Shaik Abdul Nabi v. The Authorized Officer-cum- Divisional Forest Officer, Flying Squad Division, Tirupati, Chittoor District

Heard Sri P. Roy Reddy, learned counsel for the petitioner and Smt. G.M. Sunitha, learned Assistant Government Pleader for respondents 1 and 2. Respondents 3 and 4 do not appear to have been served with the notices of the writ petition, but the disposal of the writ petition need not await their appearance when their rights and interests are not in any way prejudiced by the adjudication herein.

2. The Divisional Forest Officer/Authorized Officer, Flying Squad Division, Tirupati, Chittoor District, passed an order in O.R.No.114 of 2004-2005, dated 17.08.2004, of Flying Squad Division, Tirupati, on 07.03.2005 referring to the Forest Range Officer, Flying Squad Division, Tirupati, intercepting Tata Sumo No.AP 02 U 5569 and finding it to be fully loaded with red sanders logs. As no permits were produced for transport of the logs by either of the two persons travelling in the vehicle, a Panchanama was conducted and 39 red sanders logs and the vehicle were seized. Both the accused were arrested and their confessional statements were recorded. The accused were produced before the Judicial Magistrate of First Class, Srikalahasti, and were remanded to the judicial custody and the reference from the Forest Range Officer, Flying Squad Division, Tirupati, of the compounding statements of both the accused was rejected by the Divisional Forest Officer, Flying Squad Division, Tirupati. The Authorized Officer obtained particulars from the Regional Transport Officer, Ananthapur, about the vehicle standing in the name of Sri A. Harinath Reddy and on 07.09.2004, an application was received from the writ petitioner herein about purchasing the Tata Sumo from Sri A. Harinath Reddy for valuable consideration and claiming ignorance about the transport of red sanders logs by the driver, which he never permitted. The writ petitioner herein claimed to be having no information from the driver since

16.08.2004 and requested for release of the vehicle on producing sufficient third party security.

3. The Authorized Officer rejected the request for interim release of the vehicle by an order, dated 13.09.2004, and issued a show cause notice to both the accused, Sri A. Harinath Reddy and the writ petitioner herein, to give an opportunity to make a representation and have an opportunity of being heard against confiscation of the vehicle and the red sanders logs. The writ petitioner again reiterated his claims about having no knowledge of transporting the red sanders wood in his vehicle and alleged the driver to have misused the vehicle and requested for dropping of the proceedings and having a personal hearing and also to permit him to examine the driver, mediators and Forest Range Officer, through his counsel. Sri A. Harinath Reddy, in his reply, stated about selling the vehicle to the writ petitioner herein and to be not in any way connected with the accused or the seized property. The accused did not submit any explanations and the Authorized Officer supplied copies of material papers to the writ petitioner herein and examined the Forest Range Officer and one of the mediators apart from the writ petitioner himself. In the order in question, dated 07.03.2005, the Authorized Officer extracted the substance of the depositions of the three witnesses and the arguments advanced and concluded that a forest offence was committed by the transport of red sanders logs in the vehicle in question and when the property was seized from the possession of both the accused along with the contraband, the confessional statements recorded by the two accused, more particularly, the driver show that the knowledge of the owner, the writ petitioner herein, was not stated to be absent about the transaction. The driver did not produce any evidence in the enquiry in spite of notice and the Authorized Officer concluded that it is for the owner to produce evidence about the precautions taken against the misuse of the vehicle and about the absence of the commission of offence. The Authorized Officer refused to give the benefit of Section 44(2-C) of the Andhra Pradesh Forest Act, 1967, to the owner of the vehicle and concluded that the vehicle was used in the commission of the offence with the knowledge or connivance of the owner of the vehicle. Accordingly, the Authorized Officer, with reference the relevant statutory provision, ordered confiscation of the vehicle and the red sanders logs.

