{"id":87553,"date":"2010-02-19T00:00:00","date_gmt":"2010-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-s-rajesh-vs-divisional-forest-officer-on-19-february-2010-2"},"modified":"2016-10-12T22:53:58","modified_gmt":"2016-10-12T17:23:58","slug":"v-s-rajesh-vs-divisional-forest-officer-on-19-february-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-s-rajesh-vs-divisional-forest-officer-on-19-february-2010-2","title":{"rendered":"V.S.Rajesh vs Divisional Forest Officer on 19 February, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
V.S.Rajesh vs Divisional Forest Officer on 19 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP.No. 1148 of 2004()\n\n\n1. V.S.RAJESH, S\/O. SREEDHARAN NAIR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. DIVISIONAL FOREST OFFICER, KOZHIKODE.\n                       ...       Respondent\n\n2. THE RANGE OFFICER,\n\n                For Petitioner  :SRI.T.G.RAJENDRAN\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :19\/02\/2010\n\n O R D E R\n               S.S.SATHEESACHANDRAN, J.\n                   -------------------------------\n                  C.R.P.NO.1148 OF 2004\n                                 &\n               W.P.(C).NO.23674 OF 2005 ()\n                 -----------------------------------\n        Dated this the 19th day of February, 2010\n\n                           O R D E R\n<\/pre>\n
     The revision and the writ petition arise from a common<\/p>\n
judgment rendered by the learned District Judge, Kozhikode in<\/p>\n
C.M.A.Nos.47 and 105 of 2003. The above two miscellaneous<\/p>\n
appeals were filed against the orders passed by the Divisional<\/p>\n
Forest Officer, Kozhikode division confiscating two mini<\/p>\n
lorries bearing Nos.KL-11\/B-9720 and KL-11\/H-4119, both<\/p>\n
allegedly involved in the illicit transportation of forest<\/p>\n
produce from a reserve forest.\n<\/p>\n<\/p>\n
     2. Revision petitioner in C.R.P.No.1148 of 2004 is the<\/p>\n
owner of a mini lorry, KL-11\/B-9720, which was ordered to be<\/p>\n
confiscated by the Divisional Forest Officer. The other vehicle<\/p>\n
involved in the confiscation proceedings, namely, KL-11\/H-<\/p>\n
4119 belong to the 1st respondent in the writ petition. Though<\/p>\n
                        C.R.P.NO.1148 OF 2004
\n                                  &
\n                      W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                  2<\/span><\/p>\n
the Divisional Forest Officer had ordered for confiscation of<\/p>\n
both the vehicles on the basis of the findings entered in his<\/p>\n
enquiry conducted in accordance with Section 61B of the<\/p>\n
Kerala Forest Act, in the appeals preferred by the respective<\/p>\n
owners of the vehicles, C.M.A.No.47 of 2003 filed by the<\/p>\n
1st respondent in the writ petition and C.M.A.No.105 of 2003<\/p>\n
by the petitioner in the revision, the learned District Judge has<\/p>\n
set aside the confiscation order passed over the vehicle<\/p>\n
KL-11\/H-4119 owned by the 1st respondent in the writ petition.<\/p>\n
Confiscation order passed against the other vehicle, KL-11\/B-<\/p>\n
9720, owned by the appellant in C.M.A.No.105 of 2003, (the<\/p>\n
petitioner in the C.R.P) was confirmed by the learned District<\/p>\n
Judge holding that no grounds have been made out to<\/p>\n
interfere with the order of confiscation. Revision has been<\/p>\n
filed by the above said owner impeaching the propriety and<\/p>\n
correctness of the judgment rendered by the learned District<\/p>\n
Judge confirming the order of confiscation over his vehicle<\/p>\n
dismissing his appeal C.M.A.No.105 of 2003. State along with<\/p>\n
the Forest Officer has filed the writ petition challenging the<\/p>\n
propriety and correctness of the judgment rendered by the<\/p>\n
                        C.R.P.NO.1148 OF 2004
\n                                  &
\n                      W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                  3<\/span><\/p>\n
learned District Judge setting aside the order of confiscation<\/p>\n
passed over the vehicle KL-11\/H-4119 belonging to the<\/p>\n
