State of Kerala v. Mohammed Basheer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931** **WP(C).NO. 600 OF 2010(O)** **---------------------------------------** **FAO.76/2003 OF D.C. & SESSIONS COURT,KOLLAM** **....................** **PETITIONER:** **--------------------** **STATE OF KERALA, REP. BY CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, KOLLAM.** **BY SPECIAL GOVERNMENT PLEADER FOR FOREST SHRI M.P. PRAKASH** **RESPONDENT:** **--------------------** **MOHAMMED BASHEER, S/O.HAMEEFA KUNHU, VILLIKULATHUVILA VEEDU, ALAYAMON P.O., ANCHAL, KOLLAM DISTRICT.** **ADV. SRI.TPM.IBRAHIM KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** **---------------** **PETITIONER'S EXHIBITS: ----------------------------------** **EXHIBIT P1** **TRUE COPY OF ORDER NO.G3.6343/02 DATED 30.6.2003.** **EXHIBIT P2 TRUE COPY OF ORDER DATED 5.1.2009 IN FAO NO.76/2003 OF THE DISTRICT COURT, KOLLAM. EXHIBIT P3 TRUE COPY OF ORDER DATED 8.12.2009 ON I.A. NO.1572 OF 2009 IN FAO NO.76/2003 OF DO.** **RESPONDENT'S EXHIBITS:** **-----------------------------------** **EXHIBIT R1(A)** **PHOTOSTAT COPY OF THE JUDGMENT DATED 1.4.2003 OF THIS HONOURABLE COURT IN ORIGINAL PETITION NO.11227 OF 2003(J)** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **W.P(C) NO.600 of 2010** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24[th] day of February, 2010 ## **J U D G M E N T** --------------------- This Writ Petition is in challenge of Ext.P2, order of learned District Judge, Kollam in F.A.O. No.76 of 2003 whereby Ext.P1 order of confiscation was set aside and there was a direction to release the vehicle in question to the respondent. The State is aggrieved by that order and has come up with this Writ Petition challenging the legality and regularity of Ext.P2, order. 2. Short facts necessary for disposal of this Writ Petition are: On 12.11.2002 the Flying Squad of Kulathupuzha forest range getting information about illicit felling of teak trees in 1959 TeakAcacia plantation combed the area and found a few teak trees cut and removed and on drawing up a mahazar for the same they registered a case as O.R. No.27 of 2002. The Ranger Officer, Kulathupuzha got information that the timber collected from the forest as aforesaid was carried in Jeep KL-2/H-1011 of which respondent is the registered owner. Driver of the vehicle, Nasim Khan was questioned and he confessed to have transported timber ## **W.P(C) No.600 of 2010** ## -: 2 :- from the reserve forest. Proceeding was initiated under Section 61A of the Kerala Forest Act (for short, “the Act”) for confiscation of the vehicle involved. Respondent was given notice. He gave a reply stating that he had taken all reasonable precautions against such illicit transportation. During the relevant time vehicle was in the custody of the father-in-law of his daughter, Mohammed Shafi who also had taken similar precautions. The Authorised Officer recorded statement of Mohammed Shafi also who gave a similar version. The Authorised Officer after conducting enquiry as contemplated under the Act came to the conclusion that driver of the vehicle knowing fully that the timber is a forest produce transported the same in the vehicle in question and to cover up the same even entered a normal trip in the trip sheet of the vehicle that day. The Authorised Officer was of the view that version of registered owner and the person in possession as to their taking all precautions to avoid such activities is not believable. The Authorised Officer was also of the view that at any rate registered owner is liable for the misdeeds of his employee, driver. Finally Ext.P1 order was passed. Respondent challenged that order before the learned District Judge who after consideration of the relevant ## **W.P(C) No.600 of 2010** ## -: 3 :- materials came to the conclusion that registered owner as well as person in possession of the vehicle (Mohammed Shafi) had taken all reasonable precautions to prevent illicit transportation of timber and hence order of confiscation could not stand. Accordingly that order was set aside and the vehicle was ordered to be released to the respondent. Thereafter respondent moved I.A. No.1572 of 2009 for release of the Bank Guarantee produced for interim release of the vehicle. Learned District Judge as per order dated 8.12.2009 ordered release of the Bank Guarantee but directed that it will be issued if no stay is obtained by the State within a period of ten days. 3. I have heard learned Special Government Pleader for Forests and learned counsel for respondent. Learned Government Pleader argued that learned District Judge has not properly appreciated Sec.61B(2) of the Act while ordering release of the vehicle and that even if it is assumed that earlier part of the subsection that the registered owner, his agent or person in possession of the vehicle had taken sufficient precautions to avoid illicit transportation of timber that by itself is not sufficient to order release of the vehicle since respondent also had to prove that person in charge of the vehicle who according to the learned ## **W.P(C) No.600 of 2010** ## -: 4 :- Government Pleader is the driver of the vehicle also had taken such reasonable precaution which is absent in this case. Learned Government Pleader argues that learned District Judge has not adverted to the last condition, i.e., driver of the vehicle having taken proper precautions to avoid commission of such offences and hence the order under challenge cannot be sustained. Reliance is placed on the decision of this Court in **State of Kerala v. Mathew** (1995 [2] KLT 772). In response Shri T.P.M.Ibrahim Khan, learned counsel for respondent