Holding

Under Section 15(6) the owner must prove to the satisfaction of the authorized officer that the vehicle was used without his knowledge or connivance and that reasonable precautions were taken; the owner failed to meet this burden, so the confiscation order stands.

Summary

The State of Madhya Pradesh appealed against a High Court order that had set aside a confiscation order against the owner of a truck that was found carrying 120 teak logs illegally. The truck was stopped by forest officials; the occupants opened fire and fled, and the vehicle was seized under Section 15(6) of the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Act, 1969. The owner argued that he was not given legal assistance and that the burden of proof should not rest on him, invoking Article 39(a) of the Constitution. The Supreme Court held that the statutory provision places the onus on the owner to prove, to the satisfaction of the authorized officer, that the vehicle was used without his knowledge or connivance and that reasonable precautions were taken; the owner’s mere denial and failure to cross‑examine witnesses did not discharge this burden. Consequently, the confiscation order was upheld and the High Court’s judgment was set aside. The Court also rejected the claim of denial of legal assistance as unsubstantiated.

Issues considered

The burden of proof under Section 15(6) of the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Act, 1969 – whether it lies on the vehicle owner to prove lack of knowledge or connivance.
Whether the owner’s right to legal assistance under Article 39(a) of the Constitution was violated.
Whether the High Court erred in interpreting Section 15(6) and in holding that the owner’s failure to be cross‑examined invalidated the confiscation order.

Legislation cited

Constitution of Indias. Art.39(a)

Subjects

forestry lawconfiscationburden of proofvehicle owner liabilityillegal timber transportSection 15(6)Article 39(a)procedural fairnesscross‑examinationMadhya Pradesh Van Upaj Act

Judgment

A STATE OF M.P.
v. ...
SURESH KUMAR

'
FEBRUARY 7, 1997

B
[J.S. VERMA AND S.P. KURDUKAR, JJ]

,__ +
M.P. Van Upaj (Vyapar Viniyaman) Act, 1969: Section 15(6).
.,.
_

Forests-Search and seizure-Seizure of carrier-Confiscation of truck
c carrying forest produce illegally-Trnck was carrying 120 logs of teakwood
covered by tarpaulin and when it was tried to be stopped by fore st employees,
the inmates of the trnck had opened fire from fireann, and fled away-Forest
authority concluded that driver of trnck in connivance with other inmates was
carrying the logs illegally-Held: Burden on owner of truck to prove that his
D truck was not used in illegal activities without his knowledge or con-
11ivance-Owner of truck failed to produce any other material to discharge the
burden under S.15(6)-ln the circumstances of the case, competent authority "'
and the appellate authority committed no error in coming to the conclusion
that the owner had failed to satisfy the authorised officer that the illegal
activity committed by the driver of the trnck was without his knowledge or
E connivance-Mere ipse dixit of the owner cannot be said to be sufficient
evidence to discharge burden under S.15(6}-Contention that the owner was
not provided with proper assistance and, therefore, he was deprived of the
benefit of Art.39(a) has no substance since it was not the case of the owner
before the forest officers or the courts below that he applied for grant of more
1
F time to seek legal advice and assistance but the same was denied-Constitu-
tion of India, 1950, Art.39(a). '
The respondent was the owner of a truck, which was used to be given
on hire for transporting goods. The owner had engaged a driver to ply the
truck. On the day of occurrence, the forest area was cordoned to check

J
G illegal transportation of the forest produce. When the said truck was tried
to be stopped by the forest employees, the inmates of the said truck opened
fire from the firearm and fled away. The truck was then brought to the
forest depot and it was revealed that it was carrying 120 logs of teakwood
covered by tarpaulin. Confiscation proceedings were initiated by the Com-
H petent Authority under Section 15(6) of the Madhya Pradesh Van Upaj
1030
STATE v. SURESH KR. 1031

(Vyapar Yinivaman) Act, 1969. The Competent Authority during the con- A
fiscation proceedings recorded statements of various forest employees and
called upon the respondent to cross-examine them if he so desired. How-
ever, the respondent declined to cross-examine any of the witnesses. On
I
conclusion of the confiscation proceedings, the Competent Authority or-
dered confiscation of the truck under Section 15(6) of the Adhiniyam.
B
Being aggrieved by the order passed by the Competent Authority, the ·
respondent preferred an appeal to the Appellate Authority, which was
dismissed. The Sessions Judge set aside the order passed by the Com-
petent Authority. The writ petition filed by the appellant was dismissed by
the High Court. Hence this appeal. C
On behalf of the respondent it was contended that the respondent
was not provided with proper assistance and, therefore, he was deprived
of the benefit of Article 39(a) of the Constitution.

