S.Ramalingam v. Assistant Conservator ofForests, Forest ProtectionSquad, Vellore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.3788 of 1998S.Ramalingam .. Petitioner-vs-1.Assistant Conservator ofForests, Forest ProtectionSquad, Vellore.2.The Principal Sessions Judge,Vellore District at Vellore. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorarified mandamus callingfor the records of the respondents and quash the judgment passed inCrl.A.No.49 of 1997 dated 29.1.1998 on the file of the PrincipalSessions Judge, Vellore District at Vellore confirming the order of theconfiscation order passed in STOR.No.1 of 1997 dated 29.6.1997 by theAuthorised Officer and Assistant Conservator of Forests, ForestProtection Squad, Vellore District at Vellore and direct the firstrespondent to return the Motor Vehicle viz., TN 048-0860 now in thecustody of the first respondent.For petitioner: Mr.V.R.Kamalanathan For respondents: Mr.P.Satish, GA (Forest)*****O R D E R The writ petition is filed challenging the judgment of thePrincipal Sessions Judge, Vellore made in Criminal Appeal No.49 of 1997dated 29.1.1998 confirming the order of confiscation passed by thefirst respondent dated 29.6.1997 and also for a consequential directionto return the Motor Vehicle with Registration No.TN04-B-0860 to thepetitioner.2. The petitioner is the owner of the 407 TATA Van withRegistration No.TN-04-B-0860. He had purchased the vehicle on an Hire https://hcservices.ecourts.gov.in/hcservices/ Purchase Agreement with a Finance Company. The petitioner used to letout the said van for transporting consignments on hire charges. It isstated that on 07.1.1997, the vehicle was checked at Vellore and it wasfound to have contained contraband sandalwood weighing 260 kgs worthabout Rs.84,000/-.3. A case was also registered by the Forest Protection Squad,Vellore in STOR.No.1 of 1997. The petitioner filed a writ petitionbeing W.P.No.5099 of 1997 for a declaration declaring the Tamil NaduAmendment Act No.44 of 1992 as unconstitutional. In that writ petition,this Court by an order dated 02.7.1997, recorded the statement of theGovernment Advocate. He stated that there was no confiscation order andthe vehicle may be released subject to certain conditions. Thepetitioner also moved this Court to stay the further proceedingspursuant to the confiscation order passed dated 29.6.1997 in STOR No.1of 1997 pending disposal of Crl.A.No.49 of 1997.4. The petitioner filed a Contempt Application being C.A.No.353 of1997 for the alleged disobedience of the order passed by this Court.This Court was informed that the petitioner was given time on 23.5.1997to submit his explanation. The petitioner informed them that he was illand hence, time to submit explanation was further extended. It wasstated that taking advantage of the same, the earlier writ petitionwas filed by the petitioner challenging the vires of the provisions.Though the department had given draft counter affidavit to theGovernment Pleader yet when the matter came up on 02.7.1997 an orderfor release of vehicle was passed. The petitioner never sent any replyafter seeking for further time.5. In the meanwhile, the petitioner moved the District Court(the second respondent) with Criminal Appeal No.49 of 1997. Since theorder under section 49A(2) of the Tamil Nadu Forest Act was passed, thevehicle could not be released. The second respondent District Courtrejected the appeal filed by the petitioner vide judgment dated29.1.1998 and confirmed the order dated 29.6.1997 confiscating thevehicle. The Court rejected the contention that the petitioner was notgiven any opportunity against the confiscation.6. The writ petition was admitted on 19.3.1998. Pursuant to thenotice, a counter affidavit dated 31.8.1998 was filed by the firstrespondent. It is stated that as per section 49(B), the owner of thevehicle is duty bound to prove his innocence as well as theprecautionary action taken by him to prevent the commission of offence.It was also stated that there was no infirmity in the order passed bythe District Judge. Even at the time of admission of the writ petition,when the petitioner sought for release of the vehicle, the same wasrefused by this Court. 