K.L. Abraham @ Titus v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936** ## **CRP.No. 191 of 2009 ( )** **-----------------------(CMA.NO.53/2005 OF DISTRICT COURT, PALAKKAD DATED 08-01-2009)** **---------------------------** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-----------------------------------------------------------------------------** **K.L.ABRAHAM @ TITUS, AGED 49 YEARS, S/O. LUKOSE, RESIDING AT KULAMAMKUZHI HOUSE, JELLIPARA P.O., DHONIKKUNDU, AGALI,PALAKKAD.** **BY ADVS.SRI.T.G.RAJENDRAN SMT.ANI JOSEPH** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **---------------------------------------------------------------------** **STATE OF KERALA, REP. BY DIVISIONAL FOREST OFFICER, MANNARKKAD, PALAKKAD.** **BY SPL.GOVERNMENT PLEADER(FOREST) SRI.MADHAVAN KUTTY** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON 07-04-2014 PASSED THE FOLLOWING:** **sts** ## **A.MUHAMED MUSTAQUE, J.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **C.R.P.No.191 of 2009 “C.R.”** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 7[th] day of April, 2014 ## **O R D E R** The main question that arises for consideration in this revision is whether the show cause notice issued before confiscation under Section 61 A of the Kerala Forest Act, 1961 (for short, the “Forest Act”), is bad for want of particulars of the evidence relied on by the authorised officer for confiscating the vehicle used for committing a forest offence. 2. This revision is filed challenging the final order passed by the District Court, Palakkad in an appeal filed by the revision petitioner against the order passed by the Divisional Forest Officer, Mannarkad, under Section 61 A of the Forest Act. 3. The facts of the case in a nutshell are as follows: On 23/09/2001, the Palakkad Flying Special Squad Forest Ranger and his party, on getting a secret information, inspected the Puliyara forest area and found that four rosewood trees were cut and removed from the forest area and, during investigation it was also found that rosewood pieces had been converted to making furniture. Forest Range Officer made a detailed enquiry and questioned the witnesses. On such investigation it was further ## **`C.R.P.No.191/2009`** ## **-:2:-** found that the vehicle which belonged to the petitioner herein, was involved in transporting the above rosewood pieces. 4. The Divisional Forest Officer, after analysing the evidence of the witnesses, who were questioned by the Range Officer, came to a conclusion that the vehicle of the petitioner was involved in committing the forest offence and, accordingly, ordered its confiscation in terms of Section 61A of the Forest Act. Challenging the said order, the petitioner herein, filed an appeal before the District Court, Palakkad, which confirmed the order passed by the Divisional Forest Officer. 5. Heard the learned counsel for the revision petitioner Sri.T.G.Rajendran and the learned Special Government Pleader for Forests Sri.M.P.Madhavan Kutty. 6. The learned counsel for the petitioner submits that self-serving statements were made by the witnesses and, without affording an opportunity to the petitioner to cross-examine those witnesses, the same cannot be relied upon as an incriminating evidence against the petitioner. The learned counsel also assails the order on the ground of violation of the principles of natural justice. On the other hand, the learned Special ## **`C.R.P.No.191/2009`** ## **-:3:-** Government Pleader for Forests submits that the evidence establish the involvement of the vehicle, and the petitioner failed to prove three postulates contemplated under Section 61B of the Forest Act as laid down in the judgment of this court in **State of Kerala vs. Mathew [1995 (2) KLT 772]** . 7. The confiscation proceedings are of summary nature by ensuring compliance of natural justice in terms of Section 61B of the Forest Act. Compliance of the principles of natural justice always depends upon the nature of inquiry and the scheme of the statutory provisions. The Hon'ble Supreme Court in **Dev Dutt Vs Union of India [(2008) 8 SCC 725]** held as follows: “What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarised in one word: fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on situation and context.” Section 61 B of the Forest Act contemplates issuance of show cause notice. The purpose of such notice is to give an opportunity of being heard to the person against whom proceedings under Section 61 A of the Forest Act for ## **`C.R.P.No.191/2009`** ## **-:4:-** confiscation are initiated. Section 61B of the Forest Act, in fact, is a procedural compliance of the principles of natural justice. Confiscation proceedings are quasi-criminal in nature, which would deprive a person of his liberty to the extent of owning his property. Procedural compliance will serve its purpose only when fairness is ensured. In the context of Section 61 A of the Forest Act, fairness could be understood as avoidance of prejudice to the person against whom proceedings are initiated. 