ORDER
Ramachandriah, J.
1. Matador Van bearing registration No. CAM 182 of which the petitioner is the registered owner has been confiscated to the State Government under Section 71A of the Karnataka Forest Act, 1963 (for short 'the Act') by the Authorised Officer and Deputy Conservator of Forests, Bhadravathi, (hereinafter referred to as 'the Authorised Officer') by his order dated 12-9-1985 in Case No. FOC/CON/CR-12/84-85 on the ground that it was used for the commission of a forest offence in the early hours of 26-1-1985 by transporting in it for the purpose of smuggling 81 sandalwood billets from the forest area called Lingadahalli Amrith Mahal Kaval Farm, Tarikere. The said order of the Authorised Officer has been confirmed by the Additional Sessions Judge, Shimoga, by dismissing Criminal Miscellaneous Appeal No. 12 of 1985 filed by the petitioner under Section 710 of the Act. Therefore, the petitioner has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'the Code') questioning the correctness and legality of the orders of the Authorised Officer and the Sessions Judge.
2. The facts which have given rise to this revision are as under:-
(a) Range Forest Officer, Tarikere, Shimoga, -2nd respondent herein went to Lingadahalli Amrith Mahal Kaval Farm along with his staff on 25-1-1985 and was keeping a close watch over the movement of motor vehicles so as to check them as he had credible information that sandalwood was being cut from the forest area and removed illegally. When the second respondent and his staff were so watching the movement of the vehicles, they saw Matador Van bearing No.CAM 182 (hereinafter referred to as 'the vehicle') coming from Lingadahalli side. Therefore, they signalled to stop that vehicle. But, the said vehicle sped away without stopping the same. Therefore, the second respondent and his staff suspected it to be a vehicle in which forest produce was being smuggled. Hence, they chased the said vehicle in the Departmental lorry, but they could not either stop or overtake the said vehicle till they reached Lingadahalli-Tarikere Road and B.H. Road junction at Tarikere. Some of the staff members were making enquiry with the people at the said junction. Meanwhile, the second respondent with other members of his staff went in the Departmental lorry towards Bhadravathi on B.H. Road in order to detect the vehicle and stop it. As they came near the forest checking gate at Tarikere, they found the vehicle standing near the checking pate. By the time the second respondent and his staff could get down from the lorry, some persons got down from the vehicle and ran towards the near by Government Timber Depot. The second respondent and his staff chased those persons in order to catch them. But, they failed in their said attempt as it was dark by then. Therefore, they returned back to the place where the vehicle had been stopped and they checked the contents of that vehicle and found inside that vehicle 81 sandalwood billets and one stepney of that vehicle. Since it was completely dark by then, they waited near the vehicle till the day break and then recorded a mahazar in the morning of 26-1-1985 noting down the registration number and other particulars of the vehicle and its contents. The vehicle and the sandalwood billets found inside it were seized after putting on the sandalwood billets the mark MFD/TKE/3 by using a hammer containing the said mark. Certain documents found inside the vehicle were also seized. It was ascertained from the said documents that it had been registered in the office of the R.T.O. Bangalore. Therefore, a- letter was addressed to the R.T.O. Bangalore for furnishing the name and other particulars of the registered owner of the said vehicle. In the meantime, the petitioner appeared before the Authorised Officer and filed an application praying for release of the vehicle to his custody as he was the registered owner of it and he had no knowledge of the commission of the forest offence by using his vehicle as it had been misused by the persons to whom he had given it for hire on 23-1-1985. The Authorised Officer held an enquiry during which he recorded the statements of (1) Thimmanna, Agriculturist, Tarikere, (2) P. Krishnan, resident of Tarikere, and a retired official of Irrigation Department, who were the attestors of the seizure mahazar Exhibit P-3, (3) B.K. Narasimha Murthy, Forester, Thagadabagi Section, Tarikere Range, (4) K.S. Ramachandran, Assistant Conservator of Forests, who was leading the forest staff on the night of 24/25-1-1985 and also (5) Ayaz Ahmed-petitioner. During the course of his statement, the petitioner had produced a document marked as Exhibit D-1 containing writing in Urdu under which he had given the vehicle for hire on 23-1-1985.
3. On a consideration of the statement of the said witnesses and contents of the documents produced before him, the Authorised Officer passed an order dated 12-9-1985 confiscating the vehicle on the aforementioned ground. The petitioner was unsuccessful in his appeal before the Sessions Judge, Shimoga, against the said order.
4. The points that arise for determination in this revision petition in the light of the arguments submitted by Sri M.T. Nanaiah, learned Counsel for the petitioner and Sri A. Giddappa, learned Additional State Public Prosecutor, are:-
(1) Whether knowledge or connivance of the petitioner that his vehicle was being used for committing the forest offence is not established?
