CITATION

AIR 1992 Ori 287

FACTS

The truck of the petitioner was found at Vochibahal check gate to have been carrying dry and processed Kendu leaf bags. The petitioner was himself driving the vehicle. At the check gate, the petitioner produced some documents showing authority to transport the Kendu leaves from Purjang to Bombay. The Forest Official who was in charge of the check gate suspected the genuineness of the documents and after having done some checking, he contacted the Range Officer, and rushed to the spot to find that the petitioner had disappeared leaving the truck. This strengthened the suspicion, because of which the truck was brought inside the compound of the Range Office. It was found that the permit in question authorising transportation as aforesaid was forged which assured the minds of the officers that the petitioner was involved in illegal transportation of the Kendu leaves from Purjang to Bombay. This led to the initiation of the confiscation proceeding, which ultimately terminated against the petitioner, whose appeal did not yield fruit.

ISSUE

Whether the judiciary can also legislate; if so, when and to what extent?

PETITIONER’S CONTENTION

Petitioner claimed that there being nothing to show that there was inter-district movement of Kendu leaves in the present case, no offence under the aforesaid Act had been committed. It was strenuously contended that there being nothing on record to show that the Kendu leaves had moved from Dhenkanal, the detection in the district of Sambalpur alone was not sufficient to establish the case of inter-district movement. If the petitioner had ‘intended’ transportation of the Kendu leaves from Purjang to Bombay a case of commission of the forest offence in question is not made out. It was also submitted that the petitioner could not have known about the illegal act of forging of the permit inasmuch as this became known to the check gate officers after a lot of enquiry was made. The petitioner being the owner only could not have known about the illegal act of the driver and so it cannot be said that he had any mens rea in the commission of the offence.

JUDGEMENT

The Kendu leave begs had admittedly been booked from Purjanb and as the detection was in the district of Sambalpur, it is evident that there was going to be inter district movement of the Kendu leaves. Moreover, it was stated that unless an attempt of committing an offence under a special or local law has been expressly made punishable by that law, aid of Section 511 of the Indian Penal Code cannot be taken. And in this case, petitioner has not been for any offence.

If a forest offence is committed even with the knowledge or connivance of the driver of the vehicle, the vehicle would be liable for confiscation even though the owner might not have any knowledge or connivance however, to escape the order of confiscation, it must be proved that each of the concerned persons named had taken all reasonable and necessary precaution against the use of the vehicle in respect of the commission of the forest offence. Which is lacking in the present case. As the driver ought to have been aware that inter district movement of Kendu leaves is restricted. And none of the parties i.e. owner and driver had taken reasonable and necessary precautions.

The Court was of the view that since the truck costed Rs 4lakh and the Kendu’s costed Rs 60,000 the driver of the vehicle could not have reasonably known about the forgery of the permit. Hence, confiscation was substituted with imposition of fine.

The question lies in the fact that Section 56(2-a) doesn’t have any provision for substitutability of confiscation with imposition of fine. Then how can the court opt for this solution. The court was of the firm view that if the deficiency in Section 56 (2-a), would have come to the knowledge of the legislature, it would have definitely provided for imposition of fine as an alternative punishment in those cases where the authorities may not be satisfied about the desirability of confiscation and may not also feel happy in allowing the owner of the vehicle to go scot-free.

So the court used its power to see whether they can impose fine instead of confiscation and for this they analysed the facts of the case. And it was held that the driver of the vehicle could not have known about the forgery as it was hard work for the officials to find out the fact of forgery. Another thing considered by the court was the value of vehicle and the value of Kendu leaves, they stated that their conscience does not permit them to see to the confiscation of a vehicle valued presently at about Rs. 4 lakhs because of its involvement in illegal transporting Kendu leaves valued at about Rs. 60,000. Despite this they didn’t want to send a wrong message to the public by leaving the owner scot free. Hence, they find this case suitable to use their power to interpret the statute.

CONCLUSION

The order of confiscation is set aside and instead, was awarded a fine of Rs. 60,000/-. The vehicle which is in the custody of the forest authorities will be released forthwith in favour of the petitioner on payment of the amount.