appellant in C.M.A.47 of 2003 by allowing the above appeal.<\/p>\n
      3. I heard the learned counsel appearing for the revision<\/p>\n
petitioner and also the Special Govt. Pleader (Forests). The<\/p>\n
respondents in the writ petition are also represented by the<\/p>\n
same counsel who appeared for the petitioner in the revision.<\/p>\n
Since common questions of fact and law are involved and the<\/p>\n
revision and writ petition arise from a common judgment<\/p>\n
passed by the court below, after being heard together, they<\/p>\n
are disposed under a common judgment.\n<\/p>\n<\/p>\n
      4.   Short facts involved in the case leading to the<\/p>\n
confiscation proceedings of the two vehicles can be summed<\/p>\n
up thus:\n<\/p>\n<\/p>\n
      During the course of a routine inspection on 31.7.2002,<\/p>\n
the Forest Range Officer, Thamarassery Forest Range found<\/p>\n
some persons cutting down timber from the reserve forest.<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 4<\/span><\/p>\n
Seeing the forest party, one among them ran away and made<\/p>\n
himself scarce, but, his companions, the remaining two<\/p>\n
persons found at the site were apprehended. They were found<\/p>\n
engaged in sawing a fallen tree. A mahazar was prepared<\/p>\n
over the stump, and the forest produce with the tools seen was<\/p>\n
seized into custody.      A crime was registered over the<\/p>\n
occurrence and during its investigation the culprit, who had<\/p>\n
escaped from the spot was also apprehended.                The<\/p>\n
investigation disclosed that a number of rose wood trees were<\/p>\n
cut and removed from the reserve forest on 31.10.2002 and<\/p>\n
transported from that site in the mini lorry KL-11\/B-9720<\/p>\n
owned by the revision petitioner to the residence of one<\/p>\n
Mammunni, and, later, from his residence, it was transported<\/p>\n
in another mini lorry KL-11\/H-4119 owned by the 1st<\/p>\n
respondent, to a saw mill and cut to pieces of various sizes.<\/p>\n
Involvement of the two vehicles owned by the respective<\/p>\n
persons as indicated above, the revision petitioner and also<\/p>\n
the 1st respondent in the writ petition, being revealed in the<\/p>\n
investigation, the forest official concerned filed a report<\/p>\n
before the authorised officer along with the statements<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 5<\/span><\/p>\n
recorded from the persons apprehended, who were involved in<\/p>\n
the commission of the forest offence.           The District Forest<\/p>\n
Officer, prima facie, being satisfied that proceedings under<\/p>\n
Section 61A of the Kerala Forest Act for the confiscation of the<\/p>\n
vehicles involved in the commission of the forest offence have<\/p>\n
been made out, issued show cause notice to the owners of<\/p>\n
both the vehicles. Pursuant to such notice after conducting<\/p>\n
enquiry,   satisfied  from     the    materials    produced   that<\/p>\n
confiscation of the vehicles has to be made, orders thereof<\/p>\n
were passed confiscating the two vehicles, and that gave rise<\/p>\n
to the two C.M.Appeals at the instance of the respective<\/p>\n
owners of the vehicles.\n<\/p>\n<\/p>\n
     5. The learned District Judge as seen from the impugned<\/p>\n
judgment found that the materials produced in the case<\/p>\n
convincingly established the involvement of the vehicle<\/p>\n
KL-11\/B-9720 in the illicit transportation of the forest produce<\/p>\n
from the reserved forest to the residence of Mammunni.<\/p>\n
Confiscation order passed over that vehicle was upheld by the<\/p>\n
learned District Judge negativing the challenges raised by the<\/p>\n
                         C.R.P.NO.1148 OF 2004
\n                                   &
\n                       W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                   6<\/span><\/p>\n
owner\/the revision petitioner. So far as the order confiscating<\/p>\n
the other vehicle, considering all materials and especially the<\/p>\n
statement made by the driver of the vehicle that he was<\/p>\n
