HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE WRIT PETITION No.1406 OF 2001 Between: Gutta Satyanarayana . . .Petitioner AND The Sub Divisional Forest Officer, Vijayawada and others . . .Respondents :: ORDER :: Counsel for the petitioner : Shri C.Gunaranjan for Shri C.Kodanda Ram Counsel for the respondents : Assistant Government Pleader for Forests Dated: 25th July, 2007 This is a petition for quashing order dated 29.11.2000 passed by District Judge, Krishna at Machilipatnam, whereby he dismissed the appeal preferred by the petitioner under Section 44 (2)(E) of the Andhra Pradesh Forest Act, 1967 (for short, ‘the Act’) against order dated 29.11.1993 passed by Authorised Officer-cum-Divisional Forest Officer, Eluru (for short, ‘the Divisional Forest Officer’) for confiscation of vehicle (lorry) bearing registration No.AP-16/U-5253 together with Red Sanders Wood weighing 6.682 Tons. The Facts: On receipt of information that Red Sanders Wood was being smuggled from the forest near Sub-Divisional Forest Officer, Vijayawada and Forest Range Officer, Vijayawada conducted a raid in the area of J.D. Nagar, Patamata, Vijayawada on 3.10.1993 (AN). They found the vehicle in question parked near the house of the petitioner with tarpaulin over it. On inspection, the vehicle was found loaded with 91 gunny bags of Red Sanders timber logs, which did not bear an authenticated marking. On being asked by the raiding party, the driver of the lorry, Sri G. Sambasiva Rao, who is none else than the brother of the petitioner, could not produce any valid permit for the possession or transportation of Red Sanders Wood. Therefore, Sri D.V. Nageswara Rao, Forest Range Officer, Vijayawada prepared a panchanama and seized the vehicle along with the forest produce and arrested Sri G. Sambasiva Rao, who was, later on, released on personal bond with two sureties and the vehicle was brought to the Range Office at Vijayawada. On 4.10.1993, the bags containing Red Sanders Wood were weighed (the total weight was 6.862 Tons) and a fresh panchanama was drawn. Sri G. Sambasiva Rao gave a statement wherein he admitted that the Red Sanders Wood had been loaded in the vehicle without any valid permit. Thereafter, notice dated 11.10.1993 was issued to the petitioner and his brother under Section 44 (2)(A) and (2)(B) of the Act requiring them to show cause why the vehicle and Red Sanders Wood may not be confiscated. The petitioner filed reply dated 15.10.1993 to explain his position. He claimed that he had gone to Hyderabad on 2.10.1993 to see his ailing son-in-law; that while he was at Hyderabad, one T.S. Sankara Rao, Commission Agent of Assam Road Lines, approached his brother, Sri G. Sambasiva Rao and asked him to transfer the load of medicinal wood, which was brought by ABC Transport Company from Madras in vehicle bearing registration No.AP-03/T-5767, to his vehicle for being transported to Assam and promised to furnish papers necessary for transporting the load; that keeping in view the reputation of T.S. Sankara Rao, his brother G. Sambasiva Rao agreed to transport the load to Gauhati subject to furnishing of transport permits, way bills and hire charges; that in the meanwhile, the officers of the Forest Department took possession of the vehicle and registered a case involving violation of Section 44 of the Act, and that on 5.11.1993, he contacted the officers of the Forest Department and gave a statement about his innocence. The relevant portion of the petitioner’s reply is reproduced below: “It is respectfully submitted that: 1) the undersigned is not the owner of the timber/red sanders timber; 2) that it is not loaded with the knowledge or consent or connivance of the undersigned, or his agents or driver; 3) that it is only on the representation made that a reputed transport company brought the stock and; 4) that the documents required for transportation of the load would be given, the stock was permitted to be loaded; 5) that the red sanders wood is not imported by the undersigned; 6) that the undersigned has no intention at any time to export or move red sanders wood without appropriate documents required for transportation of the same. Under the aforesaid circumstances, the undersigned begs to submit that he has absolutely no objection whatsoever if the timber loaded into the vehicle is confiscated. It is submitted that in so far as the vehicle bearing No.AP-16/U-5253 is concerned, the undersigned is the owner of it. With great difficulty, and with huge finance obtained from TVS Sundaram Finance Limited, as well as the financiers from outside, the said lorry is purchased, about a month ago. The hire for transportation of the load referred