State of Madhya Pradesh Now Chhattisgarh vs Krishna Kaniva Paddy and Another

Hon''ble Shri Prashant Kumar Mishra, J.—This writ petition has been preferred to challenge the revisional order passed by Sessions Judge, Bastar at Jagdalpur on 21st August, 1997 allowing the criminal revision preferred by respondent, owner of the truck, and setting aside order passed by the prescribed authority on 21/08/1996 directing confiscation of the truck and the order of affirmation passed in appeal by the Conservator of Forest Jagdalpur vide Annexure P/5 dated 26/12/1996. Facts of the case, briefly stated, are that Forest Guard Sudan Prasad Bharti found 5 logs of Sal trees ad- measuring 0.520 cubic meter at Aasna Bakawand Road. The forest employees gathered information that the wooden loss shall be transported to Jagdalpur in the night. Forest Ranger was informed and they made preparations for arresting the person red handed. At about 10.30 p.m., as soon as one Tata 407 vehicle came to the spot and started loading the wooden logs, the vehicle was encircled, however, the driver and his friend succeeded in escaping from the place. Forest offence was registered and the vehicle was brought to the Range Office and after completing the investigation show cause notice was served on the respondent to which he replied that he is not at fault and neither he nor his driver Limsar was present at the time when the vehicle was intercepted.

In course of enquiry the forest department as well as the respondent submitted evidence and examined witnesses, however, in spite of serious efforts Limsar could not be examined though in course of preliminary enquiry his statement was recorded by the Forest Officer. The respondent defended the action on the ground that he had no knowledge or information about the transportation of wooden logs and therefore he had no knowledge or consent for any such transportation and no case u/s 52 of the Forest Act is made out against him. The prescribed authority, on appreciation of material available on record recorded a finding that the owner of the vehicle failed to examine his driver Limsar to prove that even he had no knowledge about the transportation of wooden logs in the vehicle, therefore, it cannot be said that the respondent/owner of the vehicle had no information or knowledge about the transportation of forest produce. This finding of the prescribed authority has been affirmed by the appellate Court.

The Sessions Judge has set-aside the orders passed by the prescribed authority and the appellate authority only on the ground that in the absence of the driver having been examined, there is no proof that Limsar was available on the spot when the vehicle was intercepted and thus the owner has been able to prove that he had no knowledge about the alleged incident.

Shri Satish Gupta, learned counsel for the petitioner would submit that the order passed by the revisional Court is not only illegal and arbitrary but has been passed with material irregularity in exercise of jurisdiction inasmuch as pure finding of fact recorded by the prescribed authority and affirmed by the appellate authority has been unsettled in revisional jurisdiction which is not permissible in law.

u/s 52(5) of the Indian Forest Act, 1927 the burden to prove that the forest offence has taken place without the knowledge or connivance of the owner or of his servant or his agent and that all reasonable and necessary precautions had been taken against use of objects aforementioned for commission of forest offence lies on the owner of the vehicle. Such findings about bonafides of the owner and his instructions to the driver to prove his innocence are pure finding of fact. The prescribed authority as well as the appellate authority on appreciating the evidence available in the record concluded that the owner of the vehicle has failed to prove his innocence and further his driver Limsar having not been examined he having refused to accept the notice for being a witnesses of the case, the owner has failed to discharge the burden.

In the matter of State of West Bengal and Another Vs. Mahua Sarkar, the Hon''ble Supreme Court has held that in proceedings for confiscation of the vehicle carrying illicit timber, the onus is on the owner of the vehicle to prove to the satisfaction of the authorized officer that the vehicle was used in carrying timber without his or his agent''s knowledge or connivance and that all reasonable and necessary precaution against such use had been taken and further that the owner has to prove this on the basis of sufficient material and not on the basis of mere assertion. In the said case the authorized officer had passed an order of confiscation and the District Judge dismissed the appeal preferred by the vehicle owner. The order was set-aside by the High Court by allowing the writ petition filed by the vehicle owner. The Hon''ble Supreme Court, while allowing the appeal, observed that the High Court erroneously allowed the writ petition filed by the vehicle owner without properly analyzing the position.

In the matter of AIR 2000 3495 (SC) the Hon''ble Supreme Court has held that in exercise of its power and jurisdiction under Article 227 of the Constitution of India the High Court may correct errors of jurisdiction and the like but not to upset pure findings of fact, which fall in the domain of an appellate Court only.

In the matter of B.K. Muniraju Vs. State of Karnataka and Others, has been held in para 22 thus :

It is settled law that a writ of certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of certiorari can be issued only if in recording such a finding, the tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. It is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ.

In the matter of Krishi Utpadan Mandi Samiti and another Vs. Ved Ram reported in (2012) 4 SCC 496 the following has been held in para 27 :-

At any rate, the Samiti and the Deputy Director have concurrently held that the respondent Company has not been able to rebut the presumption u/s 17 of the Adhiniyam. We see no reason to interfere with that finding especially when the appraisal of the evidence by the said two authorities has not been shown to us to be in any way perverse to warrant interference with the same.

In view of the above law laid-down by the Hon''ble Supreme Court it is now settled that the revisional authority exercising powers u/s 52B of the Act, 1927 cannot ordinarily set-aside finding of fact recorded by the Courts below unless the said finding is absolutely perverse and has been arrived at by complete misreading of the statement of witnesses or ignoring settled provisions of law, however, the revisional Court has set-aside the findings of the fact as if it is exercising appellate powers.

In view of the findings recorded by the prescribed authority and the appellate authority, this Court is of the considered opinion that the revisional Court has exceeded its jurisdiction while passing the impugned order and therefore, the impugned order deserves to be quashed in exercise of power under Article 227 of the Constitution of India. The impugned order is accordingly quashed and the writ petition is allowed.