(2) Whether the vehicle had been used on the night of 25/26-1-1985 for committing a forest offence?
(3) Whether the vehicle had not been properly seized in accordance with the provisions of Section 62(3) of the Act lay P.W.3 and his staff under the mahazar Exhibit P-3 in the morning of 26-1-1985?
5. Point No. 1:- There is no dispute that the petitioner is the registered owner of the vehicle and it was taken to the custody of the forest authorities near the forest check post at Tarikere on B.H. Road. The stand taken by the petitioner is that he had no knowledge that his vehicle was being used for the commission of a forest offence and he had not connived at the commission of the said offence inasmuch as he had given his vehicle for hire to one Amzad Khan and driver Raja on the after noon of 23-1-1985 for taking passengers of Amzad Khan and party to Bababudangiri, Mangalore, Calicut and some other places and back on the condition that they should pay hire charges at Rs.1-60P per running K.M. and driver's batta at Rs. 25/- per day and they should run the vehicle for a minimum of 250 K.Ms. per day, and in that behalf he had taken the agreement as per Exhibit D-1 from the said persons. Only photostat copy' of Exhibit D-1 is available in the records sent by the Authorised Officer with his letter dated 7-6-1988. The petitioner has admitted in his evidence that Raja was not his regular driver; that he had approached him at about 2-30 P.M. on 23-1-1985 along with Amzad Khan; that he had known the house of Raja when he lent the vehicle for hire and he had also noted down the address of the said driver from his driving licence and Amzad Khan was a stranger to him. He has also admitted that the vehicle was not returned to him even after 9 days. Nevertheless, he has not lodged any complaint before the police against Raja and Amzad Khan complaining that his vehicle taken for hire by them had not been returned to him even after 9 days. There was ho reason for him to fix the driver's batta at Rs. 25/- per day and if Raja was not his regular driver and he had only approached him along with Amzad Khan for the first time on the after noon of 23-1-1985 for taking his vehicle on hire. If Raja and Amzad Khan were strangers to him, the petitioner should have taken the precaution of sending one of his family members in that vehicle in order to prevent it from being misused in any manner. He has also admitted in his statement that he had not instructed Raja and Amzad Khan not to use his vehicle for smuggling sandalwood. In this connection, reliance was placed by Sri M.T. Nanaiah on an unreported decision of this Court in SADANAND I KARINDI v. THE DEPUTY CONSERVATOR OF FORESTS, SAGAR DIVISION, SAGAR AND ANR. by producing a xerox copy of the order in that case. The facts of that case are that a Matador Van bearing No. CMW 55 was caught by the Forest Authorities on the intervening night of 31-3-1981/1-4-1981 when it was going towards Anavatti on Siralkoppa-Anavatti Road and it was found to contain 61 Sandalwood billets and 98 root pieces of sandalwood. Except one Ashok, other persons travelling in that Van jumped out of the Van and made good their escape. Therefore, the Van was seized along with sandalwood billets and root pieces of sandalwood found in it. In the course of the enquiry before the Authorised Officer, the owner of that Van had contended that he had given his Van for hire to one Kashappa and he had sent his brother Ashok with the said Kashappa, but his brother had also joined hands with the said Kashappa for transporting sandalwood pieces in his Van without his knowledge and connivance. It is, therefore, held that the owner of the said Van cannot be deemed to have hi-d knowledge of or connived at the commission of a forest offence as he had taken the precaution of sending his brother also with Kashappa and, therefore, the confiscation of the vehicle on the ground that the owner of the Van had knowledge of or connived at the commission of the forest offence was illegal. In that view of the matter, the order of confiscation made by the Authorised Officer and confirmed by the Sessions Judge is set aside and the vehicle is released in favour of its owner. But the petitioner, in the instant case, is not entitled to the benefit of the said observations as he had not taken the precaution of sending any of his family members 1. Crl.R.P. No. 242 of 1984 DD 16-12-1986 in his vehicle in order to see that it was not misused in any manner. He had also admittedly not instructed the above mentioned two persons not to use his vehicle for smuggling sandal wood. Therefore, I hold that the petitioner cannot be heard to say that he had no knowledge and he had not connived at the commission of the forest offence by using his vehicle.
