State of Kerala v. Jeeja Dileep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936** **WP(C).No. 16792 of 2010 (O) ----------------------------** **AGAINST THE JUDGMENT IN CMA 54/2003 of ADDL.DISTRICT COURT, THRISSUR DATED 15-12-2009** **PETITIONER(S):** **--------------** **STATE OF KERALA REPRESENTED BY THE CONSERVATOR OF FORESTS, CENTRAL CIRCLE, THRISSUR.** **BY SPECIAL GOVERNMENT PLEADER SRI. M.P. MADHAVANKUTTY** **RESPONDENT(S):** **--------------** **SMT.JEEJA DILEEP,NEDIYEDATH HOUSE,P.O., PERAMANGALAM, THRISSUR DISTRICT.** **R,R BY ADV. SRI.G.UNNIKRISHNAN R,R BY ADV. SRI.K.SANEESH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 16792 of 2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - TRUE COPY OF PROCEEDING NO. ORDER NO.CC2-4634/2002 DATED 10/3/2003 OF THE DIVISIONAL FOREST OFFICER, CHALAKUDY.** **EXT.P2 - TRUE COPY OF JUDGMENT DATED 15/12/2009 IN CMA NO.54/2003 OF THE ADDITIONAL DISTRICT COURT, THRISSUR.** //true copy// P.S. to Judge ## **K. HARILAL, J. -----------------------------------------------------W.P.(c) No. 16792 of 2010-O -----------------------------------------------------Dated this the 10[th] day of June, 2014** ## **JUDGMENT** The petitioner, State of Kerala, is aggrieved by the judgment in CMA No.54/03 on the files of the District Court, Thrissur, by which the learned District judge set aside the confiscation Order No.CC24634/2002 issued under Section 61A of the Kerala Forest Act, by the Authorised Officer. A forest offence of cutting and transporting wind fallen teak trees from the 1929 Teak Plantation in Kodassery Notified Reserve in Vellikkulangara Range was detected on 15-10-02 and OR 5/02 of Vellikkulangara Forest Range was registered for the same. During investigation, it was revealed that the vehicle bearing Registration **W.P.(c) No. 16792 of 2010** -: 2 :- No.KL-8/M6282 was used for the commission of the said forest offence and consequently it was seized on 16-10-02 by the officers of the Forest Department. The Authorised Officer, after issuing notice to the parties, confiscated the timbers and the vehicle as per Order No.CC2-4634/02 dated 10-3-03. Feeling aggrieved, the respondent preferred CMA No.54/03 before the District Court, Thrissur, and the learned District Judge, after hearing both parties, set aside the order confiscating the respondent's vehicle. The legality and propriety of the findings by which the learned District Judge set aside the order of confiscation passed by the Authorised Officer are under challenge in this writ petition. 2. The learned Special Government Pleader submits that the conclusion of the learned District Judge in paragraph-4 to the effect that no effective opportunity had been given to the respondent to defend the case against her is not correct and contrary **W.P.(c) No. 16792 of 2010** -: 3 :- to the materials on record. The court below went wrong by finding that the seizure of the vehicle alleged to have been involved in the commission of the forest offence must be simultaneous with the seizure of the forest produce. The above finding is against the proposition laid down by this Court in D.F.O., Kothamangalam v. Sunny Joseph (2002 (3) KLT 641). Lastly, the court below failed to follow the decision of the Division Bench of this Court in State of Kerala v. Margrate Joshy (1999 (3) KLT 359) and went wrong by finding that the order of confiscation can be made, only if the forest official proved that the vehicle was used with the knowledge or connivance of the owner of the vehicle and the burden of proof is on the forest officials. Further, the court below went wrong by finding that the statement given by the accused before the Authorised Officer cannot be relied on, to prove the allegation against the owner of the vehicle. The above finding is against the decision of this Court **W.P.(c) No. 16792 of 2010** -: 4 :- in Forest Range Officer v. Aboobacker (1989 (1) KLT 871). 3. Per contra, the learned counsel for the respondent advanced arguments to justify the impugned order under challenge. The learned counsel submits that absolutely there is no evidence to show that the respondent's vehicle was used with the consent and connivance of the respondent who is the owner of the vehicle. Similarly, the statement given by one of the accused shows that the vehicle was entrusted with one Abhilash. But no investigation had been conducted in that direction. It is also contended that, in the written statement, the respondent has specifically stated that the vehicle was not used with her consent or connivance for the commission of the said forest offence. In the absence of any positive evidence to show that the said vehicle was used for the commission of the forest offence with the knowledge or connivance of the owner of the **W.P.