Ganesh Chandra Bandopadhyay alias Banerjee Vs Authorised Officer-cum-District Forest Officer, Nayagarh Forest Division and Others

C.R. Pal, J.@mdashIn this writ petition the petitioner has prayed to quash the confiscation proceeding O. R. No. 152/97-98 pending before the Authorised Officer-cum-Divisional Forest Officer, Nayagarh Division.

2. The facts of the case in brief are as follows:--

The petitioner, a resident of 7/2, P. W. D. Road, Calcutta-35, is the registered owner of the truck bearing registration No. WML 1000. The petitioner states that the said truck came with the load of empty bottles of Dabur Company from Calcutta to Bhubaneswar and after giving delivery of the articles at the destination while returning from Bhubaneswar to Calcutta a person approached the driver, Namilal Ray, near Gopalpur Check Gate and asked him if he was willing to carry a load of turmeric and chilly from Odegaon to Calcutta. As the truck was empty, the driver agreed to the proposal to carry the same for a consideration of Rs. 4,000/-. Accordingly, the driver of the truck instead of proceeding towards Calcutta proceeded to Odegaon which is in the opposite direction. At Odegaon after taking meals they proceeded towards Bahadajhala. When he was asked to proceed ahead, he became apprehensive and expressed his reluctance to proceed further. But being threatened by that man he proceeded further. On the way at one place some logs were loaded and there the driver and the Khalasi getting opportunity managed to escape leaving the truck there. Both of them went to Bahadajhala Out Post, where the driver, Namilal Ray, reported about the occurrence on 19-8-1997 at 5.00 a.m. On the basis of the said report which was sent to the police station, Odegaon P. S. Case No. 52 of 1997 corresponding to D. R. Case No. 290 of 1997 of the Court of the S. D. J. M., Nayagarh was registered for an offence under Sections 399/34, I.P.C.

3. In the forest case it was alleged that while the vehicle was proceeding with the logs the forest staff who had received intelligence about the illegal transit of logs by that time chased the same. In its bid to speed away the truck met with an accident in between Bukalagadia and Ankulapatna where the driver, namely, Chiranjibi who was driving the vehicle at that time abandoning the vehicle and the logs escaped. The forest staff seized the truck along with its load consisting of 143 pieces of sal sizes (sic) u/s 56(1) of the Orissa Forest Act, 1972 and registered the case O. R. No. 152/97-98. The present petitioner who is the registered owner of the truck filed an application before the Authorised Officer on 22-8-1998 to release the seized vehicle in his favour. He was asked to produce the documents to show his ownership over the vehicle. But instead of doing so, he moved this Court in S. J. C. No. 13360 of 1997 for interim release of the vehicle. This Court on 30-9-1997 directed the appropriate authority to dispose of the petitioner''s application for interim release of the vehicle in accordance with law. Thereafter the petitioner appeared before the concerned authorised officer and the authorised officer passed an order for interim release of the vehicle with the following terms and conditions :--

(1) The O. P. will furnish an immovable property security of Rs. 75,000/- (Rupees seventy five thousand) only which shall be free from all encumbrances. The property for which security to be furnished should be existing within the State of Orissa.

(2) The O. P. will furnish cash security deposit of Rs. 25,000/- (Rupees twenty five thou sand) only which will be forfeited to the State Government if any of the following condition is violated.

(3) The O. P. will produce the vehicle before the Authorised Officer, Nayagarh as and when directed to do so till finalisation of the confiscation proceeding.

(4) The O. P. will ensure his attendance regularly in the court of Authorised Officer, Nayagarh on notice till the confiscation proceeding is finalised.

(5) The O. P. will not dispose of the vehicle or mortgage it in any manner during the interim release period.

(6) The O. P. will not engage his vehicle in carrying forest produce during interim release period.

(7) The owner shall furnish a bond indicating the above conditions to be observed by him.

The petitioner being aggrieved by the terms and conditions set out by the Authorised Officer has now come up with this petition to quash the proceeding contending that he had no knowledge about the use of the vehicle for transporting the contraband forest produce. It has also been stated that he being a resident of West Bengal is not in a position to furnish property security. It is also stated that he is unable to furnish cash security due to his poor financial condition.

4. The learned counsel for the petitioner contended that in absence of any material to show that the vehicle was used in the commission of any forest offence with the knowledge and connivance of the petitioner or the driver, the confiscation proceeding drawn up u/s 56 of the Orissa Forest Act is improper and is liable to be quashed. The learned Additional Govt. Advocate appearing for the State vehemently objected to the contention raised by the learned counsel for the petitioner and contended that it is not a case where there is no material to proceed with the case, it is not disputed before us that the vehicle has been seized along with 143 pieces of sal sizes while the same was carrying the aforesaid load without any transit permit. However, relying on the provision of Section 56(2-d) of the Orissa Forest Act, 1972 and the law laid down by the apex Court in Assistant Forest Conservator and Others Vs. Sharad Ramchandra Kale, , wherein the apex Court refused to interfere with the order passed by the High Court setting aside the order of confiscation on the ground that the authorities had failed to establish that the owner of the truck had any knowledge that his truck was likely to be used for carrying the forest produce in contravention of the provision of the Forest Act contended that since the materials on record do not show that the owner or the driver had any knowledge that the truck was likely to be used for carrying the forest produce, the proceeding is liable to be quashed. But after hearing the learned counsel for both sides and on perusal of the petition and other papers, it is noticed that on the report of Namilal Ray''s case under Sections 379/34, I. P. C. has been registered. During investigation it came to light that one Chiranjibi was driving the truck with the load when the vehicle met with the accident. In order to show that the vehicle was used in the commission of the forest offence without the knowledge or connivance of either the owner or the driver and they took all necessary precautions against such use the petitioner''s counsel took us through the F. I. R. and the C. O. of C. R. Case No. 290 of .1997 corresponding to Odegaon, P. S. case No. 52 of 1997 initiated on the report of the driver, Namilal Ray. In the said police case, the present petitioner Ganesh Chandra Bandopadhyay alias Banarjee was examined by the Investigating Officer and his statement has been recorded u/s 161, Cr. P. C. In the said statement, the petitioner has stated that he authorised the driver, Namilal Ray, son of Sudish Ray to drive the truck to carry woods on hire. The confiscation proceeding is still pending and has not yet been disposed of finally. Whether owner or the driver had the necessary knowledge or not and whether they have connived or not are all disputed questions of facts which are not normally entertained by the writ court. As has been indicated earlier, it is not a case of total absence of material. On the other hand, we find that the petitioner himself in his statement given to the police u/s 161, Cr. P. C. in the above noted C. R. case has stated that he authorised the driver, Namilal Ray, to drive the truck to carry woods on hire. So, under the circumstances, the petitioner cannot also get the benefit of the case law relied on by him at this stage.

5. In the above premises, the petitioner''s, claim that he had no knowledge about the use of the vehicle in the commission of a forest offence cannot be accepted at this stage. Whether the above statement along with other circumstances appearing against the petitioner are sufficient or not to conclude the case against the petitioner is a matter of appreciation of evidence by the Authorised Officer. So far as the order passed by the Authorised Officer directing interim release of the vehicle in favour of the petitioner is concerned, we do not see any impropriety in the order passed by the Authorised Officer. Hence, we also decline to interfere with the same.

The writ petition is accordingly dismissed.

S.N. Phukan, C.J.

6. I agree.