JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Heard learned counsel for the parties.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Calcutta High Court in a writ petition filed under Article 226 of the Constitution of India, 1950 (in short the Constitution). By the impugned order, learned Single Judge directed release of vehicle which was seized and confiscated for an alleged violation of the provisions of Indian Forest Act, 1927 (in short the `Act).

3. Background facts in a nutshell are as follows:

On 10.2.1999, certain forest officials noticed that a Maruti Van was going at unusually high speed. On suspicion, the Beat Officer concerned chased the vehicle in a jeep and was able to intercept the Maruti Van by the side of reserve forest near Range office at Bichabhanga. It was noted that the registration number of the vehicle was WB-72-9459. The Beat Officer found that the vehicle was loaded with hand sawn Sissoo timber. He found that four persons including the driver were traveling in the vehicle. The timber in question was not carrying any hammer marks and the driver of the vehicle could not produce any document in respect of the possession and transportation of the timber. Therefore, alleged illicit timber was seized and the driver and other passengers were arrested and forwarded to the Court of Chief Judicial Magistrate, Jalpaiguri. A notice in terms of Section 8 (1) of West Bengal Forest Produce Transit Rules, 1959 (in short the `Transit Rules) was issued to the driver as well as the owner of the vehicle. The Range Officer forwarded the case to the Divisional Forest Officer, Wildlife, Division-II, Jalpaiguri who is the Authorised Officer, under Section 59A of the Act as amended by Section 17 of the Indian Forest (West Bengal Amendment) Act, 1988 (in short the `Amendment Act). In terms of sub-Section (3) of Section 59A of the Act, action was held. The vehicle was driven by Shri Rohini Roy who was arrested and the forest produce was seized. As required under Section 59B of the Act, notice was issued and served on the owner of the vehicle to show cause as to why the vehicle in question shall not be confiscated to the State of West Bengal as provided under Section 59(A) of the Act. The owner in reply stated that a family friend had taken the vehicle for a marriage ceremony. The driver had without his permission and knowledge carried the articles which later on were seized by the forest officials. After receipt of the reply, the stand taken was verified and ultimately it was found that the vehicle was used for illicit procurement of timber. An appeal was preferred before the District Judge, Jalpaiguri who dismissed the appeal and confirmed the findings of the authorized officer. Writ petition was filed before the High Court.

4. Primary stand taken was that the owner had no knowledge about the commission of offence under the Act and, therefore, confiscation was illegal. The High Court inter- alia observed as follows and directed release of the confiscated vehicle:

"It is settled law that unless the driver of the vehicle acted as an agent of the owner of the said vehicle and indulged in carrying forest produce in illegally and that too with the knowledge and connivance of the owner neither the vehicle could be confiscated nor the owner could be prosecuted for such alleged offence."

5. In support of the appeal, learned counsel for the appellants submitted that the impugned order is not sustainable in law. The onus was on the owner of the vehicle to establish that he had no knowledge about the carrying of illegal timber. Additionally, the statement given by the owner was at great variance with the statement given by the driver and the other occupants of the vehicle at the time of seizure. There is no appearance on behalf of the respondent in spite of service of notice.

6. At this juncture, it will be relevant to quote Sections 59 (A) and 59(B) of the Act as inserted by the Amendment Act. The provisions read