6. Point No. 2:- The first witness Thimmanna and the second witness P. Krishnan are independent witnesses. The third witness B.K. Narasimha Murthy is, of course, an official of the Forest Department as he was working as Forester, Tagadabagi Section, Tarikere Range at the relevant time and he was leading the forest squad on the night of 25/26-1-1985. He cannot be dubbed as an interested witness on that ground alone inasmuch as the Hon'ble Supreme Court has recently observed in STATE OF U.P. v. KRISHNA GOPAL AND ANR. that the testimony of an Investigating Officer should not be Rejected merely on the ground that he being an Investigating Officer is interested in the success of the prosecution case as public servants must be presumed to act honestly and conscientiously and their evidence has, to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. In the instant case, all the three witnesses 1 to 4 have uniformly deposed that 81 billets of sandal-wood were found inside the vehicle when it was checked near Tarikere checking gate in the early hours of 26-1-1985 and they were seized at 7-00 AM after putting the mark MFD/TKE/3 by using a forest hammer on each billet. It is not even suggested to any of them in the course of their cross-examination by the learned Counsel for the petitioner that the billets found inside the Van were not sandalwood billets. It is not the case of the petitioner that the billets found inside his vehicle and seized under Exhibit P-3 were being transported in it under a valid licence. Therefore, the conclusion of the Authorised Officer that the vehicle was being used for smuggling sandalwood billets, which is a forest 2. : 1989CriLJ288 produce as defined in Section 2(7) of the Act and, therefore, the vehicle was used for committing the forest offence as defined in Section 2(5) of the Act and affirmed by the Sessions Judge is perfectly justified.
7. Point No.3:- Sub-section (3) of Section 62 and Sub-section (2) of Section 71A of the Act have a bearing on this point. Sub-section (3) of Section 62 reads thus:-
'62. Seizure of property liable to confiscation:
XX XX XX(3) Every Officer seizing any property under this Section shall place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure, -
(a) where the offence on account of which the seizure has been made is in respect of timber, ivory, firewood or charcoal which is the property of the State Government or in respect of sandalwood, to the concerned Authorised Officer under Section 71A; and
(b) in other cases, to the Magistrate having jurisdiction to o try the offence on account of which the seizure has been made:
Provided that when the forest produce with respect to which offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the Officer makes, as soon as may be, a report of the circumstances to his official superior.'
Section 71A of the Act bears the heading 'Confiscation by Forest Officers in certain cases.' Sub-section (1) of Section 71A enjoins on the Officer seizing the property under Sub-section (1) of Section 62, without any unreasonable delay, to produce the seized forest produce viz., ivory, firewood and charcoal or sandalwood together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before the Authorised Officer. Sub-section (2) of Section 71A which is material for the present purpose reads thus:-
'Where an Authorised Officer seizes under 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) and he is satisfied that a forest offence 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.'
8. Sri M.T. Nanaiah submitted that the vehicle is seized by the Forest Authorities in contravention of the mandatory provision of Sub-section (3) of Section 62 of the Act. He placed reliance in support of the said submission on the following decisions of the Hon'ble Supreme Court and some reported and unreported decisions of this Court in:-
(1) THE STATE OF ANDHRA PRADESH v. YEDDA PERAYYA : 1970CriLJ753 .
(2) NINGAPPA BHIMAPPA GUNDAMMANAVAR AND ANR. v. STATE OF MYSORE ILR (Karnataka) 1973, 897,
(3) HASANABBA AND ORS. v. THE STATE OF KARNATAKA : ILR1984KAR530 ;
(4) Sadanand I. Karindi v. The Deputy Conservator of Forests, Sagar Division, Sagar and another ;
(5) THE RANGE FOREST OFFICER AND ANR. v. KASTURILAL Crl.R.P. No. 502 of 1987 - DD 27-10-1987; and
(6) STATE OF KARNATAKA v. VENU AND ANR. AND VENU AND ANR. v. STATE OF KARNATAKA Crl.A.No. 44l of 1984 c/w 769 of 1987 DD 12-8-1988;
In my opinion, the above decision of the Hon'ble Supreme Court in the State of Andhra Pradesh v. Yedda Peerayya3 is distinguishable from the facts of the case on hand as it is held in that decision on a consideration of the provisions of Sections 43 and 47 of the Andhra Pradesh (Andhra Area) Forest Act, 1882 that the Legislature had originally conferred a discretion both upon the Magistrate and the Court of Appeal to pass appropriate order with regard to the disposal of property used in the commission of the offence as may be just; that the Legislature has thereafter amended Section 43 by Act No. 11 of 1963 and made it obligatory upon the Magistrate to confiscate the property or the vehicle used in the commission of such offence; that no such restriction has, however, been placed upon the power of the Appellate Court and, therefore, there is no warrant for implying that the power conferred by Section 47 of the Act upon the Appellate Court is subject to some unexpressed limitation. It is further observed in the said decision that assuming that the statute which enjoins the Magistrate to confiscate the vehicle used in the commission of the forest offence even when it is used without the knowledge or consent of the owner, is valid under Article 19(1)(e) of the Constitution and Section 47 of the Act enables the Court of Session and the High Court to make an appropriate order with regard to the vehicle which is just.