unaware of that teak logs were also in the timber. When his<\/p>\n
vehicle was hired and used to transport various items of<\/p>\n
timber to a saw mill.      The explanation offered by the driver<\/p>\n
was found reasonable to hold that there was no incriminating<\/p>\n
circumstance to conclude that he had knowingly done any act<\/p>\n
in the illicit transportation of the forest produce in his lorry or<\/p>\n
committing of a forest offence. In that view of the matter, the<\/p>\n
learned District Judge set aside the confiscation order passed<\/p>\n
over the vehicle KL-11\/H-4119. As already stated, the owner<\/p>\n
of the vehicle KL-11\/B-9720 has filed the revision against the<\/p>\n
confiscation order passed over his vehicle confirmed by the<\/p>\n
learned District Judge, and the State against the judgment,<\/p>\n
setting aside of the confiscation order passed over the other<\/p>\n
vehicle KL-11\/H-4119 belonging to the 1st respondent in the<\/p>\n
writ petition.\n<\/p>\n<\/p>\n
     6.     The learned counsel for the revision petitioner<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 7<\/span><\/p>\n
inviting my attention to Section 52 (1) of the Kerala Forest<\/p>\n
Act, 1961 contended that in the present case there was no<\/p>\n
material whatsoever showing the involvement of the vehicles<\/p>\n
in the commission of any forest offence leave alone the<\/p>\n
transportation of forest produce in such vehicles. Section 52<\/p>\n
(1) of the Act contemplates of the seizure of the vehicle<\/p>\n
involved in the forest offence only when it is being used in the<\/p>\n
course of the transportation, is the submission of the counsel.<\/p>\n
Section contemplate of seizure of the timber or other forest<\/p>\n
produce, together with tools, vehicles etc. and not of a seizure<\/p>\n
of the vehicle separately long after the commission of the<\/p>\n
offence on an allegation that it had been used for illicit<\/p>\n
transportation of timber or other forest produce, is the<\/p>\n
submission of the counsel. It is further submitted that other<\/p>\n
than the statements recorded from the persons who are<\/p>\n
imputed of having committed the forest offence, there was no<\/p>\n
other material to connect the involvement of the vehicles in<\/p>\n
the commission of the forest offence, leave alone the illicit<\/p>\n
transportation of the forest produce as alleged in the case.<\/p>\n
Referring to Section 72 (d) of the Kerala Forest Act, it is<\/p>\n
                        C.R.P.NO.1148 OF 2004
\n                                  &
\n                      W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                  8<\/span><\/p>\n
contended the evidence recorded by the forest officer to be<\/p>\n
accepted and acted upon should satisfy that such evidence has<\/p>\n
been recorded in the manner provided by the Code of Criminal<\/p>\n
Procedure. Lastly, it is also contended by the learned counsel<\/p>\n
that in the show cause notice issued by the authorised officer,<\/p>\n
the grounds on which preliminary satisfaction was arrived to<\/p>\n
proceed for confiscation of the vehicle had not been given<\/p>\n
expression to, and to that extent, the owners of the vehicles<\/p>\n
proceeded against were prejudiced in submitting their<\/p>\n
representations to the proposed confiscation. That material<\/p>\n
irregularity in the issue of notice which had been canvassed in<\/p>\n
the appeal memorandum, according to the counsel, has<\/p>\n
significance and vital importance as it has a bearing on the<\/p>\n
legality and correctness of the confiscation proceedings<\/p>\n
initiated against the owners of the vehicles. On the other<\/p>\n
hand, the learned Special Govt. Pleader inviting my attention<\/p>\n
to Forest Range Officer v. Aboobacker<\/a> (1989 (1) KLT<\/p>\n
871) contended that the statements collected during the<\/p>\n
course of investigation by the forest officer as well as the<\/p>\n
statements taken by the forest officer in the course of the<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 9<\/span><\/p>\n
enquiry over the confiscation proceedings are relevant<\/p>\n
