Kerala High Court
K.K.Moideen vs Assistant Wild Life Wardern on 2 September, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 285 of 2008()
1. K.K.MOIDEEN, KACHAYIL HOUSE,
... Petitioner
2. T.ASHRAF, THOLAN HOUSE,
Vs
1. ASSISTANT WILD LIFE WARDERN,
... Respondent
2. FOREST RANGE OFFICER, THOLPETTY RANGE,
For Petitioner :SRI.S.M.PRASANTH
For Respondent :SRI.C.P.PEETHAMBARAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/09/2010
O R D E R
'CR'
THOMAS P JOSEPH, J.
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C.R.P.No.285 of 2008
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Dated this 02nd day of September, 2010
ORDER
Could the authorised officer confiscate a property which is either admitted or proved to be not belonging to the Government of Kerala together with the vehicle etc used to transport such property under Sectin 61A(2) of the Kerala Forest Act, 1961 (for short, "the Act")?
That is the question I am called upon to answer in this revision arising from judgment of learned District Judge in C.M.A.No.8 of 2006 confirming order No.W4-3397 of 2004 dated 27-06-2005 of the Wild Life Warden, Waynad Wild Life Division, Sulthan Bathery, (for short, "the Authorised Officer").
2. Short facts necessary for a decision of the question are:
On 08-08-2004 at about 9.30 p.m the forest officials intercepted lorry bearing reg. No. KL-11/E 4995 carrying bunches of banana covered with banana leaves at the forest check post at Tholpetty. On examination it was found that the lorry was carrying sawn and sized rosewood logs. The driver took C.R.P.No.285 of 2008 : 2 : to his heels. The lorry and rosewood logs were seized on preparing a mahazar. Petitioners later produced some documents before the forest officials claiming that the rosewood logs were purchased from one Mathew and Subramanian. The Forest Range Officer produced the rosewood logs and lorry before the authorised officer as provided under Section 61A(1) of the Act (as if the rosewood logs were property of the Government). The authorized officer gave notice to the petitioners as required under Section 61B(1)(a) of the Act but they did not respond. The authorised officer passed the impugned order confiscating the rosewood logs and lorry holding that the rosewood logs are property of the Government. Petitioners challenged the order before the learned District Judge. Learned District Judge did not accept claim of petitioners that the rosewood logs were collected from Mathew and Subramanian and confirmed the order of confiscation. That judgment is under challenge. It is contended by learned counsel for petitioners that there is sufficient evidence to show that petitioners collected the rosewood logs from Mathew and Subramanian as the documents produced before the forest officials revealed. It is also contended that at any rate, even going by the version of the forest officials the rosewood logs were C.R.P.No.285 of 2008 : 3 : brought from the forests of Karnataka State in which case, it cannot be said to be property of "the Government" meaning thereby the Government of Kerala and hence confiscation under Section 61A(2) of the Act is illegal. Learned counsel has placed reliance on the decision in Bhargavan Vs. Divisional Forest Officer (1994(1) KLT 29). Learned Special Government Pleader appearing for respondent Nos.1 and 2 contend that petitioners had not taken part in the enquiry conducted by the authorised officer. There is no evidence to show that the rosewood logs were collected from Mathew or Subramanian as contended by petitioners. Petitioners, without obtaining pass as required under the Kerala Forest Produce Transit Rules, 1975 (for short, "the Rules") has imported the rosewood logs into the State of Kerala and thereby committed a 'forest offence' in respect of the said rosewood logs. It is contended that to order confiscation under Section 61A(2) of the Act it is not necessary that property should belong to the Government of Kerala. According to the learned Special Government Pleader, having regard to the objective of incorporating Sections 61A to F in the Act this court has to adopt a purposive interpretation. It is also contended by learned Special Government Pleader that as per the definition of the expression "the Government" in Section 3(23) of C.R.P.No.285 of 2008 : 4 : the General Clauses Act (1897), the expression could mean any State Government. Learned Special Government Pleader has placed reliance on the decisions in Ramrichpal Agarwalla and Ors. Vs. The State of West Bengal (AIR 1958 Calcutta 257) and The Election Commission of India Vs. Nem Chandra Jain and Ors. (AIR 1984 SC 399).
3. It is not in dispute that the lorry together with the rosewood logs was seized by the forest officials on 08-08-2004 at about 9.30 p.m at the check post at Tholpetty. According to the petitioners, they had collected the rosewood logs from Mathew and Subramanian and produced certain documents before the forest officials to support their claim. Learned District Judge considered those documents. Three of those documents are photocopy of agreements dated 01-06-1976, 16-07-2002 and 28- 08-2003 allegedly executed by Subramanian and Mathew. Learned District Judge has referred to those documents in paragraphs 12 and 13 of the impugned judgment and has for valid reasons rejected the same. Learned District Judge has observed that though according to petitioner No.2, one Joseph Chacko was driving the lorry at the relevant time, the officials who seized the vehicle reported that Joseph Chacko who appeared before the seizing officer to give statement was not the C.R.P.No.285 of 2008 : 5 : person who was driving the lorry at the time of seizure. Learned District Judge has referred to the other relevant documents and found that petitioners managed to get the lorry pass through the check post as if it were carrying sawn and sized logs of jackwood. Materials on record revealed that rosewood logs were imported from the State of Karnataka to the State of Kerala. There is no case for petitioners that they had obtained pass for the purpose as required under the Rules. Rule 3(1)(i) of the Rules prohibits import of timber or other forest produce into the State (of Kerala) without a pass. Violation of Rule 3(1)(i) is punishable under rule 23 of the Rules. Section 2(e) of the Act defines "forest offence"
as an offence punishable under the Act or any rule made thereunder. The Rules are framed under Section 30 of the Act. Hence offence punishable under rule 23 of the Rules comes within the definition of "forest offence" as stated above. The authorities below are therefore justified in their satisfaction that a "forest offence" has been committed in respect of the rosewood logs and that lorry involved in the case was used for commission of that offence.
4. Then the next question is whether on the admitted case of respondent Nos.1 and 2 that rosewood logs were collected from the forests in the State of Karnataka and imported C.R.P.No.285 of 2008 : 6 : into the State of Kerala, the authorised officer was justified in ordering confiscation of the rosewood logs and the lorry. The lorry carrying rosewood logs was coming from Kutta side which is the boarder between the States of Karnataka and Kerala and there was evidence to show that the lorry passed the boundary check posts. It is stated in the order of confiscation dated 27-06- 2005 and it is also not disputed before me that as per the version of the forest officials rosewood logs were collected from the forests of the State of Karnataka. It is contended by learned counsel for petitioners that Section 61A(2) of the Act permits confiscation only if timber (charcoal, firewood or ivory) is "the property of the Government". Learned counsel argues that the expression "the Government" occurring in Section 61A(1) of the Act means the government of Kerala. Section 61A of the Act reads as under:
"Confiscation by Forest Officers in certain cases:
Notwithstanding anything contained in the foregoing provisions of this chapter, where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under sub section (1) of Section C.R.P.No.285 of 2008 : 7 : 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as authorised officer).
Where an authorised officer seizes under sub- section (1) of Section 52 any timber, charcoal, firewood or ivory which is the property of the Government or where any such property is produced before an authorised officer under sub-section (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence."
(emphasis supplied) As per the above provision if the official seizing the property under Section 52 of the Act has reason to believe that a forest C.R.P.No.285 of 2008 : 8 : offence is committed in respect of timber, charcoal, firewood or ivory "which is the property of the Government", such officer is to produce such property together with the vehicle etc used to commit the forest offence before the authorized officer. Under sub section (2) of Section 61A, the authorized officer could order confiscation only if he is satisfied that a forest offence has been committed in respect of "such property" (ie. the timber, charcoal, firewood or ivory which is the property of Government") and the vehicle, etc. is used to commit such forest offence.
