Kerala High Court
Raju vs State Of Kerala
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938
WP(C).No. 5550 of 2006 (I)
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PETITIONER(S):
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RAJU, S/O. KANTHAN,
AGED 32 YEARS, THALAYAR ESTATE,
PAMPANMALA DIVISION,
NOW RESIDING AT KANTHAN BHAVAN-3,
MARAYOOR,, DEVIKULAM TALUK.
BY ADVS.SRI.T.V.GEORGE
SMT.LINDA GEORGE
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO FOREST
AND WILD LIFE DEPARTMENT, TRIVANDRUM.
2. DIVISIONAL FOREST OFFICER (A.O),
MUNNAR DIVISION, IDUKKI DIST.
BY SRI. SANDESH RAJA SPL. G.P.FOR FOREST
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SKG
WP(C).No. 5550 of 2006 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1. TRUE COPY OF CONFISCATION ORDER DATED 26.06.02 PASSED BY
THE DIVISIONAL OFFICER, MUNNAR
P2. TRUE COPY OF APPEAL PREFERRED BY THE PETITIONER, AS
C.M.A.NO.1269/02 BEFORE THE DISTRICT COURT, THODUPUZHA
P3. TRUE COPY OF JUDGMENT DATED 27.09.05, IN C.M.A 1269/02
PASSED BY THE ADDITIONAL DISTRICT COURT, THODUPUZHA.
P4. TRUE COPY OF JUDGMENT IN O.P.NO.27932/01 DATED 27/09/01,
PASSED BY A LEARNED SINGLE JUDGE OF THIS HON'BLE COURT.
P5. TRUE COPY OF BANK GUARANTEE DTD. 14/05/02 ISSUED BY THE
UNION BANK OF INDIA, KANTHALLOOR BRANCH
P6. TRUE COPY OF FRESH BANK GUARANTEE DTD. 14/05/05, ISSUED BY
THE UNION BANK OF INDIA, KANTHALLOOR BRANCH
P7. TRUE COPY OF THE FORM-I, SEIZURE REPORT IN OR NO.29/01
P8. TRUE COPY OF THE SEIZURE MAHAZAR DATED 15/07/01 IN OR
NO.29/01
P9. TRUE COPY OF THE JUDGMENT IN CC.NO.219/03
P10. TRUE COPY OF THE JUDGMENT IN CC.NO.126/03
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/
P.S. TO JUDGE
SKG
P.V.ASHA, J.
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W.P(C) No.5550 of 2006-I
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Dated this the 28th day of February, 2017
JUDGMENT
The petitioner is challenging the order Ext.P1 by which confiscation of the vehicle involved in a forest offence was confirmed by the 2nd respondent - Divisional Forest Officer, Munnar Division. He is also challenging Ext.P3 judgment in C.M.A.No.1269 of 2002 - the appeal filed under Section 61(D) of the Kerala Forest Act against Ext.P1 order.
2. The case of the petitioner is that he is the owner of a Jeep with registration No.KL4/F.6858, which was seized by the Forest Officials, on 16.07.2001, alleging involvement in a forest offence. The Jeep was carrying logs of sandal wood in five gunny bags in late hours on 15.7.2001. It was the case of the forest officials that those sandal wood pieces were collected from the sandal wood trees of reserve forest. Along with the Jeep of the petitioner another Jeep with registration No.KL.8/B-977 was also seized and forest cases were registered against the accused including the driver of the petitioner's vehicle.
3. The petitioner, along with the owner of the other Jeep, W.P(C) No.5550 of 2006-I 2 which was seized in connection with the forest offence, had approached this court in O.P.No.27932 of 2001 alleging that the vehicles were not being released. As the proceedings were initiated under Section 61A of the Kerala Forest Act, the learned Government Pleader submitted that the vehicles cannot be returned. As the petitioner had already filed applications seeking interim custody of the vehicles, under the provisions contained in the Kerala Forest Act, this court by its judgment dated 27.09.2001 in O.P.No.27932 of 2001 directed the respondents to consider those applications and release the vehicles after getting necessary security in accordance with the rules. Accordingly the vehicles were returned to the petitioner on furnishing bank guarantee. It was thereafter that Ext.P1 order was passed by the Divisional Forest Officer.
