IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.591 OF 2001 State of Maharashtra .. Petitioner Vs. Ghanshyam Keshavprasad Tiwari .. Respondent Smt.P.P.Shinde, A.P.P for the Petitioner. Mr.P.P.Chavan with Mr.S.S.Kulkarni for the Respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 20th August 2008. ORAL JUDGMENT: . Heard learned A.P.P for the State and the learned advocate for the respondent. 2. According to the case of the petitioner, on 14th April 2000 when the officers of the Forest Department were on patrolling duty, early in the morning at 05.00 a.m, a truck bearing registration No.MH04-S-1559 was seen proceeding in very high speed on a road from village Tulsa to village Konagaon. Though an attempt was made by the officers to stop the truck, the driver on the truck avoided to stop the truck. Ultimately, the officers stopped the truck near village Nehroli. At : 2 : that time it was found that the truck was carrying ‘Khair’ wood without permit. After issuing notice to the owner of the truck i.e the respondent herein an order of confiscation was passed by the Assistant Conservator of Forest, Asangaon, Shahpur on 05th September 2000. An appeal was preferred by the respondent against the said order. By the impugned judgment and order dated 13th November 2000 the said appeal has been allowed and truck was ordered to be returned to the respondent. 3. The submission of the learned A.G.P appearing for the petitioner is that the learned Sessions Judge has completely ignored the provisions of section 61B of the Indian Forest Act, 1927 (As amended by Maharashtra Act 7 of 1985). She submitted that the burden was on the respondent to prove to the satisfaction of the authorised officer that the truck was used for carrying the goods without the knowledge or connivance of the respondent himself or his agent and that the respondent had taken all reasonable and necessary precautions against such use. She submitted that the learned Sessions Judge was under an erroneous impression that the burden was on the forest department to show that the truck was used for carrying the goods without the : 3 : knowledge or connivance of the respondent himself or his agent and that the respondent had taken all reasonable and necessary precautions against the such use. She submitted that the learned Sessions Judge was under an erroneous impression that the burden was on the forest department to prove that the truck was being used for carrying goods without knowledge or connivance of the respondent. She, therefore, submitted that the entire approach of the learned Sessions Judge was erroneous. She stated that on the basis of the impugned order, the custody of the truck has been returned to the respondent. 4. The learned advocate for the respondent submitted that the learned Sessions Judge was conscious of the provisions of law relating to burden of proof. He submitted that in view of section 104 of the Indian Evidence Act, 1872 the learned Sessions Judge was right in coming to the conclusion that confiscation of the truck was illegal. He submitted that the material on record of the inquiry proceedings was sufficient to discharge the burden on the respondent and infact the burden shifted on the petitioner which has not been discharged. Without prejudice to the aforesaid contentions he submitted that there was no proper : 4 : enquiry held by the Authorised Officer and therefore by setting aside order of confiscation, the petitioner may be permitted to adduce evidence before the officer. 5. I have carefully considered the submissions. It will be necessary to refer to the provisions of the said Act of 1927 (as amended by the Maharashtra Act No.7 of 1985). Section 61B of the said Act of 1927 reads thus: "61.B. Issue of show cause notice before confiscation under section 61A.- (1) No order confiscating any timber, sandalwood, firewood, charcoal any other notified forest-produce, tools, boats, vehicles and cattle shall be made under section 61A 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 a 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. : 5 : (2) Without prejudice to the provisions of sub-section (1), no order confiscating any tools, boat, vehicle or cattle shall be made under section 61 A, if the owner of the tools, boat, vehicle or cattle proves to the satisfaction of the authorised officer that was used in carrying timber, sandalwood, firewood, charcoal or any other notified forest-produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, boat, vehicle or cattle and that each of them taken all reasonable and necessary precautions against such use." Thus, an order confiscating any timber or vehicle cannot be passed except after notice in writing to the person from whom same was seized. As far as practicable, before passing order of confiscation of a motor vehicle, a notice in writing is required to be given to the registered owner. Sub section 2 lays down that no order confiscating any vehicle shall be passed under section 61A of the said Act of 1927, if the owner discharges the burden by proving to the satisfaction of the Authorised Officer that the vehicle was used for carrying timber without knowledge or connivance of himself, his agent, : 6 : if any, and the person incharge of the vehicle. For preventing the Authorised Officer from passing order of confiscation of the vehicle, the owner has to prove that he himself, his agent, if any and the person incharge of the vehicle have taken all reasonable and necessary precautions against such use. 6. Thus, the owner has to establish aforesaid aspects on the basis of evidence and material on record. In what manner the owner will discharge the said burden ultimately depends on facts of the case. In a given case, burden can be discharged on the basis of the material produced by the forest department before the Authorised Officer. In a given case, the owner will have to lead evidence for discharging the said burden. 7. The impugned order runs into only 5 paragraphs. Perusal of the said order show that the learned Sessions Judge has not at all considered the effect of sub section 2 of section 61B of the said Act of 1927 (as amended for Maharashtra). In any event, there is no finding recorded by the learned Sessions Judge that on the basis of available material on record of the inquiry, the respondent proved to the satisfaction of the Authorised Officer that the truck was used for : 7 : carrying timber without his knowledge or connivance and that he had taken all reasonable and necessary precautions for preventing such use. Without recording any finding as aforesaid, the learned Sessions Judge could not have allowed the appeal preferred by the respondent. Thus, the appeal has been decided by ignoring the rule of burden of proof laid down in sub section 2 of section 61B of the said Act of 1927. The learned Sessions Judge was hearing an appeal against order of confiscation. The perusal of the reasons part the part of the impugned judgment and order shows that there is no consideration by the learned Judge of the evidence and material on record before the Authorised Officer. 8. In this case the Sessions Court was the final fact finding Court. As stated earlier, the Sessions Court has decided the appeal without noticing the relevant provisions of sub-section of section 61B(2). It appears that there is no consideration by the learned Sessions Judge of the material placed on record during the course of enquiry. As a finding of the Appellate Court is required on factual aspect of the case in the context of the rule of burden of proof, only option left open is to remand the appeal to the Sessions Court. The : 8 : respondent is already placed in possession of the truck on the basis of the impugned order. The respondent will have to file an undertaking before the Sessions Court as indicated in the operative part of the order. If the undertaking is not filed within stipulated time, it will be open for the petitioner to re-possess the truck. 9. Hence, I pass the following order: (i) The impugned judgment and order dated 13th November 2007 is quashed and set aside and Criminal Appeal No.42 of 2000 is restored to the file of the learned Sessions Judge. (ii) The learned Sessions Judge shall decide the appeal afresh in the light of the observations made in this judgment. (iii) The appeal shall be decided as expeditiously as possible and preferably within period of three months from the date of appearance fixed by this order. (iv) The parties are directed to appear before the learned Sessions Judge on 15th September 2008. : 9 : (v) The custody of the truck in dispute shall not be distrubed till final disposal of the appeal subject to condition of the respondent filing before the Sessions Judge an undertaking in writing stating therein that he will not part with possession of the truck, he will not transfer the truck and he will maintain the truck in proper condition till the final disposal of the appeal. The undertaking will also state that if the respondent fails in appeal, he will hand over the custody of the truck to the petitioner within a period of 12 weeks from the date of decision of the Appellate Court subject to further order which may be passed by the higher Court. (vi) If undertaking is not filed on or before 16th September 2008, it will be open for the petitioner to take appropriate steps for re-possessing the truck. It is made clear that all contentions in the pending appeal are expressly kept open. (vii) Rule is made partly absolute in above terms : 10 : with no orders as to costs. (A.S.Oka,J)