IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.1.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.3788 of 1998 S.Ramalingam .. Petitioner -vs- 1.Assistant Conservator of Forests, Forest Protection Squad, Vellore. 2.The Principal Sessions Judge, Vellore District at Vellore. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the respondents and quash the judgment passed in Crl.A.No.49 of 1997 dated 29.1.1998 on the file of the Principal Sessions Judge, Vellore District at Vellore confirming the order of the confiscation order passed in STOR.No.1 of 1997 dated 29.6.1997 by the Authorised Officer and Assistant Conservator of Forests, Forest Protection Squad, Vellore District at Vellore and direct the first respondent to return the Motor Vehicle viz., TN 048-0860 now in the custody of the first respondent. For petitioner : Mr.V.R.Kamalanathan For respondents : Mr.P.Satish, GA (Forest) ***** O R D E R
The writ petition is filed challenging the judgment of the Principal Sessions Judge, Vellore made in Criminal Appeal No.49 of 1997 dated 29.1.1998 confirming the order of confiscation passed by the first respondent dated 29.6.1997 and also for a consequential direction to return the Motor Vehicle with Registration No.TN04-B-0860 to the petitioner.
2. The petitioner is the owner of the 407 TATA Van with Registration No.TN-04-B-0860. He had purchased the vehicle on an Hire Purchase Agreement with a Finance Company. The petitioner used to let out the said van for transporting consignments on hire charges. It is stated that on 07.1.1997, the vehicle was checked at Vellore and it was found to have contained contraband sandalwood weighing 260 kgs worth about Rs.84,000/-.
3. A case was also registered by the Forest Protection Squad, Vellore in STOR.No.1 of 1997. The petitioner filed a writ petition being W.P.No.5099 of 1997 for a declaration declaring the Tamil Nadu Amendment Act No.44 of 1992 as unconstitutional. In that writ petition, this Court by an order dated 02.7.1997, recorded the statement of the Government Advocate. He stated that there was no confiscation order and the vehicle may be released subject to certain conditions. The petitioner also moved this Court to stay the further proceedings pursuant to the confiscation order passed dated 29.6.1997 in STOR No.1 of 1997 pending disposal of Crl.A.No.49 of 1997.
4. The petitioner filed a Contempt Application being C.A.No.353 of 1997 for the alleged disobedience of the order passed by this Court. This Court was informed that the petitioner was given time on 23.5.1997 to submit his explanation. The petitioner informed them that he was ill and hence, time to submit explanation was further extended. It was stated that taking advantage of the same, the earlier writ petition was filed by the petitioner challenging the vires of the provisions. Though the department had given draft counter affidavit to the Government Pleader yet when the matter came up on 02.7.1997 an order for release of vehicle was passed. The petitioner never sent any reply after seeking for further time.
5. In the meanwhile, the petitioner moved the District Court (the second respondent) with Criminal Appeal No.49 of 1997. Since the order under section 49A(2) of the Tamil Nadu Forest Act was passed, the vehicle could not be released. The second respondent District Court rejected the appeal filed by the petitioner vide judgment dated 29.1.1998 and confirmed the order dated 29.6.1997 confiscating the vehicle. The Court rejected the contention that the petitioner was not given any opportunity against the confiscation.
6. The writ petition was admitted on 19.3.1998. Pursuant to the notice, a counter affidavit dated 31.8.1998 was filed by the first respondent. It is stated that as per section 49(B), the owner of the vehicle is duty bound to prove his innocence as well as the precautionary action taken by him to prevent the commission of offence. It was also stated that there was no infirmity in the order passed by the District Judge. Even at the time of admission of the writ petition, when the petitioner sought for release of the vehicle, the same was refused by this Court.
7. The learned counsel for the petitioner however, stated that in the criminal case initiated against him in C.C.No.256/97, the proceedings initiated against the petitioner was quashed thereby holding him innocent of the forest offence.
8. Mr.P.Satish, learned Government Advocate (Forest) brought to the notice of this Court the judgment of the Supreme Court in State of M.P. -vs- Suresh Kumar reported in (1997) 9 SCC 647, While interpreting the Madhya Pradesh Forest Act pertaining to confiscation of vehicles, in paragraphs 9 and 11, it was observed by the Supreme Court which is as follows:-
”Para 9. A bare reading of sub-section (6) of Section 15 of the Adhiniyam 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 this 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 truck tried to scare these forest employees by firing a shot from 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 overlooked that the concealment of 120 logs of teak wood was arranged perfectly by putting tarpaulin over the logs to avoid its detection. These facts were 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. 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 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 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 burden under Section 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 Court and the Sessions Court as regards interpretation of Section 15(6)”.
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“`”Para 11. …… ….. Since the respondent owner failed to satisfy the competent authority and the appellant authority as required under Section 15(6), we do not think that the said authorities have committed any breach of the said provision. In view of the proved facts of this case, the order of confiscation of the truck cannot be said to be arbitrary”.
9. The learned counsel also brought to the notice of this Court the judgment of this Court in Secretary to Government, State of Tamil Nadu -vs- N.Venkatesh and another reported in (2008) 2 MLJ 39, wherein the two judgments of the Division Bench were referred to and out of which one of them was also reported in (2005) 1 MLJ 448 (State of Tamil Nadu -vs- A.K.Raju). Another decision of the learned Judge reported in 2004 Writ L.R.53 (S.Gowri -vs- Assistant Conservator of Forest Prosecution Squad and another) upholding the action of the forest officials in confiscating the vehicle was also referred to. In the same judgment, it was held that it was the burden of the vehicle owner to prove his innocence for getting return of the vehicle.
10. In the present case, the petitioner had not availed the opportunities given to him both at the time of showcause notice and in the appeal. There are no grounds made out to interfere with the order passed by the learned District Judge confirming the confiscation of the vehicle ordered by the first respondent.
11. In the light of the above, the writ petition stands dismissed. However, there will be no order as to costs.
js
To
1.Assistant Conservator of
Forests, Forest Protection
Squad, Vellore.
2.The Principal Sessions Judge,
Vellore District at
Vellore