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
-2-
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
-3-
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
-4-
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.