A.K. Parichha, J.
1. This is an application under Articles 226 and 227 of the Constitution of India to quash the judgment dated 12-8-2003 passed by the learned District Judge, Sambakmr in FAO (Confiscation) Case No. 9 of 2003 (Annexure-2) confirming the order dated 10-2-2003 passed by the Authorised Officer-cum-Assistant Conservator of Forests, Khariar Division in O.R. Case No. 96-P of 2002 (Annexure-1) directing confiscation of the vehicle bearing registration No. HR-51-GA-0236 belonging to the petitioner.
2. Shorn of unnecessary details, the facts leading to the present wilt application are as follows :
The petitioner is the registered owner of the truck bearing registration No. HR-51-GA-0236 and he had engaged one Haradayal Singh as the driver of the said truck. On 20-1-2002 the said truck was found carrying 5025 Kgs. of processed kendu leaves without valid documents and T.T. permit for which the police authorities of Padmapur Police Station sezied the truck, kendu leaves, documents of the truck etc. and forwarded the same to the learned SDJM, Padmapur. The Range Officer, Padmapur approached the said court for handing over this seized articles to the forest officials on the-ground that the truck was engaged in commission of forest offence. Learned S.D.J.M. Padmapur directed the police authorities to handover the seized truck, kendu leaves etc. to the forest authorities and accordingly those items were handed over to the Range Officer, Padmapur. The Range Officer seized the same and reported the matter to the Assistant Conservator of Forests, Khariar, who is the authorized officer for the area. The Authorised Officer started confiscation proceeding under Section 56(2) of the Orissa Forest Act,1972, (to short, 'the Act') and after conducting necessary enquiry in that proceeding he passed orders in Annexure-1 for confiscation of the aforesaid truck. Aggrieved by the said order the petitioner preferred an appeal before the District Judge, Sambalpur in FAO (Confiscation) No. 9 of 2003. The said appeal having been dismissed and the order of confiscation under Annexure-1 having been confirmed, the petitioner has filed the present writ application with a prayer to quash the judgments in Annexures-1 & 2 and to direct release of the truck in question in his favour.
3. Ms. S. Ratho, learned Counsel for the petitioner submitted that the order of confiscation noted in Annexures-1 and 2 are unsustainable as no material was available before the authorities to show that the truck in question was involved in commission of any forest offence. According to her, kendu leaves are minor forest produce and no permit as contemplated under the Orissa Timber and other Forest Produce Transit Rules, 1980, (in short, 'the T.T. Rules') is necessary for movement within the district/unit and when the police officer, who seized the truck and the kendu leaves at Padmapur was not examined and there was no document to show that kendu leaves were being transported from Kantabanjhi in the district of Bolangir to the district of Bargarh, involvement of the seized truck in a forest offence was not established. Ms. Ratho also submitted that even otherwise the petitioner, who is the owner of the truck had no knowledge about transportation of kendu leaves en the truck by the driver and is therefore protected under Section 56(2l)(c) of the Act.
4. Mr. A. Mishra, learned Standing Counsel, on the other hand, submitted that T.T. permit is necessary for movement of any forest produce from one district/unit to another and when the truck of the petitioner was carrying kendu leaves from Kantabanjhi in the district of Bolangir and was caught at Padmapur in the district of Bargarh, forest offence was committed for violation of Rule 4 of the T.T. Rules. Mr. Mishra also submitted that the petitioner or his driver never denied that the seized kendu leaves were being transported from Kantabanjhi in the district of Bolangir and so there was no occasion for the Department to produce evidence on this aspect. According to him, in a confiscation proceeding under Section 56 of the Orissa Forest Act, the Department has to simply show that the vehicle in question was involved in forest offence and thereafter, the onus shifts to the owner of the vehicle to establish that he had no knowledge or consent in the commission of such offence and that onus having not discharged by the petitioner benefit of Section 56(2)(c) of the Act is not available to him.
Before delving into the depth of the submission of the learned Counsel for the parties, it will be profitable to recount the relevant portion of Section 56 of the Act:
56. Seizure of property liable to confiscation - (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer,
(2) Every Officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, except where the offender agrees in writing to get the offence compounded, (either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the authorized officer') or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made :
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufiicient if the officer makes, as soon as may be, a report of the circumstances to his official superior and the Divisional Forest Officer.(2-a) Where an authorised officer seizes any forest produce under Sub-section (1) or where any such forest produce is produced before him under Sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence.
(2-b) No order confiscating any property shall be made under Sub-section (2-a) unless the person from whom the property is seized is given -
(a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property;
(b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation, and
(c) a reasonable opportunity of being heard in the manner.
(2-g) Without prejudice to the provisions of Sub-section (2-b) no order of confiscation under Sub-section (2-a) of any tool,' rope, chain, boat, vehicle or cattle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat, vehicle or cattle, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use.