7. The learned counsel for the petitioner however, stated that in https://hcservices.ecourts.gov.in/hcservices/ the criminal case initiated against him in C.C.No.256/97, theproceedings initiated against the petitioner was quashed therebyholding him innocent of the forest offence.8. Mr.P.Satish, learned Government Advocate (Forest) brought tothe notice of this Court the judgment of the Supreme Court in State ofM.P. -vs- Suresh Kumar reported in (1997) 9 SCC 647, While interpretingthe Madhya Pradesh Forest Act pertaining to confiscation of vehicles,in paragraphs 9 and 11, it was observed by the Supreme Court which isas follows:-''Para 9. A bare reading of sub-section (6) of Section 15 ofthe Adhiniyam quoted hereinabove shows that the burden is onthe owner to prove to the satisfaction of the authorisedofficer that his vehicle was used without his knowledge orconnivance and that all reasonable and necessary precautionswere taken by him against use of his truck for thecommission of an offence under this Adhiniyam. Duringconfiscation proceedings, the competent authority recordedthe statements of various forest employees including theofficers and permitted the respondent to cross-examine thembut he failed to avail of the said opportunity. The forestemployees when tried to stop the truck, one of the inmatesof the truck tried to scare these forest employees by firinga shot from the firearm and thereafter escaped from thetruck to avoid being caught. This would unmistakably showthat the truck driver and other inmates were involved inillegal activities forbidden by the Adhiniyam. It alsocannot be overlooked that the concealment of 120 logs ofteak wood was arranged perfectly by putting tarpaulin overthe logs to avoid its detection. These facts were heldproved by the Forest Authorities and on these proved facts,the Forest Authorities concluded that the driver of thetruck in connivance with the other inmates of the truck wascarrying the wooden logs illegally. Under sub-section (6)burden is cast upon the owner of the truck to prove that histruck was used for illegal activities without his knowledgeand not with his connivance. The statement of the owner ofthe truck was recorded by the competent authority and theexplanation sought to be given by him did not find favourwith the said authority. The respondent owner did notproduce any other material on record to discharge the burdenunder sub-section (6). If this be so, it cannot be said thatthe competent authority and the appellate authoritycommitted any error in coming to the conclusion that therespondent owner has failed to satisfy the authorisedofficer that the illegal activity committed by the driver ofthe truck was without his knowledge or connivance. Mere ipsedixit of the respondent owner cannot be said to besufficient evidence to discharge burden under Section 15(6) https://hcservices.ecourts.gov.in/hcservices/ of the Adhiniyam. In our opinion, the High Court has totallymisread and misinterpreted provisions of Section 15(6). We,therefore, cannot sustain the reasoning of the High Courtand the Sessions Court as regards interpretation of Section15(6)". .. .. ..```"Para 11. ...... ..... Since the respondent owner failedto satisfy the competent authority and the appellantauthority as required under Section 15(6), we do not thinkthat the said authorities have committed any breach of thesaid provision. In view of the proved facts of this case,the order of confiscation of the truck cannot be said to bearbitrary". 9. The learned counsel also brought to the notice of this Courtthe judgment of this Court in Secretary to Government, State of TamilNadu -vs- N.Venkatesh and another reported in (2008) 2 MLJ 39, whereinthe two judgments of the Division Bench were referred to and out ofwhich one of them was also reported in (2005) 1 MLJ 448 (State of TamilNadu -vs- A.K.Raju). Another decision of the learned Judge reported in2004 Writ L.R.53 (S.Gowri -vs- Assistant Conservator of ForestProsecution Squad and another) upholding the action of the forestofficials in confiscating the vehicle was also referred to. In thesame judgment, it was held that it was the burden of the vehicle ownerto prove his innocence for getting return of the vehicle.10. In the present case, the petitioner had not availed theopportunities given to him both at the time of showcause notice and inthe appeal. There are no grounds made out to interfere with the orderpassed by the learned District Judge confirming the confiscation of thevehicle ordered by the first respondent.11. In the light of the above, the writ petition stands dismissed.However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarjs https://hcservices.ecourts.gov.in/hcservices/ To1.Assistant Conservator ofForests, Forest ProtectionSquad, Vellore.2.The Principal Sessions Judge, Vellore District at Vellore. +1cc to Spl.G.P.Sr 3441RSI (CO)km/4.2.W.P.No.3788 of 1998