4. The order Ext.P1 would show that the confiscation order was passed on the basis of the mahazar report in O.R.29 of 2001 dated 16.7.2001, judgment dated 27.09.2001 in O.P.27932 of 2001, notice dated 12.12.2001 and enquiry report dated 6.5.2002. In Ext.P1 order the D.F.O found that the logs of sandal wood were collected from the reserve forest, referring to the measurements of the sandal wood logs and the stems which W.P(C) No.5550 of 2006-I 3 remained in the reserve forest. When the forest officials intercepted the vehicles carrying the logs of sandal wood, the lorry was taken in high speed and thereafter the driver and the occupants in the vehicles sped away. It was further stated that on the basis of the directions issued by this court in the judgment in the original petition a detailed enquiry was conducted and the owners of the Jeep had given their statements. According to the owners they have not committed any offence and the drivers of their vehicles were given strict instructions not to carry any contraband articles in their vehicles. The D.F.O did not accept their version. Accordingly orders were issued confiscating both the vehicles. As against this Ext.P1 order the petitioner submitted Ext.P2 appeal before the District Collector, Thodupuzha. The case of the petitioner was that if at all any sandal wood was found in the Jeep it was without permission from the petitioner. The petitioner was not driving the vehicle. It was also his case that the forest officials had previous enmity with the petitioner and that there was no evidence that the Jeep was used for committing any forest offence. It was also his case that no mahazar was prepared by the officials at the time of seizure apart from the allegation that W.P(C) No.5550 of 2006-I 4 no enquiries were conducted by the D.F.O consistent with the principles of natural justice. The learned District Judge passed Ext.P3 order upholding the confiscation ordered in Ext.P1. After referring to the entire files it was found that there was mahazar prepared by the forest officials, according to which the Jeep was involved in the forest offence. The learned District Judge repelled the contention of the petitioner that the vehicle was purchased only 3 days prior to the seizure of the vehicle, observing that that cannot be a reason for absolving the petitioner. It was found that though the version of the petitioner was that the driver was engaged through the general secretary of high range automobile workers union and strict instructions were given not to use the vehicle to carry any contrabanned articles, he did not care to examine the general secretary of the union or any witness to prove the same. Therefore, the contention of the petitioner seeking the benefit of sub section 2 of Section 61(D) of the Kerala Forest Act was not found acceptable. The court found that the commission of offence was in the wee hours of 15.07.2001 and in case the petitioner was cautious enough, there was no possibility for using the vehicle at those hours. Regarding the contention of the petitioner that the W.P(C) No.5550 of 2006-I 5 principles of natural justice was violated while issuing Ext.P1 proceedings, the learned Judge after perusing the files found that the authorised officer has complied with the mandate of section 61(D) of the Kerala Forest Act. In view of those findings Ext.P1 order was upheld. It is the order Ext.P3, upholding Ext.P1 order, which is under challenge in this writ petition.
5. The learned counsel for the petitioner raised several contentions with the support of a catena of decisions. In the meanwhile immediately before the hearing, the writ petition was also got amended producing the orders passed in the cases which were registered by the forest officials and producing the judgment in C.C.Nos.219 and 126 of 2003 and it was argued that the forest officials could not prove the charges framed against the petitioner.
6. An additional ground was incorporated in the writ petition stating that under Section 61A of the Kerala Forest Act, 1961 a confiscation can be effected only after a forest offence is believed to have been committed in respect of the property of the Government. But in this case even though the offence is alleged to have been committed on 15.07.2001 and a seizure mahazar prepared, no charge sheet or report was filed before W.P(C) No.5550 of 2006-I 6 the court in O.R.29 of 2001 and ultimately the criminal cases ended in acquittal of the petitioner. It was, therefore, stated that the confiscation order Ext.P1 was liable to be quashed. Yet another contention raised was that there was no notice issued before confiscation and that if at all a notice was issued no reason was stated in that notice in tune with Section 61B of the Kerala Forest Act.
7. The learned counsel for the petitioner argued that the vehicles were intercepted by the forest officials and a search was carried out without a search warrant, in violation of Section 165 of the Criminal Procedure Code. It was the further contention of the petitioner that when the driver committed the offence without the knowledge of the owner, the owner cannot be made liable. Yet another contention raised was that this court in its various decisions, interpreted the procedure prescribed in Section 61B.
8. In support of this contention, the learned counsel for the petitioner relied on the judgment of this Court in State of Kerala v. Chandran Nair [2012 (1) KLT 712] and Abraham v. State of Kerala [2014(3) KLT 187].
