1. Truck bearing registration number MEZ 5593 belonging to the petitioner was seized by the Range Forest Officer. Sirsi (Sirsi) (R.F.O.) on 10-6-1983 afternightfall in a forest area near village Dasarakoppa within the range of the R.F.O. The R.F.O. seized the truck on the ground that the same was being used to smuggle forest produce belonging to the Government. He seized some logs and billets of Mathi trees from the truck. He also seized about 16,000 Cmtrs. offirewood lying by the side of the truck. According to him the Driver of the said truck and others who were with him ran away and escaped from being arrested.
2.In accordance with Section 71A of the Karnataka Forest Act, 1963 (the Act) the R.F.O. placed the truck and the other materials seized by him before the Dy. Conservator of Forests, Sirsi Division, Sirsi, who was also the Officer authorised to exercise powers under Section 71A (the Authorised Officer).
3.The Authorised Officer issued a show cause notice to the registered owner of the truck, this petitioner, asking him to show cause as to why the truck along with the other materials seized should not be confiscated to Government as provided in Section 71A. In answer to this, the petitioner filed his written statement on 3-8-1983 stating that on 10-6-1983 he had sent the truck with the driver to village Dasarakoppa in order to transport some rice bran (husk) to Haveri town; that at that place a certain Shivanna of the village had engaged the truck to transport fire-wood from Kalangi jungle to his residence promising the driver that he had the necessary transit passes; that the Driver, when the fire-wood was being loaded, had felt suspicious that Shivanna may not have the necessary permit to carry the fire-wood and therefore had started unloading the timber ; andthat at that time the forest officials had gone to that spot and on seeing them that Shivanna and others had ran away; and that being afraid his driver Mallikarjuna had also ran away and that his whereabouts were not known to him. He has further stated therein that he had instructed his driver beforesending the truck with him not to transport any material unless the same is found to have been covered with necessarypermit or licence under the Forest Act or Essential Commodities Act, etc. It is his case that he is innocent in the matter and that in view of the fact that he had taken all the necessaryprecautions and had warned his driver, he was in no way responsible for what had happened and therefore, the truck be released from attachment and handed over to him.
4. The records bear out that the Authorised Officer has held a detailed enquiry into the matter. He has recorded the deposition of as many as 8 persons including that of the owner of the truck (the petitioner) and MallikarjunVeerabasappa Totad, said to be the driver of the truck. We also find the statement of Shivanna referred to in the reply of the owner of the truck to the show cause notice. The others are Forest officials including the R.F.O. referred to above and two panch witnesses in proof of the seizure of this truck. It may be noted that in the course of his enquiry the Authorised Officer had raised the following points for consideration :
(1) Whether a Forest offence has been committed in respect of timber and fire-wood, which is the property of the State Government and the truck No. MEZ 5593, Bicycle, rope and Tarpaulin has been used incommitting the offence ?
(2) If so, whether the truck No. MEZ. 5593 has bees used in commission of the offence without the knowledge of the owner himself, Ms agent, if any?
(3) Whether the owner of truck No. MEZ 5593 had taken all reasonable and necessary precautions against such use ?
(4) Whether the truck No. MEZ. 5593 along with the rope, tarpaulin. Philips Bicycle bearing No. QJ 9635, 5 Matti logs measuring 1.400 cmtr, 10 Matti billets measuring 0.400 cmtr. and 16.000 cmtr of fire-wood are liable to be confiscated under Section 71-A(2) of the Karnataka Forest Act, 1963?
(5) Whether Sri Mallikarjun V. Totad was the driver of truck No. MEZ. 5593 when it was seized by the Range Forest Officer, Sirsi at Kalangi on 10-6-1983 night and whether the licence No. 24604/DWR seized on that day is to be returned to him?
(6) Whether Sri Shivanna R. Kalarnatli of Kalangi has committed any offence and if so, what action to be taken against him ?
His findings on points 1,2,4 are in the affirmative, on point No. 3 in the negative. Consequently he confiscated the truck and all other material seized along with the truck.
5. This order has been confirmed by the Appellate Authority, the Sessions Judge, Karwar.
6. Now, challenging these concurrent findings the Learned Counsel for the petitioner submitted that the truck would be liable for confiscation only if there is proof that it was being used to transport forest produce belonging to the Government and that in this case the alleged seizure of the forest produce being not in compliance with therequirements of law, was void and therefore, in the circumstances, on the footing that this truck had been involved intransporting or smuggling the forest produce could not at all have, been seized or subsequently confiscated. His further sub-mission is that even otherwise, the owner of the truck being wholly innocent in the matter and having taken all the necessary precautions to see that the truck is notmisused in any manner, he should not be penalised by an order of confiscation of the same.
