IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935 CRP.No. 366 of 2009 ( ) ------------------------ CMA 69/2007 of ADDL.DISTRICT COURT,KOTTAYAM REVISION PETITIONER(S)/APPELLANT: -------------------------------------------- VINOD ABRAHAM, S/O. GEORGE @ ABRAHAM, PUTHENPURACKAL HOUSE, KANAKAPALAM P.O. ERUMELY. BY ADV. SRI.WILSON URMESE RESPONDENT(S)/RESPONDENT: ---------------------------- DIVISIONAL FOREST OFFICER AND AUTHORIZED OFFICER, DIVISIONAL FOREST OFFICE KOTTAYAM. BY SPL. GOVERNMENT PLEADER SRI.M.P. MADHAVANKUTTY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-02- 2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OKB K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ C.R.P. No.366 of 2009 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 11th day of February, 2014 O R D E R The revision petitioner herein was the appellant in C.M.A.No.69/07 on the files of the Additional District Court, Kottayam. The above appeal was filed under Section 61D of the Kerala Forest Act, 1961, (for short, 'the Act') challenging the order No.A2.4722/01 dtd.25.9.2007 passed by the respondent herein confiscating the vehicle under Section 61A(2) of the Act. The petitioner herein is the registered owner of the goods carriage vehicle bearing Regn.No.KL-7/E-5351, a Tata 407 model Mini Lorry. According to him, the above vehicle had been using in accordance with the permit conditions and had not so far been involved in any crime registered by the police or Excise or Forest Departments. But, in the instance case, it is alleged that two teak trees standing in the teak plantation No.1946 at Arassumudikotta Bhagom within the limits of Kalaketty outpost in Placherry Forest Station under the Erumeli Range were felled C.R.P.366/09 :2: and cut down into logs and transported in the petitioner's vehicle to a timber depot. On information, the Placherry Forest Station had registered a case O.R.18/01 and, after investigation, filed a report dtd.24.7.2001 to Erumeli Range Officer stating that the logs were transported in the petitioner's vehicle. Consequent on the registration of the O.R., the forest officials issued notice under Section 61B(2) of the Act, to the petitioner. 2. In reply to the said petition, the petitioner had filed an objection, denying the involvement of his vehicle in the crime. According to him, the vehicle was never entrusted to Shaji so far, as he was not the driver of the vehicle. During the relevant period, his vehicle had been entrusted to one Saji C.C. and he had been driving the vehicle. Secondly, during the period from 12.7.2001 to 28.7.2001, the petitioner was at Bangalore in connection with the treatment of his child at Sree Sathyasai Institute of Higher Medical Sciences, Bangalore. During this period, his daughter had undergone a major cardiac surgery and he was at Bangalore on the alleged date of incident. On reaching the station, he got information as to the registration of the crime against the two persons named Shaji and M.S.Rajan, C.R.P.366/09 :3: the persons with whom the petitioner had no connection at all. In support of the above contention, the petitioner had produced a discharge summary dtd.27.7.2001 issued by Sree Sathyasai Institute of Higher Medical Sciences, Bangalore, before the authorised officer. The train ticket used for travelling from Bangalore to Kerala was also produced. Thirdly, in connection with the above incident, on 26.7.2001 his father got an anonymous letter demanding an amount of Rs.25,000/- stating that he is the person who had given information to the forest officials implicating the petitioner's vehicle also in the said crime. That apart, he had challenged the information that his vehicle had been used for the commission of the said act in the absence of the non-disclosure of the person, who had given information to the forest officials, in prosecution records or in evidence. The respondent found the explanation to be not satisfactory. The respondent accepted the confession statement given by the accused as such and proceeded with the confiscation proceedings and passed the impugned order. The legality, propriety and correctness of the said order are under challenge in this Revision Petition. C.R.P.366/09 :4: 3. The learned counsel for the revision petitioner submits that there is no legally acceptable evidence to bring home the allegations that the petitioner's vehicle was used for the commission of the prohibited act. Thus, the vehicle is not liable to be confiscated and the order is illegal and unsustainable. The main thrust of the argument advanced by the learned counsel is that none of the documents produced by the revision petitioner was considered by the authorised officer while passing the impugned order. That apart, the authorised officer had miserably failed to understand the contention raised by the revision petitioner in defence. In short, there is no independent evidence other than the confession statement of the accused. No prosecution had been initiated against Shaji and Rajan, the persons said to have committed the offence, using the petitioner's vehicle. 4. Per contra, the learned Special Government Pleader advanced arguments to justify the impugned order under challenge. According to him, the authorised officer had appreciated the entire evidence available on record and, thereafter, the learned District Judge reappreciated the entire C.R.P.366/09 :5: evidence. So, considering the limited scope and extent of jurisdiction under Section 115 of the Code of Civil Procedure, this Court cannot reappreciate the evidence again or arrive at a conclusion other than the concurrent findings of the court below, even if an alternative view is also possible. The learned Special Government Pleader cited Indore Muncipal Corporation Vs. Caltex (India) Limited (AIR 1991 SC 454). The learned Government Pleader further cited State of Kerala Vs. Mathew (1995 (2) KLT 772) and contended that it is incumbent upon the petitioner to prove the 3 postulates provided under Section 61B(2) of the Act. According to the learned Special Government Pleader, at all points the findings are sustainable under law. 5. In view of the rival contentions, the question to be considered is, whether the court below has failed to exercise its jurisdiction or has acted in the exercise of jurisdiction illegally or with material irregularity? 6. The main argument advanced by the learned counsel for the revision petitioner is that the authorised officer miserably failed to exercise jurisdiction vested in him. It is the C.R.P.366/09 :6: specific case of the petitioner in the objection filed by him that Shaji, the person who had allegedly driven the vehicle for transporting the forest produce, had never been employed as his driver and the driver with whom the vehicle was entrusted was one Saji, and he had been at Bangalore from 12.7.2001 to 28.7.2001 in connection with cardiac treatment of his daughter. It is to be remembered that the alleged incident was on 22.7.2001. To prove his absence during the relevant time, he had produced the discharge summary of his daughter issued by Sree Sathyasai Institute of Higher Medical Sciences, Bangalore, the lab report and the train ticket, etc. It was also contended that his father got an anonymous letter demanding huge amount allegedly sent by the person who gave information to the forest officials as regards the use of the vehicle for the commission of the offence and in that letter he demanded money, for helping the petitioner. It is pertinent to note that in the confiscation order the authorised officer has not disclosed the name of the person who gave information to the police as regards the alleged use of the vehicle. In this context, the letter produced by the petitioner assumes significance. But, going by the C.R.P.366/09 :7: impugned order, it is seen that the authorised officer has not considered these contentions in the impugned order passed by him. None of these documents are seen referred in the documents mentioned as a reference at the face of the order. I am of the opinion that the authorised officer should have considered the above contentions in the light of the documents produced in support of his contentions that the alleged incident, even if true, was without his knowledge or connivance. 7. On a plain reading of Section 61B(1), it clearly appears that the registered owner of a motor vehicle has been conferred a right of being heard before confiscation of his motor vehicle. Conferment of such right cannot be an empty formality. The sub-section (2), says that no order of confiscation of a vehicle is to be made if it is proved to the satisfaction of the Forest Officer that the vehicle was used in carrying forest produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vehicle and that each of them has taken all necessary and reasonable precautions against such use. The protection so conferred upon the owner of the vehicle under both sub-sections quoted above read together would have C.R.P.366/09 :8: to be read referable to the owner or to his agent including the person in charge of the vehicle acting within the authority. When a motor vehicle is used for a regular and lawful transport of goods, the driver who might be the agent or the person in charge of such vehicle might divert the vehicle for its unlawful use for carrying forest produce without knowledge or connivance of the owner and the owner could be said to have foreseen such unlawful use. Can in such case, the provision be construed so as to attribute knowledge and connivance of the driver to an innocent unwary owner of the vehicle? The answer would be in the negative since, if an innocent unwary owner is to be attributed the driver's knowledge or connivance in carrying forest produce, the very provision would be rendered nugatory and perhaps void. [Navin Chandra K. Chavda Vs. Range Forest Officer (Part 4) (1993 FLT 235 (Guj.)]. 8. In view of the above decision, going by the objection, I am of the opinion that the petitioner has raised a valid contention to show that even if the offence was committed as alleged by the forest officials, the same was done without his knowledge or connivance. But, the authorised officer had C.R.P.366/09 :9: passed the impugned order on an impression that Shaji, the person who has allegedly driven the vehicle, is the person with whom the petitioner had entrusted the vehicle. It is the specific case of the owner that Shaji had never been employed as his driver and one Saji was his driver. I am of the opinion that the authorised officer ought to have considered the defence contention also as the confiscation proceedings is not an empty formality. But the authorised officer did not care to address the contentions raised by the petitioner herein. The non-mentioning of the document produced by the petitioner in the list of documents referred in the impugned order itself shows that those documents are not taken into consideration while passing the order. The authorised officer should have shown the documents produced by the petitioner also, in the list of documents referred. Justice must not only be done, but also must be seen to be done. Therefore, I am unable to hold that the confiscation proceeding was impartial or unbiased. 9. Consequently, I find that the authorised officer has miserably failed to exercise his jurisdiction properly and fairly in accordance with law. Therefore, I set aside the impugned C.R.P.366/09 :10: order under challenge. The matter is remitted back to the authorised officer to pass fresh order after adverting to all documents produced by both parties and also affording sufficient opportunities to both parties to adduce further evidence, if any. Sd/- (K.HARILAL, JUDGE) okb.