Allowing the appeal, this Court D
HELD: 1.1. A bare reading of Section 15(6) of the Madhya Pradesh
Van Upaj (Vyapar Viniyaman) Act, 1969 shows that the burden is on the
owner to prove to the satisfaction of the authorised officer that his vehi"le
, was used without his knowledge or connivance and that all reasonable and.
necessary precautions were taken by him against use of his truck for the E
commission of an offence under the Adhiniyam. During confiscation
proceedings, the Competent Authority recorded the statements of various
forest employees including the officers and permitted the respondent to
cross-examine them but he failed to avail of the said opportunity. The
forest employees when tried to stop the truck, one of the inmates of the F
truck tried to scare the forest employees by firing a shot fi;om the firearm
and thereafter escaped from the truck to avoid being caught. This would
unmistakably show that the truck driver and other inmates were involved
in illegal activities forbidden by the Adhiniyam. It also cannot be over-
looked that the concealment of 120 logs of teakwood was arranged perfectly
by putting tarpaulin over the logs to avoid its detection. These facts were G
held proved by the forest authorities and on these proved facts, the forest
Authorities concluded that the driver of the truck in connivance with the
other inmates of the truck was carrying the wooden logs illegally. The
respond~nt-owner did not produce any other material on record to dis-
chai;ge the burden under Section 15(6). lfthis be so, it cannot be said that H
1032 SUPREME COURT REPORTS [1997] 1 S.C.R.
A the competent Authority and the Appellate Authority committed any error
in coming to the conclusion that the respondent-owner has failed to satisfy
the authorised officer that the illegal activity committed by the driver of
the truck was without his knowledge or connivance. Mere ipse dixit of the
respondent-owner cannot be said to be sufficient evidence to discharge the
B burden under Section 15(6) of the Adhiniyam. [1035-C-H, 1036-A]

State of M.P. v. Azad Bharat Finance Co. & Anr., AIR (1967) SC 276,
held inapplicable. ,,_

1.2. The contention that the respondent was not provided with
C proper assistance and, therefore, he was deprived of the benefit of Article
39(a) of the Constitution has no substance since it was not the case of the
respondent before the forest officers or the courts below that he applied
for grant of more time to seek legal advice and assistance but the same
was denied. [1036-G]

D CIVIL APPELLATE JURISDICTION : Civil Appeal No. 574 of
1997.

From the Judgment and. Order dated 2.1.96 of the Madhya Pradesh
High Court in W.P. No. 701 of 1994.

E B.S. Banthia and S.K. Agnihotri for the Appellant.

Anis Suhrawardy and Zaki Ahmad Khan for the Respondent.

The Judgment of the Court was delivered by

F S.P. KURDUKAR, J. This appeal by Special Leave is filed by the
State of Madhya Pradesh challenging the legality and correctness of the
judgment and order dated 2nd January, 1996 in writ petition No. 701 of
1994 passed by the Madhya Pradesh High Court at Jabalpur.

2. The facts in brief are as under :
G
The respondent herein is the owner of a truck bearing registration
No. MPW-4015. It is a common premise that the said truck was used to be
given on hire for transporting the goods. It is claimed by the owner that he
had engaged a driver to ply the truck.

H 3. On receipt of a secret information, a direction was given to the
STATE v. SURESH KR. (S.P. KURDUKAR, J.] 1033
forest employees of Maksudangarh, forest region to cordon the area at 2.00 A
a.m. on 17th January, 1991 to check illegal transportation of the forest
produce. At about 2.00 a.m., a truck was spotted near Kalapatha and when
it was tried to be stopped by the forest employees, the inmates of the said
truck opened fire from the fire arm and fled away. The cleaner of the said
truck was however apprehended on the spot. The truck was then brought B
to the forest depot and it was revealed that it was carrying 120 logs of teak
wood covered by tarpaulin. The truck and the forest produce were seized
and a necessary information was forwarded to the Regional Officer, Mak-
sudangarh on the same day. The Chief Judicial Magistrate, Raghogarh
court, was duly informed on 18th January, 1991 by the Competent
Authority. On conclusion of the preliminary investigation, confiscation: · C
proceedings were initiated by the Competent Authority (SDO), Beenaganj
under Section 15(6) of the Madhya Pradesh Van Upaj (Vyapar Viniyaman
1969) Amendment Act, 1986 (for short 'Adhiniyam'). The Competent
Authority during the confiscation proceedings recorded statements of
various forest employees and called upon the respondent to cross-examine D
them it he so desired. From the record, it appears that he declined to
cross-examine any of these witnesses. In defence, the respondent got .
recorded his statement and he was cross-examined by the Competent
Authority.

