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High Court of KeralaSingle JudgeWrit petition disposed of; remand to the Additi...

State of Kerala v. Santhosh N.

Case / Petition Number:WP(C).No.1552/2009-I

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Harun-ull-Rashid, J.
Judgment Date
2010-10-08
Court Decision / Holding
Writ petition disposed of; the Additional District Court, Pathanamthitta, is directed to decide CMA No.27/1996 afresh in light of Apex Court decisions cited in this judgment and to dispose of the matter in accordance with law within three months from the 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.
Final Disposition
Writ petition disposed of; remand to the Additional District Court, Pathanamthitta, to decide CMA No.27/1996 afresh in light of Apex Court decisions within three months; parties may raise all contentions at hearing.

Parties to the Case

Appellants / Petitioners

  • State of Kerala, represented by the Conservator of Forests, Southern Circle, Kollam

Respondents

  • Santosh N., Kuzhilayil, Vattakkavumkal, Konni

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri.M.P.Prakash, SPL.Govt. Pleader (Forest).

Counsels for Respondents

  • • Adv. Sri.Sunil Jacob Jose

Case Synopsis & Summary

This writ petition under Article 227 of the Constitution of India challenges Ext.P1, an order passed under Section 61A of the Kerala Forest Act by the Divisional Forest Officer (Konni) confiscating a jeep (Regn. No. KL1-5165) along with teak billets allegedly illicitly collected and transported. The case traces seizure and confiscation arising from OR No.1/1996 at Kumaramperoor Forest Station, Konni Range, for illicit timber. The Divisional Forest Officer issued the confiscation order on 31 May 1996. The vehicle’s owner challenged Ext.P1 in CMA No.27/1996 before the Additional District Court, Pathanamthitta, which eventually led to a judgment dated 20 February 2007 setting aside the confiscation and allowing the CMA. The State argues that value of the vehicle is not a relevant factor for determining confiscation under 61A and relies on earlier Kerala High Court and Supreme Court precedents, including Sukumara Panicker and Govind Singh, along with Ancy Philip. Apex Court decisions later held that disposal under 61A must consider non-obstante provisions and Section 69 presumptions, and that disposal can occur only after timber production before the Magistrate per Section 54. The Kerala High Court, noting the reversal of the prior line of authority by the Apex Court, remands the matter to the District Court for fresh decision in light of those rulings within three months, with liberty for both sides to advance contentions at hearing.

Provisions of Law Cited

Article 227 of the Constitution of IndiaSection 61A of the Kerala Forest ActSection 54 of the Kerala Forest ActSection 69 of the Kerala Forest Act

Legal Doctrines & Maxims

  • Non-obstante clause in Section 61A
  • Legal presumption under Section 69 of the Kerala Forest Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that confiscation under Section 61A is a standalone mechanism for penalizing illicit forest offences and is not contingent upon the value of the confiscated vehicle. It asserts that the court should not be confined by interpretations that place reliance on the value of the vehicle and that the non-obstante clause in Section 61A, as well as the presumption under Section 69, guide the confiscation process even if timber production before the Magistrate is not strictly required. It relies on the authorities including Sukumara Panicker (though later reversed by the Apex Court) and Govind Singh to support its position that the primary concern is the illegality of the act and the statutory framework rather than the vehicle’s value.

Contentions of Respondents

The Respondent contends that the CMA judgment (which set aside Ext.P1) was rightly influenced by the need to consider the value of the timber and vehicle and to ensure due process under Sections 54 and 61A. It relies on prior Kerala High Court decisions including Ancy Philip (2006) and related authorities to argue that timber must be produced before the Magistrate and disposal should occur following appropriate orders under Section 54, and that simultaneous seizure of timber and vehicle is not mandatory. It asserts that the decision in Ancy Philip (SC) requires a correct interpretation of Section 54 and non-obstante effects, emphasizing the procedural prerequisites for confiscation and disposal.”},

Cited Precedents (5)