(c) No. 16792 of 2010** -: 5 :- vehicle, the liability cannot be fixed on the owner of the vehicle. Thus, the finding by which the court below set aside the order passed by the Authorised Officer, is sustainable under law as well as on the evidence on record. 4. Heard both sides. Having regard to the rival contentions, the question to be considered in this writ petition is whether there is any illegality or impropriety in the findings by which the learned District Judge set aside the order passed by the Authorised Officer. 5. Going by Issue No.5, it is seen that the respondent has submitted her written statement of defence vide Ext.P19 and also appeared for hearing on 24/1/2003 and submitted a statement - Ext.P20. Further, she has informed that she has already furnished all the facts in Ext.P19 and nothing more to be offered in the matter. The Authorised Officer specifically observed that he is satisfied that the opposite parties had been given sufficient opportunity **W.P.(c) No. 16792 of 2010** -: 6 :- to present their case as provided under Sec.61(B)1 (a) to (e) of the Act. Therefore, it can be held that the the Authorised Officer, with abundant caution, made sure that the opposite parties had been given sufficient opportunity to present their case. In view of the specific observation in the order passed by the Authorised Officer, I find that the findings of the learned District Judge that no opportunity had been given to the respondent to defend her case is unsustainable, particularly, in the absence of any material contrary to the finding of the Authorised Officer. 6. Secondly, the court held that the seizure of the vehicle must be simultaneous with the seizure of the forest produce and the seizure of the vehicle, after two days is unsustainable in view of Sec.52(1) of the Kerala Forest Act. I find that the above finding is made contrary to the legal position well settled by this Court in D.F.O., Kothamangalam v. Sunny Joseph **W.P.(c) No. 16792 of 2010** -: 7 :- (2002 (3) KLT 641). The relevant portion of the said decision reads as follows: “The first question is whether the fact that the vehicle was not seized along with the timber deprives the forest officials of the rights to seize and confiscate the vehicle. Learned Counsel for the respondents brought to our notice a decision reported in Divisional Forest Officer v. Amina, (1999 (1) KLJ 433). There, a Division Bench of this Court held that “on a plain reading of S.52, it is clear that the vehicles could be seized by the forest authorities or police officers if that was found to be involved in committing the offence. S.52 does not confer any power on the forest authorities to ask the owner of the vehicle to produce the same in the forest office much after the offence allegedly committed”. S.52(1) of the Kerala Forest Act, 1961 says as follows: "52. Seizure of property liable to confiscation:- (1) When there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, such timber or produce, **W.P.(c) No. 16792 of 2010** -: 8 :- together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any Forest Officer or Police Officer". A reading of this Section does not indicate that there should be simultaneous seizure of the timber or forest produce and tools, ropes, chains, boats, vehicles, etc. It may happen that the forest offence would have been committed with respect to timber. The Forest Authorities would have got information only later. By the time the timber would have been stored in some place as had happened in this case. It cannot be said that because the timber has been stored in a particular place, the vehicle which was used for conveying the timber cannot be seized when it was really involved in the commission of offence. The question depends on the evidence and on the basis of which the Forest Officer has reason to believe that the vehicle was also involved in the offence. The decision cited in Divisional Forest Officer v. Amina, 1999 (1) KLJ 433, rests on the facts of that case. Here, there was not much delay in seizing the vehicle. ## **W.P.(c) No. 16792 of 2010** -: 9 :- The offence was detected on 24.3.1993 and the vehicle was seized on 27.3.1993. We make it clear that in cases where the forest produce and the vehicle are not seized simultaneously, the vehicle can be seized only if there is evidence to connect the vehicle with forest offence and that the seizure is not to be done after a long time. The seizure of the vehicle after a long time will put the owner and driver of the vehicle into great hardship with regard to discharging their burden which is imposed on them under Ss. 52 and 61A of the above Act.” Therefore, in view of the above decision, the finding of the learned District Judge in this respect, is also unsustainable. Thirdly, the learned District Judge held that in the absence of positive evidence from the party of the forest officials to show that the vehicle was used with the knowledge or connivance of the owner of the vehicle, no confiscation can be made under Sec.52(1) of the Forest Act. I find that the said finding is also against the legal position well settled by this Court in **W.P.