Karnataka High Court
K. Ekambaram Reddy S/O K. Doraswamy ... vs Deputy Conservator Of Forest, ... on 17 April, 2007
Equivalent citations: ILR2007KAR3197, 2007(5)KARLJ112, 2007 (4) AIR KAR R 81
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. In this case, the petitioner has assailed the validity of the order passed by the 1st respondent dated 29.11.2006 in FOC No. 32/2006-07 whereby and whereunder the 1st respondent has imposed certain conditions for release of the vehicle bearing No. KA-53-711 (a tipper) in his favour.
2. Petitioner is the owner of the aforesaid vehicle. It is the case of the petitioner that he is engaged in the business of transportation of waste mud and sand on contract basis. On the request of the customers, he transports the mud and sand from one place to another place. One Narayan Raju, a contractor hired the vehicle of the petitioner for transportation of mud and sand from the surroundings of I.T.C. Company to Palace ground, Bangalore. On 20.07.2006 at about 12.10 P.M. while the vehicle of the petitioner was transporting the mud and sand, certain officials of the Forest Department seized the vehicle alleging that the vehicle was involved in commission of certain offences. Petitioner has produced a copy of the FIR at Annexure 'B', mahazar at Annexure 'C' and seizure report at Annexure 'D'. It is the case of the petitioner that he has borrowed loan from a financial institution for the purpose of purchase of the said vehicle. On an application filed to the 1st respondent for release of the said vehicle, the 1st respondent has passed an order directing the 2nd respondent to release the vehicle in favour of the registered owner after obtaining a bank guarantee for Rs. 10,00,000/. The 1st respondent has imposed certain other conditions such as the vehicle should not be sold or alienated in any form; that the colour, shape or any material alteration should not be done and that the RC owner should produce the vehicle whenever it is required by the authority and also required by the Court. In this case, the petitioner is only aggrieved by the imposition of the condition directing the petitioner to furnish a bank guarantee for Rs. 10.00 lakhs which is estimated value of the vehicle as the condition for release of the vehicle.
3. The respondents have filed detailed objections. It is contended that the respondents have registered the case under FOC No. 32/2006-07 against certain persons for the offences punishable under Sections 85 and 86 of the Karnataka Forest Act, 1963 (for short 'Forest Act') and Karnataka Forest Rules, 1969 (for short 'Forest Rules') and Section 8 r/w Section 22 of the Karnataka Preservation of Trees Act, 1976 (for short 'Trees Act') and under Section 2(16) and Section 9 r/w Section 51 of the Wild Life (Protection) Act, 1972 (for short 'Wild Life Act') and Section 2 R/w Section 3 of the Forest (Conservation) Act, 1980. It is further contended that the aforesaid case was registered against certain persons on 20.07.2006 for damaging trees including sandal Wood Trees for injuring the standing trees and burrying the trees and other materials underneath the soil by dumping the soil in the wet land area of the Bangalore palace ground, in violation of the aforesaid provisions of the Acts and Rules. Several species of trees including sandal wood trees have been uprooted and buried inside the heap of soil. The wild birds habitat has been destroyed. The vehicle in question and one Scooter bearing No. KA-04/Q-9071 used in the commission of the offences have been seized along with 4 logs of rain trees by the respondents. The seized vehicle was used for commission of forest offences. It is submitted that while seeking interim custody of the vehicle before the 1st respondent, the petitioner has submitted that he is ready to comply with all the conditions, which may be imposed by the Authorised officer for releasing the vehicle. The 1st respondent has obtained the valuation certificate of the vehicle in question from the RTO who has assessed the market value approximately at Rs. 10.00 lakhs. The respondents have filed the valuation certificates along with their statement of objections and marked at Annexure 'R-1'. It is stated that the bank guarantee is the minimum condition to be imposed as per Section 63 of the Forest Act. for releasing of the vehicle seized under Section 62 of the Forest Act. It is further contended that in a case relating to Palace Ground the Apex Court in Civil Appeal No. 3307/1997 has observed that the petitioners therein shall ensure and undertake that no trees shall be cut from the portion of the premises so let out nor any damage is caused to the landscape or environment. The offence committed by the petitioner and others is serious in nature and the Authorised officer set the law into motion to protect the area and to prevent further damage to the area. The respondents have prayed for dismissal of the writ petition.