4. On conclusion of the confiscation proceedings, the competent E
Authority by its order dated Nil ordered confiscation of the truck in
exercise of its powers under sub Section (6) of Section 15 of the Ad-
hiniyam. Being aggrieved by the order passed by the Competent Authority,
the respondent preferred an appeal to th~ Appellate Authority which by
its order dated 23rd February, 1993 dismissed the appeal and confirmed F
the order passed by the Competent Authority. The respondent thereafter
challenged these orders before the Sessions Judge, Shivpuri by filing
Criminal Revision No. 61 of 1993. The learned Session Judge vide his
judgment and order dated 22nd March, 1994 allowed the Revision Applica-
tion and set aside the orders passed by the forest Authorities. The State G
of M.P. impugned the order passed by the Sessions Judge, Shivpuri by filing
writ petition under Article 227 of the Constitution of India before the
Madhya pradesh High Court at Jabalpur. Tlie learned Judge, however, vide
his judgment and order dated 2nd January, 1996 dismissed the writ peti-
tion. It is against this order passed by the learned Judge of the High Court,
the State of Madhya Pradesh has filed this appeal. H
)-
1034 SUPREME COURT REPORTS [1997) 1 S.C.R.

A 5. We heard the learned counsel for the parties and perused the
impugned judgment and the relevant material on record. The main thrust >
of the High Court judgment is breach of Section 15(5) and (6) of the
Adhiniyam. While dealing with these provisions, the High Court appears
to have affirmed the view of the Revisional Court that the respondent-truck ""'
owner was not provided with proper legal assistance. The High Court then
B observed:

"Under Section 15 of the Adhiniyam, the criminal liability has _,_
to be proved. This proof was missing in this case." -"<

In para 6 of the impugned judgment, the High Court observed :
c
"A reading of Section 15(6) of the Adhiniyam makes it apparent
that an order of confiscation is not to be made unless and until it
is shown that the person making use of the vehicle was doing so
with the knowledge or connivance of the owner. In the present
case as rightly pointed out by the Court of Sessions, the O\yner of
D the truck was not subjected to the cross-examination by the State
· authorities that the owner had authorised his driver to take part
in the illegal transaction. The owner of the truck was also not aware
that his truck is going to be used for the purposes not permissible
under the Adhiniyam."
E
To support this reasoning, the learned Judge of the High Court relied
upon the decision of this Court in State of Madhya Pradesh v. Mis. Azad
Bharat Finance Co. and Another, AIR (1967) SC 276 and in particular
paragraph 5 therein. Consistent with the aforesaid conclusions, the High

F
Court held "the owner of the truck was also not subjected to any Cross-
examination by the State authorities. As such, the order passed by the
--< . .
·c -
Court of Sessions calls for no interference under Article 227 of the Con-
stitution of India."

6. We are however unable to uphold the reasons given by the Sessions
Judge and affirmed by the learned Judge of the Madhya Pradesh High
G Court at J abalpur for the following reasons.
7. It is needless to reproduce entire Section 15 since the High Court
has mainly relied upon sub Section (6) which reads as under: .......
"(6)-No order of confiscation under sub Section (4) of any tools, ~
H Vehicles, boats, ropes, chains or any other articles (Other than
STATEv. SURESHKR. [S.P. KURDUKAR,J.) 1035
specified forest produce seized) shall be m_ade if any person A
4'
referred to in clause (b) of sub section (5) proves to the satisfaction

-
of authorised officer that any such tools, vehicles, boats; ropes,
chains or other articles were used without his knowledge or con-
nivance or as the case may be, without the knowledge or con-
nivance of his servant or agent and that all reasonable and
necessary precautions had been taken against use. of objects B
aforesaid for commission of an offence under this Act."
...__
't (reproduced from the judgment of the High Court)

