Raju Augustine and Rony Thomas v. Divisional Forest Officer, Mankulam, IDUKKI District; Forest Range Officer, Mankulam Forest Range Office, Viripara, Mankulam P.O., IDUKKI District; Village Officer, Mankulam Village Office, Mankulam, IDUKKI District

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** ## **WP(C).No. 22648 of 2017 (E) ----------------------------** ## **PETITIONER(S): -------------** **1. RAJU AUGUSTINE, S/O AUGUSTINE, AGED 47 YEARS, MUTHUPLACKAL HOUSE, VELIYAMPARA, MANKULAM P.O., IDUKKI DISTRICT.** **2. RONY THOMAS, S/O THOMAS, NADUVAKUNNEL HOUSE, PAMPUMKAYAM, MANKULAM P.O., IDUKKI DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT(S): --------------** **1. THE DIVISIONAL FOREST OFFICER, MANKULAM, IDUKKI DISTRICT PIN-685586.** **2. THE FOREST RANGE OFFICER, MANKULAM FOREST RANGE OFFICE, VIRIPARA, MANKULAM P.O., IDUKKI DISTRICT PIN-685586** **3. VILLAGE OFFICER, MANKULAM VILLAGE OFFICE, MANKULAM, IDUKKI DISTRICT PIN685586. BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** - **WP(C).No. 22648 of 2017 (E) ---------------------------APPENDIX** - **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1: TRUE COPY OF THE TITLE DEED OF THE PROPERTY OF THE PETITIONER BEARING NO.2109/2014 OF DEVIKULAM SRO** - **EXHIBIT P2: TRUE COPY OF THE TAX RECEIPT EXHIBIT P3: TRUE COPY OF THE CERTIFICATE OF THE 3RD RESPONDENT DATED 22.3.2017 BEARING NO.88/17** - **EXHIBIT P4: TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OF THE 2ND PETITIONER** - **EXHIBIT P5: TRUE COPY OF THE FORM 1 REPORT ALONG WITH MAHAZER IN O.R.NO.4/2017 OF MANKULAM FOREST RANGE OFFICE** - **EXHIBIT P6: TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 03.05.2017** - **EXHIBIT P7: TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 10.04.2017** - **EXHIBIT P8: TRUE COPY OF THE REPRESENTATION OF THE PETITIONERS DATED 17/4/2017** - **EXHIBIT P9: TRUE COPY OF THE APPLICATION OF THE PETITIONERS SUBMITTED BEFORE THE 1ST RESPONDENT** - **RESPONDENT(S)' ANNEXURES -----------------------ANNEXURE R2(A) TRUE COPY OF THE GAZETTE NOTIFICATION G.O. (P) NO.34/06/F&WLD DATED 4.10.2006** - **ANNEXURE R2(B) TRUE COPY OF THE LIST OF TREES WHICH WERE EXEMPTED FROM THE PERMISSION TO CUT AND REMOVE FROM THE PATTAYA LAND (RELEVANT PAGES) TRUE COPY P.S. TO JUDGE** **EL** ## **C.R.** **K. VINOD CHANDRAN, J. --------------------------------W.P.(C) No.22648 of 2017 [E] --------------------------------Dated this the 04[th] day of October, 2017** ## **JUDGMENT** The petitioners are aggrieved with the refusal to release vehicle bearing Registration No.KL-40A7027 and the timber transported, pursuant to which detention & seizure, O.R. No.4 of 2017 of Forest Range Office, Mankulam was registered. The vehicle and the timber were seized on 20.03.2017 as is evidenced from Ext.P5 Mahazar. Ext.P5 indicates that when the vehicle was sought to be detained, the driver stopped the vehicle and ran out, who could not be apprehended, even though chased. The Forest Officials on further inspection of the vehicle found that it contained timber logs, which transport was not supported by any documents. Hence _W.P.(C) No.22648 of 2017 [E]_ **2** a crime was registered as O.R. No.4 of 2017 and the vehicles were seized. 2. The vehicle belongs to the 2[nd] petitioner and the logs were cut from the property of the 1[st] petitioner, which did not require any sanction from the Forest authorities, contend petitioners. It is also submitted that Ext.P3 Certificate issued by the Village Officer on the very next day specifically indicates that the logs were cut from the property of the petitioner, wherein the stumps were detected as seen from the Certificate issued by the Village Officer. 3. The learned counsel for the petitioner relies on **John v. Divisional Forest Officer, Kottayam [1996 (2) KLT 984]** and **Shihab etc. v. State of Kerala and Another [2016 (4) KHC 183]** to argue for release of the vehicle and logs to the custody of the petitioner on a bond as stipulated _W.P.(C) No.22648 of 2017 [E]_ **3** in Section 53 of the Kerala Forest Act, 1961. It is also submitted by the learned counsel for the petitioner that there is no notice issued with respect to confiscation and there is no reason why the vehicle and logs be kept in the custody of the Forest Officials pending confiscation proceedings, especially when the petitioner is willing to execute a bond for production of the same whenever it is sought for. The confiscation proceedings also have not been initiated till date maintain the petitioners. 4. The learned Special Government Pleader [Forest] relies on **State of Karnataka v. K.Krishnan [2000 KHC 1315]** and **Section Forestor v. Mansur Ali Khan [2004 KHC 293]** to contend that release of a vehicle cannot be for the asking especially when the offense alleged is under the Forest Act. The claim for release in the instant case is also not _W.P.