IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1148 of 2004()
1. V.S.RAJESH, S/O. SREEDHARAN NAIR,
... Petitioner
Vs
1. DIVISIONAL FOREST OFFICER, KOZHIKODE.
... Respondent
2. THE RANGE OFFICER,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :19/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
-----------------------------------
Dated this the 19th day of February, 2010
O R D E R
The revision and the writ petition arise from a common
judgment rendered by the learned District Judge, Kozhikode in
C.M.A.Nos.47 and 105 of 2003. The above two miscellaneous
appeals were filed against the orders passed by the Divisional
Forest Officer, Kozhikode division confiscating two mini
lorries bearing Nos.KL-11/B-9720 and KL-11/H-4119, both
allegedly involved in the illicit transportation of forest
produce from a reserve forest.
2. Revision petitioner in C.R.P.No.1148 of 2004 is the
owner of a mini lorry, KL-11/B-9720, which was ordered to be
confiscated by the Divisional Forest Officer. The other vehicle
involved in the confiscation proceedings, namely, KL-11/H-
4119 belong to the 1st respondent in the writ petition. Though
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
2
the Divisional Forest Officer had ordered for confiscation of
both the vehicles on the basis of the findings entered in his
enquiry conducted in accordance with Section 61B of the
Kerala Forest Act, in the appeals preferred by the respective
owners of the vehicles, C.M.A.No.47 of 2003 filed by the
1st respondent in the writ petition and C.M.A.No.105 of 2003
by the petitioner in the revision, the learned District Judge has
set aside the confiscation order passed over the vehicle
KL-11/H-4119 owned by the 1st respondent in the writ petition.
Confiscation order passed against the other vehicle, KL-11/B-
9720, owned by the appellant in C.M.A.No.105 of 2003, (the
petitioner in the C.R.P) was confirmed by the learned District
Judge holding that no grounds have been made out to
interfere with the order of confiscation. Revision has been
filed by the above said owner impeaching the propriety and
correctness of the judgment rendered by the learned District
Judge confirming the order of confiscation over his vehicle
dismissing his appeal C.M.A.No.105 of 2003. State along with
the Forest Officer has filed the writ petition challenging the
propriety and correctness of the judgment rendered by the
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
3
learned District Judge setting aside the order of confiscation
passed over the vehicle KL-11/H-4119 belonging to the
appellant in C.M.A.47 of 2003 by allowing the above appeal.
3. I heard the learned counsel appearing for the revision
petitioner and also the Special Govt. Pleader (Forests). The
respondents in the writ petition are also represented by the
same counsel who appeared for the petitioner in the revision.
Since common questions of fact and law are involved and the
revision and writ petition arise from a common judgment
passed by the court below, after being heard together, they
are disposed under a common judgment.
4. Short facts involved in the case leading to the
confiscation proceedings of the two vehicles can be summed
up thus:
During the course of a routine inspection on 31.7.2002,
the Forest Range Officer, Thamarassery Forest Range found
some persons cutting down timber from the reserve forest.
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
4
Seeing the forest party, one among them ran away and made
himself scarce, but, his companions, the remaining two
persons found at the site were apprehended. They were found
engaged in sawing a fallen tree. A mahazar was prepared
over the stump, and the forest produce with the tools seen was
seized into custody. A crime was registered over the
occurrence and during its investigation the culprit, who had
escaped from the spot was also apprehended. The
investigation disclosed that a number of rose wood trees were
cut and removed from the reserve forest on 31.10.2002 and
transported from that site in the mini lorry KL-11/B-9720
owned by the revision petitioner to the residence of one
Mammunni, and, later, from his residence, it was transported
in another mini lorry KL-11/H-4119 owned by the 1st
respondent, to a saw mill and cut to pieces of various sizes.
Involvement of the two vehicles owned by the respective
persons as indicated above, the revision petitioner and also
the 1st respondent in the writ petition, being revealed in the
investigation, the forest official concerned filed a report
before the authorised officer along with the statements
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
5
recorded from the persons apprehended, who were involved in
the commission of the forest offence. The District Forest
Officer, prima facie, being satisfied that proceedings under
Section 61A of the Kerala Forest Act for the confiscation of the
vehicles involved in the commission of the forest offence have
been made out, issued show cause notice to the owners of
both the vehicles. Pursuant to such notice after conducting
enquiry, satisfied from the materials produced that
confiscation of the vehicles has to be made, orders thereof
were passed confiscating the two vehicles, and that gave rise
to the two C.M.Appeals at the instance of the respective
owners of the vehicles.
