Abdul Salam v. Divisional Forest Officer, Thiruvananthapuram, Palode Forest Range, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **CRP.No.108 OF 2012** **AGAINST THE ORDER/JUDGMENT IN CMA 102/2006 DATED 29-07-2011 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM** ## **REVISION PETITIONER/APPELLANT:** **ABDUL SALAM AGED 62 YEARS S/O. ISMAIL PILLAI, RESIDING AT AZEEM MANZIL, THALAYIL KUTHIRAKULAM P.O., MARIKKAL VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** **1 DIVISIONAL FOREST OFFICER THIRUVANANTHAPURAM-695 001.** **2 THE FOREST RANGE OFFICER PALODE FOREST RANGE, PALODE-695 046.** **3 STATE OF KERALA REPRESENTED BY THE SECRETARY. FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001** **BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** ## **OTHER PRESENT:** ## **SMT. V. SREEJA PP** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.3.2019, THE COURT ON 13.11.2019 PASSED THE FOLLOWING:** CRP 108/2012 -2- ASHOK MENON, J. -----------------------------------CRP No.108/2012 ------------------------------------Dated this the 13[th] day of November, 2019 ## O R D E R The petitioner in this Civil Revision Petition is the registered owner of jeep bearing Regn.No.KL-01-J6692 which was allegedly involved in two forest crimes, OR Nos.28 and 29 of 2002 of Palode Forest Range. The order of the Divisional Forest Officer (DFO), the 1[st] respondent herein, confiscating the vehicle belonging to the petitioner under the provisions of Section 61A of the Kerala Forest Act (hereinafter referred to as 'the Act') was challenged before the Additional District Court-1, Thiruvananthapuram in CMA No.102/2006 and vide the impugned judgment dated 29.7.2011, the order of confiscation was confirmed. Hence, this revision. 2. The facts in his case in brief are thus: on 26.4.2002, the staff of Kallar Section of Palode Forest Range during their patrol duty detected illegal felling and removal of rosewood from Kattilakuzhi. CRP 108/2012 -3- Mahazar was prepared and crime and occurrence report 28/2002 was registered. Only one log of rosewood could be recovered from the site, since rest of the timber was already removed. 3. On 29.4.2002 Chullimanoor forest control staff detected cutting and removal of a rosewood tree not far from the site of the rosewood tree involved in OR No. 28/2002 and three logs of rosewood was recovered from that site, consequent to which crime and occurrence report 29/2002 was registered. 4. On 29.4.2002 a police party led by the Sub Inspector of Police, Palode while on patrol duty at Kattilakuzhi intercepted three persons, namely, Shajahan, Santhosh and Sirajudeen, under suspicious circumstances. Their interrogation revealed that they had illicitly cut and removed seven logs of rosewood and transported to a saw mill at Chithara Kizhakkumbhagam in the petitioner's jeep driven by his cleaner, the aforesaid Sirajudeen. Immediate search of the saw mill resulted in recovery of the rosewood logs consequent to which the jeep belonging to the CRP 108/2012 -4- petitioner was also seized and crime No.119/2002 registered at the Palode Police Station. The aforementioned three accused were produced before the Judicial First Class Magistrate, Nedumangad along with the contraband timber logs and the jeep. The accused were remanded and the jeep returned to the Police for safe custody. 5. Consequent to the aforesaid seizure of logs, the forest officials were convinced that the logs recovered from the saw mill were the subject matter of OR Nos.28 and 29 of 2002. The case file was transferred from Judicial First Class Magistrate's court, Nedumangad to the Court of the Judicial Magistrate for Forest Offences at Punalur. A request was also made for transferring the contraband and the jeep to the Forest Department for proceeding under Section 61A of the Act. 6. In the meanwhile, the petitioner filed OP No.16879/2002 before this Court to get the seized vehicle released to him. This Court allowed that Original Petition vide order dated 24.6.2002 and CRP 108/2012 -5- directed release of the vehicle to the petitioner on furnishing Bank Guarantee. 7. Aggrieved by the concurrent findings of the Divisional Forest Officer and the District Court, the petitioner assails the impugned judgment mainly on the following grounds: 1. Neither the Divisional Forest Officer nor the District Court came to a positive finding regarding the knowledge of the petitioner as regards using of his vehicle for transporting forest produce. 2. There is no finding that the petitioner failed to take reasonable precaution to prevent involvement of his vehicle in a forest offence. 3. There is no positive finding that the logs recovered from the saw mill were cut and removed from forest land or a reserved forest, and that it is Government property. 4. Confession of some of the accused with regard to involvement of the petitioner's jeep is not sufficient to order confiscation. CRP 108/2012 -6- 8. Heard the learned counsel for the petitioner Sri. Latheesh Sebastian and Sri.Sandesh Raja, learned Special Government Pleader (Forest). Records perused. 