7. On the other hand, the Learned Additional State Public Prosecutor submitted that the facts placed on record, the conduct of the owner, and that of his driver and the surrounding circumstances have all clearly established the fact that this truck was being used to transport illegally forest produce belonging to the Government, and therefore the Authorised Officer and the Learned Sessions Judge had rightly ordered confiscation of the same.
8. The questions that arise for consideration in this proceeding are :
(i) Was this truck used to commit the forest offence alleged ?
(ii) Even if it is so, is it not liable to be confiscated ?
9. In Karnataka State the main law relating to forest and forest produce is the Karnataka Forest Act, 1963 (the Act). Chapter IX of the Act contains provisions providing for penalties for forest offences and the procedure relating thereto. Section 62 confers powers on the forest and police officials in the State to seize any forest produce in respect of which the concerned official has reason to believe that a forest offence has been committed. They are also empowered to seize tools, vehicles etc. used in the commission of such an offence.
10. In so far as the persons committing forest offence are concerned they may be prosecuted in a competent Court But, so far as the tools,vehicles etc. are concerned, the man date of the law is that they shall be placed before the Authorised Officer who may after holding an enquiry as prescribe confiscate the same Sections 71A to 71G of the Act provide for confiscation by the Authorised Officer of the forest produce, the subject matter of the offence and also the tools, vehicles etc., used to commit the said offence and the procedure to be followed by him and the Appellate Authority who can revise his orders. Those provisions read as under :
71 A. Confiscation by Forest officers in certain Cases :-
(1) Notwithstanding anything contained in the foregoing provisions of this Chapter or in any other law where a forest offence is believed to have been committed in respect of timber, ivory, firewood and charcoal which is the property of the State Government or in respect of sandal wood, the officer seizing the property under sub-section (1) of Section 62 shall without any unreasonable delay produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the State Government in this behalf by Notification in the Official Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer).
(2) Where an authorised officer seizes under the sub-section (1) of Section 62 any timber, ivory, firewood and charcoal which is the property of the State Government or any sandalwood or where any such property is produced before an authorised officer under sub-section (1) once he is satisfied that a Forestoffence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence.
(3) (a) Where the authorised officer, after passing an order of confiscation under sub-section (2), is of the opinion that it is expedient in the public interest so to do, he may, order the confiscated property or any part thereof to be sold by public auction.
(b) Where any confiscated property is sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall where the order of confiscation made under Section 71A is set aside or annulled by an order under Sections 71C or 71D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order.
71B. Issue of show cause notice before confiscation under Section 71A.
(1) No order confiscating any timber, sandalwood, charcoal, firewood ivory, tools, ropes, chains, boats, vehicles or cattle shall be made under Section 71A except after notice in writing to the person from whom it is seized and considering his objections, if any....
Provided that no order confiscating a motor vehicle shall be made except, after giving notice in writing to the registered owner thereof, if in the opinion of the authorised officer it is practicable to do so, and considering his objections, if any.
(2) Without prejudice to the provisions of sub-section (I), no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Section 71A 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 the timber, sandalwood, charcoal, firewood or ivory without the knowledge or connivanceof 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.
71C. Revision - Any Forest Officer not below the rank of Conservator of Forests specially empowered by the State Government in this behalf by notification in the Official Gazette may, before the expiry of thirty days from the date of the order of the authorised officer under Section 71A, suo motu call for and examine the records of that order and may make such inquiry or cause such inquiry to be made may pass such orders as he deems fit :
Provided that no order prejudicial to a person shall be passed under this section without giving him an opportunity of being heard.
71D. Appeal - (1) Any person aggrieved by any order passed under Section 71A or Section 71C may, within thirty days from the date of communication to him of such order, appeal to the Sessions Judge having jurisdiction over the area in which the property to which the order relates has been seized and the Sessions Judge shall, after giving an opportunity to the appellant and the authorised officer or the officer specially empowered under Section 71C, as the case may be to be heard, pass such order as he may think fit confirming, modifying or annulling theorder appealed against.
(2) An order of the Sessions Judge under sub-section (1) shall be final and shall not be questioned in any Court of Law.
71E. Award of confiscation not to interfere with other punishments -The award of any confiscation under Section 71A or Section 71C or Section 71D shall not prevent the infliction of any punishment to which the person affected thereby is liable under this Act.
71F. Property confiscated when to vest in Government -
When an order for confiscation of any property has been passed under Section 71A or Section 71C or 71D and such order has become final in respect of the whole or any portion of such property, such property or portion thereof or if it has been sold under sub-section (3) of Section 71A, the sale proceeds thereof, as the case may be, shall vest in the State Government free from all encumbrances.
7IG. Bar of Jurisdiction in certain cases.
Whenever any timber, ivory, firewood or charcoal belonging to the State Government or any Sandalwood, together with any tool, rope, chain, boat, vehicle or cattle used in committing any offence is seized under sub-section (1) of Section 62, theauthorised officer under Section 71A or the officer specially empowered under Section 71C or the Sessions Judge hearing an appeal under Section 71D shall have and, notwithstanding anything to the contrary contained in this Act or in the Code of CriminalProcedure, 1973 (Central Act 2 of 1974) or in any other law for the time being in force, any other officer, court, tribunal orauthority shall not have, jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property.
As provided in sub-section (2) of Section 71A, the Authorised Officer can order of confiscation of the forest produce and the tools and vehicles etc., used only if 'he issatisfied that a forest offence has been committed in respect of the forest produce'. In such a case it is immaterial whetheror not a prosecution is instituted against the alleged accused concerning the said offence. His enquiry in the matter of confiscation consists of issuing show cause notices to the concerned including the registered owner of the vehicle, considering their objections if any. In this connection he may also receive all such evidence that the parties may adduce.
11. In the instant case, as stated above, the firstcontention of the Counsel for the petitioner is that the basic requirement for confiscating the truck being the positive proof that it had been used to commit a forest offence and that itself is absent and therefore the vehicle was not liable for confiscation at all. In support of this contention of his the counsel for the petitioner further argues that the very seizure of the forest produce cannot be said to have been satisfactorily established by the concerned officers and since that basic thing is absent, his truck is not liable for seizure on the footing that it had been used to commit theft or any other offence in relation to a forest produce. In thisconnection he places reliance on a decision of this Court reported in Hasanabba & Others- v. - The State of Karnataka, : ILR1984KAR530 . In that case this Court has observed that to prove satisfactorily the seizure of any forest produce, the authority concerned, in the matter of seizure or attachment of the forest produce should strictly comply with Section 62 of the Act and that in cases of non-compliance with the guidelines contained in that provision the seizure would be a nullity in the eye of law.
But the ratio of that decision cannot be taken advantage of by the petitioner in this case. In that case the very seizure of the forest produce was under a serious challenge. In fact the very identity of the property seized and produced had been seriously disputed. In the instant case that is not the position. After seizing the truck the R.F.O. had issued a notice to the petitioner, the owner of the truck on 28-6-1983. Pursuant to that notice the petitioner gave a written reply as on 18-7-1983 stating, amongst other things, that his driver was still not available; that however he learns that the truck had been taken on hire by a certain Shivanna to transport firewood, but he is not aware as to whether the firewood was the property of the Government and that in case it is to be proved to be the forest property, he may be fined nominally and the truck be released to him. At that time, as can be seen from that statement, the owner had taken with him that Shivanna also. It may be noted that the allegation of the R.F.O. is that the truck was being used to carry forest produce clandestinely at the instance of this Shivanna and Shivanna clearly admits in his statement that he had taken the truck and at the relevant time had got it loaded with jungle wood of the Kalangi forest.
12. And apart from this, pursuant to the show cause notice issued by the Authorised Officer the petitioner has furnished a written answer. Therein in this connection this is what the petitioner states :
' On 10-6-1983 this truck had gone to Dasankoppa for transporting rice-bran (husk) to Haveri. It appears one Shivanna Kalmath, ryot of Kalangi village in Sirsi Taluk engaged the truck for transport offuel wood from the Kalangi Jungle to his residence. He is said to have promised driver Mallikarjuna that he has the necessary transit passes and permits from the Section forester and under such promise, the driver Mallikarjuna, it transpires, permitted loading of fuel wood in the truck which was parked near the Gaonthana Survey No. 72 of Kalangi. Along with the fuel wood, it transpires, five matti logs measuring 1.400 cmtr and 10 matti billets were also got loaded by the said Shivanna by misrepresenting to the driver that necessary passes would be issued by the Forester before the truck leaves that place. When the driver found that neither the Forester came there nor the passes were produced for the transport till that evening, the driver of the truck felt suspicious and asked the labourers of Shivanna to unload the timber and billets loaded in the truck.While the unloading process was going on, it is learnt, that the R.F.O. Sirsi and hisstaff came to the spot and seeing the forest officials all the loading staff and Shivanna ran away. Finding that he would be made a scapegoat, it is learnt the driver Mallikarjuna also ran away. To this date thewhereabouts of the driver are not known inspire of the best efforts of thisRespondent to trace him. All the facts of this case were learnt through the cleaner Munna of Haveri Taluk and also Mr. Shivanna, owner of the timber. It is also learnt that a criminal case as been launched against driver Mallikarjuna and Shivanna and it was by the efforts of thisRespondent that Shivanna could be traced and produced before the R.F.O. Sirsi. Shivanna has clearly admitted before the R.P.O. about the above stated facts and has prayed that the inadvertent act of felling fuel-wood andmatt logs forhis personal use may be excused and the matter may be compounded as he is ready and willing to compound the cast on payment of nominal fine.'
