Vicarious liability of the owner for acts committed by the driver and the necessity for the owner to prove lack of knowledge or connivance in the use of the vehicle for the offence.

A. S. NAIDU, J.

( 1 ) THE confirming order passed in a proceeding initiated under Section 56 of the Orissa Forest Act, 1982 (as amended by Orissa Act 9/83) (hereinafter referred to as the 'act') directing confiscation of the offending truck which was used in an offence of carrying unauthorised timber is challenged in this writ petition filed under Arts. 226 and 227 of the Constitution of India.

( 2 ) THE short facts as revealed from the prosecution case are that on 25/09/1992, the Forester of Balugaon Range while patrolling on National Highway No. V along with his staff intercepted a truck bearing registration number OR-04-8197 near Balugaon. The truck was being driven by driver engaged by the owner Surendra Kumar Samal (who has died in the meanwhile and the petitioners are his legal heirs ). The Helper of the truck and another person were also on board the truck. On search, the Forester found ninetytwo pieces of sawn Teak planks which were illegally transported in the truck. On demand, neither the Driver, the Helper or the other person could produce the required Transit Permit. The Forester seized the truck and the illegally transported timber and produced the same before the Range Officer concerned along with the First Information Report and the seizure list, who in turn produced the materials before the concerned Authorised Officer for taking appropriate action under S. 56 of the Act. The Authorised Officer conducted enquiry in the manner set forth under S. 56 of the Act and issued notice to show cause to the original owner of the truck, i. e. the predecessor of the petitioners, under sub-section (2) of S. 56 of the Act. After receipt of the reply to the show-cause notice, hearing commenced. In course of hearing of the proceeding, the Authorised Officer examined two witnesses on behalf of the State, being the Forest Range Officer and the Forester, who proved the seizure-list and other relevant materials and gave vivid description of the entire episode as to how the alleged offending truck was intercepted and seized. They were cross-examined at length on behalf of the owner of the truck, but nothing could be elicited to disprove the prosecution case. The owner, to substantiate his case, examined himself as a witness. Apart from proving that he was the owner of the offending truck, he took the plea that he had no knowledge about the transport of timber. He also stated that he had instructed the driver not to carry any contraband goods and that he had no knowledge if the driver had loaded the truck with timber. On cross-examination the owner admitted that he had no direct knowledge about the incident as he did not accompany the vehicle and that the driver of the truck was managing the affairs of the vehicle. He also admitted that he had not gone to the spot of loading nor did he enquire about the fact as to who had loaded the timber and he came to know about the incident from the Helper. Surprisingly, neither Driver nor the Helper nor the passenger has been examined in the case. The Authorised Officer, after a vivid discussion of the evidence and other materials, by his order dated 24-12-1994 directed that the offending truck together with all its accessories and the seized illegal Teak planks were confiscated to Government.

( 3 ) BEING aggrieved by the said order, the petitioner preferred an appeal before the District Judge, Khurda. Before the appellate Court it was reiterated by the petitioners that the original owner of the truck had absolutely no knowledge about the transport of the Forest produce. Alternatively it was submitted that the value of the illegally transported timber would be maximum Rs. 60,000. 00; whereas the value of the vehicle involved in the offence was more than Rs. 4,00,000. 00 and in that view of the matter it was a fit case where the order of confiscation should be substituted by imposition of fine. The learned District Judge after discussion of the facts, the evidence on record, both oral and docu