9. The learned Special Government Pleader, vehemently W.P(C) No.5550 of 2006-I 7 opposed the contentions raised by the petitioner with the support of a series of decisions which upheld the authority of the authorised officer under Section 61A of the Kerala Forest Act. It was pointed out that the sandal wood was being transported without a pass and therefore there was a presumption that the offence was committed under the Kerala Forest Act. In support of this contention, the learned Special Government Pleader Forest relied on various judgments of this court and the Apex Court in State of Kerala and Ors. v. Ancy Philip and Anr. [2008(3) KHC 256], Divisional Forest Officer and Anr. v. G.V.Sudhakar Rao and Ors. [AIR 1986 SC 328], Sasidharan v. Forest Range Officer [1999 KHC 428 = 1999 (2) KLT 836], State of Kerala v. Bharath Booshan [2009 (1) KLT SN 29 (C.No.31)], State of West Bengal and Anr. v. Mahua Sarkar [2008(2) KHC 347(SC)], State of Kerala v. Margrate Joshy [1999(3) KLT 359], State of Kerala v. Mathew [1995(2) KLT 772] etc. Pointing out that it was for the owner to prove that he had no knowledge about the action of the driver, the learned Government Pleader pointed out that the petitioner had failed to prove the said fact for claiming the benefit of Section 61B(2), as held in the decision reported in State of West Bengal and W.P(C) No.5550 of 2006-I 8 Anr. v. Mahua Sarkar [2008(2) KHC 347(SC) = (2008) 12 SCC 763]. The judgment of the Apex Court in State of West Bengal v. Gopal Sarkar [AIR 2002 SC 221] was also relied on. It was further pointed out that the petitioner has not raised any ground in this writ petition that there was no show cause notice. It was also pointed out that such a ground was not urged in the appeal Ext.P2 also. The learned Special Government Pleader explained the purpose for which Section 61A was introduced in the Kerala Forest Act in 1975 as can be seen from the statement of reasons and the amendment effected in the year 1975 introducing Section 61(A) to (F) in the book.
10. Even though a series of contentions were raised on either side in view of the specific contention raised by the petitioner, though not seen raised either in the appeal or in the writ petition, I had called for the records leading to Exts.P1 and P3 in the light of the judgment of this court in State of Kerala v. Chandran Nair [2012 (1) KLT 712].
11. From the records it is seen that the notice dated 12.12.2001 was issued to the petitioner in the light of the judgment of this court in O.P.No.27932 of 2001. By this notice the petitioner was asked to appear before the Divisional Forest W.P(C) No.5550 of 2006-I 9 Officer to furnish all the materials and evidence in support of their claim for the custody of the vehicle and it was informed that in case the requisite records are not produced, further proceedings would be initiated under Section 61A of the Act. Further the statements furnished by the petitioner pursuant to this notice were recorded and considered and Ext.P1 Government Order was passed thereafter.
12. In the judgment in Chandran Nair's case (supra) , this court, in paragraph 9, held as follows:
"9. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx Confiscation proceedings demand issue of a notice under S.61B of the Act informing the grounds on which it is proposed to order confiscation for violation of a forest offence. In that notice, he should be posted with the particulars of the case, the grounds on which an opinion has been formed by the authorised officer to initiate such proceedings against him. xxxxx xxxxx xxxx xxxx xxxx xxxx xxxx"
The said judgment was followed in the decision reported in Abraham v. State of Kerala [2014 3 KLT 187] also.
13. Even though the notice is seen issued on the basis of the time bound directions of this court, it is seen that the notice does not state any of the grounds on which the officer formed an opinion as to the commission of offence by the petitioner, as required under Section 61B of the Kerala Forest Act.
14. Normally the respondents ought to have been given W.P(C) No.5550 of 2006-I 10 an opportunity to proceed afresh in such circumstances. But it is seen that the seizure of the vehicle was as early as on 16.7.2001. Moreover, the petitioner has produced the judgments in the criminal case filed on the basis of the O.R in which the respondents failed to file any charge sheet consequent to which the accused persons were acquitted.
15. Under the above circumstances, it is seen that the forest officials who were seen vigilant on 16.07.2001 failed to proceed further in the matter, in accordance with law and proceeded in gross violation of the provisions contained in the Kerala Forest Act.
16. Even though in this case the petitioner had participated in the enquiry before the D.F.O fully knowing the offences alleged against him, and hence there was no violation of the principles of natural justice in issuing Ext.P1 order, in view of the judgments rendered by this court in the aforesaid decisions, I am constrained to quash the orders Exts.P1 and P3. As in the aforesaid cases, in this case almost 17 years have elapsed since the date of confiscation. Therefore it will not be apposite for this court at this stage to direct the officials to proceed afresh especially when they did not succeed in proving W.P(C) No.5550 of 2006-I 11 the O.R case.
In the above circumstances, it is not necessary to deal with the other contentions raised in this writ petition. The order Ext.P1 and the judgment Ext.P3 are set aside. Accordingly, the writ petition is allowed.
Sd/-
(P.V.ASHA, JUDGE) rtr/