to above is Rs.15,700/-, which includes the charges and expenses during the onward journey to Gowhati, which is at a distance of 2,400 kms. from Vijayawada, as is evident from the commission slip given by the Assam Road Lines, to the driver of the lorry, which was handed over to the A.B.C. India Limited, upon which the lorry of the undersigned was loaded. That being the case, when the fare of transport charges that are promised to be given for transportation of the red sanders wood is on par with the fare that is being paid for transportation of any other commodity, the undersigned or the driver of the undersigned would never take the risk of facing the consequences, had there been knowledge that the stock/load required to be transported is prohibited under the provisions of law. Thus, it is evident that either the undersigned or his driver have no knowledge of the contents of the load and it is only on the firm belief and good faith that a reputed transport company is arranging the transaction, with material papers for transportation of the load, the driver of the lorry permitted the lorry to be loaded.” After considering the reply of petitioner No.1, the Divisional Forest Officer passed order dated 29.11.1993 whereby he confiscated the goods and the vehicle. In his detailed order, the Divisional Forest Officer formulated the following points: “1. Whether there was any forest offence? If so, who were the offenders? 2. Whether the vehicle together with the produce seized were used in commission of the said offence? 3. Whether, a notice informing the grounds for proposed confiscation of the seizure was issued with reasonable opportunity for making representation or being heard in the matter to the person from whom the seizure was made? 4. Whether there is any evidence to prove the innocence of the owner, his agent or the person incharge of the vehicle in the committal of offence and that each one of them had taken reasonable precautions against the misuse of the said vehicle? 5. Has the grounds submitted by the owner of the vehicle been considered while passing the present judgment? 7. Is the proposed confiscation commensurate with the nature of the offence?” The Divisional Forest Officer then referred to the assertion contained in the reply of the petitioner that he had no objection to the confiscation of the Red Sanders Wood and held that this was sufficient to prove that the lorry owned by him was loaded with Red Sanders Wood without any permit and the same constituted a forest offence punishable under Section 29(2)(b) of the Act. The Divisional Forest Officer then considered the question whether the vehicle together with the forest produce were used in the commission of the offence and held: “As discussed above, the Sub-Divisional Forest Officer, Vijayawada (RW1) and the Forest Range Officer, Vijayawada (RW2) have detected the smuggled Red Sanders loaded in the vehicle AP 16 U 5253 in 91 gunny bags weighed 6.862 M.Tons, valued @ Rs.6.862 lakhs which bears no hammer marks, no Government origin mark, no transit permit or any authenticity. Thus, the vehicle and the produce seized were used in the commission of the offence booked by the P.W.1 and 2 U/S. 29(2)(b) of A.P. Forest Act 1967 and Rule 3 of A.P. Red Sanders and Red Sanders Wood Transit Rules, 1969, U/S. 44 of A.P. Forest Act 1967. The respondents admitted that their lorry AP 16 U 5253 was used in the commission of the said offence. But the respondents stated that they are not the owners of the consignment of Red Sanders seized by the Forest officers on 3.10.1993. Point 2 is answered accordingly.” On the third point formulated by him, the Divisional Forest Officer noted that notice had been served on the owner and the driver and they were given opportunity of hearing on various dates i.e. 15.10.1993, 28.10.1993, 6.11.1993, 15.11.1993, 20.11.1993 and 27.11.1993. On the issue of the petitioner’s innocence, the Divisional Forest Officer again adverted to the factual matrix and observed: “From the record of enquiry and proceedings, it is evident from the statement of the lorry owner that the lorry involved in this case i.e. AP 16 U 5253 was purchased by him just 3 months back and he had transported one consignment that too similar load i.e. Red Sanders wood only and the second consignment ready to transport was seized by the forest officials i.e. also Red Sanders. According to the further statements of Sub-Divisional Forest Officer, Vijayawada and Forest Range Officer, Vijayawada, it is evident that the produce seized in the case is 6.862 tonnes i.e. of a normal lorry load. This lorry AP 16 U 5253 seized is double capacity lorry i.e. capable of carrying 14 to 