In the course of the enquiry the Authorised Officer has also recorded the statement of all concerned on oath, providing ample opportunity to the parties to cross examine thewitnesses of the opposite party. In his deposition before the Authorised Officer Shivanna tried to resile from his earlier statement referred to above stating that the R.F.O. had threatened to arrest him and therefore he had signed on a white paper. His case at the time of his deposition was that the timber or the fire-wood loaded in the truck and seized by the departmental people was his own i.e., obtained from his Malki land. Thus he admits the seizure, but asserts that it was from his own land, which fact has not been established by him. The petitioner's case in hisdeposition before the Authorised Officer was that, on the assurance of Shivanna, that that fire wood belonged to him and that he would show necessary permit obtained totransport the same, his driver and cleaner had loaded the same and that immediately sensing that Shivanna may not have such a permit with him, they, the driver and the cleaner, had refused to move the truck and that in this way both his driver and the cleaner were innocent of this offence and that he himself was innocent of this offence and therefore his truck may not be confiscated.
13. Thus, in the light of these facts and circumstances, the concurrent findings of the Authorised Officer and the Sessions Judge that this truck had been used to remove the forest produce belonging to the Government is correct and cannot be interfered with in this revision.
14. While arguing on the second question formulated above, the Counsel for the petitioner submitted that his client, the owner of the truck, was not in the truck, that he had no direct knowledge of this occurrence and that his client had not knowingly given on hire the truck to Shivanna for removing any forest produce belonging to theGovernment and without a permit or licence therefor and that his client had placed enough material on record in proof of his innocence and therefore he should not have been penalised by confiscating his truck. In this connection he also submitted that sub-section (2) of Section 71B which throws the responsibility upon the owner of the truck to prove that the truck was used without his knowledge or connivance and that he had taken all reasonable and necessary precautions against such use of the truck etc., is unconstitutional and therefore in an enquiry of this nature the R.F.O. should not have been permitted into service such an arguments all.
15. It is true that sub-section (2) of Section 71B (extracted above) throws the burden to some extent on the owner to prove that if at all his vehicle had been used to commit the alleged offence that was without his knowledge or connivance and also without the knowledge of his agent, if any, and of the person in charge of the said vehicle and chat each of them had taken all reasonable and necessary precautions against such use.
16. I am unable to agree with the Counsel for, the petitioner that sub-section (2) of Section 71B is void being un-constitutional as is being contended by him. It may be beyond the scope of this proceeding to go into that aspect of his case elaborately. But, however, a similar argument advanced in the Supreme Court challenging the constitutional validity of Section 178A of the Sea Customs Act, 1878 was negatived by that Court in M.S. Venkitanarayana Iyer - v. -The Collector of Central Excise, (AIR 1962 SC 316). All that the owner is required to show under sub-section (2) of Section 71B is that he, his agent, if any and the personin charge of the vehicle (in this case the driver) each, had taken allreasonable and necessary precautions against the misusing of the vehicle and that this offence had been committed without the knowledge or connivance of any them. How does the truck owner show that he had taken all reasonable and necessary precautions to see that his truck is not misused in this way? Did he accompany the truck? If it was not possible for him to accompany the truck, had he sent any person in his trust with the truck or had he entrusted the truck to a driver of his confidence? Before hiring the truck, had he tried to know the antecedents of the person who had come to take the truck on hire? It is not merely enough if the truck owner says that his truck had been misused without his knowledge or connivance, but in addition he is bound to show that he had taken all reasonable and necessary precautions against such misuse. There was indeed an urgent necessity to incorporate a provision of this type [71 B(2) ] in the Forest Act. Largescale theft and smuggling of valuable timber, ivory, sandalwood and other forest produce is possible only if the smugglers resort to the transporting of the same from the forest or from a spot nearby forest in vehicles like trucks. Clandestine removal of valuable timber and other forest produce on considerable scale is going on since many many years and particularly after communication has developed. The authorities being aware for such large scale smuggling vehicles like trucks were being freely used took steps to get this provision - 71B(2) incorporated in the Act. Section 178A of the SeaCustoms Act, 1878 provided that 'where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.' The vires of this provision was upheld by the Supreme Court in Venkitanarayana Iyer's case. As stated above a similar argument as advanced inVenkitanarayana Iyer's case had also been urged in the Supreme Court in Pukhraj - v. - D.R. Kohli, Collector of Central Excise, Madhya Pradesh and Vidarbha & Another, : 1983(13)ELT1360(SC) . Repelling those arguments the Court further observed as to the scope of Section 178A of the Sea Customs Act as under :