4. I have heard the learned Counsel for the parties.
5. Sri. Vivek S. Reddy, learned Counsel appearing for the petitioner submits that the petitioner had borrowed huge amount for purchase of the vehicle in question. The vehicle is under the custody of the respondents for more than five and half months. In view of the seizure of the said vehicle petitioner is not able to earn his livelihood nor is he in a position to repay the loan. The respondent No. 1 has imposed the condition blindly without application of mind. The valuation of the vehicle in question calculated at Rs. 10.00 lakhs is exorbitant. It is further contended that the respondents have failed to discharge their statutory duty as provided under Section 62 and 63 of the Forest Act and that the order is without jurisdiction. It is submitted that the vehicle can be seized only when it is used in the commission of the forest offence in relation to forest produce and the seizure is without the authority of law. The offences alleged is not with relation to any forest produce. Therefore, he prays for setting aside the impugned order.
6. On the other hand, Sri M.B. Prabhakar, the learned Additional Government Advocate appearing for the respondents contends that in a case pending before the Apex Court in Civil Appeal No. 3307/1997 relating to the acquisition of the Bangalore Palace Grounds, an order has been passed directing the State Government to ensure that no trees shall be cut from the portion of the premises so let out nor any damage is caused to the landscape or environment. The petitioner has committed serious offence and the Authorised officer has set the law into motion to protect the area and to prevent further damage to the area. It is further contended that the petitioner has damaged several trees including the sandal wood trees, injured the standing trees and hurried the trees and other materials underneath the soil by dumping the soil in the wet land area of the Bangalore Palace Ground, in violation of various provisions of the Forest Act, Trees Act, Wild Life Act and other Acts. Several species of trees including sandalwood trees have been uprooted and buried inside the heap of soil. The wild birds habitat has also been destroyed. It is submitted that the vehicle in question was used in the commission of the offences. Therefore, it was seized along with 4 logs of rain trees. The seizure was under Section 62 of the Karnataka Forest Act. The conditions imposed for interim custody of the vehicle is just and proper. The vehicle has been valued by the concerned Regional Transport officer at Rs. 10.00 lakhs. The conditions imposed for release of the lorry is referable to Section 63 of the Forest Act, which is just and reasonable.
7. Having heard the learned Counsel for the parties, the only question to be considered in this writ petition is whether the 1st respondent was justified in directing the petitioner to furnish a Bank guarantee of rupees ten lakhs for release of the vehicle in question.
8. The undisputed facts are the respondents have registered a case in FOC No. 32/2006-2007 against certain persons for the offences punishable under Sections 85 and 86 of the Karnataka Forest Act, 1963 and Karnataka Forest Rules, 1969 and certain other Acts. The aforesaid forest offence case was registered on 20.07.2006 against the offenders on the ground that they have damaged several trees including sandalwood trees, injured the standing trees and buried the trees and other materials underneath the soil by dumping the soil in the wet land area of the Bangalore Palace Ground. The vehicle in question was seized by the authorities on the ground that it was used for the commission of the offences. It is alleged in the mahazar (Annexure 'C') that the vehicle has been used for commission of the offences. The mahazar indicates that as many as 200 trees have been either uprooted, destroyed or damaged. The application of the petitioner for release of the lorry has been allowed by the impugned order subject to the petitioner furnishing a bank guarantee for Rs. 10.00 lakhs as provided under Section 63 of the Forest Act. The other conditions imposed by the 1st respondent are as under:
a) The vehicle should not be sold or alienated in any manner;
b) The colour, shape or any material alteration should not be done;
c) R.C. Owner should produce the vehicle whenever it is required by the authority as also to the jurisdiction of the Court of law.
The said order is dated 29.11.2006. The petitioner is only aggrieved by the order of the 1st respondent directing the petitioner to furnish a bank guarantee of Rs. 10.00 as a condition for release of the vehicle.
