CAMILO M F FERNANDES Vs. STATE OF GOA

JUDGEMENT

(1.) THE petitioner seeks in this writ petition under Articles 226 and 227 of the Constitution quashing and setting aside of the orders dated 1st August, 1991 and 4th February, 1995 on the ground that the findings given by both the courts below are perverse and based on no evidence thus rendering an error apparent on the face of the record. Both the orders relate to the confiscation of the petitioners pickup for being involved in illegal transportation of Government forest produce with the knowledge of its owner. The order dated 1st August, 1991 was made by the Deputy Conservator of Forests an authorised Officer while the order dated 4th February, 1995 is of the District and Sessions Judge who in appeal has upheld the order of the Deputy Conservator of Forests.

(2.) THE case of the petitioner is that he is the owner of pickup bearing Registration No. GA-02-T-5059 which he was using for the purpose of running the business of transportation of goods. The petitioner had engaged a driver to carry on such transport. But on account of the temporary absence of the regular driver, namely, Shri Gaspar Fernandes the petitioner had engaged the services of one Shri Inacio Fernandes on temporary basis. The petitioner states that on 20th August, 1990 the said Inacio took the pickup from the petitioners residence informing that he had been engaged to transport coconuts from Sulcorna near Rivona by a party from Margao. However the petitioner learnt at about 8. 00 p. m. on the very day that the pickup had been seized by the respondent No. 2 for allegedly transporting forest produce without any valid permit. It is the petitioners further case that he had given clear instructions to his driver not to carry any forest produce in the pickup unless a valid licence for the same was shown by the hirer of the pickup. On 14th September, 1990 the petitioner received a notice issued by respondent No. 3 calling upon him to show cause as to why his vehicle should not be confiscated under section 61-A (2) of the Indian Forest Act, 1927 as amended by the Goa Amendment Act, 1988. Nowhere in the show cause notice it has been alleged that the vehicle was being habitually used for transporting forest produce unauthorisedly or illegally or that the petitioner was knowingly permitting the illegal transportation of the forest produce in the vehicle. After the seizure of the vehicle the petitioner moved an appropriate application for the custody of the said vehicle pending investigation. Petitioner was permitted the custody of the vehicle on executing a bond of Rs. 1. 00 lakh for producing the same as and when required during the course of investigation. The inquiry was conducted by third respondent and after examination of the witnesses of both sides the said respondent held that the prosecution had proved its case and ordered confiscation of the vehicle. The petitioner carried on appeal before the learned District and Sessions Judge who by his judgment dated 4th February, 1995 rejected the appeal and upheld the order of the Deputy Conservator of Forest.

(3.) SHRI Sardessai learned Counsel for the petitioner has submitted that the impugned order of the learned Sessions Judge is a non-speaking order and merely reiterates and endorses the reasons given by the third respondent. According to the learned Counsel there was no evidence available to substantiate the findings arrived at either by the respondent No. 3 or by the learned Sessions Judge and to that extent the order is perverse and amounting to an error apparent on the face of the record. Besides there is gross violation of the principles of natural justice and fairness during the conduct of the trial and both the courts below have overlooked the fact that the conviction under the Indian Forest Act has serious penal consequences as upon conviction the convict can be deprived of his property besides having to undergo imprisonment. Further rules of evidence were also not followed by the trial Court inasmuch as inadmissible evidence was allowed to be taken on record and relied by both the courts in order to arrive at the findings recorded against the petitioner. It was also contended by learned Counsel that the show cause notice dated 14th September, 1990 is itself defective in material particulars. Therefore, basic principles of natural justice are deemed to have been violated and the petitioner has been greatly prejudiced in that regard having been caught unaware of the case. The petitioner was convicted by the third respondent for having knowledge that a forest offence was being committed by the driver of the pickup but the show cause notice did not allege existence of such fact. Respondent No. 3 has placed reliance on a panchanama as well as other documents which were neither produced at the course of the trial nor relied upon by the prosecution. The petitioner had no knowledge and there is no evidence to substantiate such evidence. It was also urged by learned Counsel that the trial Court had admitted the panchanama on the basis of the concession of the petitioners advocate overlooking the fact that concession made by the learned Counsel cannot be used against the petitioner. It was submitted that the burden is always on the prosecution to prove their case in terms of law.