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2009 Supreme(Mad) 274
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
S. Ramalingam
Versus
Assistant Conservator of Forests & Another
W.P.No.3788 of 1998
decided on 23-01-2009
For the Petitioner:V.R. Kamalanathan, Advocate.
For the Respondents: P. Satish, GA (Forest).
The burden of proof lies on the owner to prove innocence and precautionary actions to prevent the commission of the offence under the Tamil Nadu Forest Act.
Headnote:
confiscation - Forest Offence - Tamil Nadu Forest Act, Section 49A(2), Section 49B - Summary: The court discussed the provisions of the Tamil Nadu Forest Act, particularly Section 49A(2) and Section 49B, which impose the burden on the owner of the vehicle to prove innocence and precautionary actions to prevent the commission of the offence. The court also referred to the interpretation of similar provisions in the Madhya Pradesh Forest Act by the Supreme Court, emphasizing the owner's responsibility to prove lack of knowledge or connivance in the illegal activities involving the vehicle. The court upheld the order of confiscation based on the petitioner's failure to prove innocence and lack of grounds for interference with the lower court's decision.
Fact of the Case:
The petitioner, owner of a van, challenged the confiscation order under the Tamil Nadu Forest Act after the van was found to contain contraband sandalwood. The District Court confirmed the confiscation, rejecting the petitioner's contention of lack of opportunity to contest the confiscation.
Finding of the Court:
The court dismissed the writ petition, upholding the order of confiscation, as the petitioner failed to prove innocence and did not avail the opportunities to contest the confiscation.
Issues: Challenge to confiscation order under the Tamil Nadu Forest Act, petitioner's opportunity to contest the confiscation, burden of proof on the vehicle owner.
Ratio Decidendi: The burden is on the owner to prove innocence and precautionary actions to prevent the commission of the offence under the Tamil Nadu Forest Act. Failure to avail opportunities to contest the confiscation and prove innocence may lead to dismissal of the challenge to the confiscation order.
Final Decision: The writ petition challenging the confiscation order was dismissed, and no costs were awarded.
The writ petition is filed challenging the judgment of the Principal Sessions Judge, Vellore made in Criminal Appeal No.49 of 1997 dated 21. 1998 confirming the order of confiscation passed by the first respondent dated 26. 1997 and also for a consequential direction to return the Motor Vehicle with Registration No.TN04-B-0860 to the petitioner.
2. The petitioner is the owner of the 407 TATA Van with Registration No.TN-04-B-0860. He had purchased the vehicle on an Hire Purchase Agreement with a Finance Company. The petitioner used to let out the said van for transporting consignments on hire charges. It is stated that on 01. 1997, the vehicle was checked at Vellore and it was found to have contained contraband sandalwood weighing 260 kgs worth about Rs.84,000/-.
3. A case was also registered by the Forest Protection Squad, Vellore in STOR.No.1 of 1997. The petitioner filed a writ petition being W.P.No.5099 of 1997 for a declaration declaring the Tamil Nadu Amendment Act No.44 of 1992 as unconstitutional. In that writ petition, this Court by an order dated 07. 1997, recorded the statement of the Government Advocate. He stated that there was no confiscation order and the vehicle may be released subject to certain conditions. The petitioner also moved this Court to stay the further proceedings pursuant to the confiscation order passed dated 26. 1997 in STOR No.1 of 1997 pending disposal of Crl.A.No.49 of 1997.
4. The petitioner filed a Contempt Application being C.A.No.353 of 1997 for the alleged disobedience of the order passed by this Court. This Court was informed that the petitioner was given time on 25. 1997 to submit his explanation. The petitioner informed them that he was ill and hence, time to submit explanation was further extended. It was stated that taking advantage of the same, the earlier writ petition was filed by the petitioner challenging the vires of the provisions. Though the department had given draft counter affidavit to the Government Pleader yet when the matter came up on 07. 1997 an order for release of vehicle was passed. The petitioner never sent any reply after seeking for further time.
5. In the meanwhile, the petitioner moved the District Court (the second respondent) with Criminal Appeal No.49 of 1997. Since the order under section 49A(2) of the Tamil Nadu Forest Act was passed, the vehicle could not be released. The second respondent District Court rejected the appeal filed by the petitioner vide judgment dated 21. 1998 and confirmed the order dated 26. 1997 confiscating the vehicle. The Court rejected the contention that the petitioner was not given any opportunity against the confiscation.
6. The writ petition was admitted on 13. 1998. Pursuant to the notice, a counter affidavit dated 38. 1998 was filed by the first respondent. It is stated that as per section 49(B), the owner of the vehicle is duty bound to prove his innocence as well as the precautionary action taken by him to prevent the commission of offence. It was also stated that there was no infirmity in the order passed by the District Judge. Even at the time of admission of the writ petition, when the petitioner sought for release of the vehicle, the same was refused by this Court.
7. The learned counsel for the petitioner however, stated that in the criminal case initiated against him in C.C.No.256/97, the proceedings initiated against the petitioner was quashed thereby holding him innocent of the forest offence.
8. Mr. P. Satish, learned Government Advocate (Forest) brought to the notice of this Court the judgment of the Supreme Court in State of M.P. -vs-Suresh Kumar reported in (1997) 9 SCC 647), While interpreting the Madhya Pradesh Forest Act pertaining to confiscation of vehicles, in paragraphs 9 and 11, it was observed by the Supreme Court which is as follows:-
Para 9. A bare reading of sub-section (6) of Section 15 of the Adhiniyam quoted hereinabove shows that the burden is on the owner to prove to the satisf
