High Court of KeralaSingle Judge2013-11-08W.P.(C) No.10368/2010 dismissed; interim custod...

Sidheeque Kavungal v. Divisional Forest Officer, Nilambur North Division, Nilambur & The Range Officer, Kodampuzha Forest Station, Malappuram

Case / Petition Number:WP(C).No. 10368 of 2010 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.R.RAMACHANDRA MENON, J.
Judgment Date: 2013-11-08
Court Decision / Holding: The writ petition is dismissed; interim custody refused. The court notes the absence of exceptional circumstances and the pendency in the final stages of Section 61A proceedings, while preserving the petitioner's right to pursue an appeal, if any, before the appellate authority.
Final Disposition: W.P.(C) No.10368/2010 dismissed; interim custody refused; without prejudice to the petitioner’s right to pursue any pending appeal.

Parties to the Case

Appellants / Petitioners

Sidheeque Kavungal

Respondents

Divisional Forest Officer, Nilambur North Division, Nilambur
The Range Officer, Kodampuzha Forest Station, Malappuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Shibili Naha

Counsels for Respondents

• Sri. M.A. Thomaskutty
• Sri. M.P. Prakash

Case Synopsis & Summary

Sidheeque Kavungal approached the Kerala High Court in WP(C) No. 10368 of 2010 (U), seeking certiorari to quash Ext.P9 and mandamus to grant interim custody of motor cycle KL-10AA 3860 to Abdul Samad, his power of attorney. The petition concerns seizure for illegal transportation of sandalwood from Government forest; the vehicle was seized on 22.05.2008 and the power of attorney was executed after detection. The petitioner argues that keeping the bike idle would cause damage and offers to furnish a bank guarantee. He relies on Ext.P6, which directed the Divisional Forest Officer to conclude the proceedings promptly, and seeks to challenge Ext.P9, which refused interim custody. The respondents oppose on the ground that the offence is grave and the owner was not the registered owner; the power of attorney holder is itself an accused in Crime No.316/2008 and OR No.4/2008, and the POA was executed months after detection. The petitioner cites Kerala cases such as Reshma Finance Corp. and Biju v. Kerala, but the court stresses that the proceedings under Section 61A have nearly concluded and no exceptional circumstances justify interim release. Citing Section Forester’s case (2004) 1 SCC 293, the court reiterates that delay alone cannot justify interim custody. On 8 November 2013, the court dismissed the petition, refusing interim custody, while leaving room to pursue any pending appeal.

Provisions of Law Cited

Section 61A of the Kerala Forest ActSection 61B of the Kerala Forest Act

Legal Doctrines & Maxims

Interim custody requires exceptional circumstances.
Delay in disposal of proceedings is not a sufficient ground for granting interim release.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that interim custody of the seized motorcycle should be granted to the power of attorney holder, as the vehicle is not in use and releasing it would not prejudice any ongoing adjudication. Ext.P3 allowed him to move the Divisional Forest Officer, Ext.P6 directed timely completion of proceedings, and Ext.P9 was allegedly unwarranted. The power of attorney was executed after detection but the owner’s interests and potential damage to the vehicle warrant interim relief; the petitioner is ready to furnish a bank guarantee and seeks enforcement of his rights under the Kerala Forest Act provisions with respect to interim custodial orders.