(c) No. 16792 of 2010** -: 10 :- State of Kerala v. Mathew (1995(2) KLT) 772). In the above decision, this Court held as follows: “5. The restriction against confiscation contained in sub-section (2) can operate only on the combination of three postulates. First is that the owner or his agent was totally unaware of the illicit use. Second is that he had taken all reasonable and necessary precautions against such use. Third is, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. If the owner succeeds in satisfying only the first two postulates, he would not get the benefit of the restriction against confiscation. The third condition is as important as the other two and unless that also is established no advantage would practically enure to the owner of the, vehicle. Sub-section (2) would remain at bay if the third condition remains unsatisfied. 6. The contention that such a strict view would adversely affect an innocent vehicle owner cannot be countenanced since any narrow or liberal interpretation of ## **W.P.(c) No. 16792 of 2010** -: 11 :- confiscatory provisions in the Act can eventually lead to disastrous consequences for forest wealth which is a very endangered bounty of nature. The idea behind extension of confiscatory provisions to vehicles etc., is to convey a peremptory and explicit message to the vehicle owners not to allow their vehicles to be used for depletion of forest wealth. If any vehicle is caught in the nefarious act of carrying illicit forest produce, it is not enough that the owner establishes his innocence alone. If he wants to retrieve his vehicle he must show further that the person who was in charge of the vehicle has taken reasonable and necessary precautionary measures against such user of the vehicle. The owner cannot rest with establishing his innocence in the matter. It may be that having succeeded in showing his innocence his failure to establish the next limb might lead to hard consequences to him. Legislature intended, by providing such stringent conditions, to prevent harder consequences for the society and for the posterity.” **W.P.(c) No. 16792 of 2010** -: 12 :- In this decision, this Court unequivocally held that the burden is heavy on the owner of the vehicle to discharge the burden under three postulates and the restriction against confiscation contained in subsection (2) can operate only on the combination of three postulates. Therefore, it is for the owner of the vehicle to prove that her vehicle was used for the commission of the forest offence without her knowledge or connivance and she had made all necessary precautions against the usage of her vehicle for the commission of the forest offence. 7. Lastly, the court below held that the statement recorded under Sec.72 of the Forest Act of the accused is not reliable to base findings against them as regards the commission of the offence. The above finding is against the decision of this Court in Forest Range Officer v. Aboobacker (1989 (1) KLT 871) wherein this Court held to the effect that the embargo under Sec.25 of the Evidence Act cannot be applied to **W.P.(c) No. 16792 of 2010** -: 13 :- the statement made to the Forest Range Officer for bringing the guilt of the accused in a criminal prosecution. In this decision, this Court held as follows: “7. The most important item of evidence in this case is the confessional statement made by the respondents. The admissibility of the confession made to the Forest Range Officer is not open to doubt since the embargo contained in S.25 of the Evidence Act is not applicable to it. Forest Officers, though they are invested with some of the police powers, are not police officers. Hence they can give evidence before court regarding admissions or confessions made to them by accused persons, whether or not such persons were then in custody. If the court considers such confession to be reliable, there is no legal bar in acting on such confession.” 8. In the light of the above discussions, I find that, at all points, the court below went wrong and **W.P.(c) No. 16792 of 2010** -: 14 :- arrived at a finding contrary to the law settled by this Court by the decisions referred above. 9. Consequently, I find that the matter requires re-appreciation again by the appellate court in the light of the legal position well settled by the decisions referred above. Hence the impugned order under challenge is set aside and the matter is remitted back to the appellate court to pass the judgment afresh after affording an opportunity of being heard to both parties. The parties shall appear before the appellate court on 7/7/2014. This writ petition is disposed of as above. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge