http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF M.P.

       Vs.

RESPONDENT: SURESH KUMAR

DATE OF JUDGMENT:       07/02/1997

BENCH: J.S. VERMA, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.P. KURDUKAR, J.      This appeal  by Special  Leave is filed by the State of Madhya Pradesh  challenging the  legality and correctness of the judgment  and order  dated 2nd  January,  1996  in  writ petition No.  701 of  1994 passed by the Madhya Pradesh High Court at Jabalpur. 2.   The facts in brief are as under:-      The respondent  herein is  the owner of a truck bearing registration No.  MPW-4015. it  is a common premise that the said truck was used to be given on hire for transporting the goods. It  is claimed  by the  owner that  he had  engaged a driver to ply the truck. 3.   On receipt  of a  secret information.  a direction  was given to the forest employees of Maksudangarh, forest region to cordon  the area  at 2.00  a.m. on  17th January, 1991 to check illegal transportation of the forest produce. At about 2.00 a.m.,  a truck  was spotted  near Kalapatha and when it was tried to be stopped by the forest employees, the inmates of the  said truck  opened fire  from the  fire arm and fled away. The  cleaner of the said truck was however apprehended on the  spot. The truck was then brought to the forest depot and it  was revealed  that it  was carrying 120 logs of teak wood covered  by tarpoline. The truck and the forest produce were seized and a necessary information was forwarded to the Regional Officer,  Maksudangarh on  the same  day. The Chief Judicial Magistrate,  Raghogarh court,  was duly informed on 18th January, 1991 by the Competent Authority. On conclusion of the  preliminary investigation,  confiscation proceedings were initiated  by the  Competent Authority (SDO), Beenaganj under Section  15(4)(6)  of  the  Madhya  Pradesh  Van  Upaj (Vyapar Viniyamar  1969)  Amendment  Act,  1986  (for  short ‘Adhiniyam’).   The    Competent   Authority    during   the confiscation  proceedings  recorded  statements  of  various forest employees  and called  upon the  respondent to cross- examine them  if he  so desired. From the record, it appears that he declined to cross-examine any of these witnesses. In defence, the  respondent got  recorded his  statement and he was cross-examined by the Competent Authority. 4.   On conclusion  of  the  confiscation  proceedings,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Competent  Authority   by  its   order  dated   Nil  ordered confiscation of  the truck  in exercise  of its powers under sub Section  (6) of  Section  15  of  the  Adhiniyam.  Being aggrieved by  the order  passed by  the Competent Authority, the  respondent   preferred  an   appeal  to  the  Appellate Authority which  by its  order  dated  23rd  February,  1993 dismissed the  appeal and  confirmed the order passed by the Competent Authority.  The respondent  thereafter  challenged these orders  before the  Sessions Judge. Shivpuri by filing Criminal Revision No. 61 of 1993. The learned Sessions Judge vide his  judgment and  order dated 22nd March, 1994 allowed the Revision  Application and set aside the orders passed by the forest Authorities. The State of M.P. impugned the order passed by  the  Sessions  Judge,  Shivpuri  by  filing  writ petition under  Article 227  of the  Constitution  of  India before the  Madhya  Pradesh  High  Court  at  Jabalpur.  The learned Judge,  however, vide  his judgment  and order dated 2nd January, 1996 dismissed the writ petition. It is against this order  passed by  the learned  Judge of the High Court. the State of Madhya Pradesh has filed this appeal. 5.   We heard  the  learned  counsel  for  the  parties  and perused the  impugned judgment  and the relevant material on record. The main thrust of the High Court judgment is breach of Section  15(5) and  (6) of  the Adhiniyam.  While dealing with these  provisions,  the  High  Court  appears  to  have affirmed  the   view  of   the  Revisional  Court  that  the respondent-truck owner  was not  provided with  proper legal assistance. The High Court then observed:-      "Under Section 15 of the Adhiniyam.      the criminal  liability has  to  be      proved. This  proof was  missing in      this case."      In para  6 of  the impugned  judgment, the  High  Court observed:-      "A reading  of Section 15(6) of the      Adhiniyam makes it apparent that an      order of  confiscation is not to be      made unless  and until  it is shown      that the  person making  use of the      vehicle  was   doing  so  with  the      knowledge  or   connivance  of  the      owner.  In   the  present  case  as      rightly pointed out by the Court of      Sessions, the  owner of  the  truck      was not  subjected  to  the  cross-      examination    by     the     State      authorities  that   the  owner  had      authorised his  driver to take part      in  the  illegal  transaction.  The      owner of  the truck  was  also  not      aware that his truck is going to be      used   for    the   purposes    not      permissible under the Adhiniyam."      To support  this reasoning,  the learned  Judge of  the High Court  relied upon  the decision of this Court in State of Madhya  Pradesh Vs.  M/s  Azad  Bharat  Finance  Co.  and another. AIR  1976 SC  276 and  in  particular  paragraph  5 therein. Consistent with the aforesaid conclusions, the High Court held "the owner of the truck was also not subjected to any cross-examination by the State authorities. As such, the order  passed   by  the  Court  of  Sessions  calls  for  no interference  under  Article  227  of  the  Constitution  of India." 6.   We are  however unable  to uphold  the reasons given by the Sessions  Judge and affirmed by the learned Judge of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