5. Section 52(1) of the Act empowers the forest officer or police officer to seize "any timber or other forest produce"if he has reason to believe that a forest offence has been committed in respect of it, together with all tools, vehicles etc. used in committing such offence. Under sub section (2) such officer is to make a report of the seizure to the Magistrate concerned. There is no mention in Section 52(1) or (2) whether property seized should be property of "the Government" or not. But the proviso to subsection (2) makes it clear that when timber or forest produce in respect of which a forest offence is believed to be committed "is the property of the Government" and the offender is unknown, it is sufficient if the forest officer makes a report of the circumstances to his official superior. Section 55 of the Act C.R.P.No.285 of 2008 : 9 : empowers the Magistrate trying the forest offence while ordering conviction of the offender to direct confiscation of all timber or other forest produce in respect of which the offence is committed together with tools, vehicles etc used in committing such offence. That provision also does not say whether timber or other forest produce should be property of the Government or not for ordering confiscation. Section 60 of the Act states that where an order for confiscation of "any property" has been passed by the Magistrate under Section 55, or under Section 57 and no appeal has been presented or when any such appeal has been presented but the order of confiscation (by the Magistrate) is confirmed, such property shall vest in the Government free from all encumbrances. It is relevant to note that in Section 60 also there is no classification as to whether the property which is to vest in the Government should be property of the Government or not. But in Section 61A of the Act, specific reference is made to timber, charcoal, firewood or ivory which is "the property fo the Government". It would therefore appear that when the property seized under Section 52 in respect of which a forest offence is believed to be committed is "the property of the Government", the officer seizing such property has to produce such property together with the vehicle etc. used for commission of such C.R.P.No.285 of 2008 : 10 : offence before the authorised officer under Section 61A(1) and the authorised officer can order confiscation only if he is satisfied that a forest offence has been committed in respect of "such property", ie. "the property of the Government"and the vehicle, etc. produced before the authorized officer under sub section (1) or (2) of Section 61A. The decision in Bhargavan Vs. Divisional Forest Officer (supra) is supportive of the above view. There, the property in relation to which offence under rule 3(1)(i) r/w rule 23 of the Rules was allegedly committed was proved to be not belonging to the Government. The order of confiscation was held to be illegal as the property was not property of the Government.
6. Learned Special Government Pleader would rely on Section 69 of the Act to contend that the authorized officer is entitled to presume that any forest produce is the property of the Central or State Government. No doubt, Section 69 provides for such a presumption. `Presumption' is the evidence of things not seen; where , from an apparent effect one may infer a probable cause. It is an inference as to the existence of a fact not actually known arising from its connection with another which is known. It is a conclusion drawn from proof of facts or circumstances and stands as establishing facts until overcome by contrary proof (see C.R.P.No.285 of 2008 : 11 : P. Ramanatha Aiyar, `the Law Lexicon'at page 1505). Until the contrary is proved, the authorized officer could presume that the timber or other forest produce in respect of which a forest offence is believed to be committed is the property of the Central or State Government. But that presumption is not available in the present case since it is the admitted case of respondent Nos.1 and 2 that the rosewood logs were collected from the forests of the State of Karnataka.
7. Then the next question is whether "the Government"
referred to in Section 61A (1) and (2) of the Act means "the Government of Kerala" or, it included the Government of any other Indian State or the Central Government as the learned Special Government Pleader interprets the expression. It is in this connection learned Special Government Pleader invited my attention to the decisions in Ramrichpal Agarwalla and Ors.
Vs. The State of West Bengal and The Election Commission of India Vs. Nem Chandra Jain and Ors. (supra). The Act does not define the expression "the Government". Section 2(j) of the Act defines "State" as meaning "the State of Kerala". In the General Clauses Act, 1897 the expression "Government"or "the Government"is defined in Section 3(23) as including "the Central Government and any C.R.P.No.285 of 2008 : 12 : State Government". The Supreme Court in the The Election Commission of India's case (supra) drew a distinction between "Government" and "the State" referring to Section 21 of the Representation of the People Act and held htat the expression "Government"is not used in that provision as meaning the executive government only. In Ramrichpal Agarwalla's case (supra) it is observed in paragraph 7 that "Government" cannot fall within the ambit of the expression `person' and that State is a country or assemblage of people while the Government is a political agency through which it acts. In Forest Range Officer Vs. Mohammed Ali (1993(1) KLT 886) the Supreme Court held that sandalwood oil would come within the definition of forest produce as defined in Section 2(f) of the Act. These decisions have no application to the facts of the present case.
Section 4A of the General Clauses Act, 1897 states that certain definitions in Section 3 (which includes "Government") shall apply unless there is anything repugnant in the subject or context, to all Indian Laws. Though Section 3(23) defines "Government"or "the Government", it is relevant to note that Section 4A quoted above does not refer to "the Government"but only to "Government". In Section 2(15)(c) of the Kerala Interpretation and General Clauses Act, 1125 the expression C.R.P.No.285 of 2008 : 13 : "Government", "the Government"or "State Government"as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, is defined as meaning "the Government of the State of of Kerala". It is therefore argued that Section 61A(1) of the Act refers to "the Government" which expression having regard to the object of the Act should mean "the Government of Kerala".