9. The main argument advanced by the learned counsel for the revision petitioner is however that the notice as contemplated under Section 61B of the Act is not proper, and therefore, the confiscation is invalid. He relies on the decision of this Court in State of Kerala and Others v. K.Chandran Nair and Another [2012 (1) KHC 628] , wherein it is held thus: “Confiscation proceedings demand issue of a notice under Section 61B of the Act informing the grounds on which it is proposed to order confiscation, for violation of a forest offence. In that notice, he should be posted with the particulars of the case, the grounds on which an opinion has been formed by the authorised officer to initiate such proceedings against him. Xxx xxx xxx Strangely enough, in the show cause notice issued to the owner of the vehicle, it is seen, other than the preparation of the mahazar as to seizure of his vehicle by the forest officials, noting more has been stated, for taking up proceedings against him under Section 61A of the Act. The Range Officer who conducted investigation over the occurrence report has formed an opinion that the timber transported in the vehicle of the 1[st] respondent was collected from a river bank, and thus a Government property, and as such, the vehicle seized is liable to be CRP 108/2012 -7- confiscated, that alone is stated in the show cause notice. No particulars were given in the show cause notice that the vehicle had been used for transporting the timber to a saw mill, other than that the timber transported was collected from a river bank. If we go by Section 61B of the Act, the show cause notice issued should specify the grounds on which the proposed confiscation is contemplated.” 10. Further, the learned counsel appearing for the revision petitioner also urges that the petitioner was not the driver of the vehicle and he had entrusted his vehicle to its cleaner, Sirajudeen, for the purpose of a condolence visit in connection with the demise of a relative. There was delay in returning the vehicle, and he was told that the relative of his cleaner had committed suicide, and so, the police formalities would take some more time. 11. Per contra, Sri.Sandesh Raja submits that insufficiency of the notice under Section 61B of the Act has not been taken up as a defence either before the DFO or before the District Court in the CMA, and nor has it been taken as a ground before this Court for revision. The only allegation made in this revision is that the confiscation made is contrary CRP 108/2012 -8- to the provisions of Section 61A of the Act. As long as the propriety of the notice is not challenged in the pleadings, it cannot be considered by this Court. 12. Further, Sri.Sandesh Raja argues that on facts the decision in K.Chandran Nair (supra) can be distinguished. Attention of this Court is drawn to the order of the DFO, wherein it is specifically stated that notice was issued to the petitioner for appearing before the DFO on 14.3.2006 and the counsel representing the petitioner had appeared and requested for an adjournment, and thereafter argument note was filed on 5.5.2006 repeating the same arguments which were raised earlier and also stating that the charge sheet was not served on him and all that he received was the show cause notice. 13. There is no dispute that a show cause notice was issued to the petitioner. A perusal of the file shows that a show cause notice was issued on 19.11.2005, wherein the details of the seizure and the revelation made regarding the involvement of the petitioner's vehicle driven by the accused is CRP 108/2012 -9- specified. That apart, it is also seen in the file that the counsel representing the petitioner had requested for a month's time to peruse the records regarding the case which too was granted, consequent to which, a detailed explanation was given in writing by the counsel. A reading of that reply would indicate that the entire facts and circumstances of the case, seizure of the vehicle and the contraband, questioning of the accused and the revelation made by them to the investigating officer are mentioned. Under the circumstances, the aforesaid decision in K.Chandran Nair (supra) will not apply to the facts and circumstances of this case regarding the insufficiency of a notice under Section 61B of the Act. 14. On a plain reading of Section 61B(1) of the Act, it clearly appears that registered owner of a vehicle has been conferred a right of being heard before confiscation of his vehicle. Conferment of such right cannot be in futility for, sub-section (2), immediately says that no order of confiscation of a vehicle is to be made, if it is proved to the CRP 108/2012 -10- satisfaction of the Forest Officer that the vehicle was used in carrying forest produce without the knowledge and connivance of the owner himself, his agent, if any, and the person in charge of the vehicle and that each of them has taken all necessary and reasonable precautions against such use. The protection so conferred upon the owner of the vehicle under both the sub sections read together would have to be read referable to the owner or to his agent including person in charge of the vehicle acting within authority. 