8. In this case, a show cause notice dated 6.8.2004 was issued to the petitioner. It is stated in the notice that it is revealed from the report submitted by the Range Officer, who had conducted the investigation, that it is with the knowledge and connivance of the petitioner that the rosewood pieces were transported in the vehicle of the petitioner. It was also revealed that the petitioner has given a statement admitting the use of the vehicle before the Range Officer. The petitioner on 16/08/2004, sent a reply stating that he has not given any statement before the Range Officer. He has also denied that his vehicle was used for transporting timber. He has further attributed _mala fides_ in initiating proceedings against him. 9. The Divisional Forest Officer as well as the court below relied ## **`C.R.P.No.191/2009`** ## **-:5:-** upon the testimonies of the witnesses, questioned by the Range Officer, as an incriminating evidence against the petitioner for proving the involvement of the vehicle in transporting rosewood pieces. The fact remains that the Range Officer questioned several witnesses and those witnesses have deposed about the involvement of the vehicle but, those are not reflected in the show cause notice. It is analysing such evidence of the witnesses, the primary authority, the Divisional Forest Officer and the Appellate Authority, the learned District Judge arrived at the conclusion that the vehicle was used for committing the forest offence. 10. It is settled law that, when prejudicial statements are relied upon, such statements shall not be used against the person, without giving him an opportunity to correct or contradict the same. Section 61A of the Forest Act essentially denotes that when a forest offence is believed to have been committed in respect of timber, charcoal etc., together with tools, vehicles etc., the same shall be confiscated after giving show cause notice under Section 61B of the Forest Act. The word “believed to have been used” occurring in the said section postulates circumstances of the evidence relied upon by the Authority to link with the offence. Therefore, testimonies of the ## **`C.R.P.No.191/2009`** ## **-:6:-** witnesses, questioned by the Range Officer, are infact capable of being used as an inculpating evidence against the petitioner. This Court is of the view that fairness demands, show cause notice issued under Section 61B of the Forest Act should contain all the particulars relied upon by the Authority against the person under Section 61A of the Forest Act. In **Dhakeswari Cotton Mills Ltd. Vs. Commissioner of Income Tax, West Bengal [1955 SCR (1) 941]** it was held that non disclosure of information supplied to the Tribunal by the departmental representative, amounts to violation of fundamental rules of justice. 11. The purpose of issuing the notice under Section 61B of the Forest Act will become an empty formality, if it does not contain the particulars of the evidence relied upon by the authorized officer. That purpose must be worthy, meaning to underscore the object sought to be achieved by averting prejudice to the person concerned. Natural justice that is embodied in Section 61B of the Forest Act is, in fact, a fair opportunity to contradict. If the show cause notice lacks the particulars relied upon by the authorized officer, it amounts to denial of an opportunity. _**Lord Denning**_ in **B.Surinder Singh Kanda vs. Government of the Federation of Malaya** ## **`C.R.P.No.191/2009`** ## **-:7:-** ## **[1962 AC 322]** observed as follows: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them”. It is not necessary, disclosure necessarily involves supply of the materials or testimony of the witnesses along with the show cause notice. A person may be allowed to inspect the file and take notes. Whatever mode is used, the fundamental principle remains that nothing should be used against the person which has not been brought to his notice. 12. This court in **State of Kerala vs. Chandran Nair [2012 (1) KLT 712]** also had taken a similiar view that absence of particulars of the case and the grounds on which the authorized officer has formed an opinion to initiate such proceedings would vitiate the confiscation. 13. I have gone through the entire file. I do not think any further probe is necessary to find out whether prejudice has been caused to the petitioner. The reliance placed by the Court below and by the Divisional Forest Officer on the testimonies of the witnesses which are not there in the ## **`C.R.P.No.191/2009`** ## **-:8:-** show cause notice itself would prove that prejudice has been caused. I am also not inclined to remand the case for giving an opportunity to the respondent to correct the flaw in the proceedings, as it may cause prejudice to the revision petitioner, as a decade has elapsed after initiating proceedings for the confiscation. Resultantly, this revision petition is allowed by setting aside the impugned orders. No costs. **Sd/A.MUHAMED MUSTAQUE, JUDGE** ms