State of Kerala v. L. Somarajan Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932** **WP(C).No. 8564 of 2009(M)** **---------------------------------------** **CMA.17/2003 of ADDL. DISTRICT COURT, PATHANAMTHITTA** **....................** **PETITIONER(S):** **------------------------** **STATE OF KERALA, REPRESENTED BY THE CHIEF CONSERVATOR OF FORESTS (PROTECTION), FOREST HEAD QUARTERS, THIRUVANANTHAPURAM.** **BY SRI.M.P.PRAKASH,SPL. GOVT. PLEADER FOR FOREST** **RESPONDENT(S):** **-------------------------** **L.SOMARAJAN NAIR, MANIMALAKALAYIL HOUSE, BLOCK PADI, THOTTAMON, RANNI.** **BY ADV. SRI.V.SETHUNATH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 8564/2009-M** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE PROCEEDINGS NO.ORDER NO.A2-4873/02 DATED 05/03/2003 OF THE DIVISIONAL FOREST OFFICER, RANNI.** **EXT.P2: COPY OF THE JUDGMENT DATED 24/06/2008 IN CMA NO.17/2003 OF THE ADDL. DISTRICT COURT, PATHANAMTHITTA.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **HARUN-UL-RASHID,JJ. ------------------------------W.P.(C). NO. 8564 OF 2009 ------------------------------DATED THIS THE 22ND DAY OF SEPTEMBER, 2010** ## **JUDGMENT** State of Kerala is the writ petitioner. This writ petition is filed under Article 227 of the Constitution of India seeking to set aside the judgment in CMA.No.17/2003 of the Additional District Court, Pathanamthitta. The respondent herein filed the above CMA challenging the order of the Divisional Forest Officer, Ranni issued under Section 61A of the Kerala Forest Act. The Range officer, Goodrical and his staff intercepted a jeep bearing Reg.No.KL-3E/702 on 6/9/2002. On examination of the said jeep, teak logs were found therein. Suspecting commission of forest offence the vehicle along with the logs of timber and the persons in charge were taken into custody. In Ext.P1 order it is stated that detailed mahazar was drawn and the seizers were produced before the Divisional Forest Officer, Ranni, who is the authorised Officer on 7/9/2002. The Range Officer conducted a detailed investigation **-2-** ## WP(C).No.8564/09 and submitted the final report on 23/10/02. Show cause notice was issued to the registered owner of the vehicle. Though show cause notice was duly acknowledged, she did not turn up for hearing. The respondent herein, who is one of the accused, approached this Court claiming to be owner and praying for release of the vehicle. This Court by judgment dated 4/12/2002 in the writ appeal held that since the appellant (respondent herein) is not the registered owner of the vehicle as per the entries in the R.C. book, the vehicle shall not be released to the appellant unless the registered owner of the vehicle gives her consent in writing to the Divisional Forest Officer, Ranni for release of the vehicle. 2. The Divisional Forest Officer, Ranni by Ext.P1 order held that the registered owner has not taken minimum reasonable and necessary precaution against commission of forest offence. Ext.P1 is the order of confiscation of the jeep with all accessories and teak timber. 3. In the appeal as CMA.No.17/03 preferred by the **-3-** WP(C).No.8564/09 respondent herein, the Appellate Court examined the questions in detail. The Appellate Court observed that the impugned order reveals the facts that the owner of the vehicle has not been heard before passing the impugned order. The learned Judge did not take notice of the facts stated in Ext.P1 order that show cause notice issued to the registered owner was duly acknowledged and that she did not turn up for hearing. The Appellate Court also observed that whether vehicle has been produced before the same court is also not discernible from the order and that regarding the evidence tendered the order is silent. The Appellate Court held that the confiscation has not been passed by following the mandate of Section 61 of the Kerala Forest Act. 4. The Appellate Court relied on the decision reported in **State of Kerala v. Ancy Philip (2006 (1) KLT 699).** As per the said decision the Forest Officers are bound to produce the timber involved in the forest offence before the Magistrate concerned for successful prosecution. This Court in the said decision held that in **-4-** WP(C).No.8564/09 order to have a successful prosecution of the accused, it is essential that the forest produce, which is the subject matter of the offence complained of, shall be produced before the Magistrate. This Court also held that the proceedings for confiscation of the timber can be done only after the production of the timber before the Magistrate and after obtaining necessary orders in this regard as provided under Section 54 of the Kerala Forest Act. 5. The respondent herein, who is the appellant in the appeal, relied on the said decision and contended that confiscation by the Forest Officers as contemplated under Section 61A with respect to seized property used for the commission of forest offence can be done only on compliance of Section 54 of the Kerala Forest Act. The learned counsel for the respondent herein submitted before the Appellate Court that applying the principles enshrined in the said decision there is non-compliance of Section 54 of the Kerala Forest Act and hence the confiscation order is unsustainable. 6. The learned Special Government Pleader (Forests) **-5-** ## WP(C).No.8564/09 submitted that the said decision relied on by the Appellate Court was subsequently reversed by the Apex Court. In the decision reported in **State of Kerala v. Ancy Philip (2008 (3) KLT 477 (SC)** the Apex Court held that the single Judge and the Division Bench had misinterpreted Section 54 of the Act and held that disposal can only be done after physical production of timber before the Magistrate and after obtaining necessary orders, that this is a perverse finding and that the same was not warranted by the provisions of law. The Apex Court further held that the High Court did not consider the effect of the non-obstante clause in Section 61A as well as the legal presumption available under Section 69 of the Act and that the interpretation of Section 54 is not acceptable. 7. Since Ext.P2 judgment passed by the Appellate Court is also based on the decision of this Court, which was subsequently reversed by the Apex Court, this Court is of the view that the matter requires re-consideration at the hands of the District Court. In view of the reversal of the judgment of this Court, in exercise of the **-6-** WP(C).No.8564/09 jurisdiction vested under Article 227 of the Constitution of India, this Court direct the Additional District Court, Pathanamthitta to decide the matter afresh, in the light of the decision of the Apex Court referred supra and to dispose of the appeal in accordance with law within a period of three months from the date of receipt of a copy of this judgment. Both parties are at liberty to raise all contentions before the District Court at the time of hearing. Writ Petition is disposed of as above **HARUN-UL-RASHID, Judge.** **kcv.**