ORDER
Ramachandriah, J.
1. Respondent is the registered owner-cum-driver of a Tempo bearing Registration No. CNE 3495. It was seized by the Range Forest Officer, Hiregutti, in the presence of two panch witnesses and his staff at about 2-30 a.m. on 14-12-1988 near a place called Kashigudde on Hillur road near Kumta as 20 cut teak wood pieces measuring in all 34 c.feet or 0.969 cms. were being transported in it without any licence or permit to transport out of the Forest area and, therefore, a forest offence had been committed in respect of the said teak wood pieces. After seizing the teak wood pieces and the Tempo under a mahazar, the Range Forest Officer, Hiregutti reported the matter to the Deputy Conservator of Forests, Honavar Division, Honavar, who is also the Authorised Officer under the Karnataka Forest Act, 1963 (for short ‘the Act’). The said Authorised Officer issued a notice under Section 71-B(1) of the Act to the respondent calIing upon hi m to show cause why the seized jeep bearing No. CNE 3495 together with the forest produce that was being illicitly transported in it should not be confiscated to the State Government under Section 71-A of the Act. In response to that show cause notice, respondent submitted his written reply dated 3-3-1989 explaining the circumstances under which he had taken the Tempo for hire to one Ganapathy Huliyappa Naik of HiIlur viIlage for transporting some wooden articles on the assurance of paying reasonable hire charges and also on being assured by the said Ganapathy Huliyappa Naik that he was in possession of a pass and that he will also come in that Tempo along with the pass and as a matter of fact, he was travelling in that Tempo along with the teak wood pieces when it was stopped and checked by the Range Forest Officer and it is only at that stage that he came to know that the said Ganapathy Huliyappa Naik had no permit or licence in respect of the teakwood pieces that were being transported in his Tempo. Respondent further submitted in his written statement that he has not committed any forest offence as he had taken alI the reasonable cans to prevent the use of his vehicle for the commission of any forest offence.
2. In view of the said reply of the respondent, the Authorised Officer held an enquiry in the course of which he recorded the statements of the Range Forest Officer by name B.G. Naik as P.W. 1, one Krishna Rama Naik, an independent witness as P.W. 2 and two other panch witnesses by name Rajendra Govinda Naik and Bommaiah Govinda Naik as P.Ws. 3 and 4. By way of defence, respondent got himself examined as D.W. 1 and one other witness by name Ham manna Devanna Naik as D.W. 2.
3. On an appreciation of the said defence of the respondent and the statements of the witnesses examined in the course of the enquiry, the Authorised Officer by order dated 31-5-1989 ordered- confiscation of the Tempo as he was satisfied that the forest offence had been committed by transporting in the Tempo 20 cut teakwood pieces measuring 0.969 Cms. and the respondent owner-cum-driver of that Tempo had not discharged the burden cast on him under Section 71-B(2) of the Act that the Tempo was used for carrying the teakwood pieces without his knowledge or connivance and he had taken all reasonable and necessary precaution against such user of his Tempo.
4. Feeling aggrieved by the said order of the Authorised Officer, respondent preferred an appeal before the Sessions Judge, Karwar, under Section 71-D of the Act.
5. By order dated 8-11-1989 in Cr.A. No. 42/1989, the learned Sessions Judge, Karwar, has allowed the appeal and set aside the confiscation order of the Authorised Officer as he was of the view that the respondent-appellant had successfully discharged the burden required under Section 71-B(2) of the Act.
6. Feeling aggrieved by the said order of the learned Sessions Judge, Karwar, the State \has preferred this Revision Petition under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘the Code’).
7. The sole point that arises for determination in this Revision Petition is whether the learned Sessions Judge, Karwar was right in holding that the respondent had discharged the burden cast on him under Section 71-B(2) of the Act that he had taken all reasonable and necessary precaution against the user of his vehicle for committing a forest offence.
8. However, Sri V.P. Kulkarni, learned Counsel for the respondent, argued that the seizure of the Tempo is vitiated by illegality as the seizure panchanama found at page-67 of the records of the Authorised Officer is not proved in accordance with law and no mark as contemplated under Section 62(3) of the Act was admittedly not put on the tempo at the time of seizing the Tempo by the Range Forest Officer.
