State of Kerala v. Leena P.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** ## **FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933** ## **Crl.MC.No. 3453 of 2011()** **----------------------------------CMP.6145/2011 of JUDL. FIRST CLASS MAGISTRATE-II(FOREST OFFENCES),PUNALUR IN OR NO.1/2011 OF SHENDURNEY WILDLIFE SANCTUARY,THENMALA ...........................................** **PETITIONER:** **-------------------** **STATE OF KERALA, REPRESENTED BY THE ASSISTANT WILDLIFE WARDEN, SHENDURNEY WILDLIFE SANCTUARY, THENMALA.** **BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **RESPONDENT:** **---------------------** **LEENA.P.S., W/O.GOPAKUMAR, ELLIKKULAM HOUSE, BLOCK NO.76, ESM COLONY, KULATHUPUZHA VILLAGE, PATHANAPURAM TALUK, KULATHUPUZHA.P.O., PIN-691 310.** **R BY ADVS. SRI.M.SREEKUMAR SRI.THOUFEEK AHAMED** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AV** ## **N.K. BALAKRISHNAN,J.** ## **-----------------------------------Crl.M.C. No. 3453 of 2011 -----------------------------------------Dated this the 28th day of October, 2011.** ## **O R D E R** On 12/08/11 the forest officials received an information that forest produce is being illegally kept in the premises of estate farm managed by one Gopakumar. The forest officials detected the offence of illicit felling, transportation and conversion of teak trees. The sawn teak planks were recovered as per mahazar. The Crime OR1/11 was registered and report was submitted to the learned Magistrate as required under Section 52 of the Kerala Forest Act. Subsequently it was revealed that the vehicle bearing No.KL25-A-5728 was used for transporting the teak logs from the Wild Life Sanctuary. Hence the vehicle was seized on 17/08/11 after preparing the mahazar. The vehicle and timber were produced before the forest officer as required under Section 61A of the Kerala Forest Act. An application was filed by the respondent who claims to be the owner of the said vehicle ## **Crl.M.C. No. 3453 of 2011 2** for interim release of the vehicle. Objection was filed by the petitioner. It was stated in the petition that the vehicle is liable to be confiscated under Section 61A of the Kerala Forest Act. That petition was allowed by the Magistrate and directed to release the vehicle on executing a bond for Rs. 5,00,000/- (Rupees Five Lakhs only) with two solvent sureties. 2. The petitioner contends that the learned Magistrate went wrong in holding that no material was produced before the court to show that confiscation proceedings has been initiated. The learned Magistrate overlooked the fact that the offence with respect to which the vehicle was seized is still under investigation. The vehicle was in fact produced before the Forest Officer as required under Section 61A of Kerala Forest Act. 3. It is submitted by the Special Govt. Pleader (Forest) that the learned Magistrate has proceeded to order interim release of the vehicle as if the vehicle was ## **Crl.M.C. No. 3453 of 2011 3** produced before the Magistrate when in fact the said vehicle was not produced before the Magistrate at all. It is argued that the learned Magistrate hastily ordered release of the vehicle even without going through the provision contained in Section 451 Cr.P.C. It was argued that on behalf of the respondent that the petition was in fact under Section 457 Cr.P.C. If that be so, the Magistrate should have considered whether Section 457 applies, the learned Special GP submits. Section 457 would apply only when the seizure of the property is reported to the Magistrate. The learned counsel for the respondent submits that Section 52(2) of the Kerala Forest Act says that every officer seizing any property under sub-sec.-1 shall make a report of such seizure to the Magistrate having jurisdiction to try their offence on account of which the seizure has been made. The learned counsel for the respondent submits that the seizure of the vehicle was reported to the Magistrate and if so Section ## **Crl.M.C. No. 3453 of 2011 4** 457 Cr.P.C. would apply. But that contention has been resisted by the learned Special GP relying on the nonobstante clause in Section 61A of Kerala Forest Act which reads: "61A. **Confiscation by Forest Officers in certain cases** :-Notwithstanding anything contained in the foregoing provisions of this chapter, where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under sub-section (1) of Section 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer) (2) Where an authorised officer seizes under sub-section (1) of Section 52 any timber, charcoal, firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under subsection (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence”. 