8. Sections 61A to F were introduced in the Act by Act 28 of 1975. it is relevant to refer to the introduction of the Kerala Forest (Amendment) Bill, 1975 (for short, "the Bill") in the State Assembly. Introducing the Bill, the Finance Minister (the late) Dr. K G Adiyodi said:
" , 1975 21 -
.
, , .
.
C.R.P.No.285 of 2008 : 14 :
61- .
.
..........
, ........."
(Finance Minister (Dr. K G Adiyodi): Sir, an Ordinance in the name of Kerala Forest Amendment Ordinance had been promulgated on 21st June 1975. This Ordinance has been issued to prevent the circumstance in which timber, wood, ivory etc. are stolen from the forests in Kerala without the knowledge of authorities. This Act has been enacted as the Government are convinced that this is possible only by checking the movement of vehicles C.R.P.No.285 of 2008 : 15 : used for the transportation of this. The Ordinance has been issued incorporating the new provisions in the Kerala Forest Act '61 as there is no provision at present for the effective implementation of punitive measures against the owners of the vehicles, whoever may own the vehicle and from wherever it may come, and the drivers who assist in the illegal transportation. The provisions for seizing the vehicles while illegally transporting timber and other forest produces without permit are incorporated in this. All the lawful provisions have been incorporated in the Bill. When the authorities seize the vehicle carrying timber or other produces, provisions are there in the Bill giving the person, who has been caught, an opportunity to produce any document he has in his possession to prove that the materials do not belong to the Government and file appeals at various stages. The Ordinance was issued earlier and the Bill has been presented before the Assembly as the Government deems this essential for the prevention of forest theft.)
9. The above and the further discussion in the Legislative Assembly indicate that Sections 61A to F was introduced in the Act to prevent illicit removal of timber, ivory from the forests in Kerala, ie. Belonging to the Government of Kerala. This is further clear from the object and reasons of Act 28 of 1975 that:
"It was brought to the notice of the C.R.P.No.285 of 2008 : 16 : Government that there had been large scale illicit removal of timber, charcoal, firewood and ivory belonging to the Government from the forests in the State. The provisions contained in the Kerala Forest Act, 1961 were found to be inadequate to effectively prevent illicit removal of such forest produces belonging to the Government. Therefore it was considered necessary to amend the Kerala Forest Act incorporating deterrent provision to effectively prevent such illicit removal".
10. Thus Sections 61A to F were incorporated in the Act to prevent illicit removal of timber and such other forest produces belonging to the Government of Kerala from the forest in the State of Kerala. Section 61B of the Act gave the opportunity to the person concerned to prove that the timber or other forest produce seized is not the property of the Government (of Kerala). The use of article, "the" before the expression "Government"in Section 61A(1) and (2) indicate that "Government" referred therein is the Government of Kerala. In the circumstances I am unable to accept the interpretation given by learned Special Government Pleader that the expression "the Government" occurring in Section 61A (1) and (2) of the Act should mean not only the Government of Kerala but also C.R.P.No.285 of 2008 : 17 : Governments of other Indian States and the Central Government. It follows that the power for confiscation under Section 61A(2) of the Act is available only when the authorized officer is satisfied that a forest offence has been committed in respect of the property of the Government of Kerala. In the present case even according to the respondents the rosewood logs were collected from forests of State of Karnataka. The order of confiscation as confirmed by the learned District Judge therefore, is illegal and liable to be set aside. The question raised in the revision is answered as above.
11. It is not as if in a situation where timber or other forest produce in respect of which a forest offence is believed to be committed is either admitted or proved to be not the property of the government of Kerala, the government have no other remedy. Such property together with the vehicle, etc. used for commission of the forest offence and seized under Section 52 of the Act could be confiscated by the order of the Magistrate trying the offender under Section 55 or as provided under Section 57 of the Act and such property would then vest with the government as provided under Section 60 of the Act.
Resultantly this revision petition is allowed. The order of confiscation passed by the authorised officer as confirmed by the C.R.P.No.285 of 2008 : 18 : learned District Judge is set aside. The rosewood logs and the lorry shall be released to the petitioners concerned. I make it clear that this order will not prevent respondent Nos.1 and 2 taking other appropriate action in respect of the property seized as provided under law if they are otherwise entitled to that course.
(THOMAS P JOSEPH, JUDGE) Sbna/-
True Copy P.A to Judge