9. It is held in the case of Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore that the provisions of Sub-clause (3) of Section 62 of the Act are mandatory and that the trial was vitiated for non-compliance of the said provisions. The same point is reiterated in the case of Hasanabba and Ors. v. The State of Karnataka also. The same view is reiterated in the above mentioned three unreported decisions also. But the distinguishable feature of all those cases and the case on hand is that the said cases relate to putting a distinctive mark on the sandalwood pieces seized from a vehicle in which they were being smuggled out of the forest area and not the seizure of the vehicle as such and those cases arose out of criminal cases filed against persons who had committed the forest offence, whereas in the instant case the revision petition is filed against the order of the Authorised Officer confiscating the vehicle in question under Section 71A(2) of the Act. A reading of the above extracted provisions of Sub-section (3) of Section 62 of the Act would go to show that an Officer seizing any property under Sub-section (1) of Section 62 is bound to place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized. The intention of the Legislature in stating in Sub-section (3) of Section 62 that a mark indicating that the property has been so seized is to enable a person who looks at such property that it is seized in connection with the commission of a forest offence. I am further of the opinion that having regard to the use of the word 'or' and not the word 'and' after the words 'such property' and again after the words 'the receptacle' and before the words 'vehicle (if any)', the intention of the Legislature is that marking has to be made on the forest produce only if it can be so done or on the receptacle in which such property is kept if the same cannot be taken out of that receptacle at the time of seizure or on the vehicle if the forest produce cannot be taken out at the time of seizure. Further, a mark of the nature expected to be put on the forest produce by using a metal instrument such as a hammer used in the instant case cannot be put on a vehicle as such an act would result in damage to the vehicle. It is for this reason that a mark similar to the one put on 81 sandalwood billets seized from the vehicle is not put on the vehicle by using a hammer containing the said mark. It is clearly recited in the mahazar Exhibit P-3, an authenticated copy of which is available in the records received from the Forest Officer, that a mark bearing the letters and number 'MFD/TKE/3' was put on all the 81 sandalwood billets whose measurements are also noted. There is no recital in the said mahazar that a similar mark was put on the vehicle also. But the third witness B.K. Narasimha Murthy, Forester, has stated in his statement that the mark MFD/TKE/3 was put on all the 81 sandalwood billets with the seizure hammer and the said mark MFD/ TKE/3 was also put on the Matador Van with red paint. To the same effect is the evidence of the 4th witness K.S. Ramachandran, Assistant Conservator of Forests. Second witness P. Krishnan has also corroborated the said evidence of 4th and 5th witnesses by stating in his statement that a mark was made on the Matador Van by the forest officials by using colour paint and the same has been mentioned in the mahazar also. But, the latter statement appears to be incorrect as there is no such recital in the mahazar. Therefore, the submission made by Sri M.T. Nanaiah that the vehicle had been seized without putting a distinctive mark on the vehicle is factually incorrect. Even otherwise, I am of the opinion that having regard to the above extracted language of Sub-section (3) of Section 62 it is not necessary to put a mark on the vehicle indicating that the same has been seized in connection with a forest offence when the forest produce seized in a particular case had been taken out of the vehicle in which it was being transported or smuggled and a mark contemplated under Sub-section (3) of Section 62 of the Act had been put on such forest produce.
10. In this connect ion Sri A. Giddappa, learned Additional State Public Prosecutor, placed reliance on another unreported decision of this Court in GANGA AUTO FINANCES v. THE DEPUTY CONSERVATOR OF FORESTS AND ORS Crl.R.P. No. 327 of 1986 - DD- 10-6-1988 by producing a true copy of the order passed in the said case. But the point considered in that case is whether the hirer or the hire purchaser of a truck seized in connection with the commission of a forest offence is entitled to claim interim custody of the possession of the seized vehicle. However, this point is considered in another decision of this Court in RAMESH NEELAKANTAPPA DIXIT v. THE STATE OF KARNATAKA Crl.R.P. No. 610 of 1984 - DD 5-7-1985 by his Lordship N.D. Venkatesh, J. in the said case, his Lordship has referred to the observations made in Hasanabba and Ors. v. the State of Karnataka decided by his Lordship to the effect that to prove satisfactorily the seizure of any forest produce, the authority concerned in the matter of seizure or attachment of the 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, and has then observed that the ratio of that decision cannot be taken advantage of by the petitioner in that case. In the said case, the order passed by the Authorised Officer confiscating a truck seized in connection with the commission of a forest offence and confirmed by the Sessions Judge is held to be proper. It is also held in that case that the provisions contained in Section 71A to Section 71G of the Forest Act are not unconstitutional.
11. In the light of the above discussion, I am of the opinion that the seizure, of the vehicle in question is not initiated by any illegality and on the other hand, it is quite in order.
12. In the result, the revision petition is dismissed.