9. The Karnataka Forest Act, 1963 is an Act to consolidate and amend the law relating to forests and forest produce in the State of Karnataka. Chapter 9 of the Forest Act, deals with Penalties and procedure relating to seizure of the property liable to confiscation. Sub-section (1) of Section 62 provides for seizure of the property liable to confiscation. It is as under:
62. Seizure of property liable to confiscation.--(1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicles or cattle or any other property used in committing any such offence, may be seized by any Forest officer or Police officer.
(2) Any Forest officer or Police officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe a forest offence has been or is being committed, require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably be necessary to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle.
(3) Every officer seizing any property under this section shall, as soon as may be, make a report of such seizure.-
(a) Where the offence on account of which the seizure has been made is in respect of timber, ivory, Gulmavu (machilus macrantha) bark, Dalchni bark, Halmaddi (exudation of Ailanthus malabaricum), canes firewood or charcoal which is the property of the State Government or in respect of sandalwood, to the concerned authorised officer under Section 71-A; and
(b) In other cases, to the magistrate having jurisdiction to try the offence on account of which the seizure has been made.
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.
Section 63 of the Act has been amended by Act No. 12 of 1998 with effect from 11.05.1998. It deals with the Power of the Authorised officer to release the property seized under Section 62 of the Act. It is as under:
63. Power to release property seized under Section 62.- Any forest officer of a rank not inferior to that of a Forest Ranger who, or whose subordinate, has seized any tools, boats, vehicles or cattle under Section 62, may, subject to Section 71-G release the same on production of a Bank Guarantee equal to the value as estimated by such officer (which shall be renewable from time to time till the final disposal of the criminal proceedings instituted in respect of the alleged offence) and on the execution by the owner thereof of a bond for the production of the property so released if and when so required before the magistrate having Jurisdiction to try the offence on account of which the seizure had been made.
10. Chapter X of the Act contains the provisions relating to Sandalwood. Section 83 deals with the entitlement of certain persons to sandal trees; Section 84 deals with the presumptions in case of sandalwood and Section 85 deals with the responsibility of occupants and holders of land for the preservation of sandal trees. Section 86 of the Act lays down the procedure for levy of penalty for offence in regard to sandalwood. It is as under:
86. Penalty for offence in regard to sandalwood.-- In any case of a forest offence having reference to the cutting, uprooting, or removal or damage to, a sandal tree or any part of a sandal tree belonging to Government, or to an occupant or holder of land or other person referred to in Section 83, the offender shall on conviction, be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.
11. Sub-section (5) of Section 2 of the Act defines 'forest offence' which means an offence punishable under the Act or under any rule made thereunder. Sub-section (7) of Section 2 defines "Forest Produce" which is as under:
7. Forest Produce includes.-
(a) the following whether found in or brought from a forest or not, that is to say-timber, charcoal, caoutchouc, catechu, sandal wood, lootikai (Capparis Mooni), wood oil, sandalwood oil, resin, rubber latex, natural varnish, bark, lac, mahua or ippe (Bassia latifolia) flowers and seeds, seed of Prosopis juliflora, kuth, and temburni or tupra (Diospyros Melanoxylon) leaves, rosha (Cymbopogon Martini) grass and oil and myrabolams (Terminalia Chebula, Terminalia Belerica and (Phyllanthus Emblica, Ramapatre and Shigakai); and
(b) the following when found in, or brought from, a forest, that is to say.--
(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;
(ii) being plants no trees, (including grass, creepers, reeds and moss), and all parts or produce of such plants;
(iii) wild animals and pea fowls and skins, tusks, horns, bones, silk cocoons, honey, and wax and all other parts or produce of wild animals, pea fowls and insects; and
(iv) peat surface soil, rock, and minerals (including limestone), laterite, mineral oils, and all products of mines or quarries, and (iv-a) Cocoa beans or pods, garcinia fruits, thornless bamboos, Halmaddi, Raldhupa and Kaidhupa;
(v) such other products of forests as the State Government may, by notification, declare to be forest produce.