Madhya Pradesh  High Court  at Jabalpur  for  the  following reasons. 7.   It is needless to reproduce entire Section 15 since the High Court  has mainly  relied upon  sub Section  (6)  which reads as under:-      "(6)-No order of confiscation under      sub  Section   (4)  of  any  tools,      Vehicles, boats,  ropes, chains  or      any  other   articles  (Other  than      specified  forest  produce  seized)      shall  be   made  if   any   person      referred to  in clause  (b) of  sub      section   (5)    proves   to    the      satisfaction f  authorised  officer      that  any   such  tools,  vehicles,      boats,  ropes,   chains  or   other      articles  were   used  without  his      knowledge or  connivance or  as the      case may  be, without the knowledge      or connivance  of  his  servant  or      agent and   that all reasonable and      necessary  precautions   had   been      taken  against   use   of   objects      aforesaid  for   commission  of  an      offence under this Act."      (reproduced from  the  judgment  of      the High Court)      A bare  reading of sub Section (6) of Section 15 of the Adhiniyam quoted hereinabove shows that the burden is on the owner to prove to the satisfaction of the authorised officer that  his   vehicle  was   used  without  his  knowledge  or connivance and that all reasonable and necessary precautions were  taken  by  him  against  use  of  his  truck  for  the commission  of  an  offence  under  this  Adhiniyam.  During confiscation proceedings,  the Competent  Authority recorded the statements  of various  forest employees  including  the officers and  permitted the respondent to cross-examine them but he  failed to  avail of the said opportunity. The forest employees when  tried to  stop the truck, one of the inmates of the truck tried to scare these forest employees by firing a shot  from the  fire arm  and thereafter  escaped from the truck to  avoid being  caught. This  would unmistakably show that the  truck driver  and other  inmates were  involved in illegal activities forbidden by Adhiniyam. It also cannot be overlooked that  the concealment  of 120  longs of teak wood was arranged  perfectly by  putting tarpoline over the longs to avoid  its detection. These facts were held proved by the forest authorities  and on  these proved  facts, the  forest Authorities concluded  that  the  driver  of  the  truck  in connivance with  the other inmates of the truck was carrying the wooden  longs illegally. Under sub Section (6) burden is cast upon  PDS of the truck to prove that his truck was used for illegal  activities without  his knowledge  and not with his connivance.  The statement of the owner of the truck was recorded by  the Competent  Authority  and  the  explanation sought to  be given by him did not find favour with the said authority. The  respondent owner  did not  produce any other material on record to discharge the burden under sub Section (6). If  this be  so, it  cannot be  said that the Competent Authority and the Appellate Authority committed any error in coming to  the conclusion  that  the  respondent  owner  has failed to  satisfy the  authorised officer  that the illegal activity committed  by the  driver of  the truck was without his  knowledge   or  connivance.  Mere  ipse  dixit  of  the respondent owner cannot be said to be sufficient evidence to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

discharge burden  under  15(6)  of  the  Adhiniyam.  In  our opinion,  the   High   Court   has   totally   misread   and misinterpreted provisions  of Section  15(6). We, therefore, cannot sustain  the reasoning  of the  High  Court  and  the Sessions Court as regards interpretation of Section 15(6). 9.   Coming to  the reported decision of this Court in State of Madhya  Pradesh  Vs.  Azad  Bharat  Finance  Co.  &  anr. (supra), it  was a  case where  offence was  alleged to have been committed under Sections 9(a) and 9(b) of the Opium Act as modified  by the Opium Madhya Bharat Amendment Act, 1955. This Court  was called  upon to decide as to whether the use of the  word "shall" in Section 11 of Madhya Bharat Act gave no option  but to  confiscate the  truck.  While  construing those provisions, this Court held:-      ".....the use  of the  word "shall"      does  not   always  mean  that  the      enactment    is    obligatory    or      mandatory;  it   depends  upon  the      context in  which the  word "shall"      occurs      and      the      other      circumstances."      This decision,  in our  opinion,  would  not  make  any difference having  regard to  the facts and circumstances of this case.  Since the respondent owner failed to satisfy the Competent Authority  and the Appellate Authority as required under  Section   15(6),  we  do  not  think  that  the  said authorities have committed any breach of the said provision. In view  of the  proved facts  of this  case, the  order  of confiscation of the truck cannot be said to be arbitrary. 10.  It was  contended on  behalf of  the respondent that he was not  provided with  proper assistance  and therefore, he was deprived of benefit of Article 39(a) of the Constitution of India.  We see no substance in this contention because it was not  the  case  of  the  respondent  before  the  forest officers or  the courts  below that  he applied for grant of more time  to seek  legal advice and assistance but the same was  denied.   The  High   Court  and   the  Sessions  Court erroneously assumed  that there was denial of an opportunity to the  respondent. The  finding of  the Sessions  Court and affirmed by the High Court in this behalf, therefore, cannot be sustained. 11.  For the  foregoing conclusions, we allow the appeal and set aside  the judgment of the High Court dated 2nd January, 1996 affirming the judgment and order dated 22nd March, 1994 passed by the Sessions Judge, Shivpuri and restore the order passed by  the Appellate  Authority on  23rd February, 1993. The respondent is directed to pay the cost of this appeal to the appellant.