High Court of KeralaSingle Judge2014-08-19Dismissed/ Original petition rejected

State of Kerala v. A.O. Lavvy

Case / Petition Number:OP(C).No. 35 of 2011 (O)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2014-08-19
Court Decision / Holding: This original petition is devoid of merits and dismissed accordingly.
Final Disposition: Dismissed/ Original petition rejected

Parties to the Case

Appellants / Petitioners

State of Kerala
Divisional Forest Officer (Thrissur)
Range Officer, Wadakkanchery Forest Range Office

Respondents

A.O. Lavvy, S/o. Ouseph

Legal Representation & Advocates

Counsels for Petitioners

• Government Pleader SMT. Sheeba

Counsels for Respondents

• Sri. P. Vijaya Bhanu (Sr.)
• SMT. M.M. Deepa
• Sri. Unni Sebastian Kappen

Case Synopsis & Summary

The State of Kerala filed OP(C).No.35 of 2011 (O) challenging the District Court, Thrissur’s CMA No.170/2005 judgment, which had set aside a confiscation order against a vehicle bearing registration KL-8 N-6422. The vehicle was alleged to have transported teak timber from forest land in Kadangode Village and was unloaded at a saw mill, with the owner-driver being the respondent. The confiscation was initiated under Sec.61B of the Kerala Forest Act after an enquiry under Sec.52, and the vehicle was surrendered on 23/06/2003. The District Judge’s impugned order had found that confiscation was the sole evidence and that such evidence was not properly recorded under Sec.164 CrPC, leading to the setting aside of the confiscation. The State argued that the confession statement recorded by the Authorised Officer is legally admissible and that the embargo of Sec.25 of the Indian Evidence Act cannot apply to statements made to Forest Officers exercising powers under Sec.61B. The respondent contended that the recording of the confession was illegal and that there was no other evidence linking the vehicle to the offence. The High Court, after considering the rival submissions, concurred with the District Judge that the confession could not be relied upon as the sole evidentiary basis and that the petition lacked merit, dismissing it accordingly. The matter underscores issues of admissibility of confessional material and sufficiency of evidence in forest-offence proceedings.

Provisions of Law Cited

Sec.52 of the Kerala Forest ActSec.61B of the Kerala Forest ActSec.164 of the Code of Criminal Procedure (CrPC)Sec.72 of the Kerala Forest ActSec.25 of the Indian Evidence Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that the confiscation order was legally issued under the Kerala Forest Act after proper enquiry under Sec.52 and Sec.61B, and that the evidence include a confession recorded by the Authorised Officer. It asserts that the embargo in Sec.25 of the Indian Evidence Act cannot be applied to statements made to a Forest Officer or Range Officer exercising powers under Sec.61B, and that the absence of a formal Sec.164 CrPC warning does not automatically vitiate the admissibility of such statements in forest-offence proceedings. The State argues that the district court’s reliance on a single confession is misplaced and that other documentary or material evidence, if any, should be considered in evaluating the legality of confiscation. It further submits that the original petition challenges a procedural irregularity rather than the sufficiency of the underlying facts establishing the offence.

Contentions of Respondents

The respondent maintains that the confiscation order rests on a confession statement alone, which was not properly recorded under Sec.164 CrPC and without the necessary warning, rendering it unreliable as sole evidence. It asserts that there is no robust evidence connecting the vehicle to the forest offence beyond the confession, noting that the vehicle was surrendered by the respondent and the prosecution did not establish the chain of evidence linking the vehicle to the offence. The respondent argues that the District Judge correctly set aside the confiscation order on the basis that the confiscation was unsupported by admissible, corroborative evidence and that relying on a single confession violates procedural safeguards.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Forest Range Officer v. Aboobacker	1989 (1) KLT 871	Mentioned Only	Cited by the Government Pleader in argument; the judgment notes the citation but the court does not adopt or distinguish its ratio in the decision.

