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
2. By consent of the parties the petition is taken up forthwith
for final hearing.
3. The Petitioner is aggrieved by the judgment and order
passed by the learned Sessions Judge, Thane, in Criminal Appeal
No.207 of 2011 whereby learned Sessions Judge has dismissed the
appeal filed by the Petitioner against the order of Authorised OfficercumAssistant
Conservator (Wild Life Sanctuary) Tansa, Shahapur,
Dist. Thane, passed under section 61A of the Indian Forest Act, 1927
(Maharashtra State Amendments).
4. The confiscation proceedings started followed by a seizure
of Mahindra Bolero Jeep, bearing No.MH04/
ED5284
under the
Indian Forest Act (hereinafter called as 'the said Act'). Said Bolero
Jeep was allegedly involved in forest offence punishable under section
26 of the said Act. The said Bolero Jeep was intercepted by the Forest
Officers near Tansa and it was found that it contained 50 teak wood
logs. There were three persons in the vehicle viz. 1) Harshad Subhash
Thakare, 2) Baliram Mahadu Bhoir and 3) Rama Navsu Zugre. There
was one more person who was also found on the spot where the
vehicle was confiscated. None of them could produce valid documents
in respect of teak wood and therefore, vehicle was seized under
provisions of the said Act and matter was reported to Assistant
Conservator of Forest, who initiated confiscation proceedings apart
from the prosecution to be launched against the accused persons.
5. The Petitioner is admittedly the registered owner of the
megha
vehicle. Therefore, she was also given opportunity of being heard
during the course of confiscation proceedings. It need not be
mentioned here that the confiscation proceedings under section 61A
of the said Act are independent of the prosecution to be launched
against the person who had violated the provisions of the said Act. In
this regard it may be noted here that the Petitioner has not been made
accused in the said forest offence.
6. After completion of enquiry as envisaged under section 61
and the succeeding sections, the authorised Officer came to the
conclusion that the above stated Bolero Jeep needs to be confiscated
to the State and he accordingly passed the order. Petitioner felt
aggrieved by the said order and therefore she filed an appeal. As
stated earlier appeal has been dismissed. Therefore, present writ
petition has been filed by the Petitioner.
7. Heard learned counsel Mr. S. A. Shaikh on behalf of the
Petitioner and learned APP, Mr. A.R. Patil on behalf of the State.
Perused the orders. Mr. Shaikh has submitted that (
a) Petitioner was not given sufficient opportunity of
being heard during the course of enquiry; and
(b) that the Petitioner has taken necessary care to see
that the vehicle was not involved in any illegal activity.
8. I have gone through the orders passed by the authorised
Officer and the learned Sessions Judge, Thane. Both of them have
dismissed the plea of the Petitioner that the vehicle was given on hire
to one Harshad Thakare. It was the case of the Petitioner before
authorised Officer as well as before Appellate Court that she had
purchased the vehicle after taking loan of Rs.5 lakhs from the Bank
and that she was unable to pay the installments. She therefore, had
given the vehicle on hire to Harshad Thakare. It was contended
before the authorised Officer and the Appellate authority that she was
not in any manner responsible or liable for the activities of Harshad
Thakare. She only believed that Harshad Thakare will ply the vehicle
as a passenger vehicle. Authorised Officer and the learned Appellate
Court both took the view that the Petitioner has failed to prove that
the vehicle was given on hire to Harshad Thakare. The finding given
by the authorised Officer and the learned Appellate authority is that
Harshad Thakare was driver of the Petitioner.
9. 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 Sarkar1 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
1 Reported at AIR 2008 SC 1591
her. The order of the authorised Officer therefore was absolutely
correct. The Appellate Court has rightly confirmed the view taken by
the authorised Officer. I do not find any substance in the petition.
13. The writ petition is dismissed accordingly.
(JUDGE)
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