State represented by Divisional Forest Officer, South Wayanad v. K.J. Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY, THE 2ND DAY OF JUNE 2017/12TH JYAISHTA, 1939** **CRP.No. 223 of 2013 () -----------------------** **AGAINST THE JUDGMENT IN CMA 6/2011 of DISTRICT COURT,KALPETTA.** **REVISION PETITIONER/RESPONDENT:-:** **STATE REPRESENTED BY DIVISIONAL FOREST OFFICER, SOUTH WAYANAD.** **BY SPECIAL GOVERNMENT PLEADER SRI.SANDESH RAJA.K.** **RESPONDENT/APPELLANT:-:** **--------------------** **K.J. THOMAS, S/O.JOSEPH, KULATHINKAL HOUES, NADAVAYAL POST, PANAMARAM, WAYANAD DISTRICT, PIN - 670 721.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **A. HARIPRASAD, J. ------------------------------C.R.P No.223 of 2013 ---------------------------------------------Dated this the 2[nd] day of June, 2017** ## **O R D E R** Aggrieved by the judgment passed by the District Judge, Kalpetta in C.M.A No.6 of 2011 under Section 61 D of the Kerala Forest Act, 1961, the State has come up in this revision petition. 2. Heard the learned Special Government Pleader for Forest and perused the impugned judgment and records. 3. The respondent preferred an appeal before the learned District Judge, aggrieved by Order dated 26-04-2011, passed by the Divisional Forest Officer, South Wayanad, Kalpatta whereby the respondent's tractor bearing registration No.KL 12 A/1865 was confiscated for having committed a forest offence by carrying six logs of rosewood timber on 05-07-2010. The respondent contended that at the time of the incident he was not present in India and his wife handed over key of the vehicle to its driver. Without knowledge of the respondent and his wife, the vehicle was used for **C.R.P No.223 of 2013 2** transporting wood unauthorizedly cut from a land assigned to a person under the provisions of the Kerala Land Assignment Act and the Rules. The land was lying as part of forest area. It was the condition at the time of assignment that the person who got the assignment was bound to maintain the timber in question as the property remained with the Government. 4. Learned District Judge found that as the timber was cut and removed from a land assigned to an individual, the proceedings under Section 61 A of the Forest Act could not have been initiated against the respondent. 5. Learned Special Government Pleader contended that the reasoning of the court below is incorrect. Sections 2(e) and 2(f) of the Kerala Forest Act, 1961 ( for short 'the Act') are relevant, which read as follows : _2(e)“forest offence” means an offence punishable under this Act or any rule made thereunder._ _(f) “forest produce” includes_ **C.R.P No.223 of 2013 3** - _(i) the following whether found in or brought from, a forest or not, that is to say - timber, charcoal, wood oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood; and_ - _(ii) the following when found in, or brought from, a forest, that is to say-_ - _(a) trees and leaves, flowers and fruits,_ - _and all other parts or produce not herein before mentioned, of trees;_ - _(b) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants; and_ - _(c) silk cocoons, honey and wax;_ - _(d) peat, surface oil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries;_ 6. Section 61 A is also relevant, which is extracted hereunder : ## _**61 A. 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,_ **C.R.P No.223 of 2013 4** _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 is an property produced before authorised officer under sub-section (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_ **C.R.P No.223 of 2013 5** _confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence._ 7. On a careful reading of Section 61 A of the Act, it can be seen that the paramount consideration has to be whether a forest offence has been committed in respect of timber, charcoal, firewood etc, which is the property of the Government. If that be so, the empowered Officer will have to confiscate the tools, ropes, chains, vehicles etc. under the provisions of the Act. The reasoning of the learned District Judge, based on the provisions in the Kerala Forest (Preservation, reproduction and disposal of trees and timber belonging to Government but grown on lands in the occupation of private persons) Rules, 1975, that confiscation proceedings do not fall within the Forest Act is totally incorrect. A forest offence, as per the definition quoted above, clearly shows that an offence punishable under the Act or any Rule made thereunder. The decision relied on by the learned District Judge for reasoning out as stated above is totally inapplicable to this case. This Court in _**Tomy v. State**_ **C.R.P No.223 of 2013 6** _**of Kerala (2011(3) KHC 655)**_ was dealing with a situation where a criminal prosecution was launched against a person and the consideration was purely under the Kerala Preservation of Trees Act, 1986. This Act is an independent enactment and has no connection with the Act in question. Therefore, the decision referred to in the judgment of the learned District Judge has no connection with the facts of this case. 8. Learned Single Judge of this Court in _**2010(3) KHC 363 (Conservator of Forests, Kollam v. T.M.Sukumaran)**_ has considered an identical question and held as follows : _“ ...... It has to be noted that a forest offence is not confined to a forest produce alone, but on the contrary it includes an offence punishable under the Act or any rule made thereunder. That is made clear by the definition of 'forest offence' under Section (e) of the Act, which reads thus :_ _'forest offence' means an offence punishable under this Act or any rule made thereunder;_ _So much so, forest offences even in non-forest areas also fall within its sweep when an act or_ **C.R.P No.223 of 2013 7** _omission is punishable under the Act or any Rule made thereof is committed. A cursory perusal of the Forest Rules framed under the Act and also the Kerala Prohibition (sic Preservation) of Trees Act, Kerala Preservation of Trees and Regulation of cultivation in Hill Areas Rules, 1983, the Kerala Restriction on cutting and Destruction of Valuable Trees Act, the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 etc. and the penal provisions covered by such Acts and Rules clearly demonstrate that 'forest offence' is inclusive and takes care of offences committed even in non-forest areas, but of course, subject to the provisions of the Kerala Forest Act and the Rules. When viewed in that perspective, it is to be noticed that S.52 of the Act, dealing with seizure of property in relation to a forest offence is not confined to 'forest produce' as defined in S.2(f) of the Act, but applicable in the case of 'timber' or 'trees' in respect of which a forest offence is believed to have been committed. It is an undisputed fact that the logs carried in the vehicle were cut and removed from an anjili tree situate in a land presumably a forest , but assigned_ **C.R.P No.223 of 2013 8** _and patta issued with restriction in cutting and removing of such trees. As on the date of cutting and removal, the exemption granted by the Government earlier in cutting of anjili trees in such properties stood withdrawn and thus, a restriction over the cutting and removal of such trees was in force is not under challenge. Such trees belonged to the Government and the persons in whose favour assignment had been made over such land had no right to cut and remove such trees. The vehicle was seized when it was transporting timber cut and removed from anjili trees which belonged to the Government. Essentially where the timber carried in the vehicle was cut and removed from the trees belonging to the Government, the land over which the provisions of the Act and the Rules are applicable, the question of a notification showing such land as a Reserved Forest, which may not be so after assignment of such land made in favour of the occupants, is irrelevant and it does not have any bearing on the legality, propriety and correctness of the confiscation proceedings. There is absolutely no merit in the challenges canvassed_ **C.R.P No.223 of 2013 9** _by the counsel questioning the empowerment of the authorised to commence officer confiscation proceedings, in the present case, under S.61A of the Act.”_ 9. The facts and circumstances in this case is similar to those in the decision mentioned above. Therefore, I am of the view that the impugned order is unsustainable. 10. My attention is drawn to paragraph 11 of the impugned judgment where the learned District Judge has held that the owner of the vehicle had left India on 24-08-2009 and he returned only on 29-07-2010. The incident was on 05-07-2010 and therefore there was no evidence to hold that the respondent was in the know of things. It was also found by the learned District Judge that the respondent's wife also had no prior knowledge that the vehicle was being used for the illegal transport of forest produce. 11. Learned Special Government Pleader contended on the basis of a decision in _**State of Kerala v. Mathew (1995 KHC 386 )**_ that it is for the respondent to establish those facts. The observation **C.R.P No.223 of 2013 10** ## made by the Division Bench reads as follows : _“5. The restriction against the confiscation contained in sub-s.(2) can operate only on the combination of three postulates. First is that the owner or his agent was totally unaware of the illicit use. Second is that he had taken all reasonable and necessary precautions against such use. Third is, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. If the owner succeeds in satisfying only the first two postulates, he would not get the benefit of the restriction against confiscation. The third condition is as important as the other two and unless that also is established no advantage would practically enure to the owner of the, vehicle. Sub-section(2) would remain at bay if the third condition remains unsatisfied._ _6. The contention that such a strict view would adversely affect an innocent vehicle owner cannot be countenanced since any narrow or liberal interpretation of confiscatory provisions in the Act can eventually lead to disastrous consequences_ **C.R.P No.223 of 2013 11** _for forest wealth which is a very endangered bounty of nature. The idea behind extension of confiscatory provisions to vehicles etc., is to convey a peremptory and explicit message to the vehicle owners not to allow their vehicles to be used for depletion of forest wealth. If any vehicle is caught in the nefarious act of carrying illicit forest produce, it is not enough that the owner establishes his innocence alone. If he wants to retrieve his vehicle he must show further that the person who was in charge of the vehicle has taken reasonable and necessary precautionary measures against such user of the vehicle. The owner cannot rest with establishing his innocence in the matter. It may be that having succeeded in showing his innocence his failure to establish the next limb might lead to hard consequences to him. Legislature intended, by providing such stringent conditions, to prevent harder consequences for the society and for the posterity. ”_ In any view of the matter, the impugned judgment is unsustainable in law. **C.R.P No.223 of 2013 12** In the result, the revision petition is allowed. The impugned judgment passed by the District Judge, Kalpetta in the above C.M.A is set aside. The order passed by the Divisional Forest Officer, South Wayanad, Kalpetta is restored. Sd/- **A. HARIPRASAD** **JUDGE** //True copy// P.A to Judge **amk**