C. Tamil Mani v. The State of Tamil Nadu — 1997 DIGILAW 1171 (MAD)

Judgment : The petitioner prays for the issue of a writ of certiorarified mandamus calling for the records and quashing the order of confiscation passed by the first respondent in Ref.No.STOR No.50/96 dated 7.12.1996 and consequently directing the respondents herein to release the petitioners lorry bearing Regn. No.TN-04/A 5067 Tata 1210 Make and 1991 Model. 2. Heard counsel for petitioner and Mr.Titus Jesudoss, Special Government Pleader (Forest) taking notice for the respondents. 3. The petitioner states that he had purchased lorry No. TN-04/A 5067 under hire purchase agreement, that the said lorry has been seized by the first respondent on 3.9.1996 for alleged offence under Secs.21(d) and 35-A read with Sec,36-E of the Tamil Nadu Forests Act, 1910 and a case has been registered in STOR.No.50 of 1996 against one Selvam, lorry driver and Annamalai, and that the lorry had been seized at Parigam village at 6.00 a.m., as it was loaded with sandalwood pieces. 4. The petitioner further states that he had no knowledge nor he had authorised the driver of his vehicle to transport sandalwood and he has not role to play in the transportation of sandalwood bars by his vehicle, and that confession statements had been obtained from the driver and cleaner of his vehicle, but he had not been implicated. 5. The petitioner also states that a show cause notice has seen issued on 30.9.1996 as to why his vehicle should not be confiscated, that the petitioner submitted his explanation to the show cause notice, that the lorry was sent to Dindigul to transport pipes from Pallipalayam village, that as it has developed engine trouble, the petitioner had left the lorry in the custody of one David of Dindigul, that as the lorry was repaired and made ready for transportation, the petitioner directed the driver of his vehicle to take the lorry to Chennai, and that as the lorry had not reached Madras, the petitioner had contacted Dindigul and other places as to whereabouts of the lorry which was not known to him. 6. The petitioner further states that only from the show cause notice, the petitioner came to know about the seizure of the lorry, that the driver and cleaner of his lorry have taken the same to Chinnasalem via. 6. The petitioner further states that only from the show cause notice, the petitioner came to know about the seizure of the lorry, that the driver and cleaner of his lorry have taken the same to Chinnasalem via. Athur, which he had not authorised them, that the whereabouts of the driver and cleaner are not known and that the petitioner had filed W.P.No.14175 of 1996 and this Court by order dated 6.12.1996 directed to release the lorry subject to certain usual conditions, however, on 17.12.1996, the first respondent herein ordered confiscation. 7. The petitioner admits that he had not appeared before the first respondent on the date of enquiry. The petitioner contends that without issuing notice to the driver of his vehicle and cleaner, without considering the objections and with undue haste, the order of confiscation has been passed on 7.12.1996. 8. The petitioner further contends that he had also preferred an appeal against the order of confiscation before the Sessions Judge, Villupuram, and that the said Sessions Judge, Villupuram by judgment dated 10.4.1997 confirmed the orders of confiscation and dismissed the appeal. Being aggrieved, the present writ petition has been preferred challenging the confiscation proceedings passed by the first respondent, as confirmed by the Sessions Judge, Villupuram. 9. The Sessions Judge, while confirming the order of confiscation, rendered a definite finding that valid show cause notice has been issued by the competent authority, that the petitioner had submitted his objections and that after due consideration of the objections, the order of confiscation has been passed. 10. Learned counsel for the petitioner contends that the petitioner had not been prosecuted before a criminal court and he had not been convicted so also the driver of his vehicle and cleaner. 11. It is admitted that 305 kgs. of sandalwood had been transported on the petitioners lorry on 3.9.1996 and it was seized from the petitioners lorry. The driver of the lorry was also apprehended on the spot and the seizure of sandalwood, a forest produce was effected. 12. It has also been found that a show cause notice has been issued, for which the petitioner submitted his explanation. The petitioner was also required to appear for a personal enquiry and it was adjourned once at the instance of the petitioner. Subsequently, on the adjourned date i.e., on 6.12.1996, the petitioner despite service of notice had absented himself. 13. It has also been found that a show cause notice has been issued, for which the petitioner submitted his explanation. The petitioner was also required to appear for a personal enquiry and it was adjourned once at the instance of the petitioner. Subsequently, on the adjourned date i.e., on 6.12.1996, the petitioner despite service of notice had absented himself. 