STATE OF MAHARASHTRA Vs. ANWAR NIZAMUDDIN SHAIKH

JUDGEMENT

(1.) The State has filed the writ petition against the order passed by the Sessions Court, Thane in 3 criminal appeals. The Sessions Court has while allowing the appeals set aside the order passed by the Assistant Forest Officer under section 61A of the Indian Forest Act (Maharashtra Amendment) whereby tempo MH05/5424 belonging to the respondent was seized. The Sessions Court has directed that the tempo be returned to the respondent herein. On 13.1.1999, the aforesaid tempo was intercepted by the authorised officer approximately at 6.30am. The tempo was found loaded with 4200 cu.metrs of debarked khair logs. The tempo and the forest produce goods were seized. The driver of the tempo was also arrested. An FIR was lodged bearing NO.24 of 1998 for offences u/s 26F, 41(2) and 52 of the Indian Forest Act against the driver i.e. Respondent No.2 herein.

(2.) A notice was issued as required u/s 61B(1) of the Indian Forest Act to the owner of the vehicle on 16.2.1999 calling upon him to show cause as to why the vehicle and the produce found in the vehicle should not be seized u/s 61A. The authorised officer gave a personal hearing to the respondent after evidence was led before him. By an order dated 31.3.1999, the authorised officer issued an order confiscating the tempo. This order was issued in consonance with the powers conferred on the officer u/s 61A of the Indian Forest Act. Being aggrieved by that order, the respondent preferred criminal appeal No.36 of 1999 before the Sessions Judge, Thane for release of the tempo. The Sessions Judge, Thane by his order dated 29.3.2000 directed the forest department to return the tempo to the owner. The State being aggrieved by that order has preferred the present petition under Article 227 of the Constitution of India.

(3.) The learned APP has submitted that the evidence on record prove the complicity of the owner of the vehicle in committing the offences punishable under the Indian Forest Act. She submits that the owner was equally responsible for the smuggling of forest produce as the driver. The latter s statement which was recorded on the day the tempo was intercepted indicates that the respondent was well aware of the purpose for which the tempo was hired, according to the learned APP. She submits that the statement of the driver recorded at the enquiry held u/s 61 also indicates that the owner had fixed the hire charges after considering the material that was to be loaded in the tempo. She states that the owner i.e. the Respondent herein has not cared to cross examine the driver or to bring on record any proof to show that he was not aware of the material loaded in the tempo. She then points out that the onus is on the owner to prove that the tempo was used for transporting the forest produce without his knowledge or connivance which, she submits, the respondent in this case has failed to discharge. The learned APP also submits that the judgments relied on by the Sessions Court have no bearing on the present case as those judgments were delivered in the facts and circumstances in those cases. She then relies on the judgment of the learned Single Judge in the case of State of Maharashtra v/s. Vinayak Dagadu Jadhav, 1995(2) BCR 467 wherein this Court has considered that the owner of the vehicle in which smuggled forest produce was being carted was vicariously liable for the misdemeanours and offences of his servant i.e. the driver in the present case. She therefore submits that the judgment of the Sessions Court will have to be set aside.