5. The learned District Judge as seen from the impugned
judgment found that the materials produced in the case
convincingly established the involvement of the vehicle
KL-11/B-9720 in the illicit transportation of the forest produce
from the reserved forest to the residence of Mammunni.
Confiscation order passed over that vehicle was upheld by the
learned District Judge negativing the challenges raised by the
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
6
owner/the revision petitioner. So far as the order confiscating
the other vehicle, considering all materials and especially the
statement made by the driver of the vehicle that he was
unaware of that teak logs were also in the timber. When his
vehicle was hired and used to transport various items of
timber to a saw mill. The explanation offered by the driver
was found reasonable to hold that there was no incriminating
circumstance to conclude that he had knowingly done any act
in the illicit transportation of the forest produce in his lorry or
committing of a forest offence. In that view of the matter, the
learned District Judge set aside the confiscation order passed
over the vehicle KL-11/H-4119. As already stated, the owner
of the vehicle KL-11/B-9720 has filed the revision against the
confiscation order passed over his vehicle confirmed by the
learned District Judge, and the State against the judgment,
setting aside of the confiscation order passed over the other
vehicle KL-11/H-4119 belonging to the 1st respondent in the
writ petition.
6. The learned counsel for the revision petitioner
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
7
inviting my attention to Section 52 (1) of the Kerala Forest
Act, 1961 contended that in the present case there was no
material whatsoever showing the involvement of the vehicles
in the commission of any forest offence leave alone the
transportation of forest produce in such vehicles. Section 52
(1) of the Act contemplates of the seizure of the vehicle
involved in the forest offence only when it is being used in the
course of the transportation, is the submission of the counsel.
Section contemplate of seizure of the timber or other forest
produce, together with tools, vehicles etc. and not of a seizure
of the vehicle separately long after the commission of the
offence on an allegation that it had been used for illicit
transportation of timber or other forest produce, is the
submission of the counsel. It is further submitted that other
than the statements recorded from the persons who are
imputed of having committed the forest offence, there was no
other material to connect the involvement of the vehicles in
the commission of the forest offence, leave alone the illicit
transportation of the forest produce as alleged in the case.
Referring to Section 72 (d) of the Kerala Forest Act, it is
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
8
contended the evidence recorded by the forest officer to be
accepted and acted upon should satisfy that such evidence has
been recorded in the manner provided by the Code of Criminal
Procedure. Lastly, it is also contended by the learned counsel
that in the show cause notice issued by the authorised officer,
the grounds on which preliminary satisfaction was arrived to
proceed for confiscation of the vehicle had not been given
expression to, and to that extent, the owners of the vehicles
proceeded against were prejudiced in submitting their
representations to the proposed confiscation. That material
irregularity in the issue of notice which had been canvassed in
the appeal memorandum, according to the counsel, has
significance and vital importance as it has a bearing on the
legality and correctness of the confiscation proceedings
initiated against the owners of the vehicles. On the other
hand, the learned Special Govt. Pleader inviting my attention
to Forest Range Officer v. Aboobacker (1989 (1) KLT
871) contended that the statements collected during the
course of investigation by the forest officer as well as the
statements taken by the forest officer in the course of the
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
9
enquiry over the confiscation proceedings are relevant
materials and can be safely acted upon in passing final orders
of confiscation. Reference is also made by the learned counsel
on D.F.O., Kothamangalam v. Sunny Joseph (2002 (3)
KLT 641) to contend that there need not be simultaneous
seizure of the timber or forest produce. The learned District
Judge went wrong in interfering with the order of confiscation
passed over the vehicle KL-11/H-4119 owned by the 1st
respondent in the writ petition solely on the basis of the
explanation offered by the driver of that vehicle, is the
submission of the learned Special Govt. Pleader. The material
circumstance that the forest produce involved and transported
in that vehicle to the saw mill is rose wood is pointed out to
contend that it could be identified as a forest produce even by
a layman. According to the Special Govt. Pleader, that
circumstance was not taken into account and considered by
the learned District Judge while interfering with the
confiscation order. So much so, it is contended that the order
setting aside the confiscation order of that vehicle in favour of
the 1st respondent in the writ petition is liable to be interfered
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
10
with and the order of confiscation passed over the vehicle
(KL-11/H-4119) by the District Forest Officer has to be
restored. It is further submitted that the revision against the
concurrent decision ordering confiscation of the vehicle
(KL-11/B-9720) does not have any merit, and it is liable to be
dismissed.