'Now Section 178A places the burden of proving that the goods are not smuggled goods on the person from whose possession the said goods are seized, where it appears that the said goods are seized under theprovisions of the Sea Customs Act in the reasonable belief that they aresmuggled goods. Once it is shown that the goods were seized in the manner contemplated by the first part of Section I78A, it would be for theappellant to prove that the goods were not smuggled goods : and since it has been held by the Collector of Central Excise that the appellant had not discharged the onus imposed on him by Section 178A the statutorypresumption remained unrebutted and so, the goods must be dealt with on the basis that they are smuggled goods. As soon as we reach thisconclusion, it follows that under Section 167(8) of the Sea Customs Act, the said goods arc liable to confiscation. That is the view taken by the High Court when it rejected the appellant's prayer for a writ quashing the order of confiscation passed by the Collector of Central Excise in respect of the gold in question, and we see no reason to interfere with it.'
In the instant case, according to the owner, a certain Mallikarjuna was the truck driver. But that Mallikarjuna in his deposition before the Authorised Officer has stated that he was not the driver driving the truck when it was seized by the R.F.O. The story put forward by the owner in his first statement dated 18-7-1983 before the R.F.O was that the truck had been taken from Haveri to village Dasankoppa on 10-6 83 in order to transport some paddy husk. His deposition in this connection before the Authorised Officer is more interesting. What he states therein is that on 10-6-1983 at 10 a.m. his driver had brought some person and that that person had asked for the truck on hire and that he had told the hire charges at Rs.500/- and that that person had taken the truck to transport paddy husk from the house of that person in Dasankoppa to some field etc.
17. Adverting to this aspect of the case of the owner of the truck that some person from Dasankoppa had taken this truck on hire for transporting paddyhusk, the Authorised Officer has the following observations to make :
'It was argued by the other side that the purpose of hiring the truck was to transport the paddy husk from Dasankoppa to Kalangi which is at a distance of 3 miles. The truck was brought from Haveri which is at a distance of about 35 miles away from Dasankoppa. Sri. Shivanna could have hired a truck from Sirsi which is at a distance of 15 miles or a tractor from Dasankeppa economically or he could have transported it in the bullock cart itself. The cost of the two truck load of paddy husk is about Rs. 100/- and for transporting this Sri. Shivanna pays hire charges of Rs. 500/- plus the cost of H.S.D. Oil, etc. Sri. R.N. Dixit in his written statement has stated that he has sent the truck to Dasankoppa fortransporting Rice bran to Haveri and at Dasankoppa Sri. Shivanna has hired the truck for transporting fuel-wood from Kalangi jungle to his house. Hence the purpose of the hiring of truck for transporting paddy husk as stated by Sri R.N. Dixit and Sri. Shivanna Rudrappa Kalmatli is notbelievable.'
I should say that these observations of the Authorised Officer logically follow from the very stand taken by the truck owner.
18. It is on a considerations of all these facts both the Authorised Officer and the Sessions Judge have come to the conclusion that this truck is liable to be confiscated. They have so held not because that the truck owner had failed to prove to the hilt that he was innocent but because of the suspicious circumstances surrounding the very hiring of the truck and the inability on the part of the owner of the truck to come forward with a cogent and convincing stand re: the facts and circumstances leading to the alleged hiring of the truck by that Shivanna.
19. At this stage it may not be inappropriate to express a sense of appreciation at the very good work done by the R.F.O. and the excellent manner in which the Authorised Officer has conducted this enquiry. The Authorised Officer has conducted a fairly elaborate enquiry giving full scope to all the parties concerned to have their say in the matter and has also very cautiously and carefully examined the facts made available to him. His order is the result of a considerable amount of hard and sincere work.
20. I find no good grounds to interfere with the order of the Sessions Judge, Uttara Kannada, confirming the order of the Authorised Officer.
21. This Petition accordingly stands hereby dismissed.