WP/1014/1996 of GOWRI S Vs ASST CONSERVATOR OF FOREST PRO on 30 November 2001

:J U D G M E N T

The petitioner is the registered owner of the vehicle bearingRegistration No.TN-09-E-2817, which she has purchased with the help of loangranted by Tamil Nadu Industrial Investment Corporation. The vehicle wasbeing given on hire to various persons. On 21.3.1995, the vehicle was givenon hire to one Haja Moinudeen on the basis of the recommendation made by thedriver Sridhar and accordingly, the vehicle went to Ranipet and returned nextday. On 22.3.1995, the driver told the petitioner that one relative of theaforesaid Haja Moinudeen wants to go to Sholingur on 23.3.1995 and accordinglyrequested the owner to give the vehicle on hire. Accordingly, the vehicle wasbooked by the driver in the name of Sri R.C., No.15, Second Street, BajanaiKoil, Choolaimedu and the vehicle was taken on 23.3.1995. Since the vehicledid not return till the night of 24.3.1995, the petitioner contacted in theaddress was a bogus one. Thereafter, she lodged a complaint before the police on 28.3.1995. She came to learn that the vehicle had been seized by the Forest Department on the allegation that Sandalwood has been smuggled in thevehicle. Subsequently, the petitioner received a notice to show cause as towhy the vehicle should not be confiscated under Section 49A of the Tamil NaduForest Act, 1882 as amended by Act 44 of 1992. The petitioner submitted replydated 3.4.1995 indicating that the vehicle had been given on hire on the basisof the request of the driver and the petitioner was not directly aware aboutthe person who had taken the vehicle on hire and she had no knowledge nor shehad connived in the alleged forest offence. It was stated that the driverSridhar was solely responsible for whatever happened in the trip. It wasfurther stated :- — . . . As is the general practice with all Travel Agencies in the City, the Van is sent to the address of the hirer according to the schedulegiven by him. The driver is mostly full time paid employee of the Travels,whom the owner trusts. The Travel agency mostly believes the hirer and thepurpose of the journey reported by him, as they have no means to verify eitherthe antecedents of the hirer or his actual intentions. Most of the parties donot even want to specify the purpose for which the van is wanted. Virtually,the employee driver is the custodian of the van during the period of the hireand he and only he, is solely and legally responsible f or whatever happensduring the trip, such as accident, theft, illegal use of the vehicle etc. Theowner is in no way or by any stretch of imagination can be held responsiblefor anything that happens during the period of the hire. The hirer, his partyand the driver of th e van only are solely responsible for any illegalactivity done with the hired vehicle . . .

2. The driver of the vehicle had made a statement before the Forest Officers soon after the seizure of the vehicle. Subsequently, onreceipt of notice relating to enquiry, the driver had made a further statementin writing dated 22.4.1995 wherein he has stated that the owner of the vehicledid not have any connection with the illegal transportation of Sandalwood andthe person who had hired the vehicle had not met the owner and the advanceamount had been received by the driver and paid to the owner. In other words,it has been stated by the driver that the owner did not have any knowledge norhad connived in the commission of the offence.

3. On 14.6.1995, the first respondent passed an order of confiscation relying mainly upon the statement made by the driver to theeffect that he had got permission from the owner to transport Sandalwood andhe was not aware of the incident. The 1st respondent disbelieved thesubsequent statement wherein the driver had stated that she was not aware ofthe offence and had not connived in the commission of the offence. The 1strespondent also concluded that the owner had not taken all reasonable andnecessary precautions relating to the illegal use of the vehicle. The appealfiled by the owner was rejected by the Principal Sessions Judge by judgmentdated 22.12.1995. The present petition has been filed challenging the orderof confiscation as confirmed by the Appellate Court.

4. The main contention raised in the writ petition is to the effect that the Original Authority as well as the Appellate Authority committed illegality in relying upon the statement made by the driver beforethe Authorised Officer and should have relied upon the subsequent statementmade by the driver wherein the driver had completely exonerated the owner.