6. I have considered the rival submissions made by the
learned counsel for the revision petitioner, who appeared for
the 1st respondent in the writ petition as well, and also the
learned Special Govt. Pleader (Forest) Considering the
submissions made with reference to the common judgment
impugned in the revision and the writ petition, I find that the
challenges canvassed in the revision against the decision of
the learned District Judge confirming the confiscation order
passed by the Divisional Forest Officer over the vehicle KL-
11/B-9720 owned by the revision petitioner cannot be
accepted either on fact or under law. As rightly pointed out by
the Special Govt. Pleader (Forest), there need not be a
simultaneous seizure of the vehicle in which the forest
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
11
produce had been transported, with the timber or forest
produce during the course of commission of the forest offence.
If that be so in very many cases where involvement of the
vehicles in the illicit transportation is detected long after the
cutting removal of the trees and forest produce, no
confiscation proceedings can be initiated. I need not dwell
much on that aspect since this Court inD.F.O.,
Kothamangalam v. Sunny Joseph (2002 (3) KLT 641) has
unequivocally stated that the wordings in Section 52 of the
Kerala Forest Act do not contemplate of a simultaneous
seizure of timber or forest produce and vehicle. The
confiscation orders have been passed by the authorised officer
solely on the basis of the statements of the alleged culprits
involved in the commission of forest offence, and so much so,
there is no worth mentioning evidence to support the
involvement of the vehicles proceeded for confiscation,
another challenge raised by the learned counsel for the
revision petitioner and the 1st respondent in the writ petition,
cannot be accepted. The mahazer prepared over the site
where the offenders were apprehended, the circumstance that
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
12
such persons were involved in sawing the cut down timber in a
reserved forest etc. have also to be taken into account in
appreciating the statements recorded from them during the
investigation of the crime registered over the occurrence. It
has also come out that the driver of the vehicle KL-11/B-9720
owned by the revision petitioner had also given a statement
that the forest produce cut down from the reserve forest had
been removed from the reserve forest to the house of one
Mammunni. During the course of the enquiry conducted by
the forest officer, as seen from the impugned judgment, that
driver had retracted from the previous statement. However,
after scrutiny of the materials placed, the involvement of the
above driver and also the vehicle in the illicit transportation of
the forest produce from the reserve forest to the house of the
aforesaid Mammunni, as concluded by the authorised officer
was approved by the learned District Judge. After examining
the file relating to the confiscation proceedings, the District
Judge was satisfied that the confiscation order passed over
that vehicle is proper and correct. I find no ground has been
made out for interfering with the confiscation order as
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
13
confirmed by the learned District Judge over the vehicle
KL-11/B-9720, in exercise of the revisional jurisdiction. In the
show cause notice, the owners had not been informed of the
grounds on which proceedings were initiated for confiscation
of the vehicles, no doubt, was a challenge which should have
been raised atleast before the appellate court and not before
this Court in revision. There is nothing on record to show that
the show cause notice issued suffers from any material defect.
But, on the contrary, what is seen is that reasonable
opportunity had been given before the confiscation order had
been passed.
7. The writ petition filed by the State challenging the
order setting aside of the confiscation order over the vehicle
KL-11/H-4119 owned by the 1st respondent in the petition does
not warrant any interference, as it is seen that the explanation
offered by the driver of that vehicle, which had been found
reasonable and acceptable by the learned District Judge, is
possible in the given facts of the case. At any rate, there was
nothing on record that the driver or the owner of the vehicle
C.R.P.NO.1148 OF 2004
&
W.P.(C).NO.23674 OF 2005 ()
14
had any knowledge or that they have not taken reasonable
opportunity to prevent the use of the vehicle for illicit
transportation of the forest produce. That being so, the writ
petition deserves only to be dismissed.
Both the revision and writ petition are dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp