The State of Tamil Nadu v. Subbulakshmi

In the High Court of Judicature at MadrasDated: 16.07.2009CORAMTHE HONOURABLE Mr. JUSTICE S.NAGAMUTHUWrit Petition No.9237 of 1999---The State of Tamil Nadurep. by its Secretary to GovernmentEnvironment and Forests DepartmentFort St. George, Chennai 600009... Petitionervs1. Subbulakshmi2. The Additional Sessions Judge Villupuram. .. RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorari to call forthe records in Crl.A.No.27 of 1997 on the file of the AdditionalSessions Judge, Villupuram and quash the same. For Petitioner : Mr.S.N.Kirubhanandam Spl. Govt. Pleader (Forest) assisted by Mr.K.Rajasekar Govt. Advocate (Forest)For Respondents : No Appearance--- O R D E RThe lorry bearing Registration No.KED 8679 was seized on08.12.1996, as the same was found carrying sandalwood in violation ofthe provisions of the Tamil Nadu Forest Act. The said vehicle wasowned by one Mr.Nagendran. The first respondent purchased the saidvehicle on 04.11.1996, but the registration was not transferred inthe name of the first respondent. The first respondent made anapplication to the authority requesting for return of the vehicle toher contending thereby that she had no knowledge that the driver ofthe vehicle in whose charge the vehicle was entrusted would use thesame for such an illegal purpose. Rejecting the said contention, theAuthorised Officer viz. The District Forest Officer, Villupuram, byorder dated 31.01.1997, ordered confiscating the said lorry in favourof the Government. Challenging the same, the first respondent https://hcservices.ecourts.gov.in/hcservices/ preferred an appeal before the Sessions Judge, Villupuram inCrl.A.No.27 of 1997. By order dated 05.08.1998, the learned SessionsJudge allowed the appeal and set aside the order of the DistrictForest Officer. Challenging the said order, the State has forwardwith this writ petition come before this Court.2. I have heard the learned counsel for the petitioner andperused the records. Despite the service of notice on the firstrespondent, she has not appeared.3. When the writ petition was heard, a question arose as towhether this writ petition is maintainable and whether an alternativeremedy is available under Section 397 Cr.P.C. by way of revision. Aperusal of Section 49-D of the Tamil Nadu Forest Act (hereinafterreferred to as "the Act") would show that as against an order underSection 49-B of the Act, an appeal lies to the Sessions Judge and thesaid order of the Sessions Judge is final. Sub section 2 to Section49-D of the Act, provides that an order of Sessions Judge under subsection (1) shall be final and shall not be questioned in any Courtof law. Since the order of the Sessions Judge has been declared tobe final under the statue, the question is as to whether the saidorder can be challenged by way of revision under Section 397 Cr.P.C.,as any order of inferior Criminal Court can be questioned by way ofrevision before the High Court. 4. The learned counsel appearing for the petitioner would submitthat under Section 49-D(2) of the Act, the power of the High Courtunder Sections 397 and 401 as well as Section 482 of the Code ofCriminal Procedure stands ousted. When a similar question arosebefore the Karnataka High Court in respect of a similar provisionfound in the Karnataka Forest Act, there were conflicting viewsexpressed by two Division Benches. Therefore, the matter wasreferred to a Full Bench in A. Yadava vs. Authorised Officer (2006Crl.L.J.1568). The Full Bench had taken note of the law laid down bythe Hon'ble Supreme Court in the cases of State of West Bengal vs.Sujit Kumar Rana [(2004) 4 SCC 129], State of Himachal Pradesh vs.Dhanwant Singh [2005 SCC (Crl) 248) and also having taken note of therelevant provisions of the Code of Criminal Procedure as well as theForest Act, ultimately held that the power of the High Court underSections 397, 401 and 483 of Cr.P.C. stands ousted by the Forest Act.The Full Bench has held that the remedy available for an aggrievedagainst the order passed by the Session Judge is only under Articles226 or 227 of the Constitution of India.5. Section 71-D of the Karnataka Forest Act and Section 49-B and49-D of the Act are in pari materia. Having regard to the specificbar contained in Section 49-D(2) of the act, I fully agree with theview taken by the Karnataka Full Bench in A.Yadhava's case (citedsupra). Thus, I hold that the writ petition is maintainable and theorder passed by the Sessions Judge under Section 49-D of the Act, https://hcservices.ecourts.gov.in/hcservices/ cannot be called in question by way of revision either under Sections397 and 401 of Cr.P.C. or under Section 482 Cr.P.C.6. Now, coming back to the facts of the case, it is contented bythe learned Special Government Pleader that the first respondent hadfull knowledge that the vehicle would be used for illegal purpose andtherefore the order of the Sessions Judge is liable to be set aside.A perusal of Section 49-D(2) of the Act, would make manifestly clearthat it is the duty of the owner of the vehicle to prove to thesatisfaction of the Authorised Officer that the vehicle was used incarrying timber without the knowledge or connivance of her. 7. The learned counsel for the petitioner placed reliance on thedecision of the Supreme Court in State of West Bengal Vs Mahua Sarkar(2008 (12) SCC 763) wherein while dealing with a similar provision inthe West Bengal Forest Act, the Supreme Court has held as follows:"So under Section 59-B(2), it is the owner, whohas to prove that the vehicle was used in carryingtimber or other forest produce without his knowledge orconnivance or that of his agent. This requirement ismandatory. It is a matter which is within hisknowledge. There is another requirement that either heor his agent, if any, person in charge thereof hadtaken all reasonable and necessary precaution againstsuch use. These aspects have to be established by theperson concerned by the sufficient materials Mereassertion without anything else will not besufficient."8. From the above judgement, it could be seen that the owner ofthe vehicle has got burden to prove not only the absence ofknowledge, but also that he had taken all precautions against theillegal use of the vehicle. 9. Keeping in mind the above principle, if the facts are lookedinto, the claim statement made by the first respondent would showthat she has only pleaded that the lorry was used for illegal purposewithout her knowledge. She has not stated in the claim statementthat she had taken all precautions to prevent the lorry being usedfor such illegal purpose. No evidence whatsoever is let in on behalfof the first respondent to discharge the above burden to prove boththe aspects. Except mere assertion, no other material evidence,either oral or documentary, has been placed to prove the aboveaspects. But, the lower Court has considered only the burden inrespect of absence of knowledge. A perusal of the order of the lowerCourt would reflect that the lower Court has not considered that thefirst respondent had not taken any such precaution to prevent thelorry from being used for such illegal purpose. Thus, the impugnedorder of the lower Court is not sustainable. https://hcservices.ecourts.gov.in/hcservices/

10. In the result, the writ petition is allowed. The order ofthe lower Court in Crl.A.No.27 of 97 is set aside and the order ofconfiscation passed by the Authorized Officer is restored. No costs.ATRSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government State of Tamil Nadu Environment and Forests Department Fort St. George, Chennai 600009.2. The Additional Sessions Judge Villupuram.+ 1 cc to Special Government Pleader (Forest) ccSr.31663/09.W.P.No.9237 of 1999 KGK(CO)EU 5.8.2009.