he was apprehended. Whether a transporter would leave his valuable lorry and goods worth of lakhs in the custody of a person, who has no Driving Licence, is also to be considered. This shows that he was negligent. The fact that the temporary driver was taking tea at the time the transporting company asked him to drive the vehicle etc., is found to be suspicious.
23. The Authorized Officer and the learned District Judge concurrently recorded a finding of fact that the petitioner has not proved by oral and documentary evidence that he has taken all reasonable necessary precautions as contemplated under the provisions of Section 71-B(2) of the Act to avoid misuse of the vehicle. Such a finding of fact recorded by the respondent – Authorized Officer as well as the Appellate Court cannot be interfered by this Court exercising the powers under Articles - 226 and 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Gss/-