Krishnan K. S. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 ``` ``` WP(CRL.) NO. 337 OF 2021 ``` ## **`PETITIONER:`** ``` KRISHNAN K. S., AGED 37 YEARS S/O.SUKUMARAN, KOTTAPPURAM HOUSE, NERYAMANGALAM P.O., NERYAMANGALAM VILLAGE, PIN - 686 693. BY ADVS. SRI.PEEYUS A.KOTTAM SRI.JOMON J. MALIEKAL SRI.HRITHWIK D. NAMBOOTHIRI ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.` - `2 SECRETARY, FOREST DEPARTMENT, FOREST OFFICE LANE, NANDAVANAM, THIRUVANANTHAPURAM - 695 034.` - `3 DIVISIONAL FOREST OFFICER & AUTHORIZED OFFICER DIVISIONAL FOREST OFFICE, MUNNAR, IDUKKI, PIN - 685 612.` - `4 CHIEF FOREST CONSERVATOR, KERALA FOREST DEPARTMENT, HIGH RANGE CIRCLE, KOTTAYAM, PIN - 686 016.` - `5 RANGE FOREST OFFICER NERIAMANGALAM RANGE FOREST OFFICE, NERIAMANGALAM, PIN - 685 561.` ``` BY SRI.T.P.SAJAN, SPECIAL GOVERNMENT PLEADER (FORESTS) ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P(Crl.)No.337 of 2021 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 15[th] day of February, 2022`** This Writ Petition is filed under Article 226 of the Constitution of India seeking the following reliefs: “a) Call for the entire records leading to Ext.P4 proceedings of the 3[rd] respondent and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction; b) Grant such other reliefs which are just and necessary in the interest of justice.” 2. It is averred in the petition that the petitioner is self employed and is a small road transport operator. A LGV Tipper bearing registration No.KL-45-B-1950 is registered in his name and true copy of it’s certificate of Registration is produced alongwith the petition on hand as Ext.P1. The vehicle has been driven by petitioner’s brother’s son Abhijith, for the last two years. One Mr.Surendran was constructing a residential building at Manianpara and he used to hire the above vehicle during 2020 for transportation of building materials to his worksite. After unloading the construction materials ``` W.P(Crl.)No.337 of 2021 ``` ``` 3 ``` Mr.Surendran requested the driver of the petitioner to transport few teak logs kept in the premises of his residential house to the workshop of Chettiar Mani @ Radhakrishnan for making some house hold articles. The petitioner has specifically insisted his driver Abhijith not to transport any teak wood or other timber items in the tipper lorry unless and until the required authorisation from the forest officials is shown to him. When Mr.Surendran approached Abhijith, the driver, the latter insisted for the pass issued by the forest officials. One pass was given and Mr.Surendran made the driver convince that the transportation of timber logs is permitted by the pass issued by the forest officials. The contents of the pass was written in English. Abhijith was not conversant with English and therefore he believed that the pass shown to him is a valid one. Mr.Surendran also made him believe that the wooden logs sought to be transported in the vehicle to the workshop is permitted by the pass shown, true copy of which is produced alongwith the petition on hand as Ext.P2. Therefore on being convinced, Abhijith allowed the timber to be loaded in the vehicle for transportation. In the course of transit the vehicle was seized by the 5[th] respondent and OR.No.11/2020 of ``` W.P(Crl.)No.337 of 2021 ``` ``` 4 ``` Neriamangalam Forest Range was registered alleging commission of offences punishable under Sections 27(I)(e), iii & iv of Kerala Forest Act, 1961 (for short ‘the Act’). After seizure of the vehicle, petitioner submitted a written request before the Forest Divisional Officer on 17.12.2020 for release of the vehicle alongwith a copy of the pass shown to Abhijith, the driver, true copy of which is produced alongwith the petition on hand as Ext.P3. The 3[rd] respondent by proceedings No.M8(WL)6161/2020 issued on 30.08.2021, ordered the vehicle to be confiscated, true copy of which is produced alongwith the petition on hand as Ext.P4. Aggrieved by Ext.P4, the petitioner has approached this Court in this Writ Petition. 3. Sri.Peeyus A Kottam, the learned counsel for the petitioner has drawn the attention of this Court to the statements recorded from the witnesses and the seizure mahazar prepared in the case on hand. The specific case of the petitioner was that his driver was instructed to permit loading of timbers in the vehicle for transportation only on being convinced of the authority of the person approaching him, to do so. According to Abhijith, a document alleging as ``` W.P(Crl.)No.337 of 2021 ``` ``` 5 ``` transit pass was shown to him by Mr.Surendran when he was approached with a request for transportation of those. According to him he was not conversant with English language and therefore when the pass was shown and when Mr.Surendran made him convince of its validity, he believed it as a valid pass issued by the forest officials for transportation of the timber. According to the petitioner he had taken all reasonable precautions by instructing his driver and his driver had also taken reasonable care prior to permitting the loading of the timber in the vehicle for transportation. 