Case NameCitationTreatmentExplanation
State v. Sukumara Panicker(1987) 2 KLT 341OverruledApex Court later reversed the logic of this Full Bench decision, rendering its stance on seizure/confiscation under 61A improper in light of later authoritative guidance.
State of Jharkhand and another v. Govind Singh((2005) 10 SCC 437Mentioned OnlyCited by the Government Pleader as a supportive authority; the judgment does not elaborate on its application or treatment beyond its mention.
State of Kerala v. Ancy Philip(2006) 1 KLT 699OverruledApex Court in 2008 (SC) reversed this decision, holding a different interpretation of Section 54 and disposal procedures.
D.F.O., Kothamangalam v. Sunny Joseph(2002) 3 KLT 641PositiveUsed by counsel to argue that there need not be simultaneous seizure of timber and vehicle; later Supreme Court guidance casts a different light but this decision is cited in the argument.
State of Kerala v. Ancy Philip(2008) 3 KLT 477 (SC)OverruledApex Court held the High Court misinterpreted Section 54; disposal must follow production and orders, overruling the earlier Kerala HC interpretation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932** **WP(C).No. 1552 of 2009(I)** **------------------------------------** **[CMA.NO.27/1996 OF ADDL. DISTRICT COURT, PATHANAMTHITTA]** **....................** **PETITIONER:** **-------------------** **STATE OF KERALA, REPRESENTED BY THE CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, KOLLAM.** **BY SRI.M.P.PRAKASH,SPL.GOVT. PLEADER (FOREST).** **RESPONDENT:** **----------------------** **SANTHOSH.N., KUZHIVILAYIL, VATTAKKAVUMKAL, KONNI.** **BY ADV. SRI.SUNIL JACOB JOSE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.1552/2009-I:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE PROCEEDINGS NO. ORDER NO. KN.C 10 349/96 DTD. 31/05/1996 OF THE DIVISIONAL FOREST OFFICER, KONNI.** **EXT.P.2: COPY OF THE JUDGMENT DTD. 20/02/2007 IN CMA.NO.27/1996 OF THE ADDL. DISTRICT COURT, PATHANAMTHITTA.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **HARUN-UL-RASHID,J.** **------------------------------W.P.(C). NO. 1552 OF 2009 ------------------------------DATED THIS THE 8TH DAY OF OCTOBER, 2010** ## **JUDGMENT** State of Kerala is the petitioner and is the lst respondent in CMA.No.27/1996 on the file of the Additional District Court, Pathanamthitta. The respondent herein is the appellant in the said CMA. This writ petition is filed under Article 227 of the Constitution of India seeking to set aside the judgment in CMA.No.27/96. Ext.P1 is the order passed by the Divisional Forest Officer, Konni under Section 61A of the Kerala Forest Act confiscating the Jeep bearing Regn.No.KL1-5165 which was invoved in the case. The vehicle was seized on 21/1/1996 by the Officers of the Forest Department in connection with OR.No.1/1996 of Kumaramperoor Forest Station of Konni Range. The case was registered for the illicit collection of teak billets from the forest dumping depot Njaloor and was transported in the said vehicle. The Divisional Forest Officer, who is the authorised **-2-** WP(C).No.1552/2009 officer, passed order dated 31/5/1996, by which the timber and vehicle are confiscated. Ext.P1 is the copy of the order of confiscation. 2. The respondent who is the owner of the vehicle challenged Ext.P1 order passed in CMA.No.27/96. The learned District Judge set aside the order passed by the Divisional Forest Officer and allowed the CMA as per judgment dated 20/2/2007, which is produced and marked as Ext.P2. The learned District Judge held that the Forest Officer has not considered the value of the vehicle and teak billets while issuing the order. 3. The learned Government Pleader (Forests) submitted that the value of the vehicle is not a relevant aspect for the purpose of considering the question as to whether the vehicle is liable to be confiscated or not. He also relied on the Full Bench decision reported in **State v. Sukumara Panicker (1987 (2) KLT 341)** and the decision of the Apex Court reported in **State of Jharkhand and another v. Govind Singh ((2005)10 SCC 437).** WP(C).No.1552/2009 **-3-** The learned Judge relied on the decision reported in **State of Kerala v. Ancy Philip (2006 (1) KLT 699)** and held that the Forest Officers are bound to produce the timber involved in the forest offence before the Magistrate concerned for a successful prosecution, that confiscation as contemplated under Section 61A of the Kerala Forest Act can be done only after the production of the timber before the Magistrate and after obtaining necessary order in this regard as provided under Section 54 of the Kerala Forest Act. 5. The learned Special Government Pleader (Forest) relying on the decision reported in **D.F.O., Kothamangalam v. Sunny Joseph 2002 (3) KLT 641** submitted that the reasoning of the learned Judge that timber and vehicle shall be seized simultaneously is not legally sustainable, since this Court held that there need not be simultaneous seizure of the timber and vehicle. He also submitted that the decision relied on by the Appellate Court was subsequently reversed by the Apex Court. In the decision **-4-** WP(C).No.1552/2009 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 is a perverse finding and that the same was not warranted by the provisions of law. The Apex Court 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. 6. 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 Judge. In view of the reversal of the judgment of this Court, in exercise of the jurisdiction vested under Article 227 of the Constitution of India, this Court direct the Additional District Court, Pathanamthitta to **-5-** WP(C).No.1552/2009 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.** **-6-** WP(C).No.1552/2009