16 tons. The R-2 i.e. lorry owner of lorry AP 16 U 5253 and driver are awaiting the arrival of another consignment of Red Sanders in the name of medicine wood to make full load of the lorry i.e. 14 to 16 tons within one or two days, that is the reason why the lorry though loaded with the consignment of 6.862 M.Tons load on 2.10.1993 is not moved from Vijayawada where they (P1, P2 and four other staff) got information and searched and booked the vehicle on 3.10.1993 A.N. As per the request of the counsel, Sri T.S. Sankara Rao, Commission Agent who is quoted to be their defence witness was issued with a notice on 20.11.1993. But the efforts made by the Sub-Divisional Forest Officer to trace him out proved that the said individual indulged in illegal activities and with Rs.10.00 lakhs worth clothes recently and fled away. The Sub-Divisional Officer also reported that his enquiries with the Police revealed that the Police are searching for the individual who involved in number of criminal cases and this Red Sanders smuggling is one among such illegal activities. Therefore, it is proved beyond doubt that the owner of the lorry AP 16 U 5253 – G. Satyanarayana and driver G. Sambasiva Rao are with the connivance of notorious smuggler and involved wantonly in this smuggling of Red Sanders racket. According to the own deposition of the lorry owner, he had purchased the vehicle i.e. lorry AP 16 U 5253 just 3 months back and engaged on hire for one trip transport of similar consignment from Vijayawada to Gowhati and kept the vehicle idle. Again when the second consignment is loaded, the vehicle was seized by the forest officials. Thus, it is proved that he has purchased the new lorry for Rs.4.50 lakhs and spent 0.50 lakhs towards body building, was used only two times, that too two consignments of Red Sanders Wood without any proper documents. No lorry owner who purchases a vehicle with huge cost cannot keep the vehicle idle for such long periods of months together losing so much money on hire. Thus, it is proved beyond doubt that the lorry owner has purchased this lorry for smuggling Red Sanders only with the connivance of notorious smugglers and to earn huge amounts. The statement of the lorry owner that he was out of the city from 1.10.1993 to 5.10.1993 morning is also considered to be an afterthought for the above clear reasons. When any long destination transport is accepted, the lorry owner or driver shall naturally verify the produce that is to be transported, the validity, legality of the documents issued or handed over by the person engaging the vehicle for such transport. In this instant case, neither the lorry owner nor the driver have verified the same and they are contending that they have belief on the commission agent who engaged the vehicle. The antecedents of the so called commission agent are proved to be connected with criminal activities and hence all the versions and points put-forth by those two respondents (who are own brothers) are also not acceptable under any count. Therefore, I hold that the owner of lorry AP 16 U 5253 or his driver of the vehicle have not taken any precautions against the misuse of the said vehicle.” (underlining is mine) The Divisional Forest Officer then considered the question whether the advocate for the petitioner had been afforded opportunity of hearing and examining the witnesses and answered the same in negative by recording the following reasons: “The Advocate for counsel on one side has represented for adjournment from time to time to examine certain witnesses, supply of copies and to give further explanation etc., and on the other side he had approached the Hon’ble A.P. High Court for release of the vehicle on the plea that the case is adjourned by the Authorised Officer for his convenience. Thus, the advocate has acted on dual policy. The owner of the vehicle deposed before the Authorised Officer that he will produce T.S. Sanakara Rao as his defence witness but he failed to do so. The counsel has pleaded for enquiry of Sri T.Siva Sankara Rao, the commission agent by the Authorised Officer quoting him as his defence witness. As a matter of fact, it is his client’s responsibility to prove their innocence in this case. But, knowing fully well that T.S. Sankara Rao is a smuggler, having involved in number of criminal cases, on the plea of his enquiry and examination is essential, he tried to delay the proceedings before the Authorised Officer. However, as per his request, the Authorised Officer has adjourned the case from time to time and also issued notices to the said T.S. Sankara Rao for attending enquiry on 27.11.1993. Since the individual was reported to have involved