THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT PETITION No.10154 of 2002 Date: 13.02.2008 Between: Forest Range Officer, Nizamabad … Petitioner AND Dwarkadas Agarwal … Respondent THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT PETITION No.10154 of 2002 ORDER: This writ petition is filed for a writ of certiorari to quash order, dated 27.03.2002 passed in C.M.A.No.8 of 2001 on the file of the Additional District Judge, Nizamabad. On 22.05.1999, at about 3.00 a.m., the Forest Section Officer, Hammer Marking, Nizamabad, along with other Forest Beat Officers stopped lorry bearing No.AAR 4211 when it was coming from reserve forest area of Manchippa with teak logs numbering 106 of 5.234 cubic meters valued at Rs.93,893/- at Uppala Mallaiah Petrol Pump, Hyderabad Road, Nizamabad. The lorry was seized and a case was registered. A show cause notice was issued under sub-Sections (2-A) and (2-B) of Section 44 of the Andhra Pradesh Forest Act, 1967 (for short ‘the Act’) to the respondent, who is the owner of the lorry. The respondent submitted his explanation on 08.06.1999 wherein while denying all the allegations contained in the show cause notice, he stated that as his regular driver Sri Hakeem went to his native place to see his ailing wife, he has appointed one Nazeer Saleem as a temporary driver and that as the lorry gave trouble on 21.05.1999, the same was sent to the garage of S.Pentaiah for repairs along with Shanker Muneem and that on 21.05.1999, major work was completed and minor repairs of wiring were left. It was further stated in his explanation that the electrician informed him that he would attend to the work on the next day morning and asked him to leave the vehicle in the garage and that on the next day, when the respondent sent his Muneem Shanker to the garage to attend to the repair work, the latter did not find the lorry in the work shop and informed the respondent that the driver might have taken the lorry on the previous night itself. It was further stated that thereafter, the forest officials informed the respondent about transportation of teakwood in his lorry and that even though the respondent expressed his ignorance, the department officials took his signatures on blank papers and printed forms under a threat of his arrest. It was further stated that he is the owner of a Rice Mill and he was using the lorry for transporting paddy and rice and never used the vehicle for any illegal purpose. The Authorized Officer after enquiry passed order, dated 29.04.2001, wherein he directed confiscation of the lorry along with 106 teak logs. Assailing the said order, the respondent filed C.M.A.No.8 of 2001, which was allowed by the learned Additional District Judge, Nizamabad, who directed release of the lorry to the respondent. The present writ petition is filed questioning the same. At the hearing, none appeared for the respondent. Heard the learned Assistant Government Pleader for Forests and perused the record. From the facts noted hereinabove, the case of the respondent is that in the absence of his regular driver, he entrusted the lorry to a temporary driver by name, Nazeer Saleem, and that the lorry was kept in the workshop as it developed certain mechanical defects on 21.05.1999. His further case is that major portion of repair work was done in the workshop on 21.05.1999, but as certain electrical repairs were still remaining to be done, the vehicle was kept at the workshop for one more day also on the advise of the electrician. It is, thus, the case of the respondent that he had neither knowledge of nor connivance in the commission of the forest offence. Under Section 44(2-A) of the Act where an authorized officer seizes the property mentioned under sub-section (1) and is satisfied that the forest offence has been committed, he is empowered to confiscate the seized property along with all tools, ropes, chains, boats or vehicles used in committing such offence. Under sub-Section (2-C) of Section 44 of the Act, where the owner of any such tool, rope, chain, boat or vehicle, proves to the satisfaction of the Authorized officer that the same was used in carrying the property without his knowledge or connivance or the knowledge or connivance of his agent 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 precautions against such use, the same is not liable for confiscation. A careful reading of the provisions of Section 44(2-A) and (2-C) of the Act makes it clear that while every vehicle, tool etc., which was found involved in the commission of a forest offence is liable for confiscation, on the proof to the satisfaction of the Authorized Officer by the owner thereof, that the ingredients of sub-section 2-C of Section 44 are satisfied, the same will not be liable for such confiscation. Therefore, the burden is heavily on the owner of such vehicle, tool etc., to prove that the same was used in carrying the property without his knowledge or connivance etc., and that he has taken all reasonable and necessary precautions against such use. A reading of the order of the learned Additional District Judge shows that he failed to keep in view the requirement of the provisions of Section 44(2-C) of the Act, which imposes heavy burden on the owner of the vehicle. He proceeded on the premise that the burden is on the department to prove in the negative that the owner had such knowledge or connived in the commission of the offence. My conclusion of this is fortified by the following observations of the learned Additional District Judge, which are extracted hereinbelow: “The Forest Range Officer did not take any steps whether the lorry was kept at Pentaiah’s workshop at Autonagar on 21.5.1999 and that the mechanic attended the major work on 21.5.1999, and retained the lorry to do electric minor work, but the F.R.O. did not take any steps to record the evidence of any of the employee from the Pentaiah’s garriage situated at Autonagar, Nizamabad. Accordingly, the Forest Range Officer did not take any steps to ascertain whether the appellant filed a complaint before the police on receiving information from his Muneem Shanker about missing of the lorry from Pentaiah’s garriage at Autonagar, Nizamabad. The Forest Range Officer also did not take any steps whether the appellant filed a complaint about missing of the lorry is a crucial point to be considered in this case. Apart from that, it is not in dispute that the lorry was seized on 21.5.1999 under a cover of panchanama held at the offence of DFO, Nizamabad in the presence of mediators. But on perusing the panchanama, it is clear that the Forest Section Officer has also obtained the signature of the appellant on the panchanama to show that the appellant was present at the time of seizure of lorry along with teakwood. The Forest Section Officer was cross-examined at length, and he admitted in his evidence that the panchanama was conducted at the office of DFO and the appellant was not present at the time of seizure. The Forest Section Officer also admitted in his evidence that he obtained the signature on the panchanama after sometimes. But on perusing the cross-examination of M.A.Rasheed, Forest Section Officer, it is clear that the appellant had no knowledge about transportation of teak wood, and the appellant had no knowledge about the seizure of lorry along with teak wood till the Forest Section Officer informed to the appellant about transportation of teakwood in the lorry on the night of 22.5.1999. The Forest Section Officer also not recorded the statement of Muneem Shanker and driver Nazeer, actually who kept the lorry in the garage of Pentaiah to repair the lorry.” The respondent having set up a case that the vehicle was kept in the workshop on 21.05.1999, the burden is on him to prove his case. He has not examined the owner of the workshop, the mechanic, who allegedly attended major work on the lorry and the electrician, on whose alleged advise, the lorry was kept in the workshop for one more day. He has not produced any bills from the workshop in support of his plea that the lorry was in the workshop under repair. The respondent having found that the lorry was missing has not given any police complaint about the missing lorry. These factors clearly indicate that the respondent miserably failed to discharge the burden cast on him under sub-section (2-C) of Section 44 of the Act. In my considered opinion, the learned Additional District Judge fell into a serious error in throwing the burden on the Forest Range Officer and not on the respondent. Having carefully considered the case and the entire record, I am of the view that the order of the learned Additional District Judge in interfering with the order of the Forest Officer suffers from serious errors warranting interference of this Court under Article 226 of the Constitution of India. The writ petition is, therefore, allowed. Order, dated 27.03.2002 passed in CMA.No.8 of 2001 of the learned Additional District Judge, Nizamabad is set aside. C.V. NAGARJUNA REDDY, J 13th FEBRUARY, 2008 kvni