materials and can be safely acted upon in passing final orders<\/p>\n
of confiscation. Reference is also made by the learned counsel<\/p>\n
on D.F.O., Kothamangalam v. Sunny Joseph<\/a> (2002 (3)<\/p>\n
KLT 641) to contend that there need not be simultaneous<\/p>\n
seizure of the timber or forest produce. The learned District<\/p>\n
Judge went wrong in interfering with the order of confiscation<\/p>\n
passed over the vehicle KL-11\/H-4119 owned by the 1st<\/p>\n
respondent in the writ petition solely on the basis of the<\/p>\n
explanation offered by the driver of that vehicle, is the<\/p>\n
submission of the learned Special Govt. Pleader. The material<\/p>\n
circumstance that the forest produce involved and transported<\/p>\n
in that vehicle to the saw mill is rose wood is pointed out to<\/p>\n
contend that it could be identified as a forest produce even by<\/p>\n
a layman.     According to the Special Govt. Pleader, that<\/p>\n
circumstance was not taken into account and considered by<\/p>\n
the learned District Judge while interfering with the<\/p>\n
confiscation order. So much so, it is contended that the order<\/p>\n
setting aside the confiscation order of that vehicle in favour of<\/p>\n
the 1st respondent in the writ petition is liable to be interfered<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 10<\/span><\/p>\n
with and the order of confiscation passed over the vehicle<\/p>\n
(KL-11\/H-4119) by the District Forest Officer has to be<\/p>\n
restored. It is further submitted that the revision against the<\/p>\n
concurrent decision ordering confiscation of the vehicle<\/p>\n
(KL-11\/B-9720) does not have any merit, and it is liable to be<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
     6. I have considered the rival submissions made by the<\/p>\n
learned counsel for the revision petitioner, who appeared for<\/p>\n
the 1st respondent in the writ petition as well, and also the<\/p>\n
learned Special Govt. Pleader (Forest)           Considering the<\/p>\n
submissions made with reference to the common judgment<\/p>\n
impugned in the revision and the writ petition, I find that the<\/p>\n
challenges canvassed in the revision against the decision of<\/p>\n
the learned District Judge confirming the confiscation order<\/p>\n
passed by the Divisional Forest Officer over the vehicle KL-<\/p>\n
11\/B-9720 owned by the revision petitioner cannot be<\/p>\n
accepted either on fact or under law. As rightly pointed out by<\/p>\n
the Special Govt. Pleader (Forest), there need not be a<\/p>\n
simultaneous seizure of the vehicle in which the forest<\/p>\n
                         C.R.P.NO.1148 OF 2004
\n                                   &
\n                       W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                   11<\/span><\/p>\n
produce had been transported, with the timber or forest<\/p>\n
produce during the course of commission of the forest offence.<\/p>\n
If that be so in very many cases where involvement of the<\/p>\n
vehicles in the illicit transportation is detected long after the<\/p>\n
cutting removal of the trees and forest produce, no<\/p>\n
confiscation proceedings can be initiated. I need not dwell<\/p>\n
much    on   that    aspect     since    this     Court inD.F.O.,<\/p>\n
Kothamangalam v. Sunny Joseph<\/a> (2002 (3) KLT 641) has<\/p>\n
unequivocally stated that the wordings in Section 52 of the<\/p>\n
Kerala Forest Act do not contemplate of a simultaneous<\/p>\n
seizure of timber or forest produce and vehicle.             The<\/p>\n
confiscation orders have been passed by the authorised officer<\/p>\n
solely on the basis of the statements of the alleged culprits<\/p>\n
involved in the commission of forest offence, and so much so,<\/p>\n
there is no worth mentioning evidence to support the<\/p>\n
involvement of the vehicles proceeded for confiscation,<\/p>\n
another challenge raised by the learned counsel for the<\/p>\n
revision petitioner and the 1st respondent in the writ petition,<\/p>\n
cannot be accepted.       The mahazer prepared over the site<\/p>\n