in smuggling of Rs.10.00 lakhs worth property and gone to underground, Police authorities are also searching for him in connection with some criminal cases. The R-1 and R-2 were given many adjournments as per the request of their counsel and opportunities were also given. In spite of all that, the counsel for respondents has again requested for further adjournment on 27.11.1993 to prolong the case and to escape from the clutches of justice. Thus, the objections of the Advocate for petitioners have been met with to the best possibility.” In the end, the Divisional Forest Officer considered whether the proposed confiscation was commensurate with the nature of the offence and held: “The statements given by the lorry owner and driver amply reveal the planned enactment of this smuggling. R-1 was absent from the scene at the time of detection. The later deposition and written statements appear clearly to be a tutored one. He is an experienced transport operator in the field for the last 25-30 years. All his contentions that having good belief in the commission agent they never checked the material loaded in the lorry and the lorry is kept idle for long periods and material loaded on 2.10.1993 was waited up to 4.10.1993 for documents etc., are all speak to the bids of the respondents to escape from the clutches of justice. It is ridiculous to say that having engaged the vehicle for such a long distance from Vijayawada to Gowhati they have not verified the Red Sanders produce loaded, packed in gunny bags. For the purpose of the proceedings before the Authorised Officer U/S. 44, the evidence made available is sufficient to come to a decision that all the accused wilfully made the attempt to smuggle the Red Sanders stitched in gunny bags and concealed in the name of medicine wood and all of them collectively and individually never thought of taking any precaution against the misuse of the vehicle. Having established the committal of offence by the R-1 and R-2, the question of inflicting the proposed punishment of confiscation of the vehicle together with the Red Sanders wood and other produce commensurate with the nature of the offence definitely needs an exposition of the facts and law. The R-1 i.e. driver of the lorry has given willingness for compounding the case. But the produce involved in this case is Red Sanders timber worth 6.862 lakhs and under the discretionary powers vested in Authorised Officer, I refuse to compound the same. The Red Sanders is an endangered species and valuable wood available in natural forest of some places of Andhra Pradesh only. Nowhere in the World, it is reported growing in the forests. The Govt. of A.P. have framed separate set of laws to govern the possession and transportation of Red Sander Wood and Sandalwood; R1 and R2 made the violation of these regulations more stringent than those of governing the other forest produce. The intention of the legislature in empowering the Authorised Officer to confiscate the vehicle used in the offence speaks to their determination to curb this evil menace.” (underlining is mine) The appeal preferred by the petitioner against the order of the Divisional Forest Officer was dismissed by the District Judge vide his judgment dated 29.11.2000. The learned District Judge formulated the following points for consideration: “1. Whether there is a prima facie proof of commission of forest offence of violating Rule 3 of the Rules is made out? 2. Whether the lorry in question is shown to be used in that offence? 3. Whether the appellant No.1, admittedly the owner of the lorry, could prove his innocence in the matter of his lorry being used for this offence? and 4. Whether the impugned order calls for any interference?” He then evaluated the facts and evidence brought on record and recorded his finding in the following words: “Point No.1 …………..The confiscated lorry in question came to contain red sanders load of more than 6 metric tons valued more than Rs.6 lakhs and it was found stationed near the house of the first appellant in Vijayawada with that load. It is abundantly clear that Sambasiva Rao, the second appellant is its driver and Satyanarayana, the first appellant is its owner. Neither of them possessed any permit contemplated by Rule 3 of the Rules to bring or move red sanders from its abode, namely the forest into Vijayawada city. It is first, therefore, necessary for us to examine whether any forest offence occurred or not and if so by whom. At this juncture, it is sufficient if the above question is answered tentatively or in other words, it is sufficient at this stage to evaluate whether any prima facie case of a forest offence was established against