B. SUBHASHAN REDDY, J.

( 1 ) HOW a disabling legal provision confiscatory in nature has to be construed and what is the degree of disproof to be considered in such cases arises for consideration in this case, which came up by way of reference by a Division Bench doubting the proposition laid down by an earlier Division Bench in Forest Range Officer v. Pritam Singh, 1990 (1) ALT 156.

( 2 ) FEW facts, which are indisputable, may be necessarry to be stated.

( 3 ) THE 1st Respondent is the owner of lorry bearing Registration No. MMP/1699. He is a resident of Bombay (now Mumbai) and the same was sent on hire for transporting ACC cement from Manchcrial of Adilabad district of Andhra Pradesh to Mumbai. The 1st Respondent was not accompanying the said vehicle and all the documents show that the said vehicle was engaged for transportation of cement from Manchcrial to Mumbai. The 2nd Respondent was the driver. The vehicle left Mumbai and was to pick up the cement at Mancherial in the second week of December, 1981. But, it seems that mere was some delay in loading the cement and the 2nd Respondent-driver on his own had accepted the transportation of timber, which is a forest produce within the meaning of the Andhra Pradesh Forest Act, 1967 (hereinafter referred to as the Act ), without there being a valid permit. Of course, it is the plea of the 2nd Respondent-driver that some papers were shown to him by the owner of the timber purporting to have been issued by the forest officials; but that is a question apart so far as this case is concerned. The Authorised Officer under the Act even while accepting that the 1st Respondent-owner was not having any knowledge about the transportation of timber illicit or otherwise and even without his consent, has curiously held mat the vehicle was liable to be confiscated for the forest offence and such order was passed in exercise of the powers under Section 44 (2-C) of the Act. The same was appealed against and the Court of the District Judge, Adilabad, had reversed the confiscation order basing upon the judgment of a Division Bench of this Court in Forest Range Officer v. Pritam Singh, (supra ). W. P. No. 1819 of 1992 was filed by the Forest Range Officer challenging the said order. But, the learned single Judge, basing on the above Division Bench judgment, had dismissed the same, which resulted in filing of this writ appeal and the reference to the Full Bench came up as already stated above.

( 4 ) IT is apt to extract the provision contained under Section 44 (2-C) of the Act. "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 or vehicle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used in carrying the property 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 or vehicle in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. "

( 5 ) THE said provision was considered by the said Division Bench to the effect that it confers only a right of defence and that when once it is proved that the vehicle was used in the commission of the offence under Section 44 (2-C) of the Act, the onus of proof shifts and it is for the owner to prove that it is used without his knowledge or the knowledge of his agent or the person incharge of the vehicle and that if he is able to prove that he or his agent or the person incharge has no knowledge and that he has taken necessary and reasonable precautions against such use, the vehicle cannot be confiscated. The above Division Bench has upheld the judgments rendered by the learned single Judges on the said point dated 15-12-1976 in Crl. RC No. 326 of 1976 and dated 21-11-1983 in Crl. RC No. 471 of 1983. The other judgment rendered by another learned single Judge under the Essential Co

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