IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.12.2007 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.21798 of 2000 The Secretary to Government, State of Tamil Nadu, Environment and Forests Department, Fort St. George, Chennai-9. ... Petitioner Versus 1. M/s.Subam Auto Finance Co., rep. By Mr.Palanisamy, Oddanchatiram. 2.The Principal Sessions Judge, Villupuram. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari, to call for the records in Crl.A.No.1 of 1998, dated 07.08.2000 on the file of the second respondent and quash the same. For Petitioner : Mr. K.Rajasekar, Government Advocate For 1st Respondent : Mr. C.Palanaisamy O R D E R State is the petitioner herein. The judgment in Crl.A.No.1 of 1998, dated 07.08.2000 passed by the second respondent, setting aside the confiscation of the vehicle involved in a forest offence is under challenge. 2. Brief facts leading to the Writ Petition are as follows: On 03.09.1997, around 1.30 a.m., near Ulunderpet Government Transport Depot on the Highways of Trichy to Chennai, the Forest Officials while patrolling, seized a Mini Lorry DCK Toyota bearing Registration No.TN-59-7370 for transporting 907.500 kgs of Sandalwood, which is a schedule timber without any valid licence or permit as per Section 41 of the Tamil Nadu Forest Ac, 1882 (in short as "the Act"). The offence was registered in STOR.No.5 of 1997 under Section 36(A) and 36(B) of the said Act. The vehicle along with the other seized materials were produced before the Authorised Officer for further proceedings as contemplated under the said Act. During investigation by the Ranger and Forest Officials of Ulunderpet, it was found that the owner of the vehicle was one Mr.Singaram of Palani in Dindigul District and he was enquired on 04.09.1997. The said Singaram gave a statement on the same day, stating that on 25.08.1997, his vehicle DCM TOYOTA bearing Registration No.TN-59-7370 was hired by Mr.Karimal, S/o. Thangavel, Ganesan, S/o.Sangilithevar and Velan @ Velusamy, S/o.Subramani for transporting sandalwood unlawfully for which the hire charge was fixed at Rs.30,0000./- and he received a sum of Rs.5,00/- as advance. On further enquiry the statement given by Mr.Singaram was confirmed by the Transportor, Mr.K.Iyyappan of Gandhi Road, Palani. 3. It is further submitted that the transport of sandalwood which is a schedule timber without valid permit is an offence under the Act and therefore, a show cause notice was issued to the registered owner, Mr.Singaram vide C.No.6841/97(L) dated 12.09.1997, calling for his objections, if any for confiscation of the vehicle. A similar show cause notice was sent to the first respondent, financier, on 15.101997 and his objections were called for. The Registered owner received the notice on 12.09.1997 and submitted his explanation on 26.09.1997, stating that the vehicle was used by some other person for smuggling sandalwood. The first respondent received the show cause notice on 16.10.1997 and offered his explanation on 21.10.1997. The explanation submitted by both the registered owner and the fiancier were considered along with the materials on record by the Authorised Officer and by order dated 13.11.1997, the Authorised Officer ordered confisication of the vehicle as well as the sandalwood. Against the order of confiscation, the owner of the vehicle did not file any appeal. The first respondent, viz., the fiancier filed an appeal in C.A.No.1 of 1998, under Section 49-D of the Act before the Learned Principal Session Judge, Villupuram and the appellate authority, without considering the provision of law in proper perspective and the points raised, set aside the confiscation order with regard to the vehicle and allowed the appeal, by his order dated 07.08.2000. The said order is impugned in this Writ Petition. According to the petitioner, after confisication, the vehicle is vested with the Government, who is the owner of the vehicle and therefore, the Government is aggrieved by the order of the Principal Sessions Judge. 4. Mr.Rajasekar, learned counsel for the petitioner submitted that the financier is not a registered owner of the vehicle in terms of the Motor Vehicle Act, he cannot have any interest over the vehicle, except for the payment made by them and if at all there is any amount due, the financier can take appropriate steps to recover the amount from the registered owner. He further submitted that the appellate authority had failed to consider that the registered owner of the vehicle, Mr.Singaram, had given a confession statement dated 04.09.1999, admitting that the offence had taken place with his knowledge and connivance. He further submitted that as the confession statement has not been retracted by the owner of the vehicle, the same is binding on the owner of the vehicle as well as the financier. When the registered owner has not challenged the finding rendered by the Authorised Officer, it is not open to the financier to challenge the same merely because, the owner was not arrayed as an accused in the criminal case. He further submitted that criminal proceedings and confiscation are two distinct proceedings and one has no relevance to the other. 5. Learned counsel for the petitioner further submitted that neither the registered owner nor the financier denied the commission of offence and involvement of the vehicle in the commission of offence. According to the petitioner, apart from knowledge or connivance of the owner, law contemplates that the owner or his agent if any, or person in charge of the vehicle, each of them have to take reaonsble and necessary precautions against the use of the vehicle in the commission of offence and when there is sufficient evidence for confiscation, the appellate authority erred in mis- interpreting the provision and released the vehicle. He further submitted that if the findings of the appellate authority are to be accepted and confirmed, then forest offenders and smugglers will purposefully hypothecate the vehicle to a financier and in all cases, the financier may not have any personal knowledge or connivance with the offender and in which case, the purpose for legislating a specific provision for confisication would be defeated. 6. Learned counsel for the petitioner further submitted that the appellate authority has erred in holding that the registered owner of the vehicle is innocent and has no knowledge about the offence merely because he was not impleaded as an accused in the criminal case. He further submitted that as confiscation and criminal proceedings are entirely different, registration of criminal case against the owner of the vehicle is not a requisite for confiscating forest produce, vehicle or materials used in the commission of offence. 7. On the other hand, Mr.C.P.Palanisamy, learned counsel appearing for the first respondent submitted that the financier having parted with the money for the vehicle is an aggrieved person and therefore can maintain an appeal before the appellate authority. He further submitted that the fact that the owner was not impleaded as an accused in the Criminal case itself is a proof that if the owner had no knowledge or connivance in the commission of offence. The signatures of the owner and his statement have been obtained only for the purpose of confiscation of the vehicle and therefore, the appellate authority had rightly held that the owner of the vehicle had no knowledge of the commission of offence and under such circumstances, the first respondent, being the hire purchase agreement holder is entitled to the release of the vehicle. Heard the counsel appearing for the parties and perused the materials available on record. 8. Before dealing with the facts of the case on hand, I would like extract the views of the Supreme Court and this Court as to how the Courts/Forest Officials have to deal with the matter relating to the release of the vehicle seized for committing the forest offence. Though the first judgment relates to a case of release of the vehicle before culminating into the confiscation proceedings, the principles stated in the judgment would be relevant for the purpose of adjudication of the case on hand. 9. In State of Karnataka v. K.Krishnan reported in AIR 2000 SC 2729, while dealing with a release of vehicle involved in the Forest case, the Supreme Court in Para 7, held as follows: "The provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattles etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The Courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that the release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come." 10. In yet another decision in Divisional Forest Officer v. G.V.Sudhakar Rao reported in AIR 1986 SC 328, the Supreme Court considered the scope and effect of Section 44(2A) of the Andra Pradesh Forest Act, when the High Court under Section 482 Cr.P.C., stayed the confiscation proceedings initiated under Section 44(2A) of the Forest Act. The Apex Court, while dealing with the power of the Forest Officer for confiscation of the vehicle, vis-a-vis, the Magistrate held that the confiscation of the vehicle carrying timber, goods forming the subject matter is not depended upon whether prosecution of the commission of Forest offence has been launched against the offender or not. At Para 3 to 5, the Supreme Court dealt with the above issue as follows: "3.. The precise question that falls for determination is whether where a Forest Officer makes a report of seizure of any timber or forest produce and produces the seized property along with a report under Section 44(2) that he has reason to believe that a forest offence has been committed in respect of such timber or forest produce seized, can there simultaneously be proceedings for confiscation to Government of such timber or forest produce and the implements etc. by the Authorized Officer under Section 44(2A) of the Act if he is satisfied that a forest offence has been committed, along with a criminal case instituted on a complaint by the Forest Officer before a Magistrate of the commission of a forest offence under Section 20 of the Act. The appeal turns upon a proper construction of Sections 44(2), 44(2A) and 45 of the Act, as amended by Act 17 of 1976. 4. In order to deal with the question involved, it is necessary to refer to the statutory changes brought about. The Act, prior to its amendment by Act 17 of 1976 provided by Section 44 insofar as material, as follows: ""44(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, 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. (3) *** *** *** *** (4) *** *** *** *** (5) The property seized under this section, shall be kept in the custody of the forest officer not below the rank of a Forest Guard or the village headman until the compensation for compounding the offence is paid or until an order of the magistrate directing its disposal is received. Section 45 of the Act, prior to its amendment, was in these terms: 45. Where a person is convicted of a forest offence, the court sentencing him shall order confiscation to the Government of timber or forest produce in respect of which such offence was committed and of any tool, boat, vehicle other than a cart drawn by animals, vessel or other conveyance or any other article used in committing such offence."" After extracting the relevant provisions, the Apex Court dealt with the scope and nature of proceedings initiated for confiscation of the vehicle and criminal action taken against the offenders and held as follows: "5. The change in the law was brought about with a view to prevent the growing menace of ruthless exploitation of Government forests by illicit felling of teak and other valuable forest produce by unscrupulous traders, particularly from the reserved forests by providing for a machinery for confiscation of illegally felled trees or forest produce by the Forest authorities. Under Section 45 of the Act as it then stood, where a person was convicted of a forest offence, the Court sentencing him was empowered to order confiscation to the Government of timber or forest produce in respect of which a forest offence was committed and of any tool, boat, vehicle other than a cart draw by animals, vessel or other conveyance or any other article used in committing such offence. Although there was a provision for seizure of such articles in Section 44 of the Act, there was no provision in the Act enabling the forest officers to confiscate such timber or forest produce and the implements etc. used for committing forest offences even in a case where he was satisfied that a forest offence had been committed. In view of this, the Forest Department was finding it difficult to curb the forest offences effectively and quickly inspite of the fact that large scale felling and smuggling of forest produce was on the increase. Hence it was thought necessary to empower the officials of the Forest Department seizing any property under Sub-section (1) of Section 44, instead of merely making a report of the seizure to a Magistrate, also to order confiscation of timber or forest produce seized together will all the tools, boats, vehicles etc. used in committing such offence. Statement of Objects and Reasons: The intendment of the Legislature in enacting Act 17 of 1976 was therefore to provide for two separate proceedings before two independent forums in the Act, one, for confiscation by a departmental authority exercising quasi-judicial powers conferred under Sub-section (2A) of Section 44 of the goods forming the subject-matter of the offence, and the other for the trial of the person accused of the offence so committed. It brought about the following changes, namely, : (1) In Sub- section (2) of Section 44 of the Act in the opening paragraph, for the words "make a report of such seizure to the magistrate:", the following words and brackets were substituted, namely: 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: (2) After Sub-section (2), Sub-Sections (2A), (2B), (2C), (2D) and (2E) were inserted. Sub-section (2A), which is material for our purposes, provides: (2A) Where an authorized 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, ropes, chains, boats or vehicles used in committing such offence. Sub-section (2B) enjoins that no order confiscating any property shall be made under Sub-section (2A) unless the person from whom the property is seized is given (a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and (c) a reasonable opportunity of being heard in the matter. Sub-section (20) provides that without prejudice to the provisions in Sub-section (2B), no order of confiscation under Sub-section (2A) of any tool, rope, chain, boat or vehicle shall be made after the owner thereof proves to the satisfaction of the Authorized Officer that it was used in carrying the property without his knowledge or connivance, or the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat or vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. Sub-section (2D) confers power on an Authorized Officer not below the rank of a Conservator of Forests empowered by the Government