contends that what is required to be satisfied under Sec.61B(2) of the Act is only that the registered owner and the person in charge of the vehicle had taken reasonable precautions and that has been satisfied in this case. Neither the sub-section nor the decision relied on by the learned Government Pleader required that driver of the vehicle should have taken such precautions. According to the learned counsel such a requirement would only make the provision otiose since in no case it is not possible for the registered owner to prove that the driver had taken reasonable precautions as there could be cases where the driver has acted maliciously or intentionally to defeat the owner and acted against specific instructions given by him. ## **W.P(C) No.600 of 2010** ## -: 5 :- 4. True argument of the learned counsel required consideration. It may appear that if it is insisted that driver also should have taken precaution to prevent illicit transportation of timber the section may become unworkable since in spite of directions given by the owner, the driver may have acted against the same with intent to cause loss to the registered owner. Learned counsel points out that in this case learning that driver has acted in violation of the instructions given to him, registered owner has already initiated criminal prosecution against the driver for cheating. But a close reading of Sec.61B(2) of the Act and going through the facts of the case in the decision (supra) I am afraid, argument of learned counsel cannot be accepted. What sub-sec. (2) of Sec.61B says is that it is open to the owner of the tool, rope, chain, boat, etc., used for the commission of the offence to prove to the satisfaction of the Authorised Officer that such user was made without the knowledge or connivance of the registered owner, his agent if any or the person in charge of the tool or such other instrument as sated therein. Question is whether the words “and the person in charge of the tool, etc.,” would include driver of the vehicle? According to the learned counsel it will not, while learned ## **W.P(C) No.600 of 2010** ## -: 6 :- Government Pleader is sure that expression includes “driver” as well. To resolve the controversy reference can be made to **State of Kerala v. Mathew** (supra). That was a case where owner of the vehicle had given instructions to the driver against illicit transportation of timber and in violation of that instruction vehicle was used for such purpose and consequently it was confiscated. Learned District Judge allowed the appeal holding that owner had taken all precautions to prevent such illicit transportation of timber but there was no finding as to question whether driver of the vehicle had taken such precautions. It was held that the order setting aside order of confiscation was illegal and the case was remitted to the learned District Judge to consider that aspect also. 5. It cannot be a case where, if the driver is brought within the purview of the expression “in charge of the tool etc.” the registered owner will be affected. Law in the matter is stringent as laid down by the Division Bench. There could be cases where though driver had taken reasonable precautions vehicle happened to be used for illicit transportation of timber, for e.g., the driver was misled to believe that timber was not collected from the reserve forest and on that belief the driver who had taken all precautions to ## **W.P(C) No.600 of 2010** ## -: 7 :- prevent illicit transportation of timber carried the same in his vehicle. Therefore it is not as if the expression 'person in charge of the tool, etc.” will not take in driver of the vehicle concerned. I have gone through the order of the learned District Judge and find that learned District Judge has not adverted to the question whether the driver had taken all precautions to prevent commission of the offence. Though learned Government Pleader has taken me through the statement of the driver, I do not think it necessary to decide that issue in this proceeding since it was for the learned District Judge to consider that matter and decide whether driver also had taken all precautions as required in Sec.61B (2) of the Act and as laid down by the Division Bench in the decision (supra). I am also not inclined to think that in a proceeding under Article 226 of the Constitution of India this Court for the first time should enter a finding in that regard. As such the proper course is to set aside the order under challenge and remit the case to the learned District Judge for fresh decision in the light of relevant provisions of law stated and the decision of Division Bench (supra). 6. It is seen that the Bank Guarantee was ordered to be returned consequent to the setting aside of the order of confiscation ## **W.P(C) No.600 of 2010** ## -: 8 :- under Ext.P1. Now that order of learned District Judge is being set aside, consequently Ext.P3 order I.A. No.1572of 2009 is also liable to be set aside and I do so. Writ Petition is allowed by way of remand. Exhibit P2, order is set aside and the matter is remanded to the learned District Judge, Kollam for appropriate decision after consideration of the relevant aspects in the light of the provision of law and the decision of the Division Bench (supra). Learned District Judge shall pass appropriate orders on F.A.O. No.76 of 2003 untrammelled by the observations contained in this judgment. I direct that learned District Judge shall pass orders on I.A. No.1572 of 2009 consequent to the order to be passed on F.A.O. No.76 of 2003. Parties shall appear in the court of learned District Judge, Kollam on 25.03.2010. ## **THOMAS P.JOSEPH, JUDGE.** vsv