Parveen Kumar Gautam vs State of H.P. and Another

A.L. Vaidya, J.—The present petition has been preferred under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, assailing the order dated 17th December, 1994, passed by the learned Sessions Judge, Shimla, in Criminal Appeal No. 19-S/10 of 1993.

The facts giving rise to the present proceedings are that Forest Range Officer, Nichar was informed by Shri Bharat Singh, Forest Guard, Incharge Chaura beat on 26.6.1992 at 3 P.M. that a truck No. HPH-2121 was parked at Chaura Nala on National Highway-22 and upon receipt of this information, the Range Officer accompained by S/Sh. Punu Ram, Deputy Ranger, Mohinder Singh and Bharat Singh, both forest guards, rushed to the spot and found that the Truck No. HPH-2121 stationed there was covered with tarpaulin and had 109 numbers of deodar sleepers valued at Rs. 2,07,184/- loaded in the truck. Nobody was found at the spot, neither were any documents relating to carriage of the timber e.g. export permit etc. recovered from the truok. The timber itself was not having any hammer or property or khudan mark. No documents relating to the truck, i.e. Log Book, Registration Certificate or Driving Licence were found. Thereafter, the Range Officer went to Sungra Police Station and registered the FIR No. 44/92. The Police party came to the spot and the truck alongwith the sleepers was taken to Sungra Police Station. The truck was then brought by the Range Officer to Nichar on 2.7.1992 and was kept in the custody of Shri Amir Chand, Forest Guard.

The Authorised Officer, who happened to be Divisional Forest Officer, Nichar Forest Division, as per provisions of Section 52-B(1) of the Indian Forest Act(hereinafter to be called as " the Act") issued show cause notice to the owner of the truck, who happened to be the present Petitioner, as to why the truck should not be confiscated.

Shri Parveen Kumar, in reply to the show cause notice, stated that he was in no way connected with the offence and he submitted that the truck driver was Shri Ram Kumar S/O Sh. Telu Ram R/O village Santokhgarh and that on 24.6.1992, the truck had gone to Chandigarh with vegetables, with further instructions to take vegetables to Shimla or upper side and bring vegetables from Shimla or upper side to Chandigarh. It was also stated in the reply that at Chandigarh Shri Ram Kumar got some stomach trouble and, therefore, handed over the truck to one Kamal Kishore who was also a driver and well known to Shri Ram Kumar, as well as to the owner. It was also replied that Kamal Kishore loaded some domestic articles for Jeori Distt. Shimla, but did not come back with the truck in time and thereafter the owner started the search of his truck and he came to know about the seizure of the truck from other transporters plying in the region.

The Authorised Officer came to the conclusion, after appreciating the evidence examined before him, that the owner has failed to bring his case within the ambit of Section 52-B(2) of the Act and, therefore, ordered the confiscation of the truck in favour of the State of H.P.

The aforesaid order passed by the Authorised Officer was assailed in an appeal before the learned Sessions Judge, Shimla who, after hearing the parties, dismissed the appeal and maintained the order of confiscation.

Though the present petition, the aforesaid order of confiscation has been assailed and prayed to be quashed.

I have heard the learned Counsel for the parties and have also gone through the entire record.

The learned Counsel for the Petitioner has submitted that the case of the Petitioner comes within the ambit of Section 52-B(2) of the Act. The aforesaid provision runs as under:

52-B(2) Without prejudice to the provisions of Sub-section(1), no order confiscating any tool, rope, chain, boat or vehicle shall be made u/s 52-A if the owner of the tool, rope, chain, boat or vehicle proves to the. satisfaction of the authorised officer that it was used in carrying the timber(excluding fuel wood), resin, khair wood and katha without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the tool, rope, chain boat or vehicle and that each of them had taken all reasonable and necessary precaution against such use.

There is no doubt that there is practically no direct evidence examined before the Authorised Officer that the owner of the truck had the knowledge or was in connivance for the use of the truck in the manner it has been so done. u/s 52-B(2) of the Act, it is not only that connivance of the owner in the occurrence is to be taken note of, but in addition to that, in order to gain the benefit of Section 52-B(2), it has to be additionally seen that in the absence of the owner of the vehicle, whether he, his agent, if any, and the person-in-charge of the vehicle had taken all reasonable and necessary precaution against such use. In the present case, as per the representation made by the owner before the Authorised Officer, Ram Kumar was the driver of the vehicle who, according to the Petitioner, was not driving the vechicle at the time of the occurrence, but some other person, named shri Kamal Kishore, was driving the vehicle, to whom the vehicle had been entrusted by Ram Kumar. It is a little strange to note that this Kamal Kishore could not be examined before the Authorised Officer, as he was not available inspite of notices being issued to him. Ram Kumar, no doubt, in his affidavit has stated that he and the owner knew Kamal Kishore very well and that Kamal Kishore had been driving this very vehicle about a year back. However, the log book, as referred by the Authorised Officer, shown by the police, recorded that Parveen Kumar himself Was driving the truck a year back.

The evidence examined before the Authorised Officer does not at all establish this fact that the owner or the person-in-charge and that each of them had taken all reasonable and necessary precaution against such use of the truck. what was the precaution taken by the owner in this behalf, there is nothing on record. What precaution had been taken by the driver, does not amount to a reasonable and necessary precaution against such use of the truck. According to Ram Kumar, driver, he fell ill and handed over his truck to Kamal Kishore who is alleged to have committed the alleged offence. This Kamal Kishore was never produced. The alleged ailment of Ram Kumar has not been relied upon by the Authorised Officer. A truck was found abandoned, loaded with illicit sleepers. Who-so-ever was the driver or owner of that illict timber, were not present when the timber and truck were seized. The aforesaid circumstances clearly indicated that neither the owner nor the driver had taken all reasonable and necessary precaution against such use of the truck as was made in the present case.

The Authorised Officer has, in detail dealt with the entire case in a most appropriate manner. On the basis of the evidence examined by the Authorised Officer, he came to the following conclusions:

i) That truck''s movement being suspicious and not recorded at Police Barrier, Parwanoo and Boileauganj;

ii) The dropping of the usual cleaner Shri Palu, before the departure of the truck on 24.6.1992 to Chandigarh;

iii) The entries in the log book showing that Shri Parveen Kumar Gautam himself drove the truck upto 26.4.1992:

iv) The complete absence of the name of Ram Kumar from the log book, who is claimed to have been the regular driver;

v) The absconding of every person when the forest party made the seizure;

vi) The missing of important documents from the truck, like, registration certificate, driving licence etc.

The order passed by the Authorised Officer and maintained by the learned Sessions Judge, after hearing the parties, does not require any interference by this Court by invoking the inherent/other powers under Code of Criminal Procedure.

In view of the fore-going reasons, the present petition, being devoid of any merit, is accordingly dismissed.

Cr. M.P. No. 18/95:

In view of the above, this petition does not survive and stands disposed of accordingly.