IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 110 of 2003(A)
1. CHOORAPILAN HAMZA
... Petitioner
2. THANDUPARAKKAL UMMER, S/O.ALAVI HAJI,
Vs
1. THE DIVISIONAL FOREST OFFICER,
... Respondent
2. RANGE OFFICER, FOREST RANGE OFFICE,
3. STATE OF KERALA, REPRESENTED BY CHIEF
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SPL.GOVT.PLEADER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :03/06/2008
O R D E R
HARUN-UL-RASHID,J
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C.R.P.Nos.110 & 150 of 2003
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Dated this the 3rd day of June, 2008
ORDER
Both these revisions arises out of the common judgment in
CMA.Nos.50 and 51 of 1995 on the file of the District Judge,
Manjeri. The revision petitioners are the appellants in the
respective appeals. The first revision petitioner in
C.R.P.No.110/2003 is the present owner of the lorry bearing
registration No.KL-10-4644. The registered owner of the said
lorry is the second petitioner. The petitioner in
C.R.P.No.150/2003 is the registered owner of a Jeep bearing
registration No. KRM 1535. The facts of the case leading to the
confiscation order passed by the Divisional Forest Officer which
was confirmed in appeal by the District Judge is as follows:
2. In the early hours of 6.4.1994, the Forest Officials
seized the said lorry loaded with bamboo poles and the jeep
allegedly running as pilot vehicle for the said lorry. The Forest
Officials, after preparing the Mahazar and under the bonafide
belief that the vehicles are used of illicit transportation of
bamboo poles collected from the reserve forest, have taken the
C.R.P.Nos.110 & 150/2003
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vehicles into custody by order dated 14.8.1995. The Divisional
Forest Officer, Nilambur, passed the order of confiscation of the
said vehicles.
3. The Mahazar shows that 1009 bamboo poles were
loaded in the lorry from the reserve forest. Apart from the driver
and cleaner of the lorry, a third person who is said to be the
Manager of Golden Star Enterprises was also travelling in that
lorry on the date of incident. It is an admitted fact that the
Golden Star Enterprises is the licensee of Gwalior Ryons and the
licensee for collection and transportation of bamboo poles from
forest depots to the depots of the Gwalior Ryons. Sri. Geroge
Mathew is one of the partners of the said firm, including him,
five persons were travelling in the jeep. The Forest Officials
recorded the statement of all the said persons stating that the
bamboo poles were collected from the Vellakatta IV coop and
was meant to be supplied to the Gwalior Ryons. In the statement
given by Sri.Geroge Mathew who is the partner of the company,
he conceded that the bamboo poles seized were collected by him
unauthorisedly from the reserve forest and that on previous
occasions he used to transport bamboo poles in such illicit
manner. From the available materials and on the basis of the
attended circumstances the findings entered by the Divisional
C.R.P.Nos.110 & 150/2003
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Forest Officer confirmed by the District Judge that the transport
of bamboo poles is done illegally and without pass is a finding
validly made.
4. The next question to be considered is whether
confiscation of the vehicles made under Section 61 A is
sustainable under the law. Under Sub Section 2 Section 61 B of
the Kerala Forest Act 1961 no order of confiscating the vehicle
shall be made unless it was proved that the vehicle was used in
carrying the articles without the knowledge and connivance of
the owner himself or any of the person in charge of the vehicle
and that each of them had taken all reasonable and necessary
precautions against such use.
5. The person who hired the vehicle is the licensee of the
Gwalior Ryons. He had been transporting bamboo poles from
the forest depot to the depots of Gwalior Ryons. The driver of
the lorry had also occasion to transport bamboo poles from forest
depot to Gwalior Ryons. On some occasions, when the vehicle
was hired by the licensee, it has come out in evidence that the
manager of the company also accompanied with the driver and
cleaner of the lorry. The licensee of the Gwalior Ryons was a
passenger, along with his own people in the pilot jeep. When a
licensee requested the owner and driver to hire the lorry for
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transportation of bamboo poles to the Gwalior Ryons Company,
no prudent persons may entertain any doubt about the
transactions between the Forest Department and the Gwalior
Ryons Company. It is natural that if offer comes to a lorry owner
or driver to transport bamboo poles from forest to Gwalior
Ryons, naturally they think that the transportation is intended to
be done legally. On going through the evidence, I have also
found that there is no other attendant circumstances to doubt
the events that led to the transportation of bamboo poles. The
authorised officer also failed to prove the attendant
circumstances, pointing out the conduct of the lorry owner or
driver conniving with the licensee for the illicit transportation.
The circumstances under which the vehicle was transported
cannot be presumed that the vehicle was intended to be used for
illegal transporting of bamboo poles and there is no evidence to
show that this was done with the knowledge or connivance of the
owner or driver of the vehicle. The circumstance in this case
shows that no further necessary precautions against illegal use is
necessary. The District Judge has relied on the so called
statement of the driver that, on previous occasions also illicit
transportations were made and that the drivers of the vehicles
was aware of that. This statement is wrongly stated in the
C.R.P.Nos.110 & 150/2003
5
judgment. I have asked the Government Pleader to read the
entire statement. In fact, the records will show that what the
driver stated is that he had occasion to transport the bamboo
poles at the instance of the same licensee and there was no
occasion for him to doubt the genuineness of the transportation.
6. It is not necessary in all cases that the Officer should
confiscate the vehicle under Section 61A of the Act. In this case,
we find that even though allegations are made against the driver
of the lorry and jeep, it is very difficult to believe unless more
convincing evidence was there to conclude that the driver knew
that the trip was undertaken for committing offence. If a person
hires a vehicle, the driver may not be able to know the intention
of the person and if the driver carries such person, it cannot be
said that he connived with him to commit the offence. One
cannot readily infer that the driver was also aware unless there
are other circumstances to show that the driver was involved in
the offence. Such evidence is lacking. I follow the view taken by
the Division Bench in the case reported in D.F.O v. Krishnan
Nair (2002(1) KLJ 657).
7. In the light of the facts and circumstances discussed
above, this Court is of the view that the confiscation of bamboo
poles is validly made, at the same time, confiscation of the
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vehicles namely, the lorry and jeep, and the resultant order is
not legal and valid. In the result, I set aside the order passed by
the Divisional Forest Officer, Nilambur dated 14.8.1995 and the
judgment of the District Judge, Manjeri, in C.M.A.Nos.50 and 51
of 1995. It is submitted by the counsel for the revision petitioner
that during the pendency of the proceedings, the vehicles were
released on the basis of the bank guarantee and solvency
certificate before the Magistrate Court, Manjeri. The Judicial
First Class Magistrate Court, Manjeri is directed to return the
bank guarantee produced in this case and D.F.O to return the
solvency certificate.
The civil revision petitions are allowed.
HARUN-UL-RASHID, JUDGE
dvs