The aforesaid determination brings me to the factual matrix
of the case in hand. The Authorized Forest Officer in exercise of
power under Section 39(1)(d) of the Act of 1972 has directed
confiscation of the vehicle in favour of the State Government but
the criminal case initiated for commission of offence against the
petitioners under Sections 9,44,51,25,26 (28) of the Act, 1972 is
pending consideration before the jurisdictional criminal court; and
at present there is no finding recorded by the criminal court that
the petitioners' vehicle has been used for committing offence. In
absence of such finding by the competent criminal court, the
provisions of Section 39(1)(d) of the Act, 1972 cannot be invoked
into. The order of the Specified Officer forfeiting the vehicle
without awaiting the decision of the competent criminal court
about use of offending vehicle in above-stated offence is without
jurisdiction and without authority of law in light of the decision
rendered by the Full Bench of the Madhya Pradesh High Court in
the matter of Madhukar Rao (supra).
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No. 57 of 201 4
Mohammad Shoaib, S/o Rafiq Mohammaad, V The State of Chhattisgarh,
Hon'ble Shri Justice Sanjay K. Agrawal
DATED: 05 /0 4 /201 6
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The grievance of the Petitioner that she was not given
sufficient opportunity is baseless in as much as she was given notice as
contemplated under section 61B of the said Act and she had appeared
before the authorised Officer.
10. Her stand before the authorised Officer was that she was
not in any manner responsible for the activities of Harshad Thakare as
the vehicle was in exclusive possession of Harshad Thakare. Learned
counsel Mr. Shaikh has submitted that the vehilce was being plied as
taxi and Harshad Thakare was not supposed to use the vehicle for any
illegal purposes. It was submitted that since the vehicle was in
exclusive possession of Harshad Thakare the Petitioner cannot be held
vicariously liable for the activities of Harshad Thakare.
11. The Petitioner had failed to produce any document either
before the authorised Officer or before the Appellate Court to prove
that the vehicle was given to Harshad Thakare on hire. The liability of
the registered owner of the vehicle under the said Act is absolute
liability and burden cast upon the registered owner cannot be
discharged by preponderance of probabilities. It is not the law that
the registered owner has to probabilise his case. The law on the point
is very well settled that registered owner of the vehicle has to prove
his case before the authorised Officer that the vehicle was used for
forest offence without his knowledge and connivance. Hon'ble
Supreme Court while dealing with the similar issue in the matter of
State of West Bengal Vs. Mahua Sarkar Reported at AIR 2008 SC 1591 has said at para 9 as
under :“
9. The requirement is mandatory that the owner
has to prove that he had no knowledge or had not
connived. It is a matter which is within his
knowledge. Mere assertion without anything else
will not suffice. There is another requirement that
either he or his agent, if any, or the person incharge
thereof had taken all reasonable and
necessary precaution against such use. This aspect
has to be established by the concerned person by
sufficient material. As noted above, mere assertion
in that regard could not be sufficient.”
12. As such, assertion of the Petitioner that vehicle was given
to Harshad Thakare on hire basis cannot be accepted unless there is
sufficient material to support the assertion. There was no oral
evidence or any documentary proof either before the authorised
Officer or before the Appellate Court to prove the assertions of the
Petitioner. If there was no agreement in writing, the Petitioner at least
could have examined some witnesses to show that vehicle was being
plied by Harshad Thakare exclusively as a passenger vehicle. As such,
in my opinion the Petitioner has failed to discharge burden cast upon her. The order of the authorised Officer therefore was absolutely
correct.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3678 OF 2013
Mrs. Kavita Sandip Tandel,
Versus
The State of Maharashtra
The Authorized Officer &
Assistant Conservator of Forest, Wild
Life Sanctuary Tansa, Shahapur,
DistrictThane.
CORAM:M.
L. TAHALIYANI, J.
DATED : 23rd MARCH, 2015.
Citation; 2015 ALLMR(CRI)2760
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