T. V. Joseph v. State of Kerala & Ors

_**OP(C).2113/2012**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **OP(C) NO. 2113 OF 2012** **AGAINST THE ORDER/JUDGMENT IN CMA 83/2003 OF I ADDITIONAL DISTRICT COURT, TRIVANDRUM, THIRUVANANTHAPURAM PETITIONER/S:** T.V.JOSEPH AGED 66 YEARS KOCHUPARAMBIL, KUMBLAMPOIKA P.O., PATHANAMTHITTA DISTRICT. BY ADV SRI.V.PHILIP MATHEW ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF FOREST, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2 THE AUTHORIZED OFFICER AND DIVISIONAL FOREST OFFICER THIRUVANANTHAPURAM. BY ADVS. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.7.2021, THE COURT ON 06.09.2021 DELIVERED THE FOLLOWING: _**OP(C).2113/2012**_ 2 ## **V.G.ARUN, J.** ## **----------------------------------------------O.P(C).No. 2113 of 2012 ----------------------------------------------Dated this the 6[th] day of September, 2021** ## **JUDGMENT** The petitioner is the owner of a Mahindra Pickup Van bearing registration No.KL-03-F-3976. On 21.7.2002 the vehicle was intercepted by the Forest Range Officer, Paruthipally and two elephant tusks recovered from the vehicle. The driver and two passengers in the vehicle were arrested, the vehicle and the elephant tusks seized and O.R.No.12/2002 registered at the Paruthipally Forest Range. Thereafter, prosecution was initiated against the accused as C.C.No.123 of 2003 of the Judicial Magistrate of First Class-II (Forest Offences), Punalur for offences under Sections 9, 39(b), 40(2), 49(B) and 57 of the Wildlife Protection Act, 1962. The petitioner was arrayed as the 4[th] accused in the case. As regards the vehicle, confiscation proceedings under Section 61A of the Forest Act was initiated and the vehicle confiscated _vide_ order dated 26.2.2003. 2. In the meanwhile, the petitioner approached the forest authorities seeking release of his vehicle. Since his application was not considered, the petitioner filed O.P.No.34877 of 2002. By _**OP(C).2113/2012**_ 3 judgment dated 29.11.2002, this Court directed the forest officials to release the vehicle after accepting sufficient bank guarantee, if the proceedings against the petitioner could not be completed within three weeks. As the direction was not complied with, the petitioner moved Contempt of Court Case before this Court and thereupon, the respondents undertook to release the vehicle. Consequently, the petitioner was made to furnish bank guarantee for Rs.2,50,000/- and the vehicle released to him on interim custody. 3. Later, by judgment dated 31.8.2010, the jurisdictional Magistrate acquitted the petitioner and convicted accused 1 to 3 in C.C.No.123 of 2003. The court held that the prosecution had failed to prove the petitioner's involvement is the offence and had entrusted the vehicle with the 1[st] accused with the knowledge that the vehicle may be used for commission of a forest offence. The bank guarantee furnished by the petitioner was encashed by the respondents. Thereafter, the petitioner produced the vehicle as directed in Exhibit P1 communication dated 31.3.2004, but the respondent permitted him to keep custody of the vehicle, since the bank guarantee had been encashed. The petitioner later filed Exhibit P5 representation, requiring the respondents to delete the endorsement regarding confiscation of his vehicle entered in the registration certificate and to give him the right to deal with the vehicle independently. The petitioner also challenged the order of _**OP(C).2113/2012**_ 4 confiscation in C.M.A.No.83 of 2003. The appeal was dismissed by the First Additional District Court, Thiruvananthapuram _vide_ Exhibit P2 order dated 22.3.2006. This original petition is filed seeking to quash Exhibit P2 order and for a declaration that the respondents have no right to interfere with the petitioner’s ownership or possession over the Mahindra Pickup Van bearing registration No.KL-03-F-3976 based on Exhibit P2 and incidental proceedings. 4. Heard Sri.V.Philip Mathews, learned Counsel for the petitioner and Sri.Sandesh Raja K., learned Special Government Pleader (Forest). 5. Learned counsel for the petitioner contended that the vehicle could not have been seized or confiscated, since ivory (Elephant Tusks) does not fall within the definition of ‘forest produce’ under Section 2(f) of the Kerala Forest Act, 1961. In support of the contention, learned counsel cited the decision of the Apex Court in _**State of Kerala v. P.V.Mathew**_ [AIR 2012 SC 1502]. It is further contended that the vehicle was liable to be released, the petitioner having been acquitted by the criminal court. Finally it is contended that the bank guarantee for Rs.2,50,000/- having been encashed, the vehicle is liable to be released unconditionally, considering the efflux of time and the depreciation in the value of the vehicle. 6 _. Per contra_ , learned Special Government Pleader contended that the acquittal in a criminal case will have no impact _**OP(C).2113/2012**_ 5 on the decision under Section 61A of the Act. The _non obstante_ clause provides for confiscation, on the authorised officer being satisfied that a forest offence has been committed in respect of such property seized under Section 52. Section 61A is applicable when a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government. Further, as per Section 61B(2) an order for confiscation under Section 61A can be averted only on the owner of the vehicle proving to the satisfaction of the Authorised Officer that the vehicle was used in carrying the timber, charcoal, firewood or ivory without the knowledge or connivance of the owner, his agent, if any, and the person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use. Therefore, confiscation cannot be avoided by only the owner proving that the vehicle was used for transportation of the contraband without his knowledge or connivance. The owner should also prove that such transportation was without the knowledge of the person in charge of the vehicle at the time of detection of the offence. In support of the contentions, reliance is placed on the decision of this Court in _**State of Kerala v. Mathew**_ [1995 (2) KLT 772] and that of the Honourable Supreme Court in _**Wildlife Warden v. Komarrikkal Elias**_ [(2018) 8 SCC 114]. 