JUDGMENT 1. - This miscellaneous petition is directed against the judgment dated 29-1-1994, passed by the Special Judge, S.C./S.T. (Prevention of Atrocities) Act Cases, Merta, by which the learned Special Judge dismissed the appeal filed by the petitioner-appellant and the order dated 18-4-1990, passed by the Munsif and Judicial Magistrate, First Class, Merta City, confiscating the truck No RRN 5475 was up-held. 2. Accused Hari Ram, on 17-12-1988, was found carrying timber/Forest produce in truck No. RRN 5475 near village Kalru by the Station House Officer, Police Station, Merta City. The truck, along with the timber, was seized by the police. A charge-sheet against accused Hari Ram was submitted in the Court of the Munsif and Judicial Magistrate, First Class, Merta City, for the offences under Sections 41 and 42 of the Rajasthan Forest Act, 1953 (for short, 'the Act'). Accused Hari Ram pleaded guilty and, therefore, on the basis of his plea of guilt, he was convicted for these offences and sentenced a fine of Rs. 250 / -. After the conviction and sentence of accused Hari Ram for the offences under Sections 41 and 42 of the Act, the proceedings under Section 55 of the Rajasthan Forest Act, 1953, were, also, initiated for confiscation of the truck No. RRN 5475 carrying illegally cut timber at the relevant time. A notice of the proceedings under Section 55 of the Act was issued to Indra Raj - the registered owner of the truck. Shri Prem Sukh Mirdha, Advocate, was engaged by Indra Raj but neither Indra Raj nor his counsel appeared and no reply to the show cause notice was filed. The learned Magistrate, by its order dated 18-4-4990, ordered for the confiscation of the truck. Shri Prem Sukh Mirdha, Advocate, was engaged by Indra Raj but neither Indra Raj nor his counsel appeared and no reply to the show cause notice was filed. The learned Magistrate, by its order dated 18-4-4990, ordered for the confiscation of the truck. Dissatisfied with the order dated 18-4-1990, passed by the learned Magistrate, ordering for the confiscation of the truck, the petitioner, who is real owner of the truck and to whom no notice was given by the learned Magistrate, preferred an appeal before the learned Sessions Judge, Merta, which was transferred to the Court of learned Special Judge, S.C./S.T. (Prevention of Atrocities) Act Cases, Merta, and the learned Special Judge, by its judgment dated 29-1-1994, dismissed the appeal filed by the petitioner-appellant and held that the order was passed by the learned Magistrate after giving proper notice to the owner of the vehicle and as the provisions of Section 55 of the Act are mandatory, therefore, the learned Magistrate had no option except for ordering the confiscation of the truck. It is against this order dated 29-1- 1994 that the petitioner has preferred this miscellaneous petition. 3. It is contended by the learned counsel for the petitioner that the petitioner had no knowledge regarding carrying of forest produce/timber by driver Hari Ram nor the driver was advised to do so by the petitioner. He had no connivance with the driver and, therefore, the question of confiscation of the truck could not have arisen. It is, also, contended by the learned counsel for the petitioner that the provisions of Section 55 of the Act related to the confiscation of the truck, are not mandatory in nature and the learned lower Courts should have considered : whether the truck should be confiscated or not ? It has, also, been contended by the learned counsel for the petitioner that the value of the timber/forest produce, regarding which the offence has been committed, in comparison to the price of the truck, was negligible and, therefore, no order for the confiscation of the truck could have been passed. In support of its contention, learned counsel for the petitioner has placed reliance over : Vijay Singh v. State of Haryana, PLR 1978 page 713 . The State of Madhya Pradesh v. M/s. Azad Bharat Co. & others, AIR 1967 SC 275 . lshwar Lal v. The State of Rajasthan, 1991 Cr. L.R. (Raj.)520 . In support of its contention, learned counsel for the petitioner has placed reliance over : Vijay Singh v. State of Haryana, PLR 1978 page 713 . The State of Madhya Pradesh v. M/s. Azad Bharat Co. & others, AIR 1967 SC 275 . lshwar Lal v. The State of Rajasthan, 1991 Cr. L.R. (Raj.)520 . K.R. Pushpar v. The State of Kerala, AIR 1985 Kerala 184 ,and Balamal v. The State of Gujarat, AIR 1970 Guj. 26 . The learned Public Prosecutor, on the other hand, has supported the order passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties. 5. Section 55 of the Rajasthan Forest Act, 1953, deals with the confiscation of the carrier and provides that all timber or forest produce, which is not the property of the State Government and in respect of which a forest-offence has been committed and all the tools, boats, carts, truck and cattle etc. used in committing any forest offence shall be liable to be confiscation and such confiscation may be in addition to any other punishment prescribed for such the Act give discretion to the Court: whether to confiscate the vehicle or not. Merely because of a prefix of words shall be used before the words "liable to be confiscation", the words shall be do not mean that the provisions are mandatory in nature. The context, in which the words 'shall be' have been used and the attending circumstances that the accused and the owner of the vehicle are two different persons and whether the owner of the vehicle had the knowledge that the vehicle would be used for transporting the forest products/timber in contravention of the provisions of the Act of the Rules, he cannot be punished for the offence which he has not committed and the penalty of confiscation of the vehicle cannot be imposed upon him. It is, therefore, not mandatory for the Court to automatically pass an order for the confiscation of the carrier but the Court has to consider: whether the order of confiscation is justifiable in the facts and circumstances of the case. It is, therefore, not mandatory for the Court to automatically pass an order for the confiscation of the carrier but the Court has to consider: whether the order of confiscation is justifiable in the facts and circumstances of the case. This aspect of the case has not been considered by the learned lower Courts and the order of confiscation has been passed by the Courts below merely on the assumption that the provisions of Section 55 of the Act are mandatory in nature and the Court had no alternative except to pass an order for the confiscation of the vehicle. 6. There is another aspect of the case, also, Initially Indra Raj was the owner of the truck, but later on, Indra Raj sold the truck in question to Ram Niwas and Ram Niwas further sold it to the petitioner (Ghan Shyam), which is, also, clear from the fact that the truck, during the pendency of the proceedings, was given on Supurdginama to petitioner Chan Shyam. It is, therefore, clear that the petitioner was the owner of the truck while the registered owner was Indra Raj, to whom the notice was given by the trial Courts. Indra Raj did not pursue the matter as he had lost the interest in the truck because he had already sold it to Ram Niwas and Ram Niwas further sold it to the petitioner and, therefore, he did not contest the proceedings. Had a notice been given to the petitioner then certainly he would have been in a position to contest the confiscation proceedings and, therefore, the order passed by the Courts below, without giving any notice to the petitioner, was bad. Since no notice was given to the petitioner, who is the real owner of the truck in question, therefore, the order, passed by the learned Magistrate as well as the order, passed by the learned Special Judge, deserve to be quashed and set-aside and the learned Magistrate is directed to continue with the proceedings for confiscation of the truck after giving an opportunity of hearing to the petitioner and allowing him to produce any evidence which he wants to produce and thereafter to pass an appropriate order it accordance with law. The other points raised are not necessary to be dealt-with as these will be decided by the learned Munsif and Judicial Magistrate, Merta City, in accordance with law at the time of final disposal of the case. 7. The miscellaneous petition, filed by the petitioner, is allowed. The order dated 14-8-1990, passed by the Munsif and Judicial Magistrate, Merta City, as well as the order dated 19-1-1994, passed by the Special Judge, S.C./ S.T. (Prevention of Atrocities) Cases, Merta, ordering for the confiscation of the truck, are set-aside and the case is remanded to the Court of the learned Munsif and Judicial Magistrate Merta City, to decide the question regarding confiscation after giving an opportunity of hearing to the petitioner who is the owner of the truck.Revision accepted. *******