So, as per Sub-section (1), if a Forest Officer has reason to believe that forest offence has been committed in respect of any forest produce, then he can seize such forest produce along with tools, ropes, chains, boats, vehicles or cattle used in commission of such offence. Sub-section (2-a) gives authority to the Authorised Officer to undertake confiscation proceeding in respect of the vehicle and after giving notice, opportunity of making representation and reasonable opportunity of hearing to the owner of the vehicle pass necessary orders regarding confiscation. Sub-section (2-c) provides the exception. It says that if the owner of the vehicle had no knowledge or connivance in commission of the alleged offence and that he had taken all reasonable and necessary precaution against use of the vehicle in commission of such offence, then the vehicle shall not be confiscated. A close reading of these provisions would indicate that in a proceeding under Sub-section (2) of Section 56 of the Act, the Department has to simply show prima facie materials indicating involvement of the concerned vehicle in a forest offence. If such onus is discharged by the Department, then the burden shifts on the owner of the vehicle to establish that he had no knowledge or connivance in commission of the forest offence and that he had taken all reasonable and necessary precaution against misuse of the vehicle by the driver or his agent.
5. In the present case, the Department alleges that the truck in question was involved in illegal transportation of kendu leaves in violation of Rule 4 of the T.T. Rules. It is specifically alleged that 190 bags of kendu leaves weighing 5025 Kgs. were being transported on the truck from Kantabanji in the district of Bolangir to the district of Bargarh without any T.T. permit or valid documents. It is also alleged that a fake number plates had been used on the truck and some other number plates were found inside the truck. The question is whether these allegations were prima facie established by the Department.
6. There is no dispute that kendu leaves are minor forest produce. Rule 5(1) of the T.T. Rules contemplates that no permit is required for transportation of minor forest produce within the unit/district. In other words, if a minor forest produce like kendu leaves are transported from one unit/district to another, then T.T. permit as contemplated under Rule 4 of the T.T. Rules is necessary. The argument on behalf of the petitioner is that there was no material to show that kendu leaves were being transported from Kantabanji in the district of Bolangir. In this regard, the Department relied on the statement of the driver of the truck as well as the slips which were there on the Kendu leaf bags. In the statement, the driver clearly admitted that kendu leaves were loaded from a place near Kantabanji in the district of Bolangir and that it was being transported to Bargarh and that the police authorities seized the truck and the kendu leaves at Padmapur. The slips, which were there in the bags were produced and those slips indicate that the kendu leaves in the bags belong to a godown in the district of Bolangir. The petitioner in his show cause never denied the claim of the department that kendu leaves were being transported from Kantabanji. When the petitioner never refuted such claim of the department and when the documents and statement of the driver was there case for violation of Rule 4 of the T.T. Rules was established. In that situation, non-examination of the police officer, who initially seized the truck or not mentioning the details of the allegations in the notice to the petitioner are of no consequence.
7. Since the Department established that the truck in question was involved in commission of forest offence the onus was on the petitioner to prove that the vehicle was used in commission of forest offence without his knowledge or connivance and that he had taken all reasonable and necessary precaution against such use. In this regard, the petitioner has produced no evidence. His simple explanation in the show cause was that he was absent from his business headquarter and his driver was carrying the alleged contraband articles without his knowledge and consent. In his statement before the Authorised Officer, the petitioner admitted that whenever he used to remain absent, his driver used to manage the business of the truck. The driver also admitted that he had taken some aluminum materials of Calcutta and from Calcutta he carried some gunny bags to Raipur and from Raipur he brought some grocery articles to Kantabanji and from Kantabanji he was bringing the kendu leaves to Bargarh. This discloser shows that the driver had been authorised to transact the business of the truck during the absence of the owner. Once this was established and once the petitioner offered no evidence to show that he had taken reasonable and necessary precaution against use of the vehicle in any illegal work, the protection provided under Section 56 Sub-section (2-cj was not available. This view finds support from the ratio laid down in the case of Gurparlad Singh v. Divisional Forest Officer, Rairakhol Division, Sambalpur (1998) 15 OCR 58 : AIR 1998 Orissa 177.
8. learned Counsel for the petitioner advanced an alternative argument that in case the orders of confiscation passed under Annexures-1 and 2 are up-held, then in lieu of confiscation of the truck appropriate fine may be imposed. According to her, the seized truck being the only source of earning of the petitioner, it would be reasonable and proper to show some consideration and order may be passed to release the truck after realising the fine amount from the petitioner. Learned Standing Counsel stoutly opposes to this proposition indicating that Sub-section (2) of Section 56 clearly postulates about confiscation of the offending vehicle and does not give any option to the Court to impose fine in lieu of confiscation. In suport of his contention, he places reliance on the case of State of Jharkhand v. Govind Singh reported in : AIR2005SC294 . In the said case a plea was raised by the owner of the vehicle for imposition of fine in lieu of confiscation and the said plea was allowed by the High Court. The order was challenged before the Apex Court and after a thorough scrutiny of the statutory provision and the precedent, the Court observed that imposition of fine in lieu of confiscation is not permissible unless clear wordings to that effect are available in the statute. Sub-section (2) of Section 56 of the Orissa Forest Act nowhere contemplates that fine can be imposed in lieu of confiscation of the offending vehicle. Therefore, we do not find any scope of accepting the contention of the learned Counsel for the petitioner.
9. In view of the foregoing discussions, we are of the opinion that the Authorised Officer and the appellate authority did not commit any legal error in directing confiscation of the truck of the petitioner. We, accordingly, uphold the orders passed in annexures-1 and 2 and dismiss the writ petition. No cost.
P.K. Tripathy, J.
10. I agree.