5. Section 49-A of the Tamil Nadu Forest Act, 1882, which wasintroduced by Amended Act 44 of 1992, empowers the Authorised Forest Officerto confiscate vehicle used in the commission of forest offence. Sdection 49-Bof the Act relates to the procedure to be followed and it is extractedhereunder :

— S.49-B. (1) No order confiscating any scheduled timber, or tools,ropes, chains, boats, vehicles or cattle shall be made under Section 49-Aexcept after notice in writing to the person from whom it is seized informinghim of the grounds on which it is proposed to confiscate it and consideringhis objections if any:

Provided that no order confiscating a motor vehicle shall be madeexcept after giving notice in writing to the registered owner thereof, if, inthe opinion of the authorised officer, it is practicable to do so andconsidering his objections if any.

(2) Without prejudice to the provisions of sub-section (1) no orderconfiscating any tool, rope, chain, boat, vehicle or cattle shall be madeunder Section 49-A if the owner of the tool, rope, chain, boat, vehicle orcattle proves to the satisfactio the authorised officer that it was used incarrying scheduled timber without the knowledge or connivance of the ownerhimself, his agent, if any, and the person in charge of the tool, rope, chain,boat, vehicle or cattle and that each of them had taken all reasonable andnecessary precautions against such use.

6. Section 49-B(1) envisages notice to the person from whom the vehicle has been seized and the procedure lays down issuance of notice tothe registered owner of the vehicle. Section 49-B(2) envisages that no orderof confiscation should be passed if it is proved to the satisfaction of theAuthorised Officer that the vehicle was used in carrying scheduled timberwithout the knowledge and connivance of the owner himself, his agent, if anyand the person in charge of the vehicle and further each of them had taken allreasonable and necessary precautions against such use.

7. In the present case, even if the subsequent statement of

the driver is accepted, it would only mean that the owner of the vehicle hadno knowledge and had not connived in the commission of the offence. However,it is apparent that the driver of the vehicle, who was obviously the person incharge of the vehicle, was aware of the commission of the offence. Even ifthe subsequent statement of the driver is accepted, it does not indicate thatthe driver had no knowledge regarding the commission of the offence.

8. The procedures contained under Sections 49-A and 49-B have been construed by a Division Bench of this Court in Writ Appeal No.1296/19 95dated 4.12.1995. In the said case, the Forest Officer had passed an order of confiscation which was set aside by the Appellate Authority on the ground thatat the time of commission of the offence, the owner of the vehicle was in thehospital attending to his son and was not aware of the illegal transportationof timber. After referring the provisions contained, it was observed thus :- — The latter portion of the proviso places burden upon the owner ofthe vehicle. It is not enough for the owner of the vehicle to prove that thevehicle was used without his knowledge or connivance. He is also furtherrequired to prove that the agent or the driver under whose possession, thevehicle was being kept, had taken all reasonable and necessary precautionsagainst such use. In the instant case, it is not in dispute that the vehiclewas seized when it was transporting illegally sandalwood. In such cases theaforesaid proviso comes into operation. The burden shifts on the owner of thevehicle to prove by convincing evidence that not only he had no knowledge ofor had not connived with the use of the vehicle for illegal purpose, but hisagent or the person in charge of the vehicle had taken all the reasonable andnecessary precautions against such use. The owner has not adduced anyevidence to show that the driver of the vehicle took necessary and reasonableprecautions to prevent the use of the vehicle for illegal transporting thesandalwood. The fact that the driver was in the custody of the Police, didnot in any way prevent the owner to examine him and to adduce any otherevidence to prove that reasonable and necessary precautions were taken by theperson in charge of the vehicle. The object of the proviso is to ensure thatthe owner of the vehicle does not escape by merely pointing out that he had noknowledge. He being the owner of the vehicle, it is his responsibility toensure that not only he himself had taken care to see that the vehicle was notused for any unauthorised purpose, but also the person placed in charge of thevehicle did not use the vehicle or allowed it to be used or connived at usefor such purpose. This provision of law requires to be scrupulously observedin order to prevent the smuggling of sandalwood. Therefore, we are of theview that the Prescribed Authority and the learned single Judge have not takeninto consideration the true and correct scope and ambit of the proviso toSection 49-B of the Act. That being so, the order of the Prescribed Authoritycannot be sustained. Consequently, the order of the single Judge has to beset aside.