where the offenders were apprehended, the circumstance that<\/p>\n
                        C.R.P.NO.1148 OF 2004
\n                                  &
\n                      W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                  12<\/span><\/p>\n
such persons were involved in sawing the cut down timber in a<\/p>\n
reserved forest etc. have also to be taken into account in<\/p>\n
appreciating the statements recorded from them during the<\/p>\n
investigation of the crime registered over the occurrence. It<\/p>\n
has also come out that the driver of the vehicle KL-11\/B-9720<\/p>\n
owned by the revision petitioner had also given a statement<\/p>\n
that the forest produce cut down from the reserve forest had<\/p>\n
been removed from the reserve forest to the house of one<\/p>\n
Mammunni. During the course of the enquiry conducted by<\/p>\n
the forest officer, as seen from the impugned judgment, that<\/p>\n
driver had retracted from the previous statement. However,<\/p>\n
after scrutiny of the materials placed, the involvement of the<\/p>\n
above driver and also the vehicle in the illicit transportation of<\/p>\n
the forest produce from the reserve forest to the house of the<\/p>\n
aforesaid Mammunni, as concluded by the authorised officer<\/p>\n
was approved by the learned District Judge. After examining<\/p>\n
the file relating to the confiscation proceedings, the District<\/p>\n
Judge was satisfied that the confiscation order passed over<\/p>\n
that vehicle is proper and correct. I find no ground has been<\/p>\n
made out for interfering with the confiscation order as<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 13<\/span><\/p>\n
confirmed by the learned District Judge over the vehicle<\/p>\n
KL-11\/B-9720, in exercise of the revisional jurisdiction. In the<\/p>\n
show cause notice, the owners had not been informed of the<\/p>\n
grounds on which proceedings were initiated for confiscation<\/p>\n
of the vehicles, no doubt, was a challenge which should have<\/p>\n
been raised atleast before the appellate court and not before<\/p>\n
this Court in revision. There is nothing on record to show that<\/p>\n
the show cause notice issued suffers from any material defect.<\/p>\n
But, on the contrary, what is seen is that reasonable<\/p>\n
opportunity had been given before the confiscation order had<\/p>\n
been passed.\n<\/p>\n<\/p>\n
     7. The writ petition filed by the State challenging the<\/p>\n
order setting aside of the confiscation order over the vehicle<\/p>\n
KL-11\/H-4119 owned by the 1st respondent in the petition does<\/p>\n
not warrant any interference, as it is seen that the explanation<\/p>\n
offered by the driver of that vehicle, which had been found<\/p>\n
reasonable and acceptable by the learned District Judge, is<\/p>\n
possible in the given facts of the case. At any rate, there was<\/p>\n
nothing on record that the driver or the owner of the vehicle<\/p>\n
                       C.R.P.NO.1148 OF 2004
\n                                 &
\n                     W.P.(C).NO.23674 OF 2005 ()<\/p>\n
                                 14<\/span><\/p>\n
had any knowledge or that they have not taken reasonable<\/p>\n
opportunity to prevent the use of the vehicle for illicit<\/p>\n
transportation of the forest produce. That being so, the writ<\/p>\n
petition deserves only to be dismissed.\n<\/p>\n<\/p>\n
      Both the revision and writ petition are dismissed.<\/p>\n
                             S.S.SATHEESACHANDRAN
\n                                          JUDGE<\/p>\n
prp<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court V.S.Rajesh vs Divisional Forest Officer on 19 February, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-87553","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nV.S.Rajesh vs Divisional Forest Officer on 19 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-s-rajesh-vs-divisional-forest-officer-on-19-february-2010-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.S.Rajesh vs Divisional Forest Officer on 19 February, 2010 - 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