13. As the petitioner had failed to take part in the enquiry, the Authorised Officer after consideration of the objections, ordered confiscation of the lorry in exercise of power conferred under Secs.44 and 49-A of the Tamil Nadu Forest Act, 1882. The Sessions Judge, Villupuram also rendered a finding that there is sufficient material before the Authorised Officer to order confiscation and there is no illegality in the order of confiscation. 14. Learned counsel for the petitioner vehemently contended that the petitioner had not utilised the lorry in the transportation of forest produce and without his knowledge, the lorry has been used by the driver and as such, there is no basis or reason or ground to order confiscation of the lorry, unless and until the petitioner is convicted by a criminal court. 15. Learned counsel for the petitioner also points out that the petitioner had not been implicated for the offence under the Tamil Nadu Forest Act. The contentions of the learned counsel cannot be sustained at all. 16. It is not disputed that the petitioners lorry was engaged in transportation of sandalwood, a forest produce. In terms of Sec.49-B of the Tamil Nadu Forest Act, 1882, the burden of proof is on the petitioner to show that his lorry was used in transporting sandalwood without his knowledge as well as without the knowledge of his agent in charge of the vehicle and that each of them had taken reasonable and necessary precautions against such use. 17. The scope of Sec.49-B was the subject matter of consideration before the Division Bench of this court in W.A.No.1296 of 1995, wherein K.A.Swami, C.J. speaking for the Division Bench, held thus: “The latter portion of the proviso places burden upon the owner of the vehicle. It is not enough for the owner of the vehicle to prove that the vehicle was used without his knowledge or cognizance. It is not enough for the owner of the vehicle to prove that the vehicle was used without his knowledge or cognizance. He is also further required to prove that the agent or the driver under whose possession, the vehicle was being kept, had taken all reasonable and necessary precautions against such use. In the instant case, it is not in dispute that the vehicle was seized when it was transporting illegally sandalwood. In such cases, the aforesaid proviso comes into operation. The burden shifts on the owner of the vehicle to prove by convincing evidence that not only he had no knowledge of or had not connived with the use of the vehicle for illegal purpost, but his agent or the person in charge of the vehicle had taken all the reasonable and necessary precautions against such use. The owner has not adduced any evidence to show that the driver of the vehicle took necessary and reasonable precautions to prevent the use of the vehicle for illegally transporting the sandalwood. The fact that the driver was in the custody of the police, did not in any way prevent the owner to examine him and to adduce any other evidence to prove that reasonable and necessary precautions were taken by the person in charge of the vehicle. The object of the proviso is to ensure that the owner of the vehicle does not escape by merely pointing out that he had no knowledge. He being the owner of the vehicle, it is his responsibility to ensure that not only he himself had taken care to see that the vehicle was not used for any unauthorised purpose, but also the person placed in charge of the vehicle did not use the vehicle or allowed it to be used or connived at for such purpose. This provision of law requires to be scrupulously observed in order to prevent the smuggling of sandalwood.” 18. The burden of proof is on the petitioner, which he had failed to discharge. The petitioner had entrusted the lorry with driver, who is his agent and the petitioner had not established that without the knowledge of his driver and without his connivance, the lorry had been used for transportation of sandalwood. 19. The burden of proof is on the petitioner, which he had failed to discharge. The petitioner had entrusted the lorry with driver, who is his agent and the petitioner had not established that without the knowledge of his driver and without his connivance, the lorry had been used for transportation of sandalwood. 19. Admittedly, in the present case, the lorry was checked in the presence of the driver, who attempted to run away, but he was apprehended on the spot. Further, there is no dispute that the lorry had been seized with sandalwood and the lorry driver, the petitioners agent was present when the seizure took place. 20. In the circumstances, it cannot be contended by the petitioner that his agent had no knowledge nor he had connived nor he had taken all necessary and reasonable protections against such use. 21. Sub-sec.(2) of Sec.49 reads thus: “Without prejudice to the provisions of Sub-sec.(I) no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Sec.49-A if the owner of the tool, rope, chain, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying scheduled timber without the knowledge or connivance of the owner himself, 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 and necessary precautions against such use.” [Italics supplied] 22. Identical provision was the subject matter of consideration before the Apex Court in State of M.P. v. Suresh Kumar State of M.P. v. Suresh Kumar , (1997)2 Supreme Today 64 and the Apex Court while considering Sub-sec.(6) of Sec.15 of the M.P. Van Upaj (Vyapar Viniayakar 1969) Amendment Act held that burden is cast upon the owner of the truck to prove that his truck was used for illegal activity without his knowledge and not with his connivance. The Apex Court has held thus: “It is needless to reproduce entire Sec.15 since the High Court has mainly relied upon Sub-sec.(6) which reads as under: (6) No order of confiscation under Sub-sec.(4) of any tools, vehicles, boats, ropes, chains, or any other articles (other than specified forest produced seized) shall be made if any person referred to in clause (b) of Sub-sec.(5) proves to the satisfaction of authorised officer that any such tools, vehicles boats, ropes, chains or other articles were used without his knowledge or connivance or as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against use of objects aforesaid for commission of an offence under this Act. (reproduced from the judgment of the High Court). A bare reading of Sub-sec.(6) of Sec.15 of the Adhiniyarn quoted hereinabove shows that the burden is on the owner to prove to the satisfaction of the authorised officer that his vehicle was used without his knowledge or connivance and that all reasonable or connivance and that all reasonable and necessary precautions were taken by him against use of his truck for the commission of an offence under this Adhiniyarn. During confiscation proceedings, the competent Authority recorded the statements of various forest employees including the officers and permitted the respondent to cross examine them but he failed to avail of the said opportunity. The forest employees when tried to stop the truck, one of the inmates of the truck tried to scare these forest employees by firing a shot from the fire arm and they thereafter escaped from the truck to avoid being caught. This would unmistakably show that the truck driver and other inmates were involved in illegal activities forbidden by Adhiniyarn. It also cannot be overlooked that the concealment of 120 legs of teak wood was arranged perfectly by putting tarpaulin over the legs to avoid its detection. These facts were held proved by the forest authorities and on these proved facts, the forest authorities concluded that the driver of the truck in connivance with the other inmates of the truck was carrying the wooden logs illegally. Under Sub-sec.(5) burden is case upon the owner of the truck to prove that his truck was used for illegal activities without his knowledge and not with his connivance. Under Sub-sec.(5) burden is case upon the owner of the truck to prove that his truck was used for illegal activities without his knowledge and not with his connivance. The statement of the owner of the truck was recorded by the competent Authority and the explanation sought to be given by him did not find favour with the said authority. The respondent owner did not produce any other material on record to discharge the burden under Sub-sec.(6). If this be so, it cannot be said that the competent authority and the Appellate Authority committed any error in coming to the conclusion that the respondent owner has filed to satisfy the authorised officer that the illegal activity committed by the driver of the truck was without his knowledge or connivance. Mere ipso dixitof the respondent owner cannot be said to be sufficient evidence to discharge burden under 15(6) of the Adhiniyam. In our opinion, the High Court had totally misread and misinterpreted provisions of Sec.15(6). We therefore, cannot sustain the reasoning of the High Court and the Sessions Court as regards interpretation of Sec. 15(6).” 23. In the circumstances, on the facts of the case, there was sufficient materials before the Authorised Officer to order confiscation and the petitioner had not discharged the burden in terms of Sub-sec.(2) of Sec.49 of the Act. 24. No case has been made out for interference under Art.226 of the Constitution and it is not as if the jurisdiction of this court is that of an appellate court. The order of the Authorised Officer as confirmed by the Sessions Judge, Villupuram is not liable to be interfered. 25. The writ petition is dismissed. No costs. Consequently, W.M.P.Nos.24986 to 24988 of 1997 are also dismissed.