State of Kerala & Divisional Forest Officer v. Rukkiya Bindu Mirasahib & K. Rajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WP(C).No. 964 of 2008(M) ------------------------ {IN CMA 67/1998 & 68/1998 ON THE FILE OF THE ADDITIONAL DISTRICT COURT, PATHANAMTHITTA} .................... PETITIONER(S): --------------- ## 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, KONNY. BY SRI.M.P.PRAKASH,SPL.GP FOR FOREST RESPONDENT(S): --------------- 1. RUKKIYA BINDU MIRASAHIB, RESIDING AT SHA MANZIL, EDATHARA, KALANJOOR, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2. K. RAJAN, VANMELIN THEKKEKKARA, MANCODE P.O., KALANJOOR, PATHANAMTHITTA DISTRICT. R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR & SRI.V.VARGHESE R2 BY ADV.SRI.M.T.SURESHKUMAR & SRI.R.RANJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN, J.** ## **-----------------------------------------------W.P.(C).No.964 OF 2008 ----------------------------------------------Dated this the 8[th] day of February, 2010.** ## **JUDGMENT** The writ petition has been filed by the respondents, State and the Divisional Forest Officer, Konny in C.M.A.Nos.67 and 68 of 1998 on the file of the Additional District Judge, Pathanamthitta, challenging the common judgment rendered by the learned District Judge in the above appeals, annulling a confiscation order passed over two vehicles which are stated to have been involved in the illicit transportation of forest produce. The Authorised Officer, Divisional Forest Officer, after completing the proceedings covered by Section 61A of the Kerala Forest Act, ordered for confiscation of the two vehicles, one of which was owned by 1[st] respondent and the other by the 2[nd] respondent. Challenging the orders of confiscation, the ## **W.P.(C).No.964 OF 2008** ## **:: 2 ::** above two respondents preferred the appeals, C.M.A.Nos.67 and 68 of 1998 before the District Court, Pathanamthitta. The learned Additional District Judge, after hearing both sides, set aside the orders of confiscation vide Ext.P2 common judgment. Correctness of Ext.P2 judgment rendered by the learned District Judge is impeached in this writ petition, invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned Special Government Pleader (Forests) and also the respective counsel appearing for the respondents. 3. Inviting my attention to Ext.P2 judgment passed by the learned District Judge, it is contended by the learned Special Government Pleader that the confiscation order was mainly interfered with for the reason that the seized timber was not produced before the ## **W.P.(C).No.964 OF 2008** **:: 3 ::** magistrate as contemplated under Section 52 of the Forest Act, placing reliance on **State of Kerala v. Ancy Philip {2006(1) K.L.T. 699}** , the learned District Judge held that “the confiscation proceedings in the absence of production of the seized timber before the magistrate is vitiated and therefore, liable to be quashed”. The learned Government Pleader submitted that the above decision was reversed by the Apex Court in appeal preferred by the State, in **State of Kerala v. Ancy Philip {2008 (3) KHC 256 SC}** . The apex court has held that Section 61A has to be interpreted giving due significance to the non obstante clause with which that section begins and viewed in that matter, in a confiscation proceedings, the nonproduction of the timber seized before the Magistrate has least significance in determining the merit of the confiscation proceedings ## **W.P.(C).No.964 OF 2008** ## **:: 4 ::** initiated by the Authorised Officer. It is further pointed out that the learned District Judge has also given unmerited consideration to the plea canvassed by the respondents that the value of the timber seized has no comparison with the value of the vehicles which are proceeded with for confiscation as involved in the illicit transportation of timber involving a forest offence. The learned Special Government Pleader submitted that the value of the timber of forest produce seized which has led to confiscation proceedings of the vehicles such timber was not produced etc., has no relevance or significance on the question of passing of a confiscation order of the vehicles or any other materials. Reliance is placed on **State of Kerala v. Sukumara Panicker {1987(2) KLT 341 (FB)}** to contend that the value of the contraband alleged to have been carried in the ## **W.P.(C).No.964 OF 2008** **:: 5 ::** vehicle is a innocuous circumstance and a not necessary factor in passing an order of confiscation by the competent authority. 4. A confiscation order over a vehicle or material involved in forest offence has to be made following the statutory prescriptions under Section 61A and 61B of the Kerala Forest Act. In the decision rendered by the Apex Court in **State of Kerala v. Ancy Philip {2008(3) KHC 256 SC}** reversing the decision rendered by this court report in **State of Kerala v. Ancy Philip {2006 (1) K.L.T. 699}** , it has been clearly stated that the non production of 'forest produce' involved in the offence before the magistrate is of no consequence in a confiscation proceeding. So much so, interference with the confiscation order by the learned District Judge for the reason that the seized timber was not produced before the magistrate, though based on the ## **W.P.(C).No.964 OF 2008** ## **:: 6 ::** decision of this court which was then applicable, has to be corrected. 5. The learned counsel appearing for the respondents has contended that the entire confiscation proceedings is vitiated for the reason that after seizure, no report was filed before the magistrate as contemplated under Section 52 of the Forest Act. Though Section 61A of the said Act dealing with the confiscation proceedings opens with a non obstante clause, according to the counsel appearing for the respondents, the mandate of the Statute is that whenever a seizure was made it should be reported to the magistrate having jurisdiction to take cognizance of the offence. In the present case, no such report was filed by the forest officials, according to the counsel for the respondent, which is canvassed as fatal to the confiscation proceedings. Perusing Ext.P2 ## **W.P.(C).No.964 OF 2008** **:: 7 ::** judgment, I find, such a defence was not canvassed before the learned District Judge, nor any opportunity given to the respondents in appeal, present writ petitioners, to meet that challenge to impeach the confiscation. In that circumstance I do not want to express any opinion on the merit of the challenge canvassed, which can be pursued by them as I find setting aside Ext.P2 order, the appeals have to be heard again by the learned District Judge for a proper and fair disposal of the case on its merits. At the same time, it has also to be pointed out that there is much force in the submission made by the learned Special Government Pleader that the court below was not justified in interfering with the confiscation order, holding that the value of the timber when compared with the confiscation proceedings, is very meagre and insignificant. In confiscation proceedings, the ## **W.P.(C).No.964 OF 2008** ## **:: 8 ::** value of the timber cut and removed and transported has no significance, as held in **State of Kerala v. Sukumara Panicker {1987 (2) K.L.T. 341 (FB)}** . 6. Ext.P2 judgment rendered by the District Judge is liable to be set aside and I do so. Learned District Judge is directed to hear and dispose of the appeals, C.M.A.Nos.67 and 68 of 1998, afresh, taking note of the observations made above, after affording reasonable opportunity to both sides, and in accordance with law. It is open to both sides to canvass whatever grounds available under law to substantiate their respective contentions. The Bank Guarantee produced by the respondents for release of the vehicles as ordered by this court shall be kept alive by the respondents till the disposal of the appeals [C.M.A.Nos.67 and 68 of 1998] ## **W.P.(C).No.964 OF 2008** **:: 9 ::** Writ petition is disposed of as above. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** SK/- **//true copy//**