State of Kerala v. Joseph Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931** **WP(C).No. 3491 of 2008(N)** **---------------------------------** **CMA.119/2001 of ADDL. DISTRICT COURT, PATHANAMTHITTA** **....................** ## **PETITIONER(S):** **----------------------** **STATE OF KERALA, REPRESENTED BY THE CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, KOLLAM.** **BY GOVERNMENT PLEADER MR.K.SANILKUMAR** **RESPONDENT(S):** **------------------------** **JOSEPH THOMAS, RESIDING AT VECHUPADINJATTATHIL HOUSE, ARATTUKAYAM, ERUMELI, PATHANAMTHITTA DISTRICT.** **R1 BY ADV. MR.AJAYA KUMAR. G** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.3491/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE PROCEEDINGS NO.ORDER NO.A2-40612000 DTD. 12.9.2001 OF THE DIVISIONAL FORESTS OFFICER, RANNI.** **P2:- COPY OF THE JUDGMENT DTD. 20.3.07 IN CMA. NO.119/2001 OF THE ADDL. DISTRICT COURT, PATHANAMTHITTA.** **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## S.S.SATHEESACHANDRAN, J ------------------------------------W.P.C No.3491 OF 2008 -------------------------------Dated this the 24[th] day of February 2010 ## JUDGMENT State has preferred this writ petition challenging the judgment rendered by the Additional District Judge, Pathanamthitta in C.M.A No.119 of 2001 by which a confiscation order passed over a vehicle allegedly involved in the commission of a forest offence as ordered by the forest officer (Divisional Forest Officer) was set aside. Short facts involved in the case can be summed up thus. The Divisional Forest Officer, Ranni initiated proceedings under Section 61A of the Kerala Forest Act against the respondent, the owner of the motor vehicle, a lorry, bearing registration No.KL-5/A 3352, on the basis of the materials placed before him indicating prima facie to his satisfaction the involvement of the above vehicle in the commission of a forest offence, illicit transportation of forest produce, teak wood, after its cutting and removal from a reserve forest. A Deputy Range Officer and forest Guards during the course of routine inspection apprehended two persons with a cutter saw close to the reserve forest and on enquiry it was detected that they had cut and removed teak wood from the reserve forest in Vellachimala area and that the timber cut down was transported in the lorry bearing registration No.KL-5A 3352. A mahazar was prepared over the site of the tree cut, after that was traced out in the reserve forest, and a case was registered Page numbers W.P.C No.3491 OF 2008 as O.R No.3/2000. Later, during the course of investigation of that case, the lorry stationed in a workshop was also seized into custody. After conducting an enquiry, the Divisional Forest Officer, Ranni after perusal of the materials being satisfied that the lorry had been used for illicit transportation of forest produce from the reserve forest ordered for commencement of confiscation proceedings against its owner. After issuing a show cause notice to the owner and due enquiry collecting statements from the owner and other witnesses, and on the basis of the materials tendered, the forest officer concluded that it was a fit case for ordering confiscation of the vehicle and, accordingly, the confiscation order was passed. The owner of the vehicle, the respondent, challenged that order preferring an appeal under Section 61D of the Forest Act before the District Court, Pathanamthitta. The learned Additional District Judge after hearing the counsel on both sides allowed the appeal and set aside the confiscation order . Propriety and correctness of that judgment is impeached by the State in the present writ petition. 2. I heard the counsel on both sides. The learned Special Government Pleader assailed the judgment of the court below contending that the confiscation order of the authorised officer was interfered with on patently erroneous grounds, both under law and facts. The learned District Judge has wrongly applied the law on the Page numbers W.P.C No.3491 OF 2008 disputed questions involved and that has resulted in interfering with the confiscation order resulting in manifestation of injustice, is the submission of the learned Government Pleader. On the other hand, the learned counsel for the respondent, owner of the vehicle, contended that no interference with the order of the learned District Judge is called for in the present case in exercise of the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Perusing the judgment rendered by the learned District Judge in the appeal, it is seen that the confiscation order passed by the authorised officer was interfered with for the following reasons: i) The motor vehicle ordered to be confiscated was taken into custody not during the commission of the offence while it was transporting the timber, but, the next day, while it was stationed at the workshop. ii) The timber seized(Teak wood), involved in the commission of the forest offence was not produced before the Magistrate, as contemplated under Section 52 of the Forest Act, which was held to be mandatory by this court in **“State of Kerala v Ancy Philip” (2006(1) KLT 699).** iii) No show cause notice was issued to the owner of the lorry before passing the order of confiscation, as mandated under Section 61B of the Forest Act. Page numbers W.P.C No.3491 OF 2008 iv) Value of the timber involved in the commission of the forest offence when compared with the value of the lorry ordered to be confiscated was very meagre and, v) There was no convincing material to prove the involvement of the lorry in the commission of the forest offence other than the self serving statement recorded by the forest officials on registering the case over the alleged forest offence . 3. I am afraid that all the aforesaid reasons given expression to by the District Judge to interfere with the confiscation order passed by the forest officer are totally irrelevant, and in fact against settled principles of law. First and foremost, the non production of the timber involved in the forest offence before the Magistrate has no relevance or significance in examining the question whether a confiscation order is to be passed over a vehicle or any other material connected with the commission of the forest offence. The decision rendered by this court in **“Ancy Philip v State of Kerala” (2008(3) KLT 477)** had been reversed by the apex court in holding that the provision relating to confiscation covered by Section 61A of the Forest Act opens with a nonobstante clause making it imperative that none of the other provisions in the Forest Act under any other law has any bearing in determining the questions relating to confiscation of a vehicle or any other materials as involved in a forest offence. Value of the timber involved in the Page numbers W.P.C No.3491 OF 2008 forest offence when compared to the value of the lorry proceeded for confiscation is meagre is also no ground in examining the question of confiscation. A full bench of this court in **“Sukumara Panicker v State of Kerala” (1987(2) KLT 341)** has held that the value of the contraband goods compared to the value of vehicle is not a relevant factor in the confiscation proceedings. The owner of the vehicle was not issued a show cause notice before commencing with the confiscation proceedings, the argument canvassed by the counsel for the appellant, it is seen, was blindly accepted by the learned District Judge and in that view of the matter, it had been concluded that there was no such notice. In fact, even the confiscation order passed by the authorised officer reference to the show cause notice issued and statement furnished by the owner of the vehicle. In the confiscation order show cause notice is issued shown as reference No.4. If at all the District Judge had any doubt as to whether a show cause notice was issued or not it was incumbent upon him to call upon the respondents in the appeal to produce the records relating to the confiscation proceedings and, then, enter a finding on the issue of notice. The District Judge was hearing a statutory appeal and that being so, it was the last and final authority to enter findings on disputed questions of fact. When that be so, the scrutiny of the records leading to the confiscation order was inevitable and a finding Page numbers W.P.C No.3491 OF 2008 should have been entered with reference to records whether or not a show cause notice had been issued. Before me, the learned counsel for the respondent, the owner of the vehicle, in all fairness did not support the reasoning so expressed by the District Judge that no show cause notice was issued before commencement of the confiscation proceedings. The materials tendered in the confiscation proceedings, namely, the Mahazar, statements recorded by the forest officials in respect of the case registered over the commission of the forest offence etc. cannot be relied upon in ordering a confiscation of the vehicle seems to be the view of the learned District Judge. Needless to point out that the reason so given expression to in the order is patently erroneous. Statements collected from the accused persons involved in the commission of the forest offence, the owner and driver of the vehicle, the Mahazar prepared over the cut down tree and even those of the forest officials connected with the investigation of the case are relevant materials which can be safely acted upon in a confiscation proceeding. Strict rules of evidence are not applicable in such proceedings. More than the above said materials, the statements collected during the enquiry in the confiscation proceedings by the authorised officer questioning the owner and such other witnesses produced in that enquiry are also relevant materials to enter a finding and also orders in such proceedings Page numbers W.P.C No.3491 OF 2008 whether or not the vehicle is to be confiscated. When a confiscation proceeding is taken, no doubt, a finding has to be entered over the involvement of the vehicle in the commission of the forest offence where the materials lead to such a conclusion, the burden shifts on the owner of the vehicle to prove to the satisfaction of the forest officer that it was used in carrying the timber, charcoal, firewood or ivory without his knowledge or connivance and the person in charge of that vehicle had taken all reasonable care and necessary precaution against such use. When that be the law, the reasoning of the learned District Judge that the materials connected with the forest offence collected by the forest officials and also the statements recorded in the enquiry cannot be acted upon in a confiscation proceeding is totally incorrect. The vehicle was seized only on the next day from a workshop and not on the day of the commission of the forest offence is yet another reason stated by the District Judge to interfere with the confiscation order. Conclusion so formed is unworthy of any merit. Seizure of a vehicle during the commission of a forest offence is almost a total impossibility, and if the view formed by the court below is followed, illicit transportation of forest produce by vehicle, if successfully completed, will relieve such vehicles from confiscation proceedings. This court in **“DFO, Kothamangalam v Sunny Joseph” (2002 (3) KLT 641)** has held that there need not be simultaneous seizure Page numbers W.P.C No.3491 OF 2008 of the timber or forest produce and vehicles. By the time the forest officials receive information of the commission of the forest offence the timber would have been illicitly transported in vehicles. In very many cases after such transportation, the timber might have been stored in particular place. In such circumstances, it does not follow that the timber having been successfully transported the vehicle involved in the illicit transportation and also such timber cannot be confiscated. The question which has to be considered is whether the vehicle was involved in the illicit transportation of the forest produce, whether or not it was seized during the commission of the offence or later. 4. The impugned judgment rendered by the court below cannot be sustained and it is liable to be set aside. I do so. The Additional District Judge is directed to take back the appeal and dispose it afresh taking note of the observations made above and in accordance with law, after hearing the counsel on both sides as expeditiously as possible, at any rate within a period of six months from the date of receipt of a copy of this judgment. Sd/- S.S.SATHEESACHANDRAN, JUDGE ## //TRUE COPY// ## P.A TO JUDGE vdv