vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.862 OF 2000 WRIT PETITION NO.862 OF 2000 WRIT PETITION NO.862 OF 2000 State of Maharashtra ... Petitioner V/s. Anwar Nizamuddin Shaikh ... Respondent Mrs.A. A,. Mane, APP, for Petitioner CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: APRIL 10, 2008 APRIL 10, 2008 APRIL 10, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . The State has filed the writ petition against the order passed by the Sessions Court, Thane in 3 criminal appeals. The Sessions Court has while allowing the appeals set aside the order passed by the Assistant Forest Officer under section 61A of the Indian Forest Act (Maharashtra Amendment) whereby tempo MH05/5424 belonging to the respondent was seized. The Sessions Court has directed that the tempo be returned to the respondent herein. On 13.1.1999, the aforesaid tempo was intercepted by the authorised officer approximately at 6.30am. The tempo was found loaded with 4200 cu.metrs of debarked khair logs. The tempo and the forest produce goods were seized. The driver of the tempo was also arrested. An FIR was lodged bearing NO.24 of 1998 for offences u/s 26F, 41(2) and 52 of the Indian Forest Act against the driver i.e. Respondent : 2 : No.2 herein. 2. A notice was issued as required u/s 61B(1) of the Indian Forest Act to the owner of the vehicle on 16.2.1999 calling upon him to show cause as to why the vehicle and the produce found in the vehicle should not be seized u/s 61A. The authorised officer gave a personal hearing to the respondent after evidence was led before him. By an order dated 31.3.1999, the authorised officer issued an order confiscating the tempo. This order was issued in consonance with the powers conferred on the officer u/s 61A of the Indian Forest Act. Being aggrieved by that order, the respondent preferred criminal appeal No.36 of 1999 before the Sessions Judge, Thane for release of the tempo. The Sessions Judge, Thane by his order dated 29.3.2000 directed the forest department to return the tempo to the owner. The State being aggrieved by that order has preferred the present petition under Article 227 of the Constitution of India. 3. The learned APP has submitted that the evidence on record prove the complicity of the owner of the vehicle in committing the offences punishable under the Indian Forest Act. She submits that the owner was equally responsible for the smuggling of forest produce as the driver. The latter’s statement which was : 3 : recorded on the day the tempo was intercepted indicates that the respondent was well aware of the purpose for which the tempo was hired, according to the learned APP. She submits that the statement of the driver recorded at the enquiry held u/s 61 also indicates that the owner had fixed the hire charges after considering the material that was to be loaded in the tempo. She states that the owner i.e. the Respondent herein has not cared to cross examine the driver or to bring on record any proof to show that he was not aware of the material loaded in the tempo. She then points out that the onus is on the owner to prove that the tempo was used for transporting the forest produce without his knowledge or connivance which, she submits, the respondent in this case has failed to discharge. The learned APP also submits that the judgments relied on by the Sessions Court have no bearing on the present case as those judgments were delivered in the facts and circumstances in those cases. She then relies on the judgment of the learned Single Judge in the case of State of Maharashtra v/s. Vinayak Dagadu Jadhav, 1995(2) BCR 467 1995(2) BCR 467 1995(2) BCR 467 wherein this Court has considered that the owner of the vehicle in which smuggled forest produce was being carted was vicariously liable for the misdemeanours and offences of his servant i.e. the driver in the present case. She therefore submits that the judgment of the Sessions Court will have to be set aside. : 4 : 4. Section 61A empowers the forest officers to confiscate the forest produce when a forest offence is believed to have been committed. It empowers the officers not only to confiscate the forest produce but also the vehicle used for transportation of the same. U/s 61B, a show-cause notice must be issued before such confiscation. Section 61B(2) places the onus on the owner to prove to the satisfaction of the forest officer that the vehicle owned by him was used to carry timber and sandalwood, firewood, charcoal or any other notified forest produce without his knowledge or connivance. 5. In the present case, the owner of the vehicle i.e. Respondent No.2 has chosen not to lead any evidence to prove that he had no knowledge of the contents of the vehicle and that he was not responsible in any manner for the material loaded in the tempo. Although an opportunity was afforded to the respondent to cross-examine the driver before the forest officer, the respondent has declined to avail of that opportunity. In these circumstances, it cannot be said that the owner has proved that he had no knowledge or had not connived with the driver or the person who had hired the tempo for commission of the offence. The statement of the driver which has been recorded on 13.1.1999 i.e., the date on which the tempo was : 5 : intercepted indicates that he had taken the person who wished to hire the tempo to meet the owner of the tempo i.e. the respondent herein. The tempo hire charges were fixed by the respondent at Rs.1,000/-. The driver has stated he drove into the fields where the logs and wood were hidden beneath some vegetation. These logs of wood were loaded into the tempo. While driving away from the field, it was intercepted by the forest officials. Besides this, in the statement of the driver recorded on 11.3.1999 at the enquiry held u/s 61A of the Indian Forest act, the driver has reiterated his earlier statement that the rate of hire charges were fixed between the respondent and the hirer. 6. All these statements in may opinion, indicate that the driver had acted on instructions from the employer i.e. the respondent herein. The hire charges were fixed on the basis of the goods to be loaded in the tempo. The owner of the tempo has not discharged the burden imposed on him u/s 61B(2) of the Act while claiming return of the tempo. Although the owner of the tempo may not be vicariously liable, under section 61B(2) the owner has to discharge the burden cast on him of proving that the vehicle was used to ferry the notified forest produce without his knowledge or connivance or that he had taken all reasonable precautions against such use. : 6 : 7. The judgments of the Supreme Court in the case of Assistant Forest Conservator & Ors. v/s. Sharad R. Kale, AIR 1998 SC 2927 AIR 1998 SC 2927 AIR 1998 SC 2927 would not help respondent No.2 as the Supreme Court has confirmed the findings of the High Court which were based on the evidence on record. Thus, that judgment has been delivered on the fact situation in that case and would be of no avail to the owner of the tempo i.e. the respondent herein. 8. In the case of Laxman Kisan Mundhe & etc. v/s. Conservator of Forest, Thane & Ors., 1999 Cri. L.J. 1999 Cri. L.J. 1999 Cri. L.J. 553 553 553, the learned Single Judge of this court held that the driver of the vehicle was employed only 8 days before the commission of the offence and, therefore, the owner could not have been attributed with the knowledge of the commission of the offence. The owner had asserted before the officer concerned in the enquiry held for confiscation of the tempo that he was not involved in the commission of the offence. However, in the present case, the owner has decided, for reasons best known to him not to prove, as required u/s 61B, that he had no knowledge of the fact that notified forest produce was being carried in the tempo owned by him or that he had taken reasonable and necessary : 7 : precautions against such use of the vehicle. 9. In these circumstances, the order of the Sessions Court is set aside. Petition is allowed. Rule made absolute. No order as to costs.