IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 10127 of 1999 Between: State of Andhra Pradesh, Rep. by its Forest Range Officer, Srikalahasti. ..... PETITIONER AND 1 The IV Additional District Judge, Tirupati. 2 M.D.Akber Pasha, S/o. Abdul Khuddus, R/o. Gangur Village, Denamalur Mandal, Krishna District .....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 to issue an appropriate Writ, Order or Direction more particularly one in the nature of Writ of CERTIORARI calling for the records of the IV Additional District Judge, Tirupati/Appellate Authority in C.M.A.No. 38 of 1997, dated 10.2.1999 and the same may be quashed by restraining the order passed by the Authorised POR.No. UDOP 4/95- 96, dt. 13.8.1997 Officer, in and to pass such further order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:GP FOR FORESTS Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 10127 of 1999 Order: The present writ petition is filed against the order of the IV Additional District Judge, Tirupati, in C.M.A. No. 38 of 1997, dated 10.02.1999. Facts, in brief, are that, on 28.02.1996, a lorry carrying 297 Red Sander logs weighing about 5,798 KGs was seized. The lorry driver and cleaner absconded. A case under UDOR No.4/95-96/J1 was lodged by the Forest Range Officer. The second respondent herein filed an application on 05.04.1996 to release the vehicle. A notice was issued to him on 06.04.1996, under Section 44 of the Andhra Pradesh Forest Act, 1967 (for short ‘the Act’), informing that an enquiry would be held on 20th April 1996. Another notice dated 10.04.1996 was issued calling upon the second respondent to show cause as to why the vehicle should not be confiscated to the Government. After enquiry, confiscation order dated 13.08.1997 was passed. Aggrieved thereby, the owner of the vehicle i.e., the second respondent herein preferred CMA No.38 of 1997 before the IV Additional District Judge, Tirupati, who, by the order impugned in this writ petition dated 10.02.1999, allowed the CMA and set aside the order of the Authorised Officer and Sub-Divisional Forest Officer, Tirupati. This Court, by order in WPMP No.12485 of 1999 dated 29.10.1999, granted interim suspension of the order in CMA No.38 of 1997. The learned Government Pleader for Forests would draw attention of this Court to the order passed by the Authorised Officer and Sub- Divisional Forest Officer, Tirupati, dated 13.08.1997 and to the conclusions drawn by the IV Additional District Judge, Tirupati, in CMA No.38 of 1997. The learned Government Pleader would submit that, under Section 44(2-C) of the Act, burden is on the owner of the vehicle to prove that the vehicle was used, in carrying the property, without his knowledge, that he had not connived in committing the offence and that he had taken all reasonable and necessary precautions against such use. The learned IV Additional District Judge, Tirupati, in the order impugned in this writ petition, while observing that if the owner of the vehicle involved in the forest offence proved his innocence, his vehicle could not be confiscated for failure of the driver or cleaner to prove their innocence further observed that it was for the person in-charge of the vehicle, whether it be owner, agent or driver, to prove his innocence and that all of them were not required to prove their innocence for the alleged offence. The Court below observed that the Authorised Officer, and Sub-Divisional Forest Officer, Tirupati, had not furnished any reasons for not believing the unchallenged sworn statement given by the appellant, more so when the appellant, (second respondent herein), had contended that the driver of the vehicle had absconded and had left Vijayawada along with his wife and children and that there was no meaning in finding fault with the 2nd respondent herein for his not producing the driver before the Enquiry Officer. It is on the basis of this finding that the learned Judge observed that the order of confiscation was irregular and that it was liable to be set aside. A perusal of the order of the Authorised Officer-cum-Sub- Divisional Forest Officer, Tirupati, would show that the second respondent herein had deposed that the regular driver of his lorry was relieved from duty on 17.02.1996, that he had arranged another driver, by name Ramadas, as the regular driver was not doing well, that the new driver had taken a load from Vijayawada to Madras i.e., to MRF Company on 17.02.1996 and had unloaded the goods there at, that he had informed the above fact to him on 22.02.1996 through phone and that he had asked the driver to take a load of Cycle parts from Madras to Delhi. The second respondent herein further deposed that the driver had informed him through phone on 21.02.1996 that loading would take five to six days, that an amount of Rs.300/- for each day would have to be given towards halting charges and that he had told the driver to take that load and, after loading, he should come to Vijayawada and, at Vijayawada, the regular driver of the lorry would take the load to Delhi. He further deposed that, on 29.02.1996, he had phoned Sai Andhra Road Works to enquire about his lorry and it was then that he came to know that his driver had not taken the lorry to their office, that, when he went to Madras on 01.03.1996 to enquire about the lorry, he found out that the driver had not taken the lorry to Sai Andhra Road Works at all, that he came back to Vijayawada and found the house of the driver locked, that when he enquired with the neighbours they told him that the driver, along with his wife and children, had gone elsewhere, that on 04.03.1996 he had received a phone from Balaji Lorry Supply Office, Tirupati, that he was informed that his lorry was seized by the Forest Range Officer in a forest offence and it was then that he filed a petition before the Authorised Officer and Sub-Divisional Forest Officer, Tirupati. The Authorised Officer, while fixing the date of enquiry as 22.07.1996, sent a notice to the second respondent on 01.07.1996 asking him to attend the enquiry along with the driver of the lorry and produce the connected original records of the lorry without fail. Despite several adjournments, the second respondent did not do so. The order of the Authorised Officer would reflect several adjournments having been granted to accommodate the second respondent to produce the records sought for and, since such numerous opportunities were not availed, the Authorised Officer was constrained to rely on the prosecution witnesses statement and hold that it was proved beyond doubt that the lorry was involved in a forest offence and was illegally transporting 297 Red Sander logs. As noted herein above, under Section 44(2-C) of the Act, the burden is on the owner of the vehicle to satisfy the authority that the vehicle was used in carrying the property without his knowledge, that he had not connived in committing the offence and that he had taken all reasonable and necessary precautions against such use. Except the self-serving statement of the second respondent herein, no documents have been produced to substantiate such a statement. Not only was the 2nd respondent required to discharge the burden under Section 44 (2-C) of the Act, he was also required to show that he had taken all reasonable and necessary precautions against such use. Even if the conclusion of the learned IV Additional District Judge, Tirupati, that failure to produce the driver by itself would not justify confiscation of the lorry is accepted, the fact, however, remains that even the records sought for were not produced. Other than the self serving statement of the 2nd respondent, there is no other material on record to establish that the 2nd respondent had an order for supply of Cycle parts to Delhi or that the vehicle was loaded with Cycle spare parts. No documentary evidence, whatsoever, was placed either before the Authorised Officer or even before the learned District Judge. The conclusion of the IV Additional District Judge, Tirupati, that the order of the Authorised Officer was required to be set aside is only on the basis that failure to produce the driver is of no consequence. That by itself does not satisfy the ingredients of Section 44(2-C) of the Act, wherein not only does the burden lie on the owner to show that the use of the vehicle for illegal transportation was without his knowledge or connivance in committing the offence but also that he had taken all reasonable and necessary precautions against such use. In the absence of these twin ingredients of Section 44(2-C) of the Act being satisfied, the Court below was not justified in interfering with the order under appeal before it. The writ petition is, accordingly, allowed and the impugned order in CMA No. 38 of 1997, dated 10.02.1999 is quashed. However, in the circumstances, without costs. __________________________ RAMESH RANGANATHAN, J. Date: 04.03.2009 Nsr