Surinder Singh, J.
1. The petitioner is the owner of the Mahindra Jeep bearing registration No. HP-21-9300. He has called in question the judgment/order passed by the learned Additional Sessions Judge (Fast Track Court), Hamirpur, in Criminal Appeal No. 25 of 2007 decided on 6th March, 2009, whereby the order of confiscation dated 3.4.2007 of the said vehicle involved in forest offence, passed by the Authorized Officer under Section 52(A) of the Indian Forest Act, 1927, was upheld.
2. The facts, as are necessary for the disposal of the present petition, can be stated thus. In Mahindra Jeep bearing registration No. HP-21-9300, Balbir Singh was employed as a driver by the petitioner herein. On 2.10.2006, at about 4.30 p.m., the police intercepted the said vehicle. Besides driver, there were three other persons travelling therein. It was checked and found to have 28 filled-in resin tins beneath five bags of 'Turi' (dry grass). Police arrested the driver and the other persons namely, Jyoti Parkash and Tilak Prasad, the employees and Hari Krishan, son of Nikku Ram, Resin Contractor, as they failed to produce permit and also took into possession the resin filled tins. The Police sent a ruqa for registration of the case, on the basis of which FIR No. 173/06 was registered on the same day under Sections 41 and 42 of the Indian Forest Act. The said vehicle was also taken in to possession. The petitioner was not named as an accused by the police.
3. The police moved an application on 4.10.2006, i.e. after about two days of the incident, for the disposal of resin tins and the vehicle in question in terms of Section 52(A) of the Indian Forest Act, to the Divisional Forest Officer, Hamirpur-an Authorized Officer to take the cognizance of the matter under the said section. Thereafter, show cause notices were issued against the above-named accused persons and the petitioner, after recording the statements of the witnesses. However, on 5.10.2006, an application was moved by the petitioner Kashmir Singh, for the release of his vehicle being the registered owner of the vehicle. The Authorized Officer had already issued a show cause notice on Ist March, 2007 against him, which read as under:
Registered
No. 15706.
H.P. Forest Department.
Dated Hamirpur the, 1-3-07.
Notice: Under Section 52 of Indian Forest Act, 1927 (read with Himachal Pradesh Second Amendment) Act, 1991.
From:
Authorised Officer-cum
Divisional Forest Officer,
Hamirpur, H.P.
To:
Shri Kashmir Singh S/o Shri Sarwan Singh,
R/O Dhamani PO Ropri Tehsil Barsar
Distt.Hamirpur H.P.
Subject: Show Cause Notice.
Whereas a Mahindra Jeep bearing registration No. HP-21-9300 loaded with 28 Nos. filled resin Tins without any property marka was apprehended at Bijhri Chowk Ghurpari on 2.10.2006 at 4.30 PM by the Police Naka Party led by Shri Chhota Ram I/C Police Post Deotsidh which were being transported illegally from Tihri Forest of Bilaspur Forest Division.
Whereas the Jeep No. HP-21/9300 was involved in illegal transportation of 28 Nos. filled resin tins which were being transported from Govt. Forest Tihiri, clear cut offence under Indian Forest Act, 1927 and the rules framed there under as such the forest produce seized along with Jeep is liable to be confiscated under Section 52-A of Indian Forest Act 1927 (Himachal Pradesh second Amendment) Act, 1991.
Now before passing such order, an opportunity is given to you to show cause why Jeep No. HP-21/9300 involved in this case should not be confiscated along with forest produce seized in the alleged offence.
You are, therefore, directed to appear before this Court on 13.3.2007 at 11 AM.
Issued under my hand and seal on this 13th day of Feb. 2007.
Sd/-
Authorised Officer-cum-
Divisional Forest Officer
Hamirpur, H.P.
4. The petitioner denied any connivance or knowledge, but in the notice, there was no such allegation. In fact, the show cause notice must contain a substance of allegation against the person who is required to show cause.
5. Section 52-A of the Indian Forest Act reads as under:
52-A. Confiscation by Forest Officers in certain cases:
(1) Notwithstanding anything contained in this Chapter, where a forest-offence is believed to have been committed in respect of timber (excluding fuelwood), resin, khair wood and katha, which is the property of the State Government, the Officer seizing the property under Sub-section (1) of section 52 without any unreasonable delay produce it, together with all tools, ropes chains, boats or vehicles used in committing such offence before an Officer, authorized by the State Government in this behalf, by notification published in the Official Gazette, not below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer).
(2) Where an authorized officer seizes under Sub-section (1) of section 52 any timber (excluding fuelwood) resin, khair wood and katha, which is the property of the State Government, or where any such property is produced before an authorized officer under Sub-section (1), once he is satisfied that a forest-offence has been committed in respect of such property, such authorized officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of the property so seized together with all tolls ropes, chains, boats or vehicles used in committing such offence.
(3) (a) Where the authorized officer, after passing an order of confiscation under Sub-section (2), is of the opinion that it is expedient in the public interest so to do, he may order confiscated property or any part thereof to be sold by public auction.
(b) Where any confiscated property is sold as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction of other incidental expenses relating thereto, shall, where the order of confiscation made under Section 52-A is set aside or annulled by an order under Section 59 or Section 59-A, be paid to the owner thereof or the person from whom it was seized as may be specified in such order.
6. A bare reading of the above amended provision insofar as confiscation of a vehicle under Section 52(A) of the Indian Forest Act, makes it clear that the prosecution is required to satisfy two conditions; (i) there must be notice in writing given to the registered owner of the vehicle, if practicable; and (ii) the vehicle must be found to have been used for illicit transportation of forest produce with the connivance or knowledge of the owner or his agent. The purpose of issuance of notice to the registered owner is to afford him an opportunity to explain his position regarding the use of the vehicle and to show cause to the contrary in case he establishes that he has no knowledge or connivance for committing the said offence, the vehicle cannot be confiscated.
7. As already stated above, it is imperative to the Authorized Officer to issue show cause notice and mention in it the substance of such allegation against that person, it is in that eventuality, the registered owner is under obligation to plead and prove that he had no knowledge and not connived to commit the forest offence.
8. In the case in hand, in main Criminal Case (No. 17-III-2007), petitioner was not an accused. Other accused persons were acquitted.
9. There is no element of evidence, prima-facie showing that the offence in question was committed with the connivance or knowledge of the petitioner herein, nor there is any reference to this effect in the show cause notice aforesaid. Virtually, there was no material/evidence concerning the requisite knowledge and/or the connivance of the owner. The version of the petitioner given before the Authorized Officer that the offence was not committed with his knowledge or connivance, stands fully proved. Thus conclusion arrived at by the Authorized Officer and also in appeal by the learned Additional Sessions Judge, is highly illegal and has caused the failure of justice, therefore, the confiscation order is unsustainable and liable to be set-aside.
10. For the foregoing reasons, the instant petition is allowed and the impugned order of the learned Additional Sessions Judge, confirming the order of confiscation of Mahindra Jeep bearing registration No. HP-21-9300, passed by the Authorized Officer, is set-aside and the said vehicle is ordered to be released to the petitioner, who is admittedly a registered owner on executing a bond in the sum of Rs. 2,00,000/-, (two lacs) to the satisfaction of the Judicial Magistrate, Barsar, who on accepting the bond, shall issue the direction to the Authorized Officer, for the release of the vehicle in question, forthwith.
The petition stands disposed of.