the driver of the lorry in question or more precisely, the involvement of the lorry in the commission of the forest offence is made out. As a matter of fact, in this enquiry we are not concerned with the involvement of the lorry in question in a forest offence. What is the forest offence we are concerned with in this enquiry? It is one prohibited by Rule 3 of the Rules. Rule 3(1) of the said Rules reads as follows: R.3 (1): No person shall import sandalwood, sandalwood chips, sandalwood powder or red-sanders wood, red-sanders wood powder into, or export sandalwood, sandalwood chips, sandalwood powder or red-sanders wood, red-sanders wood chips, red-sanders wood powder from, or move sandalwood or red-sanders wood within, any place in the whole of the State, unless such sandalwood or red-sanders wood is accompanied by a permit prescribed in Rule 4. The above Rule postulates red sanders should not be moved away from the forest which is obviously its abode into the plains or city without a permit prescribed by Rule 4 of the Rules. In this case, neither the driver of the lorry in question nor the owner of the lorry in question tendered any such permit justifying the situation of a load of red sanders in their lorry stationed in Vijayawada miles away from its abode, the thick forests elsewhere. The fact that their lorry came to hold a load of red sanders is absolutely beyond controversy. The red sanders could not have been found in their lorry at Vijayawada without its being moved all the way from the forest up to Vijayawada. So, the movement of red sanders without a permit into the lorry of the appellants is very much proved. Similarly, it is also well established that they totally failed to prove any permit justifying that movement of red sanders into their lorry from a far off forest. This scenario is sufficient to establish that a forest offence did occur. Point No.2:- ....................It is very apparent on the face of the record that a contraband load of red sanders was very much found lying in the lorry in question. This is also an admitted fact. Both the driver and owner in their written statements admitted the fact of discovery of red sanders in the lorry in question though they tried their best to justify it resting their theme upon their innocence or they being misled into holding that contraband by someone else. It is a matter of common knowledge that ignorance of law is not an excuse. That red sanders cannot be held by any person without the proper permit is the law of the land. They cannot plead ignorance of the law of land. Nevertheless, the law permits a limited scope for pleading innocence as a defence against the seizure of the property. That aspect is embodied in sub-section (2-C) of Section 44 of the A.P. Forest Act, 1967. Before that, it is profitable to dilate more upon the erroneous thinking that in order to seize a lorry it should be found running. Certainly if we see the provisions of Section 44(1)(2-A) and (2-B), it is nowhere said that the lorry should be found running in order to attract the liability entailing in seizure. Thus the entire Sec.44 of the A.P. Forest Act, 1967 is relevant for the purposes of this discussion and is therefore extracted hereunder: 44. Seizure of property liable to confiscation and procedure thereupon:- (1) Where there is reason to believe that a forest offence has been committed in respect of any timber or forest produce, such timber, or forest produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence, may be seized by any forest officer or police officer. (2) Every officer seizing any property under this section shall place on such property or the receptacle, if any, in which it is contained, a mark indicating that the same has been so seized and shall, except where the offender agrees in writing forthwith to get the offence compounded (without any unreasonable delay either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorized by the Government in this behalf by notification (hereinafter referred to as the authorized officer) or make a report of such seizure to the Magistrate:) Provided that where the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Central or State Government and the offender is not known, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to the Divisional Forest Officer. (2-A) Where an authorised officer seizes under sub section (1) any timber or forest produce or where any such timber or forest produce is produced before him under sub section (2) and he is satisfied that a forest offence has been committed, in respect thereof, he may order confiscation of the timber or forest produce so seized or produced together with all tools,