9. In view of the aforesaid analysis of the procedures by the

9. In view of the aforesaid analysis of the procedures by the Division Bench, which is binding on me, even accepting in toto the subsequentstatement of the driver, the order of confiscation passed by the AuthorisedOfficer and confirmed by the Appellate Authority cannot be said to be illegal.From the subsequent statement of the driver, it is apparent that the driverhad knowledge in the commission of the offence and it is further apparent thathe had not taken all reasonable steps to prevent the commission of theoffence. Therefore, even assuming that the owner was unaware of the commission of the offence and had not connived in the commission of theoffence, since the driver was aware of such illegal user of the vehicle, thevehicle was liable to be confiscated.

10. The learned counsel appearing for the petitioner in course of hearing of the writ petition raised the contention that thestatement made by the driver before the Authorised Officer behind the back ofthe petitioner has been utilised and no enquiry has been made givingopportunity to the petitioner to prove her innocence. Such submission eventhough prima facie attractive, cannot be accepted in the facts andcircumstances of the present case. It appears that such a contention wasnever raised before the Appellate Authority or even in the writ petition andfor the first time such submission has been made in course of hearing of thewrit petition. Moreover, as already indicated, even if the first statementmade by the driver is ignored altogether, the subsequent statement made by thedriver, upon which much reliance has been placed by the petitioner is acceptedin toto, cannot help the petitioner to escape from the rigour of theprovision. It is apparent that the driver had knowledge regarding thecommission of offence and the driver had not taken all reasonable steps toprevent the commission of the offence. A careful reading of the provisions ofSection 49-A and 49-B in the light of the Division Bench decision makes itamply clear that even if she is totally innocent, if the agent of the owner orthe person in charge of the vehicle were responsible, the vehicle is to beconfiscated.

11. My attention has been drawn to a Full Bench decision of Andhra Pradesh High Court reported in 1998 AIHC 5029 (SUB-DIVISIONAL FORESTOFFICER v. VIJAY B. GULATI AND OTHERS). Apart from the fact that theDivision Bench decision of Madras High Court is binding, it appears that theprovisions contained in Andhra Pradesh Forest Act were different. In the saidAct, Section 44(2-C) was to the following effect :- — Without prejudice to the provisions of sub-section (2-B),no order ofconfiscation under sub-section (2-A) of any tool, rope, chain, boat or vehicleshall be made if the owner thereof proves to the satisfaction of theauthorised officer that it was used in carrying the property without hisknowledge or connivance or the knowledge or connivance of his agent, if any orthe person in-charge of the tool, rope, chain, boat or vehicle in committingthe offence and that each of them had taken all reasonable and necessaryprecautions against such use.

12. A careful perusal of the aforesaid provision indicates the difference in phraseology used by the Legislature. In the Andhra PradeshAct, the use of the expression of the word “or” at the relevant places makesall the difference, whereas under the Tamil Nadu Act, the use of the word and at the relevant places makes the intention clear that all the clausesare conjunctive and not disjunctive. The decision of the Andhra Pradesh HighCourt is clearly distinguishable and at any rate the Division Bench decisionis binding on me.

13. For the aforesaid reasons, I do not find any merit in this writ petition, which is accordingly dismissed. No costs.

dpk

To

1. The Assistant Conservatorof Forest Prosecution Squad,Madras — 22.

2. The District & Sessions Judgeat Chingleput,Chengai MGR District.