ORDER
M.R. Verma, J.
1. This petition under Article 227 of the Constitution of India read with” Section 482 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) has been preferred by the petitioner for quashing the order dated 30-10-2002 passed by the learned Sessions Judge, Mandi, whereby the petitioner’s appeal against the order dated 20-5-2000 passed by the Authorised Officer, has been dismissed.
2. Brief facts leading to the presentation of this petition are that on 30-3-1999 at about 3.45 p.m., a police party headed by ASI Neel Chand of Police Station, Aut, tried to stop truck No. HP 332372 at Soja. However, the truck was not stopped. The police party chased the truck which was finally found parked on the National Highway near Aut. There were 148 deodar sleepers in the truck which did not bear any hammer mark. The truck along with the timber therein was taken to Range Officer at Panarsa where the timber was unloaded and the truck was then taken to Police Station, Mandi. The matter was reported to the concerned Authorised Officer-cum-DFO, who, after holding inquiry into the matter, vide his order dated 20-5-2000, confiscated the said truck and the timber in favour of the H.P. Government. Being aggrieved, the petitioner preferred an appeal in the Court of the learned Sessions Judge, Mandi, who dismissed the appeal by the impugned judgment. Hence this petition by the petitioner.
3. I have heard the learned counsel for the petitioner and the learned Deputy Advocate General for the respondents and have also perused the records.
4. The relevant provisions regarding show cause notice to the owner of a vehicle, which is involved in illicit transportation of forest produce and the circumstances under which the vehicle will not be confiscated, are contained in Section 52-B of the Indian Forest Act as inserted vide Section 5 of the Indian Forest (Himachal Pradesh Second Amendment) Act, 1991 which reads as follows :
“52-B. Issue of show cause notice before confiscation under Section 52-A.– (1) No order confiscating any timber (excluding fuelwood), resin, khair wood, and katha, ropes, chains, boats or vehicle shall be made under Section 52-A except after notice in writing to the person from whom it is seized and considering his objections, if any :
Provided that no order confiscating a motor vehicle shall be made except, after giving notice in writing to the registered owner thereof, if in the opinion of the authorised officer it is practicable to do so, and considering his objections, if any. (2) Without prejudice to the provisions of Sub-section (1), no order confiscating any tool, rope, chain, boat or vehicle shall be made under Section 52-A if the owner of the tool, rope, chain, boat or vehicle proves to the satisfaction of the authorised officer that it was used in carrying the timber (excluding fuelwood), resin, khair wood and katha without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, rope, chain, boat or vehicle and that each of them had taken all reasonable and necessary precaution against such use.”
5. A bare reading of the aforesaid provisions, insofar as confiscation of a vehicle under Section 52-A of the Indian Forest Act inserted by Section 5 of the aforesaid Amending Act is concerned, makes it clear that two conditions must be satisfied to confiscate the vehicle. Such conditions are : (i) a notice in writing must be given to the registered owner if practicable, and (ii) the vehicle must be found to have been used for illicit transportation of forest produce with the knowledge or connivance of the owner or his agent. The purpose of the issue of notice to the registered owner is to afford him an opportunity to explain his position/ stand regarding the use of the vehicle and to show cause to the contrary, i.e. against the confiscation. In case the owner establishes that he had no knowledge of or had not connived in the use of the vehicle for illicit transportation of the forest produce, the vehicle cannot be confiscated. Since the failure of the owner to show a cause to the contrary will lead to the confiscation of the vehicle, therefore, the notice must be clear and devoid of any ambiguity so that no prejudice is caused to the owner.
6. In the case in hand, the relevant part of the notice served on the petitioner reads as follows :
“As it appears from the FIR. No. 85/99 D/ – 30-3-99 (S. H. O. (PS) AUT that your vehicle bearing No. HP 33 2372 is involved in the illegal export/smuggling Timber etc. To proceed further into the matter you are hereby ordered to appear before the Court of undersigned along with reply of Show Cause Notice on or before 17-5-99.”
7. It is evident from the above-quoted contents of the notice that it does not specify the material particulars regarding the alleged involvement of the truck in question in the commission of the offence. It is not mentioned in the notice as to on which date and where the truck was involved in the commission of the offence and, when, where and from whose possession it was seized by the police. The material particulars could have been brought to the notice of the petitioner if a copy of the FIR referred to in the show cause notice, was enclosed with the notice and delivered to the petitioner but this has not been done. The notice, therefore, cannot be said to be clear and devoid of ambiguity.
8. The petitioner filed reply to the notice wherein he denied the involvement of the truck in illicit transportation of timber and claimed that in case the truck was so used (sic) involved, it was without his knowledge and consent and that he has specifically instructed his driver not to use the vehicle for any illegal activities. The record reveals that the Authorised Officer did not call upon the petitioner to substantiate his reply by leading evidence. The petitioner had to make an application to the Authorised Officer to record his statement which was allowed and it is only thereafter that his statement was recorded. In his statement the, petitioner stated that Tikam Ram was his driver. He himself had gone to Beas and when he returned, his wife informed him that the truck had been seized by the police. He has further stated that he had no knowledge nor he had connived in use of the truck for illicit transportation of the timber. In his cross-examination it has been suggested to him that he was sitting in the truck which he has denied. The suggestion is contrary to the case of the prosecution. The truck was seized when, admittedly, none was occupying it. There is no suggestion given to him that he had not gone to Beas when the truck was used for the unlawful purpose or that he had the knowledge of or connived in unlawful use of the truck.
9. The prosecution has examined Neel Chand, ASI, Kishori Lal, Khem Chand, Rupesh Kumar and Prem Singh. However, there is nothing in their statements from which it may be inferred that the petitioner had the requisite knowledge of or had connived in the unlawful use of the truck. There is no material whatsoever on the record which may rebut the statement of the petitioner on oath. On the contrary, in the rejoinder filed by the concerned Station House Officer to the reply of the petitioner to the show cause notice it has been averred as under:
“Is Baat Ke Koi Bhee Parman Tafteesh Ke Madhya Nahin Paye Gaye Ki Mazkoora Ne Truck Chalak Tikam Ram s/o. Nup Ram Ko Najaij Roop Se Avaidh Sampati Adi Lay Jane Ke Bara Koi Hidayat Dee Hai.”
10. It has, though, further been claimed in the rejoinder that in view of the number of the Slippers being illicitly transported during night hours, the truck was used for illicit transportation with the knowledge of the petitioner. The reason for this inference evidently is fallacious.
11. In view of the above clear admission that during the investigation no material/ evidence concerning the requisite knowledge and/or connivance of the owner came to the notice of the investigating agency, the version of the petitioner is fully supported.
12. The above discussion leads me to the conclusion that the petitioner had no knowledge that the vehicle in question was likely to be used for carrying forest produce in contravention of the provisions of the Forest Act or that he had connived in such use of his truck. The conclusions to the contrary arrived at by the learned Sessions Judge and the Authorised Officer are thus based on ‘no evidence’ rendering their orders illegal and highly unjust, causing failure of justice. Therefore, the confiscation order is unsustainable and liable to be set aside.
13. As a result this petition is allowed and the orders of the learned Sessions Judge and the Authorised Officer confiscating Truck No. HP 33 2372 are set aside. The truck in question is ordered to be released to the petitioner, who is admitted owner thereof, on ‘Supurdari’ on his furnishing security to the satisfaction of the learned Chief Judicial Magistrate, Mandi.