L.MOHAPATRA, J & B.K.PATEL, J. W.P.(C) NO. 7611 OF 2007 (Decided on 24.11.2011) STATE OF ORISSA ……..Petitioner. .Vrs. TARUN KHAMARI ……..Opp.Party. ORISSA FOREST ACT, 1972 (ACT NO.14 OF1972) – S.56(2-c). For Petitioner - M/s. C.Ananda Rao, S.K.Behera & A.K.Rath. For Opp.Parties - M/s. Satya Ranjan Mohapatra, Saroj Kr. Rout, Kabir Ku.Jena & Siba Prasad Swain. L. MOHAPATRA, J. State has filed this writ application challenging the order dated 20.2.2007 passed by the learned District Judge, Sambalpur in F.A.O.37 of 2005. 2. The facts leading to initiation of a Confiscation Proceeding against the opposite party are that on 1.10.2004, the Officer-in-Charge of Rairakhol Police Station seized a vehicle bearing Registration No.OR-15-E-7644 loaded with 44 pieces of Bija Planks, arrested the driver of the said vehicle and sent information to the Forest Range Officer, Rampur. The Range Officer, Rampur took zima of the vehicle and planks and submitted the records to the Divisional Forest Officer, Rairakhol Division for initiation of a proceeding under Section 56 of the Orissa Forest Act,1972. The driver and the opposite party, who is owner of the vehicle, were noticed to show cause. After consideration of the reply submitted by both of them and on consideration of the materials collected during Confiscation Proceeding, the Authorised Officer-cum- Divisional Forest Officer, Rairakhol Division vide order dated 10.6.2005 directed not only for confiscation of the vehicle, but also the timber. Challenging the said order, opposite party filed an appeal before the learned District Judge, Sambalpur and in the impugned order, the learned District Judge came to a categorical finding that the opposite party, who is owner of the vehicle, had no knowledge about such illegal transportation of timber in the vehicle and, accordingly, set aside the order passed by the Authorized Officer and allowed the appeal. Challenging the said order passed in appeal, this writ application has been filed. 3. Learned counsel for the State referring to Section 56(2-c) of the Orissa Forest Act, 1972 submitted that only when owner of the vehicle proves to the satisfaction of the Authorised Officer that the vehicle was used without his knowledge or connivance or knowledge of his agent, if any, and that he had taken all reasonable and necessary precaution against such illegal use, the order of confiscation may not be passed by the Authorised Officer. Referring to annexures attached to the writ application, it was contended by learned counsel for the State that though the opposite party has been able to prove that he had no knowledge regarding use of his vehicle for commission of the said forest offence, he has not been able to prove that such offence had been committed by his agent i.e. the driver without knowledge or connivance. The owner has also not been able to prove that he had taken all reasonable and necessary precaution to prevent use of the said vehicle for commission of the forest offence. According to the learned counsel for the State, involvement of the driver having been proved in course of the Confiscation Proceeding, the impugned order passed by the authority is liable to be set aside. Learned counsel appearing for the opposite party drew attention of the Court to the statement made by the driver and it was contended that the driver in his statement has clearly stated that he had knowledge about illegal transportation of timber in the vehicle but he carried the timber in the vehicle under threat and, therefore, it cannot be said that the driver used the vehicle for commission of the aforesaid offence deliberately and knowingly. 4. From the facts pleaded and annexures attached to the writ application, it appears that on 1.10.2004, the I.I.C. of Rairakhola Police Station seized the above vehicle (Mahindra Max) loaded with 44 pieces of Bija Plans, which were being illegally transported without any permit in violation of Section 56 of the Orissa Forest Act, 1972 and the T. T. Permit Rules. Intimation was given by the said I.I.C. to the Range Officer, Rampur. Subsequently, the Range Officer, Rampur took zima of the vehicle and timber seized from the said vehicle. On the basis of the report submitted by the Range Officer, Confiscation Proceeding was initiated before the Authorised Officer vide C.P.C No.26 of 2004-05 against the opposite party as well as the driver. The opposite party after receipt of notice, stated that he had no knowledge about the use of the vehicle for carrying the said timber without permit. The driver of the vehicle also made a statement to the effect that while coming back from Angul to Sambalpur about five kilometres away from Boinda, three persons indicated him to stop the vehicle. Thinking that those three persons are passengers, he stopped the vehicle. Those three persons said that they want to go to Sambalpur and since the vehicle was coming to Sambalpur, he allowed them to sit in the vehicle. Near Rairakhol, he stopped the vehicle under the instruction of those three persons. Thereafter, he was asked to take the vehicle towards Deogarh on the ground that those persons wanted to meet one of their friends. He, thereafter took the vehicle towards Deogarh and after travelling about twenty kilometres, those three persons asked him to take right turn and move. When he refused, he was forced to take the vehicle. After going six to seven kilometres, those three persons got the vehicle stopped and in spite of protest, forcibly loaded Bija Planks on the vehicle after taking out the back seats. Thereafter, they came back to Rairakhol again. When they saw a police vehicle following them, he was forced by the said three persons to drive the vehicle and when he refused, he was assaulted. Finding no other way, he deliberately dashed the vehicle against a tree. Those three persons got down from the vehicle and fled away. The police thereafter seized the vehicle along with the timber and arrested him. 5. Relying on the statement of the driver, the learned counsel for the opposite party contended that act of loading and carrying the timber in the vehicle without permit was not a deliberate act on the part of the driver and he had been forced to do so. This evidence of the driver was not taken into consideration by the Authorised Officer and, therefore, the order of confiscation was passed. 2 6. On perusal of the order passed by the Authorised Officer, we find that he has taken note of the said statement of the driver but observed that though the driver of the vehicle took the plea of committing the offence forcibly, but from the circumstantial evidence like opening of the back seat of the vehicle to facilitate loading of planks, the illegal transportation seems to be pre-planned. The said observation made by the Authorised Officer is not in conformity with the statement made by the driver. The driver has specifically stated that those three persons, who fled away, used some local people to carry the planks in the vehicle, removed the back seat of the vehicle and loaded the planks. Thereafter, they forced him to drive the vehicle. If this part of the statement of the driver is accepted, one can come to a conclusion that though the driver had knowledge that his vehicle is being used for carrying wooden planks without a valid permit, it was not a deliberate act on the part of the driver. He was forced to do so under threat. 7. We are therefore of the view that not only the owner had any knowledge about use of the vehicle for commission of the forest offence but also the driver had not loaded the wooden planks on the vehicle deliberately and had been forced to do so under threat. Had the driver been involved in commission of the forest offence, he would not have intentionally dashed the vehicle against the tree to stop the vehicle. For the reasons stated above, we find no justification to interfere with the impugned order dated 20.2.2007 passed by the learned District Judge, Sambalpur. The writ application is accordingly dismissed. Writ petition dismissed. 3