STATE OF M P Vs. ANKIT RATHORE

JUDGEMENT

(1.) By this writ petition under Article 227 of the Constitution of India, the petitioner State on behalf of the Chief Conservator of Forest has challenged the order dated 15-5-2013 passed by the District and Sessions Judge, Ujjain in Revision No. 366/2012. Briefly stated; the facts of the prosecution case are that on 5-4-2011 at 12.40 p.m. in the forest region of Kannod at forest check post Barrier Siyaghat, the person in-charge of the check post along with the staff were checking vehicles and found that one Tata 207 pickup loading vehicle bearing registration No. MP 09 GE 2261 was carrying teakwood illegally; 47 logs weighing 1.619 square meters were recovered. The driver of the vehicle Bhura @ Imran and his two companions Irfan and Faheem however, abandoned the vehicle and ran away taking the advantage of the darkness. On inspecting the vehicle, the chassis numbers was noted and the wood was seized. However, there were no papers in the vehicle according to the seizure memo. The offence was registered and Regional Forest Officer and the Dy. Forest Ranger Kannod informed the competent authority of the Forest Department and upon completion of investigation a complaint was filed against driver Bhura @ Imran and his, two companions Irfan and Faheem and they were arrested and vehicle was seized and the teakwood was also seized. The competent authorities were informed about the same and the confiscating proceedings were started by letter dated 23-8-2011. The competent authority received written statement from the respondent owner and present respondent Shri Ankit Rathore took up the defence that on 4-4-2011 approximately at 08.00 a.m. in the morning driver Bhura and his two companions had taken his vehicle for transportation. At 12.00 noon since the driver did not return the vehicle; the owner tried to contact him on the mobile phone and he could not be contacted and he felt something foul and started searching. On the way at Ashtha at around 1.00 p.m. he informed the Thana Kotwali Sehore in writing; that his driver, had taken his vehicle without informing him and might have met with an accident and the owner was not responsible for any consequence. After considering the defence statement; the competent authority came to a conclusion that the seized vehicle was being used for transporting the teak wood illegally and informed the authorized Forest Officer that there was violation of section 15(4) and passed the order dated 15-5-2012. Being aggrieved the accused owner filed an appeal before the appellate authority/the Chief Forest Conservator Ujjain. The Appellate Court by the impugned order dismissed the appeal upholding the findings of the trial Court. Being aggrieved the appellant owner filed a revision petition before the Special Judge Ujjain and the Revisional Court set aside the orders and directed the return of the vehicle to the owner Ankit Rathore and hence the present petition under Article 227 of the Constitution of India by the State Government.

(2.) Counsel for the petitioner/State has vehemently urged the fact that the revisional Court had erred in holding that the owner was entitled to the vehicle primarily because the authorized officer of the trial Court had on appreciation of the evidence found that the petitioner had knowledge about the seizure of the vehicle and had not taken any steps promptly to claim the possession of his vehicle and thus, there was indirect involvement of the petitioner in commission of forest offence. Placing reliance in the case of Rakhiya Bai vs. Conservator of Forest and others, 2008 ILR(MP) 3112 . Counsel prayed that the impugned order of the revisional Court be set aside. Counsel also placed reliance in the case of State of M.P. vs. Suresh Kumar, 1997 AIR(SC) 1017whereby the Apex Court had held that under section 15(6) of M.P. Van Upaj (Vyapar Viniyaman) Act, 1969 casts burden upon owner of truck to prove that his truck was used for illegal activities without his knowledge and not with his connivance and when the respondent did not produce any other materials on record to discharge burden under section 15(6) and the High Court had totally misread and misinterpreted provisions of section 15(6) and therefore, the Apex Court had allowed the appeal of the State and held that the respondent owner had failed to satisfy the competent authority; and the appellate authority as required under section 15(6) of the Act. It upheld the order of confiscation of the truck. Counsel for the State submitted that in the present case also there was no FIR filed by the owner of the vehicle as is being alleged. The Station Officer of Sehore has not been examined to prove that the FIR has been filed by him as alleged. And hence revisional Court had erred in holding that there was no collusion or connivance between the owner and the driver and he had taken all the necessary precautions as per section 15(6) of the Act. Counsel for the petitioner/State prayed that the order of the revisional Court be set aside and the order of the trial Court and the appellate Court be restored.

(3.) Per Contra, Counsel for the respondent owner Ankit Rathore has vehemently urged the fact that there was no findings at all against the respondent owner and he was entitled to protection under the Act and that the confiscation is not at all justified and the vehicle be released. Moreover, the concurrent fact recorded against the respondent owner that the respondent had knowledge that the vehicle was being used for the forest offence is a pure misreading of the evidence. Drawing attention of this Court to the fact that the statement of A.K. Shrivastava the Forest Officer of Udaynagar Van Mandal Dewas, he stated that respondent Ankit Rathore had informed him that his vehicle was missing and when he had been called to Kannod, it was he who have given the name of the driver and his address, besides the owner had also accompanied the police officials at the time of identification and had helped to serve notice on the driver by affixture (chuspa). The respondent owner has identified the driver after being arrested and he has remained steadfast in his statement in Court. Similarly the driver was arrested from Pithampur and produced before the District Judge, Kannod and had been taken on remand. Besides driver Imran has been cross-examined by the Counsel for the respondent owner and has categorically stated that the owner had helped in arresting the driver and in the last question he has categorically stated that he has no implication of the owner in the offence and there was no collusion with the driver. Besides Counsel stated that the FIR was filed at police station Sehore and the application has been filed by the owner to summon the FIR along with the receipt. The defence witness has also completely supported the owner of the vehicle and the documentary evidence was available on record and in the instant case Counsel submitted that the case of Rakhiya Bai vs. Conservator of Forest and others would of no help to the petitioner State Government. Counsel placed reliance in the case of State of M.P. vs. Ram Gopal Sharma,1991 1 MPWN 82and Sarjoo Prasad vs. State of M.P., 2006 2 MPLJ 65whereby the Apex Court had held that when the owner proving ignorance of commission of forest offence then the vehicle cannot be confiscated under section 15 of the Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969. Similarly in the matter of Sarjoo Prasad the Court has categorically held that when there is concurrent finding of the fact that it was not in the knowledge of the petitioner that his tractor and trolley was being used to commit any forest offence then the vehicle cannot be confiscated and the petitioner is, therefore, entitled to the protection provided to him under section 52(5) of the Act.