7. The definition of ‘forest produce’ under Section 2(f) is as follows; _**OP(C).2113/2012**_ 6 “ _(f) “forest produce” includes-_ - _(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,-_ _1. Trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;_ _2. 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 soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries).”_ It is hence evident that ivory does not fall within the meaning of ‘forest produce’ under the Act. Section 52 of the Act provides for seizure of timber, or other forest produce together with all tools, ropes, chains, bolts, vehicles and cattle believed to have been used for committing a forest offence. Section 61A providing for confiscation reads as under; ## “ _61A._ _**Confiscation by Forest Officers in certain**_ _**cases.-** Notwithstanding anything contained in the foregoing provisions of this chapter, where a forest office is_ _**OP(C).2113/2012**_ 7 _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 subsection (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 ofForests (hereinafter referred to as the authorised officer._ _(2) Where an authorised officer seizes under subsection (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 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 confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence.”_ In Section 61A the term ‘forest produce’ is not used. The Section provides for confiscation of tools, ropes, chains, bolts, vehicles and cattle believed to have been committed in respect of, timber, charcoal, firewood or ivory which is the property of the Government. In view of the _non obstante_ clause, confiscation can be affected irrespective of whether the offence is committed with _**OP(C).2113/2012**_ 8 respect to a forest produce or not. In _**Mathew**_ (supra) it was held that ivory is excluded from the ambit of forest produce and consequently, ivory is also excluded from the ambit of forest offence under Section 2(e) of the Act. It is also held that even if reference to ivory is made in Section 61A(2), the vehicle used for transportation cannot be confiscated. Later, in _**Komarikkal Elias**_ (supra), after referring to Section 39(1) of the Wildlife (Protection) Act, 1972 it was held that ivory shall be deemed to be the property of the State Government and where an animal is hunted in a sanctuary or national park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal shall be the property of the Central Government. It was therefore held that irrespective of whether ivory is a forest produce or not under Section 2(f) of the 1961 Act, the presumption under Section 69 is attracted. 8. Going by the plain meaning of Section 61A and decisions of the Honourable Supreme Court, I am of the considered opinion that ivory being property of the Government, is liable to be confiscated if a forest offence is believed to have been committed in respect of such property. 9. The next question to be considered is whether acquittal of the petitioner, arrayed in his capacity as the owner of the vehicle, is sufficient to avert the confiscation in view of Section 61B(2). This question was considered in _**Mathew**_ (supra), wherein _**OP(C).2113/2012**_ 9 the Division Bench, after considering the scope and ambit of the provisions, held as under; “ _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 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.”_ 10. Therefore, inasmuch as the petitioner failed to prove that the person in charge of the vehicle had taken all reasonable and necessary precaution against use of the vehicle for commission of the alleged offence and it was put to such use without his _**OP(C).2113/2012**_ 10 knowledge or connivance, the petitioner’s acquittal will not have any impact on the confiscation. 11. The only other question is regarding the claim for unconditional release of the vehicle. The petitioner having filed Exhibit P6 representation seeking such relief, the respondents are bound to take a decision thereon. While taking the decision, the respondents may take into account the fact that the bank guarantee furnished way back on 28.4.2003 was subsequently encashed. The depreciation in the value of the vehicle over a period of 18 years is yet another relevant factor. In the result, the original petition is disposed of permitting the petitioner to submit an appropriate representation within two weeks of receipt of a copy of this judgment. On such representation being filed, the 1st respondent shall afford an opportunity of hearing to the petitioner, through physical or virtual mode and pass orders thereon within an outer limit of three months from the date of submission of the representation. ## **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**OP(C).2113/2012**_ 11 ## **APPENDIX OF OP(C) 2113/2012** PETITIONER EXHIBITS - EXHIBIT P1 COPY OF THE COMMUNICATION DAED 31.03.2014 ISSUED BY THE DIVISIONAL FOREST OFFICE, THIRUVANANTHAPURAM - EXHIBIT P2 COPY OF THE JUDGEMENT DATED 22-03-2016 IN CMA NO.83/2003 PASSED BY THE FIRST ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM - EXHIBIT P3 COPY OF NOTICE NO.G3-3928/02 DATED 12.10.2016 - EXHIBIT P4 COPY OF THE JUDGEMENT DATED 31.08.2010 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT II ,(FOREST), PUNALUR - EXHIBIT P5 COPY OF THE REGISTRATION CARD ISSUED BY REGIONAL CANCER CENTER, THIRUVANANTHAPURAM EXHIBIT P6 COPY OF THE REPRESENTATION DATED 08.03.2012 SUBMITTED BY PETITIONER TO 2ND RESPONDENT