Contentions of Respondents

The respondents argue that the offence involves illicit sandalwood transportation from Government forest; the petitioner is not the registered owner and the power of attorney holder is an accused; the power of attorney was executed after detection, implying it was manufactured to evade the order; the matter has reached final stages under Section 61A and there are no exceptional circumstances to warrant interim custody; reliance is placed on the Apex Court’s Section Forester’s case to emphasize that interim release requires exceptional grounds and delays are not sufficient grounds for release.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Section Forester and another v. Mansur Ali Khan	2004 (1) SCC 293	Positive	Cited to establish that interim release requires exceptional circumstances; delay in disposal alone is not a ground for interim custody and no such exceptional grounds were found in this case.
Reshma Finance Corporation v. Divisional Forest Officer	1996 (1) KLT 336	Mentioned Only	Cited by the petitioner as supportive authorities but not adopted as controlling law by the court in the present decision.
Biju v. State of Kerala	1998 (1) KLT 509	Mentioned Only	Cited by the petitioner; court did not rely on its holdings to grant interim custody.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** ## **WP(C).No. 10368 of 2010 (U)** **----------------------------** **PETITIONER :** **--------------------** **SIDHEEQUE KAVUNGAL,** **REPRESENTED BY POWER OF ATTORNEY ABDUSSAMAD, AGED 22 YEARS S/O.MAMMADU KEERALUNAL PURA HOUSE, KARIPPUR AMSOM CHIRAYAIL DESOM, TIRURANGADI TALUK MALAPPURAM DISTRICT.** ## **BY ADV. SRI.K.SHIBILI NAHA** **RESPONDENT(S) :** **----------------------------** ## **1. DIVISIONAL FOREST OFFICER, NILAMBUR NORTH DIVISION, NILAMBUR.** ## **2. THE RANGE OFFICER,** **KODAMPUZHA FORST STATION, MALAPPURAM.** **R1 & R2 BY SPL. GOVT. PLEADER (FOREST) SRI. M.A. THOMASKUTTY BY SPL. GOVT. PLEADER (FOREST) SRI.M.P.PRAKASH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Mn** **...2/-** ## **WP(C).No. 10368 of 2010 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE POWER OF ATTORNEY EXECUTED IN FAVOUR OF THE PETITIONER. EXT.P2 COPY OF THE ORDER IN CRL.RP. NO. 82/08 DATED 15.10.2008 ON THE FILE OF THE SESSIONS COURT, MANJERI. EXT.P3 COPY OF THE ORDER IN CRL.M.C. NO. 3535/09 DATED 17.11.2009. EXT.P4 COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 3.12.2009. EXT.P5 COPY OF THE NOTICE NO. 4378/08 ISSUED BY THE 1ST RESPONDENT DATED 10.12.2009. EXT.P6 COPY OF THE JUDGMENT IN WP(C) NO. 37465 OF 2009 DATED 6.1.2010. EXT.P7 COPY OF NOTICE DATED 23.2.2010 ISSUED UNDER SEC. 61B OF THE ACT. EXT.P8 COPY OF REPLY SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 3.3.2010. EXT.P9 COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 3.3.2010.** ## **RESPONDENT'S ANNEXURES :** **ANNEXURE R1(a) COPY OF ORDER IN CMP NO. 1332/2008 IN THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES) MANJERI.** **(Contd...)** **WP(C).No. 10368 of 2010 (U)** |**ANNEXURE R1(b)**|**COPY OF ORDER DT. 15.10.2008 IN CRIMINAL REVISION**| |---|---| ||**PETITION NO. 82/2008 IN THE FILE OF THE SESSIONS COURT,**| ||**MANJERI.**| |**ANNEXURE R1(c)**|**COPY OF MAHAZAR DT. 22.5.2008 PREPARED BY THE**| ||**THIRURANGADI POLICE.**| |**ANNEXURE R1(d)**|**COPY OF STATEMENT MADE BY THE 1ST ACCUSED SHRI.**| ||**ABDUL SAMAD, BEFORE THE FOREST OFFICIALS.**| |**ANNEXURE R1(e)**|**COPY OF STATEMENT MADE BY THE 2ND ACCUSED ASHARAF**| ||**BEFORE THE FOREST OFFICIALS.**| |**ANNEXURE R1(f)**|**COPY OF STATEMENT MADE BY MR. ALIKUTTY HAJEE.**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| ## **Mn** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No.10368 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of November, 2013 ## **JUDGMENT** The petitioner has approached this Court with the following prayers : _“i) Issue a writ of certiorari calling for the records leading to Ext.P9 and quash the original of the same._ _ii) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 1[st] respondent to grant the interim custody of the motor cycle bearing Reg.No.KL.10AA 3860 to Mr.Abdul Samad who is duly authorized by the owner of the vehicle._ _iii) Declare that Ext.P9 order passed by the first respondent is in total derogation of Ext.P6 judgment of this Hon'ble Court._ _iv) Such other reliefs sought for from time to time including the cost of proceedings.”_ ## 2. When the matter came up for consideration before this Court on 09/04/2010, the following interim order was passed : W.P.