Judgment:
S. Sankarasubban, J.
1. This revision is filed by the Divisional Forest Officer, Thrissur and the State of Kerala against the judgment of the District Judge, Thrissur in C.M.A. No. 49 of 1999 setting aside the confiscation order passed by the first petitioner. The confiscation related to a Car bearing registration No. KRB 3283 belonging to the respondent.
2. According to the petitioners, the car was involved in a forest offence relating to cutting and removal of four teak trees from 1945-46 Teak Plantation, Kundukad of Vazhani Forest Station of Machad Range on 11-3-1998. Information was received by the Forest Officials regarding commission of a forest offence on 12-3-1998. Enquiry revealed that 2 vehicles had been used for the purpose, viz. Car No. KRB 3283 and Lorry No. KLA 4778. The car referred to above was used for carrying the accused and the implements to the site of occurrence and back and that it had also been used as the pilot vehicle. The other vehicle is the lorry in which illicit teak timber was carried. The drivers and the owners of the vehicles and 7 other persons were implicated as accused in the case. The authorised officer found that the car is liable for confiscation. The owner of the lorry did not challenge the order of confiscation. The owner of the car challenged the confiscation proceedings.
3. Notices were issued to the owner of the car and the owner of the lorry. The owner of the car contended that the car cannot be confiscated. But the authorised officer, viz. Divisional Forest Officer, Thrissur directed confiscation of the car. Against that the owner of the car filed C.M.A. No. 49 of 1999 before the District Court. The District Court held that the car cannot be confiscated and hence, allowed the appeal. It is against that the present revision is filed.
4. There is no dispute that the forest offence has been committed inasmuch as the teak timber was illicitly transported. In this case, we are only concerned with the question whether confiscation is legal or not. According to the Forest Authorities, the car was hired to carry workmen and the tools in the spot. There, the trees were illicitly cut and transported. Thereafter, the men and the tools were again taken in the taxi. According to the Forest Officials, the activities of the driver of the car in carrying the workers and the tools to the spot and back imputes knowledge to the driver regarding the offence that was committed. There was a case that the driver of the car connived at the commission of the offence and further the car was used for the purpose of committing the offence. It was in such circumstances that the confiscation order was passed.
5. In this context, it is pertinent to note that in the report of the Range Officer, it has been stated that the final investigation report as per letter O.P. 4/98 V. S. dated 7-9-1998 and referred to as item 35 in the order that the Forest Officer recommended for the confiscation of the lorry. But the Range Officer recommended for the release of Ambassador Car KRB 3283 on the ground that there was no connivance of the owner in the illicit activities. The Forest Officer also found while discussing point No. 3 as follows : 'When the whole operation of illicit felling is analysed it becomes very clear that the driver was using the car for the illicit activities from the very beginning of the operation till the illicitly collected materials are delivered at the destination. The driver did get ample opportunities to escape from involving in the illicit activities. But he was willingly co-operating with the accused. From the statement recorded from the owner of the vehicle by the Range Officer and in the depositions given by him before Authorised Officer understand that the owner may be innocent of the case. But as stated in he judgment 'State of Kerala v. Mathew (1955) 2 Ker LT 772' (sic) it is made very clear that 'Restriction against confiscation contend to Sub-section (2) can operate only on the contribution of the three postulates. It is not sufficient that the owner establishes his innocence alone. It must further be shown that the person who was in charge of vehicles had taken reasonable and necessary precautionary measures against such use of the vehicle'. It was in the above context that the officer came to the conclusion that the vehicle was involved in illicit activities and hence, he ordered confiscation under Sections 61-A(2) of the Kerala Forest Act, 1961.
6. Against the above order, an appeal was filed before the District Court. The learned District Judge, after analysing the evidence, came to the conclusion that it cannot be strictly said that the driver was a party to the illicit activities. According to him, the car in question is a taxi. The car is to carry passengers. Hence, carrying passengers is not an offence. Learned District Judge considered the view of the officer that after the vehicle reached the place where the trees were cut, the driver immediately returned from that place and also the view that when once he knew that illicit activities were going on, the driver should have gone from the scene and should not have parked the car to carry the passengers and the tools again. The learned District Judge has stated that this is a very wide interpretation. The learned District Judge said that being a taxi car, the driver is responsible to the owner to give hire charges and give the account for the petrol and diesel used in the vehicle. Hence, the driver cannot be found fault with for not obeying the accused in carrying men and tools. Further, the learned District Judge was of the view that it is not necessary that the confiscation of the vehicle should be ordered is all cases. Section 61-A of the Act is a discretionary one. Before ordering confiscation under Section 61-A, the Authorities have to take into account the broad circumstances, nature of the allegations, possibilities of such allegations and the seriousness of the involvement. Hence, according to the learned counsel, the vehicle ought not have been confiscated.
7. According to the learned single Judge, the question was whether the accused has a right to cross-examine the persons, who give statements has been decided in the decision of this Court in Joseph v. Authorised Officer (1993) 1 Ker LT 212. A single Judge held that right to cross-examine can-not be given in proceedings like the present ' one, which according to the learned Judge, would mean that the owner of a vehicle like the present respondent would be bound by the statement of the driver which is not subjected to cross-examination and is actually recorded behind his back. This normally would violate the principles of natural justice. It is in this context that the case has been referred to the Division Bench.
8. We heard learned Government Pleader for the petitioners and learned counsel for the respondent.
9. After hearing both sides, we are of the view that the question that is referred does not arise in this case. The question whether non-giving an opportunity to a person amounts to the violation of the principles of natural justice will arise only if a request has been made to cross-examine the witness. From the records of the case, we don't find any such request. Hence, we don't think, it is necessary to answer the question referred to us. But on going through the records of the case, we fully agree with the learned District Judge. It is not necessary in all cases that the officer should confiscate the vehicle under Section 61-A of the Act. That discretion should be exercised taking into account the facts of each case. In this case, we find that even though allegations are made against the driver of the car, it is very difficult to believe unless more convincing evidence was there to conclude that the driver knew before hand that the trip was undertaken for committing offence. If a person hires a vehicle, the driver may not be able to know the intention of the person and if the driver carries such person, it cannot be said that he connived at the offence. One cannot readily infer that the driver was also aware unless there are other circumstances to show that the driver was involved in the offence. Such evidence is lacking.
In the above view of the matter, we find that the judgment of the District Judge is correct. Civil Revision Petition is dismissed.