4. A reading of Section 61A would make it clear that ## **Crl.M.C. No. 3453 of 2011 5** Section 52 is controlled by 61A of the Act and that in view of the fact that under Section 61A confiscation proceedings can be had in respect of such a vehicle, no order of release can be passed by the Magistrate under Section 457 Cr.P.C. when the properties were produced before the authorised officers for initiating confiscation proceedings. These aspects were not considered by the learned Magistrate. The learned Special GP (Forest) would submit that there are sufficient materials to order confiscation of the vehicle and so the order of interim release passed by the learned Magistrate is liable to be set aside. The decision of the Orissa High Court in **State of Orissa vs. Manoj Kumar Nayak reported in 2009 CriLJ 23** has no application to the facts of this case since there is specific averment that the vehicle was seized since it was used for transporting tree illicitly felled from Wild life Sanctuary. The decision in **General Insurance Council and others vs. State of Andhra Pradesh and** ## **Crl.M.C. No. 3453 of 2011 6** ## **others reported in (2010) 6 Supreme Court Cases** **768** cited by the learned counsel for the first respondent also has no application since in this case the petitioners contend that the proceedings for confiscation is being initiated in this case. The decision in **State of Madhya** ## **Pradesh v. Madhukar Rao reported in 2008(2) KLT** **105** has also no application since that was a case dealt with under the provisions of Wild Life (Protection) Act 1972. 5. The learned Special GP would rely upon the decision in **Shameer v. State of Kerala 2011 (3) KLT** **469** where it was held that neither in Sub-s.(1) nor Sub-s (2) of S.52, there is any direction to produce the seized article before the Magistrate having jurisdiction to try the offence. It was held: "On a reading of Sub-s.(1) of S.52, it is crystal clear that any forest officer or Police Officer can seize, if there is reason for him to believe that a forest offence has been committed in respect of any timber or any other forest produce, such timber or produce, together with all tools, ## **Crl.M.C. No. 3453 of 2011 7** ropes, chains, boats, vehicles and cattle used in committing any such offence. On a reading of subs (2), it reveals that it is incumbent upon the officer seizing any property under sub-s(1) to report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Neither in sub-s.(1) nor in sub-s.(2) of S.52, there is any direction to produce the seized article before the Magistrate having jurisdiction to try the offence". 6. Since the vehicle in question was not produced before the Magistrate, the order passed by the Magistrate under Section 451 Cr.P.C. is liable to be set aside. It is submitted by the Special Government Pleader (Forest) that while considering similar provisions of Karnataka Forest Act, the Apex Court has held in **State of Karnataka V. Krishnan (2000) 7 Supreme Court Case 80 :** "The provisions of the Act are required to be strictly complied with and followed for the purpose of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the authorised officer or the appellate authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the ## **Crl.M.C. No. 3453 of 2011 8** property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattle, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released." ## It was also held : "The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect mother earth and the atmosphere surrounding it." ## It was also held in the said decision: "When any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition". 7. The order passed by the learned Magistrate under Section 451 Cr.P.C. is hence set aside. 8. It is submitted by the learned counsel for the petitioner that the vehicle is kept exposed to sun and rain and so it will be ruined completely. The proceedings for confiscation is yet to be started or is only going to be ## **Crl.M.C. No. 3453 of 2011 9** commenced, the learned counsel for the respondent submits. It may take some time to dispose of the same. Therefore, by invoking the power under Section 482 Cr.P.C., this court would be justified in ordering interim release in the light of the circumstances pointed above. Hence this petition is disposed of giving the following directions:- 1. The petitioner should furnish bank guarantee to the tune of Rs.3,25,000/- (Rupees Three lakhs twenty five thousand only). 2. The bank guarantee so produced shall be for a period of not less than 3 years. 3. The Magistrate shall ensure that the bank guarantee produced is for such a period. It must also be ensured that if the proceedings relating to the confiscation is not completed, the bank guarantee is renewed for such further period. 4. The petitioner shall also execute a bond for ## **Crl.M.C. No. 3453 of 2011 10** Rs.2 lakhs with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate. 5. The petitioner shall undertake that he shall not alienate or transfer possession of the vehicle nor will it be subjected to any loan/hypothication and that vehicle shall be produced before the court or before the officer ordering confiscation as an when so directed. 6. The petitioner shall further undertake that on getting interim release of the vehicle, the said vehicle will not be used for any illegal purposes, failing which, this order will stand immediately vacated. ## **N.K. BALAKRISHNAN, JUDGE** smvd