9. In my opinion, it is not open to the learned Counsel for the respondent to advance such an argument in the course of this Revision Petition as the respondent has not taken the defence in his 4 page reply submitted to the show cause notice issued to him by the Authorised Officer under Section 71-B(1) of the Act. Respondent’s reply to the show-cause notice is found at pages 43 to 49 of the records of the Authorised Officer. The relevant portion of that show-cause notice reads thus:
“I humbly submit that on 14-12-1988 at around 1-00 p.m. one Sri Ganapathy Huliappa Naik a resident of Hillur village contacted me and requested me to hire my tempo for transporting same wooden articles on the assurance of paying reasonable hire charges. I enquired with him as to whether he was in possession of a pass to transport the said wooden articles for which said Sri Ganapathi Huliyappa Naik assured me that he is in possession of a pass and that he will also come in the said tempo along with the pass and the articles. On his assurance as aforesaid I agreed to hire ray tempo and took the tempo near Hillur metal road as per his instructions. There same wooden pieces measuring about 4 feet each were stored. The said pieces were loaded to my tempo by said Ganapathi Naik and he was also travelling in the said tempo when my tempo was checked by Forest Officials near Kashigadde, I came to know that said Ganapathi Naik was not having any documents regarding the said wooden articles only after the Forest Officials enquired with him regarding the pass. Even in the statement of said Ganapthi H, Naik recorded by the forest officials immediately after the said incident he has clearly admitted that said wooden pieces belonged to him. I submit that I had absolutely no knowledge that said person had no pass to transport the wooden articles. I also submit that I had no knowledge that said wooden pieces were from illegally felled teak trees from reserved forest S. No. 385 as alleged in the show cause notice. I most humbly submit that I saw the said pieces for the first time only near the Hillur metal road as aforesaid which is at a distance of more than 3 kms. from aforesaid S. No. 385 of Hillur reserved forest. On the assurance of said Ganapathi Huliyappa Naik that the said articles are from malki lands and that he possessed a pass I fully believed in his words and I submit that, even the nature of the wooden pieces that they were clearly cut and were measuring 4 feet each did not gave me any scope for even suspecting that they did not belong to the said person. In case I had the least suspicion regarding the said wooden articles I must humbly submit that I would not have consented for hiring my vehicle to carry the said articles.
I submit that I have not committed any offence in the above case nor my vehicle was involved in any forest offence. I humbly submit that as aforesaid I have taken all the reasonable care to prevent the user of my vehicle for the commission of any offence…..”
Respondent has also not disputed in the course of his evidence found at page No. 59 the seizure of his Tempo by the Range Forest Officer in the afternoon of 14-12-1988 along with the 20 cut teakwood pieces for transporting which Ganapathy Huliyappa Naik, who had hired his Tempo had no permit or licence. Respondent has also not disputed that he was driving the Tempo at the time it was stopped, checked and then seized by the Range Forest Officer. Therefore, reliance placed by Sri V.P. Kulkarni on a Division Bench decision of this Court in THE STATE OF MYSORE v. HAJI A.M. CONTRACTOR AND ORS., ILR 1965 Mysore 475 in support of his argument that seizure panchanama found at page-67 of the records is not proved as required by law as its contents are not spoken to by the panch witnesses who were examined by the Authorised Officer is of no avail in the instant case. Likewise, the argument of Sri V.P. Kulkarni that the seizure of the Tempo is vitiated by illegality as no mark is put on the Tempo at the time of its seizure as required under Section 62(3) of the Act has no force inasmuch as, it is not the case of the respondent that his Tempo was not seized by the Range Forest Officer under the panchanama found at page No.67. As a matter of fact, this Court has taken the view in AYAZ AHMED v. STATE OF KARNATAKA, that having regard to the use of the word ‘or’ and not the word ‘and’ after the words ‘such property’ and again after the words ‘The receptacle’ and before the words ‘vehicle if any’, the intention of the Legislature is that marking has to be made on the forest produce only if it can be so done or on the receptacle in which such property is kept if the same cannot be taken out of that receptacle at the time of seizure or on the vehicle if the forest produce cannot be taken out at the time of seizure and further, a mark of the nature expected to be put on the forest produce by using a metal instrument such as a hammer cannot be put on a vehicle as such an act would result in damage to the vehicle. It is further held in that case that it is not necessary to put a mark on the vehicle indicating that the same has been seized in connection with a forest offence when the forest produce seized in a particular case had been taken out of the vehicle in which it was being transported or smuggled and a mark contemplated under Sub-section (3) of Section 62 of the Act had been put on such forest produce.
10. In this connection, Sri V.P. Kulkarni also placed reliance on a decision of this Court in MARIYAPPA v. STATE OF KARNATAKA, 1990(1) Excise & Food Adulteration Reports 61. In my opinion, the said decision has also no relevance to the facts of the case on hand as it is rendered under the Essential Commodities Act 1965 and it is also distinguishable from the facts of the case on hand inasmuch as, the respondent has not disputed the seizure of his Tempo by the Range Forest Officer and had also not questioned the legality of the seizure of his Tempo in the appeal filed by him before the Sessions Judge, Karwar.
11. Therefore, as already mentioned above, the only point that falls for determination in this Revision Petition is whether the respondent has discharged the burden cast on him under Sub-section (2) of Section 71-B of the Act.
12. I have already extracted above, the relevant explanation submitted by the respondent in his reply to the show cause notice issued to him by the Authorised Officer. The sum and substance of his explanation is that he asked Ganapathy Huliyappa Naik whether he had a permit and he was satisfied with the assurance given to him by the said Ganapathy Huliyappa Naik that the wooden articles he wanted to transport in his Tempo were from malki lands and, that he possessed a pass and he further said that he would also accompany him in the Tempo and thereupon he fully believed the words of the said Ganapathy Huliyappa Naik. That apart, respondent has not even asked the said Ganapathy Huliyappa Naik at any time to show the permit he possessed. The said Ganapathy Huliyappa Naik is also not examined by the respondent as a witness on his side in the course of the enquiry before the Authorised Officer as it was incumbent on the respondent to. examine the said Ganapathy Huliyappa Naik in order to substantiate his say that the said Ganapathy Huliyappa Naik had given him the assurance of the nature mentioned above. In the course of the” enquiry before the Authorised Officer, the respondent has come forward with an improved version that Ganapathy Huliyappa Naik had even shown him a white paper saying that it was the permit. Similar is the statement of Hammanna Devanna Naik examined as a witness on the side of the respondent. The said Hammanna Devanna Naik has admitted in cross examination that Ganapathy Huliyappa Naik -was involved in several forest offences to his knowledge. He has also admitted that when he and Ganapathy Huliyappa – Naik were loading the cut teakwood pieces into the Tempo he did not – notice on any of the teakwood pieces the mark put by the Forest Department for having permitted to transport the same. Respondent has also admitted in cross-examination that he did not ascertain before the teak-wood pieces were loaded into his Tempo although he was present at the spot that the marks put by the Forest Department for having authorised their transportation and he did not know that he had to ascertain by looking into the document shown by Ganapathy Huliyappa Naik that it was a permit issued to Ganapathy Huliyappa Naik for transporting the teakwood pieces. In what manner the owner of a vehicle has to discharge the burden cast on him under Section 71-B(2) of the Act has been considered by this Court in RAMESH N. DIXIT v. STATE OF KARNATAKA, . This is what his Lordship Venkatesh, J., has observed in paragraph-16 at page 2583 of the said decision:
“All that the owner is required to show under Sub-section (2) of Section 71B is that he, his agent, if any and the person incharge of the vehicle (in this case the driver) each, had taken all reasonable and necessary precautions against the misusing of the vehicle and that this offence had been committed without the knowledge or connivance of any then. How does the truck owner show that he had taken all reasonable and necessary precautions to see that his truck is not misused in this way? Did he accompany the truck? If it was not possible for him to accompany the truck, had he sent any person in his trust with the truck or had he entrusted the truck to a driver of his confidence? Before hiring the truck, had he tried to know the antecedents of the person who had come to take the truck on hire? It is not merely enough if the truck owner says that his truck had been misused without his knowledge or connivance, but in addition he is bound to show that he had taken all reasonable and necessary precautions against such misuse. There was indeed an urgent necessity to incorporate a provision of this- type [71 B(2)] in the Forest Act. Large scale theft and smuggling of valuable timber, ivory, sandalwood and other forest produce is possible only if the smugglers resort to the transporting of the same from the forest or from a spot nearby forest in vehicles like trucks. Clandestine removal of valuable timber and other forest produce on considerable scale is going on since many many years and particularly after communication has developed. The authorities being aware of such large scale smuggling vehicles like trucks were being freely used took steps to get this provision 71B(2) incorporated in the Act…..”
In the instant case, respondent himself was in-charge of the Tempo at the time the teakwood pieces were loaded into the Tempo and also when it was intercepted, checked and seized by the Range Forest Officer. It is also not his case that somebody else in whom he had a trust was in-charge of the Tempo and he had misused it for committing forest offence without his knowledge or connivance. The above mentioned explanation offered by him in his reply to the show-cause notice is neither sufficient nor substantiated by acceptable evidence at the time of enquiry. Therefore, the learned Sessions Judge has acted illegally and with material irregularity in observing in the impugned order that the respondent (appellant in the Appeal) had successfully discharged the burden required under Section 71B(2) of the Act and, therefore, he should be given the benefit of doubt under the said provision and in reversing the well reasoned order of the Authorised Officer on the basis of such an unsustainable conclusion I, therefore, hold that the impugned order of the learned Sessions Judge is liable to be set aside and the order of the Authorised Officer deserves to be restored by allowing this Revision Petition.
13. In the result, for the foregoing reasons, the Revision Petition is allowed. The order of the Sessions Judge, Uttar Kannada, Karwar dated 8-11-1989 in Cr. A. No. 42/1989 is set aside and the order dated 31-5-1989 of the Authorised Officer ordering confiscation of the Tempo bearing Registration No. CNE 3495 to the State Government under Section 71-A(2) of the Act is restored. Consequently, respondent is directed to place Tempo No. CNE 3495 at the disposal of the Authorised Officer forthwith if he has already taken possession of the same from the Authorised Officer pursuant to the direction given in the Sessions Judge’s order.