A bare reading of sub Section (6) of Section 15 of the Adhiniyam c
quoted hereinabove shows that the burden is on the owner to prove to the
satisfaction of the authorised officer-that his vehicle was used without his
knowledge or connivance and that all reasonable and necessary precautions
were taken by him against use of his truck for the commission of an offence ·
under the Adhiniyam. During confiscation proceedings, the Competent · D
__. ~· Authority recorded the statements of various forest employees including
the officers and permitted the respondent to cross-examine them but he
failed to avail of the said opportunity. The forest employees when tried to
stop the truck, one of the inmates of the truck tried to scare these forest
'• employees by firing a shot from the fire arm and thereafter escaped from E
the truck to avoid being caught. This would unmistakably show that the
truck driver and other inmates were involved in illegal activities forbidden
.;' by the Adhiniyam. It also cannot be overlooked that the concealment of

-j
-<'
120 logs of teak wood was arranged perfectly by putting tarpaulin over the
J logs -to avoid its detection. These facts were held proved by the forest
~
authorities and on these proved facts, the forest Authorities concluded that
F
the driver of the truck in connivance with the other inmates of the truck
was carrying the wooden logs illegally. Under sub Section (6) burden is
cast upon the owner of the truck to prove that his truck was used for illegal
activities without his knowledge and not with his connivance. The statement
of the owner of the truck was recorded by the Competent Authority and G
the explanation sought to be given by him did not find favour with the said ·
authority. The respondent owner did not produce any other material on
~·-
record to discharge the burden under sub Section (6). If this be so, it
cannot be said that the Competent Authority and the Appellate Authority
committed any error in coming to the conclusion that the respondent H
~
1036 SUPREME COURT REPORTS (1997) 1 S.C.R.

A owner has failed to satisfy the authorised officer that the illegal activity ~
committed by the driver of the truck was without his knowledge or con-

B
nivance. Mere ipse di.xit of the respondent owner cannot be said to be
sufficient evidence to discharge burden under 15(6) of the Adhiniyam. In
our opinion, the High Court has totally misread and misinterpreted
provisions of Section 15(6}. We, therefore, cannot sustain the reasoning of
-
the High Co,urt and the Sessions Court as regards interpretation of Section
15(6).
;;,-
,.,.
9. Coming to the reported decision of this Court in State of Madhya
Pradesh v. Azad Bharat Finance Co. & Anr., (supra), it was a case where
c offence was alleged to have been committed under Sections 9(a) and
9(b) of the Opium Act as modified by the Opium Madhya Bharat
Amendment Act, 1955. This Court· was called upon to decide as to
whether the use of the word "shall" in Section 11 of Madhya Pradesh·
Act gave no option but to confiscate the truck. While construing those

"' ...
D provisions, this Court held :
·
.,
," ....... the use of the word "shall" does not always mean that the
enactment is obligatory or mandatory; it depends upon the corttext
in which the word "shall" occurs and the other circumstances."

E This decision, in our opinion, would not make any difference having
regard to the facts and circumstances of this case. Since the respondent
,
'I
owner failed to satisfy the Competent Authority and the Appellate ~
Authority a~ required under Section 15(6), we do not think that the said ~

t=
authorities have committed any breach of the said provision. In view of the -~ •
~-
'-
F proved facts of this case, the order of confiscation of the truck cannot be
said to be arbitrary. L
10. It was contended on behalf of the respondent that he was not
provided with proper assistance and therefore, he was deprived of benefit
G of Article 39(a) of the Constitution of India. We see no substance in this
contention because it was not the case of the respondent before the forest
officers or the courts below that he applied for grant of more time to seek
legal advice· and assistance but the same was denied. The High Court and
the Session, Court erroneously assumed that there was denial of an oppor-
tunity to the respondent. The finding of the Sessions Court and affirmed
H by the High Cou!t in this behalf, therefore, cannot be sustained.
STATE v. SURESH KR. [S.P. KURDUKAR, J.] 1037
11. For the foregoing conclusions, we allow the appeal and set aside A
the judgment of the High Court dated 2nd January, 1996 affirming the
judgment and order dated 22nd March, 1994 passed by the Sessions Judge.
Shivpuri and restore the order passed by the Appellate Authority on 23rd
February , 1993. The respondent is directed to pay the cost of this appeal
to the appellant.
B
v.s.s. Appeal allowed.