High Court Kerala High Court

State Of Kerala vs V. Bhaskaran on 12 July, 2007

Kerala High Court
State Of Kerala vs V. Bhaskaran on 12 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 23672 of 2005(R)


1. STATE OF KERALA,
                      ...  Petitioner
2. THE DIVISIONAL FOREST OFFICER, KANNUR.

                        Vs



1. V. BHASKARAN, S/O. AMBUKKAN,
                       ...       Respondent

2. THE DISTRICT JUDGE, KASARGODE.

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  : No Appearance

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :12/07/2007

 O R D E R
                        PIUS C. KURIAKOSE, J.

              -----------------------------------------------
                       W.P.(C)No. 23672 OF 2005
              -----------------------------------------------
                   DATED THIS THE 12th July 2007

                           J U D G M E N T

In this writ petition under Article 227, the petitioners namely the

State represented by Conservator of Forests, Northern Circle,

Kozhikode and the Divisional Forest Officer, Kannur are challenging

Ext.P2 judgment of the District Court, Kasaragod allowing an appeal

preferred by the first respondent against Ext.P1 order of confiscation

passed by the 2nd respondent regarding vehicle jeep bearing No.KBE

3054 involved in a forest offence . It is stated that forest produce

consisting of cut rosewood timber removed from the reserve forest

was seized while the same was being transported in the vehicle

invoking Section 52 of the Kerala Forest Act. Stump mahazar was

prepared from forest area. Confiscation order was passed by the 2nd

respondent, authorized officer on being satisfied that the vehicle was

used for committing forest offences under Section 61 A of the Kerala

Forest Act. Against that confiscation order, Civil Miscellaneous Appeals

were preferred before the 2nd respondent, District Court. By a

common order on 15-1-1997, the District court set aside the order

and remanded the matter for fresh consideration. Pursuant to that the

WP(C)No.23672/2005
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authorized officer afforded opportunity to the first respondent for

cross examination of witnesses and thereafter again passed a

confiscation order on 10-4-1999, copy of which is produced as Ext.P1.

Against Ext.P1, the first respondent owner filed C.M.A.No.37/1999 and

one Padmamnabhan, driver filed C.M.A.No.38/1999 before the 2nd

respondent. The 2nd respondent court on considering the appeals set

aside Ext.P1 and allowed the appeal preferred by the owner. Ext.P2 is

copy of the judgment of the District Court. On noticing that in spite of

service of notice the first respondent is not entering appearance,

I directed the Government Pleader to serve a copy of the writ petition

on the Advocate who was appearing for the first respondent before

the District Court and accordingly a copy was served on Advocate

Mr. K.A.Lalan. Inter alia, Mr.Lalan has stated in the

acknowledgement issued by him regarding the notice that after

finalization of the case he has not retained the back files and that the

same were returned to the first respondent. He has also stated that

he is not aware of the present whereabouts of the first respondent.

However, he has assured that he shall endeavor to send a letter to

him requesting him to come and collect the copy of the writ petition

which was served on him.

WP(C)No.23672/2005
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2. Today when the case came up for hearing, there was no

appearance for the first respondent and I have heard the submissions

of Sri. Ranjith Thampan,Special Government Pleader for forest cases

on behalf of the petitioners. He drew my attention to the judgment of

this Court in Chandrababu v. Sub Inspector of Police, 1988(2)

K.L.T.529 and that of the Division Bench of this Court in State of

Kerala v. Mathew, 1995(2) K.L.T.772. Sri. Ranjith Thampan

addressed me extensively on the various grounds raised in the writ

petition. He submitted that unless and until the person in charge of

the vehicle had taken reasonable and necessary precautions against

the use of the vehicle for illegal purposes, the person is not entitled

for the benefit of sub-section (2) of Section 61-A of the Kerala Forest

Act. It was the burden of the first respondent owner to establish all

the three postulates of the section. Counsel submitted that having

found that the accused have admitted their guilt and that the

offences have been compounded. The learned Judge should not have

given importance to the value of the timber seized, charges paid to

the driver and such other irrelevant considerations. The learned

Special Government Pleader also referred to the judgment of the

Supreme court in State of W.B. v. Gopal Sarkar,(2002(1)SCC

WP(C)No.23672/2005
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495); D.F.O., Kothamangalam v. Sunny Joseph,(2002(3)KLT

641) and State of W.B. & Others v. Sujit Kumar Rana, (2004(4)

SCC 129) and submitted that the entire reasoning of the learned

District Judge was contrary to the principles laid down by the Supreme

Court in those decisions. The nature of confiscation proceedings are

not penal and therefore the learned District Judge’s observation that a

notice would have been served on the owner “to account for the use

of the vehicle on the relevant date when the timber produce was

transported in that vehicle” is totally unwarranted. Confiscation of a

vehicle envisages a civil liability though it is true that commission of a

forest offence is one of the principle requisites for passages an order

of confiscation. Gravity of the guilt of the accused is an irrelevant

factor while deciding whether a confiscation order should be passed.

3. Having considered the submissions made before me by

Mr.Ranjith Thampan in the light of the principles laid down in the

division Bench of this court in Mathew’s case (supra) and also the

judgment of Thomas J. in Chandrababu’s case (supra), I have no

difficulty to hold that that the learned District Judge was in error while

interfering with Ext.P1 order of confiscation. As noticed by the Division

Bench, sub-section (2) of Section 61-A can operate only on the

WP(C)No.23672/2005
-5-

contribution of three postulates. The first is that it the owner was

totally unaware of the illicit use, the second is that he had taken all

reasonable and necessary precautions against such use and the third

is that the person in charge of the vehicle (driver in this case) has also

taken reasonable and necessary precautions against such use. In

the instant case the first respondent has not been successful in

establishing all the three postulates.. The burden was on him and he

has not discharged that burden. The result is that I set aside Ext.P2

in so far as it pertains to C.M.A.No.37/1999 Ext.P1 will stand revived

in full.

The writ petition is allowed as above.

(PIUS C.KURIAKOSE, JUDGE)

ks.