4. The learned Special Government Pleader has filed a counter affidavit in the writ petition alongwith certain documents appended thereto as Exts.R3(a) to R3(e). He has also cited two decisions Baby vs. The Forest Range Officer and others [1986 (2) ILR Kerala 57] and State of Kerala vs. Mathew [1995 KHC 386]. It has been held by this Court in Baby supra that offences registered under the Act has to be dealt with seriously and the vehicle if involved in the offences is liable for confiscation. ``` W.P(Crl.)No.337 of 2021 ``` ``` 6 ``` 5. In State of Kerala supra it has been held as follows: “ 4. S.61-B contains two sub-sections. The first sub-section says that no order of confiscation shall be made without giving notice to the person from whom it was seized informing him of the grounds for confiscation and affording him an opportunity of making representation. Sub-section (2) contains a further restriction against confiscation. It says that no order of confiscation shall be made if the owner of the vehicle proves that it was used in carrying the timber “without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use.” 5. 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 first two postulates, he would not get the benefit of the restriction against 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.” ``` W.P(Crl.)No.337 of 2021 ``` ``` 7 ``` 6. The learned Special Government Pleader for Forests has submitted that only on the combination of the three postulates referred to in paragraphs extracted above that a restraint against confiscation can be operated. It has been further held that a person who was in charge of the vehicle must convince the authority that reasonable and proper precautionary measures had been taken against the user of the vehicle for illegal activities. 7. The three postulates mentioned in paragraphs extracted above need a mention note of. First one was that the owner or his agent must establish that either of them was totally unaware of the illegal purpose behind the use, secondly that the agent had taken all reasonable and necessary precautions against such use and thirdly that the person in charge of the vehicle had taken reasonable and necessary precautions against such use. Therefore the registered owner approaching a court against a confiscation proceedings must establish the three postulates enumerated as above, and not any one or two of them. ``` W.P(Crl.)No.337 of 2021 ``` ``` 8 ``` 8. It is true that Section 61B of the Act as well as the decision cited supra are specific that a person moving against confiscation of his vehicle must establish the three postulates. In the case on hand, the specific case of the writ petitioner was that his driver was instructed to permit transportation of timbers in his vehicle only on being convinced of the authority permitting such, in the form of a transit pass being possessed by the person entrusting the same. It is the specific case of the driver that a document in the nature of a pass was shown and he was informed by the person approached him for transportation of timber that it is a transit pass issued in his favour by Forest Officials. He being unconversant with English was unable to read its contents but, believing it to be a valid pass, permitted its loading in the vehicle and transportation to the workshop. As already mentioned, alongwith the objection filed the learned Special Government Pleader has also produced some documents as Exhibits R3(a) to R3(e). 