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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 K.HARILAL** **TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936** **OP(C).No. 35 of 2011 (O) -------------------------** **AGAINST THE JUDGMENT IN CMA 170/2005 of DISTRICT COURT, THRISSUR DATED 07-08-2010.** **PETITIONERS:** **------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF CONSERVATOR OF FORESTS, CENTRAL CIRCLE, THRISSUR. PIN-680 001.** **2. THE DIVISIONAL FOREST OFFICER, THRISSUR. PIN-680 001.** **3. RANGE OFFICER, WADAKKANCHERY FOREST RANGE OFFICE, WADAKKANCHERY. PIN-680 582.** **BY GOVERNMENT PLEADER SMT. SHEEBA.** **RESPONDENT(S):** **--------------** **A.O.LAVY, S/O.OUSEPH, ALOOR HOUSE, PATHIYARAM DESOM, NELLUVAI VILLAGE, THALAPPILLY TALUK. PIN-680 584.** **R1 BY ADV. SRI.P.VIJAYA BHANU (SR.) R1 BY ADV. SMT.M.M.DEEPA R1 BY ADV. SRI.UNNI SEBASTIAN KAPPEN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Nan/** **OP(C).No. 35 of 2011** ## **APPENDIX:** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - TRUE COPY OF ORDER NO.TO.3548/2003 DATED 30/7/2005 OF THE DIVISIONAL FOREST OFFICER, THRISSUR.** **EXT.P2 - TRUE COPY OF JUDGMENT DATED 7/8/2010 OIN CMA NO.170/2005 OF THE HONOURABLE DISTRICT JUDGE, THRISSUR.** //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------O.P.(C) No. 35 of 2011-O -----------------------------------------------------Dated this the 19[th] day of August, 2014** ## **JUDGMENT** The State of Kerala has filed this original petition challenging the judgment passed in C.M.A.No.170/ 2005 on the files of the District Court, Thrissur. The above C.M.A. was filed by the respondent herein challenging the confiscation order passed by the 2[nd] petitioner herein confiscating the respondent's vehicle bearing registration No.KL-8 N-6422. The allegation against the above said vehicle is that the said vehicle was used for transporting teak timbers cut and removed from the forest land bearing Sy. No.941/R2 in Kadangode Village, occupied by Sri. George, S/o Chummar and that the same was unloaded in a saw **O.P.(C) No. 35 of 2011** -: 2 :- mill at Karukaputhur. The proceedings were initiated against the appellant/respondent as owner-cum-driver of the vehicle and registered a case as O.R.No.2/2003. Pursuant to the enquiry contemplated under Sec.52 of the of the Kerala Forest Act, the 1[st] respondent initiated confiscation proceedings against the said vehicle under Sec.61B of the Kerala Forest Act and ultimately the order was passed confiscating the said vehicle. Feeling aggrieved, the respondent herein has preferred the above C.M.A. challenging the confiscation order. After hearing both sides and examining the records, the learned District Judge set aside the confiscation order and whereby allowed the appeal. This original petition is filed by the State of Kerala challenging the illegality and propriety of the findings in the impugned judgment. 2. The learned Government Pleader advanced arguments challenging the findings of the court below as regards the legality and propriety of the findings in respect of the confession statement recorded by the **O.P.(C) No. 35 of 2011** -: 3 :- Authorised Officer. The learned Government Pleader cited the decision reported in Forest Range Officer v. Aboobacker (1989 (1) KLT 871) and contended that the embargo contained in Sec.25 of the Evidence Act cannot be applied to the statements made to a Forest Officer or Range Officer exercising power under Sec.61B of the Kerala Forest Act. 3. Per contra, the learned counsel for the respondent advanced arguments to justify the findings of the court below pointing towards the illegality in recording the confession statement. 4. Going by the impugned judgment, it is seen that the learned District Judge set aside the order confiscating the vehicle on the finding that the confiscation alone is the sole evidence available on record and the same was not recorded as provided under Sec.164 of the Code of Criminal Procedure. Admittedly, the vehicle was not one seized with timber. The offence was committed on 4/6/2003 and the vehicle was surrendered by the respondent **O.P.(C) No. 35 of 2011** -: 4 :- himself on 23/6/2003. As rightly observed by the court below in a case where the vehicle was seized without forest produce and seized subsequently under enquiry, it was incumbent upon the forest officials to collect evidence so as to establish the usage of the said vehicle for the commission of the offence. It is not discernible that whether the prosecution had been initiated against any of the persons who have allegedly committed the forest offence. The confession statement alone is the sole evidence available on record. The statutory mandate under Sec.72 of the Kerala Forest Act is that the Authorised Officer has power to hold enquiries into the forest offences and, in the course of such enquiries, to receive and record evidence and to issue search warrants which may be executed in the manner provided by the Code of Criminal Procedure 1898. Further the section mandates that any evidence recorded under Clause (d) of this section shall be admissible in any subsequent trial of the alleged **O.P.(C) No. 35 of 2011** -: 5 :- offender before a Magistrate; provided that it has been taken in the presence of the accused person and recorded in the manner provided under Sec.164 of the Cr.P.C. Sec.164 of the Cr.P.C. provides the manner of recording confession statement. Sub-sections (1) to (4) deal with the specific procedure to be followed in recording confession statement. 5. After verifying the confession statement, the court below observed that the confession statement does not contain warning or caution to be recorded under sub-section (4) of Sec.164 of the Cr.P.C. It was necessary to take all necessary precautions before recording such statement, especially when it was to be used against the person who gives the statement. Apart from such statement, there is absolutely no evidence to connect the offence with the alleged usage of the appellant's vehicle. So, the learned District Judge arrived at a finding that no reliance can be placed on the confession statement, the sole evidence on record. I do not find any kind of illegality **O.P.(C) No. 35 of 2011** -: 6 :- or impropriety in the said finding. I concur with the findings of the court below. This original petition is devoid of merits and dismissed accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge