Mr. Nizamuddin S/O Ramzansab ... vs The State Of Karnataka
2023 Latest Caselaw 5604 Kant

                                                   -1-
                                                          NC: 2023:KHC-D:8978
                                                              WP No. 60035 of 2011




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 16TH DAY OF AUGUST, 2023

                                                 BEFORE
                      THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
                             WRIT PETITION NO. 60035 OF 2011 (GM-FOR)
                      BETWEEN:

                           MR. NIZAMUDDIN S/O RAMZANSAB SAYYED,
                           AGE: 88 YEARS, OCC: RETD. RLY EMPLOYEE,
                           R/O GURUVARPETH, MIRAJ, MAHARASHTRA.

                                                                       ...PETITIONER

                      (BY SRI.A.A.KALEBUDDE.,ADVOCATE)

                      AND:

                      1.   THE STATE OF KARNATAKA,
                           REP. BY SECRETARY,FOREST DEPARTMENT, VIDHAN
                           SOUDHA, BENGALURU-1.

                      2.   THE DEPUTY CONSERVATOR OF FORESTS
                           AND COMPETENT AUTHORITY UNDER KARNATAKA
                           FOREST ACT, DHARWAD DIVISION, K.C. PARK,
MOHANKUMAR                 DHARWAD.
B SHELAR

Digitally signed by
                                                                     ...RESPONDENTS
MOHANKUMAR B
SHELAR
Location: DHARWAD
Date: 2023.08.19
                      (BY SRI.SHIVAPRABHU S.HIREMATH, AGA FOR R1 and R2)
12:54:37 -0700


                             THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                      OF THE CONSTITUTON OF INDIA PRAYING TO SET ASIDE THE
                      ORDER PASSED ON 05/11/2008 BY RESPONDENT NO.2 BY SETTING
                      ASIDE THE ORDER OF LOWER APPELLATE COURT IN CRIMINAL
                      APPEAL NO.181/2008 AS ANNEXURES-A AND B RESPECTIVELY.

                             THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B'

                      GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
                                       -2-
                                               NC: 2023:KHC-D:8978
                                                     WP No. 60035 of 2011




                                     ORDER

The captioned petition is filed by the owner of the car

bearing Reg.No.MHY-4559 which is confiscated for having

committed the offence under Section 71-A of the

Karnataka Forest Act, 1963. Feeling aggrieved by the

confiscation order passed by the authority, the petitioner

herein preferred an appeal in Crl.Appeal No.181/2008.

2. The appellate court having re-appreciated the

material on record declined to accept the defence set up

by the petitioner herein. The petitioner claims that car was

stolen and the same was used to transport the

sandalwood. Petitioner having set up the defence that car

was stolen prior to commission of the alleged offence, has

failed to substantiate the same. The appellate court found

that if his car was stolen, then he ought to have replied to

the show-cause notice issued by the authority before

confiscating the car, which was used to transport the

sandalwood. The appellate court has recorded a

categorical finding that this defence is setup after 7½

NC: 2023:KHC-D:8978 WP No. 60035 of 2011

years of the incident and it is only an afterthought. The

said order is under challenge.

3. Heard the learned counsel for the petitioner,

learned AGA for the respondent-State and perused the

material on record.

4. The Hon'ble Apex Court in the case of State of

Karnataka Vs. K.Krishnan reported in 2000 AIR SCW

2911 has held that vehicle seized for committing forest

offence shall not normally be returned to party till

culmination of all proceedings in respect of said offence.

The Apex Court while examining the release of a vehicle

seized for committing forest offence further held that

liberal approach in the matter pertaining to property

seized, which is liable to confiscation, is uncalled for as the

same is likely to frustrate the provisions of the Act.

5. In the present case on hand, petitioner's

defence is that, car was stolen three days prior to the

commission of the alleged offence. If the said stand taken

NC: 2023:KHC-D:8978 WP No. 60035 of 2011

up by the petitioner is accepted, then burden is on the

petitioner to substantiate that his car was stolen much

prior to commission of the offence and therefore, he being

registered owner of the vehicle involved in the commission

of the forest offence had absolutely no knowledge about

the alleged offence.

6. Though on perusal of Section 71-A and 71-D,

registered owner of the vehicle is entitled to escape from

the penal provision, provided he establishes that he had

taken all reasonable precautions against illegal use of

vehicle. The question as to whether he had knowledge and

he had taken precautions as indicated in the above

sections may not be apply to the present case on hand

since the theory of theft of car is set up as a defence to

counter and claim release of the confiscated vehicle which

is subjected to confiscation. Not a single piece of

document is produced by the petitioner to substantiate

that car owned by him was stolen three days prior to

commission of the offence. As rightly pointed out by the

NC: 2023:KHC-D:8978 WP No. 60035 of 2011

appellate court while dismissing the appeal that this

defence is set up after 7½ years is only an afterthought.

The Hon'ble Apex Court in catena of judgments and

various High Courts have taken consistent view that where

any vehicle or property is involved in a forest offence, no

direction for release can be given by this court under

Article 226 and 227 of the Constitution of India. The

Hon'ble Apex Court in the case of State of Madhya

Pradesh Vs. Uday Singh reported in (2020) 12 SCC

733 also held that, once the vehicle is confiscated under

the Forest Act, it cannot be released by an direction of this

Court.

7. However, the order sheet in the present case on

hand indicates that vehicle was released in favour of the

petitioner vide order dated 26.08.2011. Since the petition

is liable to be dismissed, the petitioner is hereby directed

to surrender the vehicle to the concerned authority within

a period of four weeks from the date of receipt of copy of

this order.

NC: 2023:KHC-D:8978 WP No. 60035 of 2011

8. With these observations, the writ petition

stands dismissed.

Sd/-

JUDGE

MBS