Secretary, Forest Department, Thiruvananthapuram & Divisional Forest Officer, Kothamangalam v. K.M. George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935** ## **WA.No. 389 of 2013** **---------------------------[AGAINST THE JUDGMENT DTD. 04/12/2012 IN W.P.(C).NO. 25596/2007 OF THIS HON'BLE COURT]** **..................** ## **APPELLANTS/RESPONDENTS IN W.P.(C):** **-----------------------------------------------------------** **REPRESENTED BY ITS SECRETARY, FOREST DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIVISIONAL FOREST OFFICER,** **KOTHAMANGALAM FOREST DIVISION, KOTHAMANGALAM.** **BY SPL. GOVERNMENT PLEADER SRI. M.P. MADHAVANKUTTY.** **RESPONDENT/PETITIONER IN WP(C): ------------------------------------------------------** **K.M.GEORGE, KAMBAKATHINKAL HOUSE, CHEENIKUZHY P.O., THODUPUZHA - 685 581.** **BY ADV. SRI.KOSHY GEORGE.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.A. NO.389/2013:** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE I: COPY OF THE INTERIM ORDER DTD. 12/10/2012.** **ANNEXURE II: COPY OF THE PERSONAL BOND EXECUTED BY THE RESPONDENT DTD. 03/11/21012.** **ANNEXURE III: COPY OF THE RECEIPT ISSUED BY THE RESPONDENT.** **ANNEXURE IV: COPY OF THE REGISTRATION DETAILS REGARDNG THE RESPONDENT'S VEHICLE.** ## **RESPONDENTS' ANNEXURES:** **ANNEXURE R1: COPY OF THE SALE AGREEMENT DTD. 29/01/2013 ENTERED INTO BETWEEN THE RESPONDENT AND RAVEENDRAN. ANNEXURE R1.A: TRUE ENGLISH TRANSLATION OF ANNEXURE R1.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **MANJULA CHELLUR,C.J. & K.VINOD CHANDRAN, J.** **= = = = = = = = = = = = = = = = Writ Appeal No.389 of 2013** **= = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of June, 2013 JUDGMENT** ## **Manjula Chellur,CJ** The appellants herein are the respondents before the learned Single Judge. The party respondent in this appeal approached the learned Single Judge challenging Ext.P7 confiscation order passed by an authorised officer confiscating vehicle bearing Reg.No.KLI-577. So far as the present order is concerned, it is with reference to O.R.No.82/2004 on the file of Thodupuzha Range Forest Officer. The entire issue revolves around one controversy whether there was justification in the confiscation of the vehicle in terms of Ext.P7. It is also not in dispute that the orders of the authorised officer at Ext.P7 is confirmed before the appellate authority, that is, as per Ext.P8 judgment before the District Court, Thodupuzha. The confiscation proceedings initiated admittedly are under Section 61A of the Kerala Forest Act, 1961 which reads as under:- **Writ Appeal No.389 of 2013** **2** ## “ **61A. Confiscation by Forest Officers in certain** **cases:-** Notwithstanding anything contained in the foregoing provisions of this chapter, where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under subsection(1) of Section 52 shall, without any unreasonable delay, produce it, together with all tools,ropes,chains,boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer.) (2) Where an authorised officer seizes under subsection(1) of Section 52 any timber, charcoal, firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under sub-section (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes chains,boats,vehicles and cattle used in committing such offence.” 2. A plain reading of the provision makes it clear; the non obstante clause provided in the commencement of the section **Writ Appeal No.389 of 2013** **3** itself confers power on the authorised officer to initiate separate proceedings under Section 61A of the Kerala Forest Act, so far as the confiscation of the property is concerned, irrespective of launching a criminal prosecution or not. Therefore, the end result of the prosecution has nothing to do with the confiscation proceedings launched under Section 61A of the Act. The only defence available to the owner of the vehicle is whether he was totally unaware of the illicit use of the vehicle despite him taking all reasonable care or necessary precaution against such illicit use and that the person in charge of the vehicle has also taken reasonable and necessary precaution against such misuse of the vehicle. The law provides that only as all the three being established a vehicle is exonerated from confiscation provided under Section 61A. The confiscation proceedings under Ext.P7 clearly indicate,the material on the basis of which the authorised officer concluded that the above three postulates were not established by the owner of the vehicle; therefore, he proceeded with the confiscation of the vehicle. 3. When the matter came up before the learned Single Judge, the learned Single Judge, without referring to any of the **Writ Appeal No.389 of 2013** **4** provisions of the Kerala Forest Act, especially Section 61A of the Act, based on the nature and gravity of the offence and period of detention of the vehicle, proceeded to take a lenient view and set aside Ext.P7 confiscation order and imposed a fine of 25,000/-₹ (Rupees twenty five thousand only) which is stated to have been deposited. The bond executed for ₹50,000/-(Rupees fifty thousand only) also came to be cancelled. 4. Aggrieved by the same, the State is before us in this appeal contending that the decision of the learned Single Judge in setting aside Ext.P7 order is contra to the law laid down by Full Bench of this Court in **State of Kerala v. Sukumara Panicker** (1987(2) KLT 341) . 5. The learned Government Pleader also places reliance on **State of Jharkand v. Govind Singh** (2005(1)KLT 34 SC). On perusal of the confiscation order and also Ext.P8 judgment, we are of the opinion, so far as the procedure to be followed in the confiscation, there is no illegality and it is not the case of the respondent/writ petitioner that he was not given a fair opportunity of being heard. On the other hand, so far as the mala fides alleged against the Forest Range Officer, the **Writ Appeal No.389 of 2013** **5** authorised officer rightly opined that it was only allegation of demand of bribe and corruption charges that were alleged and even otherwise such complaint could be lodged before the anticorruption wing. A mere allegation will not lead to any proof of mala fides without substantiating such allegation. 6. In that view of the matter, the officer proceeded to pass the confiscation order. The learned District Judge considered in detail the entire facts placed on record and confirmed the order of confiscation. The learned Single Judge, without even referring to any of the discussion either at Ext.P7 or Ext.P8 proceeded to set aside the order of confiscation at Ext.P7, totally ignoring the law envisaged under Section 61A of the Act. Once proceedings under section 61A of the Act are taken up for consideration, the acquittal or innocence pleaded before the Magistrate in the criminal prosecution is of no assistance, unless the above three conditions are established by the owner of the vehicle. We do not find such material being placed on record convincing the court that the owner of the vehicle was totally unaware of use of the vehicle in commission of crime etc. **Writ Appeal No.389 of 2013** **6** 7. In that view of the matter, we are of the opinion, there is no justification for the learned Single Judge to set aside Ext.P7. Accordingly, appeal is allowed; confirming the order of confiscation at Ext.P7, which was confirmed by Ext.P8, before the District Court. It is needless to say, consequences of confiscation order have to follow taking into account non production of the vehicle by the owner. **MANJULA CHELLUR, CHIEF JUSTICE** **K.VINOD CHANDRAN, JUDGE** sj25/6