9. The learned counsel for the petitioner has drawn the attention of this Court to Ext.P4 which is the impugned order passed by the 3[rd] respondent to contend that at the time ``` W.P(Crl.)No.337 of 2021 ``` ``` 9 ``` when it was passed, the officer concerned was convinced that the driver of the petitioner was not conversant with English and that a pass, the contents of which is scribed in English was shown to him prior to loading of the timber in the vehicle. The officer concerned was also convinced about the misleading by Mr.Surendran, of the driver of the petitioner that transportation of logs sought is purely one authorised by the pass issued by the Forest Officials in his favour. The relevant part of Ext.P4 is apposite extraction : “ടി കെ എൽ-45-ബി-1950 നമ്പർ വാഹനം ഓടിച്ചിരുന്ന അഭിജിത എന്നയാൾകക‌ ഇംഗ്ലീഷ് വായിച്ചു മനസ്സിലാക്കുന്നതിനുള്ള കഴിവ് ഇല്ലാത് ാണെ ന്നും ന ഈ തടികൾ പാസ് പ്രകാരമുള്ളതാണെ ന‌ തെറ്റിദ്ധരിപ്പിച്ചാണ് ഓട്ടം വിളിച്ചതെന്നും . വ്യക്തമായിട്ടുണ എന്നിരുന്നാലും ആയത് കുറ്റകൃത്യത്തിൽ നിന്നും ഒഴിവാക്കുന്നതിനുള്ള മതിയായ കാരണമാകുന്നില്ല.” 10. Ext.R3(c) is nothing but a statement recorded from a workshop owner that after reach of the timber in the workshop, he learnt that those are Government property and accordingly after getting the shaping of the log through one of his workers had called Mr.Surendran to shift those therefrom. According to the learned Special Government Pleader for ``` W.P(Crl.)No.337 of 2021 ``` ``` 10 ``` Forests, therefore, the driver was well informed from the conversation at the workshop about the nature of the logs transported in his vehicle. Therefore, even if it is taken for granted that the boarding of the logs was on the misrepresentation by Mr.Surendran, from the conversation at the workshop among its owner and his worker and also from the telephonic conversation of the owner of workshop with Mr.Surendran, he must have been informed that the timber loaded was Government property and further transportation ought to have been avoided by him. According to the learned Special Government Pleader for Forests that being not done, he cannot be considered as a man who had taken reasonable precautions and therefore, the petitioner also cannot be considered as a person who had taken all reasonable precautions against use of his vehicle for illegal purposes. According to him, both the petitioner and his driver can be taken as knowingly permitted the transportation of logs of timber belonging to the Government in the vehicle without a valid pass issued for the purpose and therefore Ext.P4 is not liable to be interfered with and set aside. ``` W.P(Crl.)No.337 of 2021 ``` ## **`11`** 11. As already held by the this Court, three postulates must be established by the registered owner, when he approaches the authorities responsible against confiscation proceedings. Petitioner being the registered owner of the vehicle has given a statement before the authorities that, he had duly instructed his driver not to permit the use of the vehicle for illegal purposes. The driver had also given a statement that on being convinced from the pass shown and the information transpired by Mr.Surendran, loading and transportation of the logs to the workshop was permitted and further therefrom, as requested by him. The three postulates as directed by this Court in State of Kerala supra are found satisfied in the case on hand. 12. From the discussions made above, this Court is hesitant to hold that the order assailed is a sustainable one in the eye of law. 13. In the result, W.P(Crl) is allowed. Ext.P4 order is set aside. 14. It is informed by the learned counsel for the petitioner that the vehicle has already been released. In that ``` W.P(Crl.)No.337 of 2021 ``` ``` 12 ``` event the amount furnished as security shall be liable to be returned to the writ petitioner. Therefore the 3[rd] respondent is directed to release the amount stands furnished as security by the writ petitioner before it, within ten days from the date of receipt of a certified copy of this judgment. ``` Sd/- ``` ``` MARY JOSEPH JUDGE ``` ``` NAB ``` ``` W.P(Crl.)No.337 of 2021 ``` ``` 13 ``` ## **`APPENDIX OF WP(CRL.) 337/2021`** ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1TRUE COPY OF THE CERTIFICATE OF REGISTRATION NO. KL-45-B-1950 REGISTERED IN THE NAME OF PETITIONER. EXHIBIT P2 TRUE COPY OF THE PASS NO.16/2020-21 HANDED OVER BY SAID SURENDRAN TO PETITIONER'S DRIVER ABHIJITH. EXHIBIT P3 TRUE COPY OF THE WRITTEN REQUEST DATED 17.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE FOREST DIVISIONAL OFFICER, MUNNAR ALONG WITH EXT. P2 PASS HANDED OVER BY THE SURENDRAN TO THE PETITIONER'S DRIVER ABHIJITH. EXHIBIT P4 TRUE COPY OF THE ORDER NO.M8 (W.L.)- 6161/2020 DATED 30.08.2021 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5TRUE COPY OF THE TERM DEPOSIT (FIXED DEPOSIT) CERTIFICATE BEARING NO.JL0201013 DATED 17.03.2021 IN THE NAME OF THE PETITIONER. ``` ## `RESPONDENT’S EXHIBITS:` ``` EXHIBIT R3(a)TRUE COPY OF THE O.R.NO.11/2020 EXHIBIT R3(b)TRUE COPY OF THE CONFESSION STATEMENT OF ANILKUMAR EXHIBIT R3(c)TRUE COPY OF THE CONFESSION STATEMENT OF THE RADHAKRISHNAN EXHIBIT R3(d)TRUE COPY OF THE STATEMENT OF ACCUSED K.J.SEBASTIAN EXHIBIT R3(e)TRUE COPY OF THE SHOW CAUSE NOTICE NO.WL6161/2020 DATED 23.11.2020 ``` //TRUE COPY// P A TO JUDGE