(C)No.10368/2010 2 “ _The petitioner seeks for a direction to release the vehicle, a motor bike, by way of interim custody, to his power of attorney holder._ _2. Heard learned counsel for the petitioner and learned Govt. Pleader._ _3. The petitioner had earlier moved the criminal court wherein, the applications were dismissed. This Court by Ext.P3 judgment, allowed him to move the Divisional Forest Officer in the matter and the Divisional Forest Officer, as per the directions of this Court in Ext.P6 judgment, refused to grant interim custody, as per Ext.P9 order which is under challenge in this writ petition._ _4. The vehicle is seized for illegal transportation of 12.250 kgs. of Sandalwood pieces. It was transported by the power of attorney holder and not by the registered owner. According to the petitioner, the seizure was effected on 22.5.2008 and if the vehicle is remaining idle, it will cause damage to the vehicle. It is submitted that he is prepared to furnish a bank guarantee also._ _5. The plea of the petitioner is opposed by_ W.P.(C)No.10368/2010 3 _the learned Govt. Pleader by relying upon the statement filed by the first respondent. It is pointed out that the offence is of grave nature as it is involved in the illicit transportation of sandalwood pieces collected from Government forest. The petitioner is not the registered owner, but he is the accused in Crime No.316/2008 and in the subsequently registered O.R. No.4/2008. The power of attorney is one executed months after the detection of the crime. It is therefore submitted that it was actually one executed at the time when the vehicle was with the custody of the Forest officials. It is further pointed out by the learned Govt. Pleader that in the light of the decision of the Apex Court in_ _**Section Forester and another v. Mansur Ali Khan** {(2004) 1 SCC 293}, only in exceptional circumstances alone an interim release can be ordered. Herein, there are no exceptional circumstances._ _6. Learned counsel for the petitioner relied upon various decisions of this Court, viz._ _**Reshma Finance Corporation v. Divisional Forest Officer** (1996 (1) KLT 336) and_ _**Biju v. State of Kerala** (1998 (1) KLT 509)._ _7. It is clear from the statement filed on_ W.P.(C)No.10368/2010 4 _behalf of the first respondent that the proceedings under Section 61A of the Kerala Forest Act have reached a finality and as directed by this Court in Ext.P6 judgment, to complete the proceedings within three months, all efforts have been taken and the orders are expected to be passed before 21.4.2010. It is clear that the power of attorney is one executed after the offence was detected which was one of the reasons pointed out to reject the application for interim custody. The power of attorney holder himself is the accused also in the crime._ _8. In the light of the decision of the Apex Court in_ _**Section Forester's case** {(2004) 1 SCC 293}, no exceptional reasons have been pointed out. The Apex Court was pleased to hold that delay in disposal of the proceedings is not at all sufficient ground for granting interim release. In the light of the fact that the proceedings have reached the final stage and orders are expected to be passed within one or two weeks, as confirmed by the learned Govt. Pleader, I do not find any reason to grant the prayer for interim custody._ _Therefore the prayer for interim custody is refused._ W.P.(C)No.10368/2010 5 3. The learned Government Pleader appearing for the respondents submits that the impugned order i.e. Ext.P9 is in respect of the rejection of the application preferred by the petitioner for release of the vehicle bearing Reg. No.KL 10 AA 3860 belonging to the petitioner during the pendency of adjudication proceedings and that the proceedings have already been finalised by the first respondent, passing appropriate orders on 20.04.2010 4. The learned counsel for the petitioner submits that the petitioner has already approached the appellate authority against the final order passed by the first respondent. In the said circumstances, this Court does not find it necessary to consider anything further in this writ petition. The same is dismissed accordingly, without prejudice to the rights and liberties of the petitioner to pursue the appeal preferred against the final order, if the same is pending before the appellate authority in accordance with law. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.10368/2010 6