in that behalf, may within 30 days of the date of the order of confiscation by the Authoirzed Officer under Sub-section (2A), either suo motu or on an application call for and examine the record of that order and may make such inquiry or cause such inquiry to be made and pass such orders as he may think fit. Proviso thereto enjoins that no order prejudicial to any person shall be passed without giving him an opportunity of being heard. Sub-section (2E) confers a right of appeal to the person aggrieved by an order passed under Sub-section (2A) or Sub-section (2D). Such an appeal had to be preferred within 30 days from the date of communication to him of such order, to the District Court having jurisdiction over the area in which the property had been seized. The District Court was conferred the power after giving an opportunity to the parties to be heard, to pass such order as it may think fit and the order of the District Court so passed shall be final." 11. In State of W.B. v. Sujit Kumar Rana reported in 2004 (4) SCC 129, the Supreme Court, while dealing with a similar provision for confiscation under the West Bengal Forest Act, at Paragraph 21, held as follows: "The State Legislature of West Bengal has inserted the said provisions (relating to the seizure and confiscation) with a laudable object. Forest is a national wealth which is required to be preserved. In most of the cases, the State is the owner of the forests and forest produce. Depletion of forests would lead to ecological imbalance. It is now settled that the State is enjoined with a duty to preserve the forests so as to maintain ecological balance and, thus, with a view to achieve the said object forests must be given due protection. Statutes which provide for protection of forests to maintain ecological balance should receive liberal construction at the hands of superior Courts. Interpretive exercise of such power should be in consonance with the provisions of such statutes not only having regard to the principle of purposive construction so as to give effect to the aim and object of the legislature; keeping the principles contained in Articles 48-A and 51-A(g) of the Constitution of India in mind. The provisions for confiscation have been made as a deterrent object so that felling of trees and deforestation is not made." In the above reported case, confiscation proceedings were pending before the Authorised Officer under the Forest Act. The High Court in exercise of its power under Section 482 Cr.P.C., released the vehicle involved in the Forest offence. The Supreme Court held that although the Criminal Court indisputably has a jurisdiction to deal with the property which is the subject matter of offence in terms of the provisions of the Code of Criminal Procedure, but once the confiscation proceedings are initiated, the said provision under Section 482 of the Criminal Procedure Code, cannot be exercised by the Magistrate. At Paragraph 34 and 43 of the judgment, the Supreme Court held as follows: "An order of confiscation in respect of a property must be distinguished from an order of forfeiture thereof. Although the effect of both confiscation and forfeiture of a property may be the same, namely, that the property would vest in the State but the nature of such order having regard to the statutory scheme must be held to be different. A proceeding for confiscation can be initiated irrespective of the fact as to whether prosecution for commission of a forest offence has been lodged or not. A confiscation proceeding, therefore, is independent of a criminal proceeding. A confiscation envisages a civil liability whereas an order of forfeiture of the forest produce must be preceded by a judgment of conviction." 12. In yet another decision in State of Bihar v. Kedar Sao reported in 2004 (9) SCC 344, the Supreme Court observed that the provision of seizure and its procedure for confiscation as contained in Section 52 of the Indian Forest Act, as amended by Bihar Amendment Act 9 of 1990 were made having regard to the fact that not only the commission of forest offences are on the increase but rampant acts involving large-scale pilferage and depletion of forest wealth not only causing serious onslaught on the nature and environment causing ecological imbalance and irreparable loss and damage to public property, were taking place and the States, therefore, had to take such drastic legislative measures with a view to prevent commission of such offences. 13. In M/s.Ashok Leyland Finance v. Government of Andra Pradesh reported in AIR 2001 AP 270, the Division Bench of the Andra Pradesh High Court Court has considered whether a finance company claimed to be a hire purchaser can be considered as owner of the vehicle and if so, whether the finance company had discharged the burden envisaged in Section 41(2C) of the Andra Pradesh Forest Act for release of the vehicle, solely on the ground that the vehicle was used for transporting the contraband of produce without his knowledge and connivance, etc. At Paragraph 9