15. Section 69 of the Act clarifies that when in any proceedings taken under the Act, or in consequence of anything done under the Act, a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State Government, as the case may be, until the contrary is proved. Hence, there is a statutory presumption regarding the forest produce belonging to the Government and casts the burden on the persons proceeded against to establish the contrary. (see Baby CRP 108/2012 -11- v. Forest Range Officer [ILR (1986) 2 Ker 57] ) 16. The article that was seized in this case is rosewood timber. The question that may arise is whether the presumption is available with regard to the rosewood timber also. 17. A reading of Section 69 of the Act would make it clear that the presumption applies only in regard to articles defined as forest produce by the Act. Section 2(f) of the Act defines 'forest produce' which would include 'timber' and also roots of sandalwood and rosewood. Section 2(k) of the Act further states that 'timber' includes trees when they have been fallen or have been felled, and all wood, whether cut up or fashioned or hollowed out for any purpose or not. There is no dispute to the fact that rosewood is a produce which requires licence for being transported or removed. Under the provision of the Kerala Forest Produce Transit Rules, 1975, an application for issue of passes for removal of teak, rosewood and ebony from private lands shall be made to the Forest Range Officer having jurisdiction over the area from which such CRP 108/2012 -12- produce is proposed to be removed and the application for issuance of passes for rosewood shall be accompanied by a copy of the sanction order issued by the authorised officer under the Kerala Restriction on Cutting and Destruction of Valuable Trees Rules, 1974. Admittedly, there was no such pass available either with the petitioner or with the other accused in the case. 18. In State of Kerala v. Pushpan [1984 KLT 257] , it was held that the onus is on the owner to prove that the vehicle was used for transporting illicit timber without his knowledge and without his connivance and that he had taken all precautions against such use. A Division Bench of this Court has in State of Kerala v. Mathew [1995 (2) KLT 772] relied upon the decision in Pushpan (Supra) and held as thus: “The restriction against confiscation contained in sub-section (2) can operate only on the combination of three postulates. First is that the owner or his agent was totally unaware of the illicit use. Second is that he had taken all reasonable and necessary precautions against such use. Third is, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. If the owner succeeds in satisfying only the CRP 108/2012 -13- first two postulates, he would not get the benefit of the restriction under confiscation. The third condition is as important as the other two and unless that also is established, no advantage would practically enure to the owner of the vehicle. Sub-section (2) would remain at bay if the third condition remains unsatisfied.” The Honourable Supreme Court has in State of West Bengal and Another v. Mahua Sarkar [(2008) 12 SCC 763] observed thus: “We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest office. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.” The Honourable Supreme Court has also observed in the above cited decision that it is the owner who has to prove that the vehicle was used in carrying timber or other forest produce without his knowledge or CRP 108/2012 -14- connivance or that of his agent. This requirement is mandatory. It is a matter which is within his knowledge. There is another requirement that either he or his agent, if any, or the person in charge thereof had taken all reasonable and necessary precaution against such use. This aspect has to be established by the person concerned by sufficient materials. Mere assertion without anything else will not be sufficient. 19. A reading of the decisions in Mathew (supra) and Mahua Sarkar (supra) would conclude that the petitioner has not only to prove that he was unaware of the use of his vehicle but also will have to prove that the person in charge of the vehicle also has no such knowledge and that he had taken all necessary and reasonable precautions against such use. 20. In the instant case, the cleaner of the vehicle, namely Sirajudeen, was admittedly in charge of the vehicle. He had allegedly taken the vehicle for a condolence visit. He returned the vehicle only after a couple of days. The petitioner did not make any enquiry regarding the authenticity of such use by the CRP 108/2012 -15- said Sirajudeen, who is arrayed as accused in the case. He has given a statement to the effect that it was with his connivance that the contraband timber was removed. He would rather say that he along with some others had gone to cut and remove sandalwood but on failing to do so, they removed rosewood instead. Admittedly, Sirajudeen was in charge of the vehicle and his explanation is not in favour of the petitioner. The petitioner himself has been subsequently impleaded as the 19[th] accused. The result of the foregoing discussions is that the confiscation of jeep belonging the appellant in the impugned judgment does not appear to be illegal or unsustainable. In the result, the Revision Petition is dismissed. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg