IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 34817 of 1998 Between: 1 The Forest (Mobile Party No.II) Narasampet, 2 Sub Divisional Forest Officer & Authorised Officer, Narasampet. ..... PETITIONERS AND 1 Nandyakla Sreenivas Reddy, S/o Butchi Reddy, R/o H.No.9-83, Near Subbash Statue, P.O. Village Narasampet, Narasampet Mandal, Warangal District. 2 The District Judge, Warangal. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue, Writ of Certiorari calling for the records in CMA 69/94 dt:27.10.1997 and the same may be quashed by restoring the order passed by the Authorised Officer in POR No. 1190/48 dt:1.15.1994 Counsel for the Petitioners: GP FOR FORESTS Counsel for the Respondent No.2: GP FOR HOME The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 34817 of 1998 Order: This writ petition is filed by the Vigilance Wing of the Forest Department aggrieved by the order of the District Judge, Warangal, in C.M.A. No. 69 of 1994 dated 27.10.1997, setting aside the order passed by the Sub-Divisional Forest Officer, Narsampet, in P.O.R. No. 1190/48 dated 01.05.1994. Despite service of notice, no counsel has entered appearance on behalf of the first respondent. Facts, in brief, are that, when the mobile party of the Forest Department was checking vehicles, they found a lorry bearing No. ATK 5657 before the railway level crossing of Dharmaram village, at about 7.00 AM on 01.05.1994, which, on being checked, contained 52 logs of teakwood without any transit permit or transit marks. As the lorry driver failed to produce the lorry permit, a panchanama was conducted and both the lorry and the illegal teak timber were seized. A case was booked under P.O.R. No. 1190/48 dated 01.05.1994, and the timber was handed over to the Government Timber Depot, Narsampet, after due inspection by the Sub-Divisional Forest Officer. Both the lorry owner and the driver were issued notices on 16.05.1994 directing them to show cause as to why action should not be taken against them under Section 44 of the Andhra Pradesh Forest Act, 1967 (for short ‘the Act’). An enquiry was held on 14.07.1994, and on a few other dates thereafter. The second petitioner herein, by order dated 22.07.1994, confiscated the 52 logs of teakwood valued at Rs.1,03,480/-, along with the lorry bearing No. ATK 5657, which was used in the commission of the forest offence. Aggrieved thereby, the first respondent herein preferred C.M.A. No. 69 of 1994 before the District Judge, Warangal, who allowed the appeal and directed that the lorry be released. The first respondent herein had earlier filed W.P. No. 10534 of 1994 and this Court had directed that the lorry be released on a bank guarantee for Rs.70,000/- being furnished. Learned Government Pleader for Forests would submit that, on a bank guarantee being furnished for the said amount, the lorry was released on 29.03.1996. In his order dated 22.07.1994, the Sub-Divisional Forest Officer held that the Range Officer, Narsampet, along with others, had verified the teak timber in Lorry No. ATK-5657, which was without transit permit and without hammer marks, and it was only thereafter that a case in P.O.R. No. 1190/48 dated 01.05.1994 was instituted. He further held that the said lorry was used in the commission of forest offence and that the lorry owner had failed to prove that the vehicle was used without his knowledge and connivance. The second petitioner found discrepancies in the statement given by the driver to the Forester on 01.05.1994 and the one he gave before the Authorised Officer. He also observed that the facts stated by the owner of the lorry on 09.06.1994 were at variance with the facts stated by the driver of the lorry in his statement given before the second petitioner on 14.07.1994. The second petitioner concluded that the owner and driver of the lorry were not speaking the truth and that they had connived with the smugglers and, since the owner of the vehicle did not produce any evidence to show that he had not connived in the commission of the forest offence, either directly or indirectly, an order of confiscation was required to be passed with a view to curb such forest smuggling which was resulting in depletion of valuable forest wealth. In appeal, the learned District Judge observed that the statement recorded before the Sub-Divisional Forest Officer on 09.06.1994 disclosed that the driver did not have knowledge about the vehicle being used for carrying timber logs, that the said statement showed that on 30.04.1994 in the evening time at 11.00 PM when the lorry started from Warangal to Narsampet and when it reached Kommala village, ten persons, whose identification was not known, had stopped the lorry and had forcibly taken it to Togarai village, there the timber, brought in ten bullock carts, was loaded in the lorry, that two persons sat in the lorry cabin, that, while the lorry was proceeding towards Hyderabad and, when it reached Dharmaram village PWD road, the lorry was stopped at the railway gate since the gate was closed, and the Forest Officials, who came in a jeep, had seized the lorry along with timber. The learned District Judge held that the statement of the driver showed that he was transporting the timber without knowledge of the owner of the lorry and that there were other persons in the lorry accompanying the timber. He further held that the Forest Officials did not examine the other persons, that the second petitioner had not properly appreciated the evidence on record and had given a finding that the lorry was being used for transportation of timber with the knowledge of the owner and, that the petitioners herein had not collected any evidence to show that the lorry was illegally transporting forest timber with the knowledge and connivance of the owner. On such conclusion, the learned District Judge, while holding that the confiscation order was not sustainable, set aside the order of the second petitioner dated 22.07.1994. Before this Court, learned Government Pleader for Forests would contend that, under Section 44(2-C) of the Act, the onus was on the owner of the lorry to establish that the lorry was used for illegal transportation of forest produce without his knowledge and that he had not connived in the commission of such offence, that the learned Judge had erred in placing the burden on the Forest Officials, when the statute placed it on the lorry owner, that it was for the first respondent to establish, by cogent and reliable evidence, that the lorry had been used for illegal transportation of forest produce without his knowledge and, since he had failed to discharge this burden, the petitioners herein were justified in confiscating both the lorry and the 52 logs of timber therein. Under Section 44(2-C) of the Act, no order of confiscation of any vehicle shall be made, if the owner proves to the satisfaction of the authorized officer that it was used in carrying the property without his knowledge or the person in charge of the vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. The twin ingredients to be satisfied by the lorry owner and the driver of the vehicle, to escape the rigor of Section 44 of the Act, is (1) that they were not in the knowledge of or that they had not connived in the vehicle being used for illegal transportation of forest produce and (2) that each of them had taken all reasonable and necessary precautions against such use. While Section 44(2-C) of the Act would require both these ingredients to be satisfied to escape the rigor of Section 44 of the Act, in the case on hand, neither of the ingredients have been complied with. No evidence, other than the self serving statements of the driver and the owner, has been placed on record. Even the driver’s self serving statement is to the effect that he had gone to sleep when the vehicle was loaded with 52 logs of timber. Such farfetched statements ought not to have been, readily, accepted by the learned District Judge. In any event, the learned District Judge had erred in placing onus on the petitioners herein, when the statutory provision casts a burden on lorry owner and the driver to establish their innocence. The order impugned in this writ petition must, necessarily, be set aside. As a consequence, the order of the second petitioner dated 22.07.1994, stands restored and their action, in confiscating the lorry and the forest produce, must be upheld. Since the lorry was directed to be released on a bank guarantee of Rs.70,000/- being furnished, it is open to the petitioners to encash the bank guarantee. The writ petition is, accordingly, allowed. However, in the circumstances, without costs. __________________________ RAMESH RANGANATHAN, J. Date: 19.03.2009 Nsr