(C) No.22648 of 2017 [E]_ **4** covered by Section 53 and would be regulated by Section 61A of the Act of 1961. 5. The petitioner has placed substantial reliance on **Shihab** [supra] in which Section 53 was interpreted to find that release of the vehicle can be made on bond executed by the registered owner. The said case was one in which a crime was registered and a release was sought for from the jurisdictional Magistrate, who imposed a condition of cash security for interim release. The claimant took an unsuccessful appeal before the High Court, and eventually moved the Hon'ble Supreme Court. Reading Section 53; it was held that the release can be made on a bond being executed as provided therein. That was a case of transportation of sand; in which confiscation of goods and vehicle could have been done only by the Magistrate, on a conviction entered as per Section 55 of the Act of _W.P.(C) No.22648 of 2017 [E]_ **5** 1961. 6. In the present case the offense relates to timber, which is covered by Section 61A, as has been argued by the learned Special Government Pleader. Section 61A culls out timber, charcoal, fire wood and ivory from the other provisions in the Chapter and by a non-obstante clause, provides a parallel proceeding for confiscation by the Authorised Officer, being a person not below the rank of an Assistant Conservator of Forests. It is also pertinent that Section 61A proceedings does not depend upon a conviction entered by the Magistrate. Even if no prosecution is instituted for the commission of such forest offense, confiscation can be proceeded with by the Authorised Officer seizing any forest produce, being timber, charcoal, firewood or ivory or any tools, vehicles etc used in the commission of such _W.P.(C) No.22648 of 2017 [E]_ **6** offence. In such circumstance, the decision relied on by the petitioner in **Shihab** would not be applicable in the present case. 7. The Hon'ble Supreme Court in **K.Krishnan** has found that there is no bar against the officers and authorities from passing appropriate orders under the circumstances of each case for release of a vehicle after assigning value of goods. This Court also in **John** has found that despite Section 61A not speaking of any interim custody, it inheres in the power to order confiscation; the power to release the goods detained and seized as an interim measure on such conditions as is found necessary. **Mansoor Ali Khan** again has specifically found that there can be no release merely based on the time taken for concluding the confiscation proceedings. **Krishnan** also has categorically opined that when any vehicle is seized on the allegation that it was _W.P.(C) No.22648 of 2017 [E]_ **7** used for committing a forest offense, the same shall not normally be returned to a party till the culmination of all proceedings in respect of such offense, including the confiscation proceedings. 8. Considering the precedents as discussed above, this Court is not inclined to direct release of the vehicle and goods on execution of a mere bond. It is to be noticed that even in accordance with Section 53 if a release is made, the forest officer considering the interim measure of release, is competent to make such conditions, the least of which is the execution of a bond for production of the goods on summons being issued. The words employed for release of goods under Section 53 is 'may' and not 'shall'. It is also to be noticed that **Shihab** was a case in which the Magistrate directed release of the goods on cash security, which was interfered with by the Hon'ble Supreme _W.P.(C) No.22648 of 2017 [E]_ **8** Court, based on Section 52 directing release on execution of a bond. 9. As has been noticed above, Section 53 would not be applicable since in the present case what is applicable is Section 61A. The various precedents noticed by this Court does not commend a release without conditions. Though it has also been observed by the Hon'ble Supreme Court that vehicle should be normally released only after culmination of the proceedings, that is no reason why the Authorised Officer should delay the proceedings especially noticing the fact that the petitioner has not been issued, even with a notice, initiating confiscation proceedings. The notice shall be issued within a period of three weeks from the date of receipt of certified copy of the judgment. The petitioner shall be given a chance to file his objections, produce documents and also a reasonable _W.P.(C) No.22648 of 2017 [E]_ **9** opportunity for hearing and the confiscation proceedings shall be concluded at any rate within three months and if that is not possible, the Authorised Officer shall consider the release of the vehicle and timber on such conditions as he thinks fit within the time stipulated. The petitioner shall also co-operate with the proceedings. The writ petition is disposed of. No Costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge sp/jjj/05/10/17