4. The said order was challenged in C.M.A.No.26 of 2005 before the District Judge, Chittoor, who by an order, dated

25.04.2006, dismissed the civil miscellaneous appeal. In the order, after extracting the factual background and the precedents relied on in support of the appeal, the learned Judge observed that in view of the evidence of the owner of the vehicle coupled with the oral evidence of P.W.1 and his report, the interception of the vehicle and the seizure of the same along with 39 red sanders logs were established. The confessional statement of the driver indicated the knowledge of the appellant about the transportation and even the written representation made by the appellant was considered by the learned Judge to be proving the involvement of the offending vehicle in the offence in question. The learned Judge further found that the absence of knowledge of the appellant was not indicated by the confessional statement of the driver and the statement of the owner of the vehicle that he engaged the driver only after being satisfied about his bona fides and the fact that the amount realized from the vehicle was to the benefit of the owner, but not the driver were also relied on to reject the contentions about the innocence of the appellant. The removal of the back seats from the vehicle to enable placing of the red sanders logs habitually by the driver was also considered to be probablising the knowledge of the owner, as no driver could have removed the back seats without the knowledge of the owner. Relying on the decision of the Supreme Court in SECTION FORESTER VS. MANUR ALI KHAN [AIR 2004 SC 1251], the learned Judge held the case to be falling under the same category and the principle laid down by the Apex Court is that easy release of the vehicles of forest offenders would tempt the forest offenders to repeat commission of such offences.

5. It is against the dismissal of the civil miscellaneous appeal that the present writ petition has been filed relying on GOVERNMENT OF ANDHRA PRADESH VS. DINDU KANAKAMMA AND OTHERS [1998 (5) ALT 171 (FULL BENCH)] about a confiscation being not an automatic consequence of the forest offence and SUB-DIVISIONAL FOREST OFFICER, CHENNUR VS. VIJAY B GULATI AND OTHERS [1998 (1) ALD 117 (FULL BENCH)] about the susceptibility for confiscation only if the owner connived or had the knowledge of the use of the vehicle in the offence. Claiming that the Forest Range Officer, Flying Squad Division, failed to prove these aspects, the writ petitioner desired the orders in O.R.NO.114 of 2004-2005 confirmed in C.M.A.No.26 of 2005 to be set aside and the vehicle to be released in his favour.

6. The counter affidavit of the respondents 1 and 2 reiterated the contentions raised in the civil miscellaneous appeal and reproduced extracts of the order of the Authorized Officer and the learned District Judge in the civil miscellaneous appeal, while requesting for the dismissal of the writ petition.

7. The statement of Thammisetti Ankaiah/the third respondent recorded at the time of the seizure of the red sanders logs and the vehicle in question describe the sequence of events of loading the logs into the vehicle and transporting them in such detail as would indicate the probability of the event having been in execution of a previous design in consultation with all the persons concerned. The statement of Polathoti Krishnaiah/the 4th respondent, who was the driver of the vehicle, stated about his being approached for transport of the red sanders logs and the manner in which the logs were loaded and were being transported by the time of the seizure. While it is true that he did not positively state about any knowledge or consent of the owner, the manner in which he agreed to so transport the red sanders logs may not indicate that he would have done so without the implied consent of the owner of the vehicle to indulge in such clandestine transactions to enable more income to be earned by the writ petitioner. The Authorized Officer had the benefit of observing the demeanour of the witnesses including the writ petitioner while recording the statements during the course of enquiry and this is a case of a concurrent finding of fact by the Authorized Officer of the Appellate Authority about the failure of the writ petitioner to prove the absence of knowledge or consent of the owner in this regard. The writ affidavit or the material papers enclosed do not disclose any such material as would persuade this Court to differ from the said concurrent finding of fact and Section 44 (2-C) of Andhra Pradesh Forest Act, 1967, prohibits an order of confiscation only if the owner of the vehicle proves to the satisfaction of the Authorized Officer that it was used in carrying the property without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. The sequence of events disclose probable knowledge of contravention of the person in charge of the vehicle who was obviously acting as the agent of the owner at the time of the incident. The requirement of proving to the satisfaction of the Authorized Officer that the owner or the agent or the person in charge of the vehicle had no knowledge or consent in this regard is not satisfied. Therefore, it will never be considered on the admitted facts and in exercise of the extraordinary jurisdiction of this Court, there can be no interference with the orders in question under such circumstances. The writ petition has to, therefore, fail.

8. Therefore, the Writ Petition is dismissed without costs. ___________________ G. BHAVANI PRASAD, J Date: 7th December, 2012 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION No.20227 of 2006 Date: 7th December, 2012 KL