12. Sandalwood is a forest produce as defined under the Act. One of the offence alleged against the accused persons is causing damage to sandal wood trees which is punishable under Section 86 of the Act. Section 62 empowers the authority concerned to seize the vehicle used in the commission of forest offence in respect of any forest produce. Thus, the offence alleged to have been committed is in respect of a forest produce. Therefore, seizure of the vehicle in question is valid and proper.
13. Sub-section (3)(a) of Section 62 of the Forest Act states that every officer seizing any property under Section 62 shall make a report of such seizure, where the offence on account of which the seizure has been made is in respect of timber, sandal wood, etc., and other forest produce to the concerned officer under Section 71-A and in other cases, to the Magistrate having jurisdiction to try the offence. In the instant case, report has been made to the 2nd respondent who is the competent authority under the said provision. The application filed by the petitioner is considered under Section 63 of the forest Act. The value of the vehicle was estimated by the Regional Transport officer who is the competent authority for valuation of the vehicle in question.
14. Section 63 clearly lays down that the vehicle can be released on production of bank guarantee equal to the value as estimated by such officer, which shall be renewable from time to time till the disposal of the Criminal proceedings instituted in respect of the alleged offence. After the amendment to Section 63 of the Act, it is statutorily necessary to direct the petitioner to furnish bank guarantee which is a minimum condition while releasing the vehicle involved in a forest offence. Therefore, the order impugned is perfectly in conformity with Section 63 of the Forest Act.
15. It is to be noted here that the Apex Court in a case relating to the acquisition of Bangalore Palace Ground, in Civil Appeal No. 3307/1997 dated 14.09.1998 has observed as under:
That the petitioners shall ensure and undertake that no trees shall be cut from the portion of the premises so let out nor any damage is caused to the landscape or environment.
Thus, it is clear that the Apex Court has directed not to cut any trees from any portion of the land which is let out and no damage should be caused to the landscape or environment. Learned Additional Government Advocate has produced the photographs of the area which discloses that serious damage has been done to the landscape as also to the trees in the Palace Grounds. It is also evident that several trees have been uprooted which is also evident from the photographs.
16. The Apex Court in State of Karnataka v. K. Krishnan , has held that provisions of the Forest Act should be strictly complied with and that generally, any vehicles, tools, boats, etc., used in the commission of the forest offence should not be released. It has been further held, even if the Court is inclined to release the same, the Authorised officer must specify the reasons therefor and must insist on furnishing of bank guarantee as the minimum condition. It has been held thus:
The provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the authorised officer or the appellate authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the toots, boats, vehicles, cattle, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the appellate authority from, passing appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect mother earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also the protector of human life by providing a clean and unpolluted atmosphere. When any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.
(underlining is by me)
17. In The Range Forest officer, Wildlife Division, Lakkavalli and Anr. v. Smt. Shakina Banu , this Court has held that production of bank guarantee as estimated by the Range Forest officer for release of the seized vehicle alleged to have been used in commission of forest offence is a mandatory requirement for release of the vehicle.
18. In State by Assistant Conservator of Forests, Shikaripur Sub-Division, Shikaripur and Anr. v. Ziaulla , this Court has held that the condition precedent for release of a vehicle involved in commission of a forest offence is furnishing of bank guarantee for suitable sum of money.
19. Again in Section Forestor and Anr. v. Mansur Ali Khan 2004 AIR SCW 5, the Apex Court has held that release of vehicle involved in a forest offence during the pendency of the proceedings to be exercised sparingly and for good reasons and not in a routine manner. The vehicle released merely on basis of a likely delay in disposal of criminal case is improper.
20. From the discussion made above, it is clear that when the vehicle is seized on the allegation that it was used in the commission of forest offence, normally the vehicle shall not be returned to the party till the conclusion of the proceedings of such offence. Release of the vehicle during the pendency of the proceedings should be exercised sparingly. Even if the authority concerned is inclined to release the vehicle, the authority must specify reasons for the same. Furnishing of bank guarantee for suitable sum of money is the minimum condition for release of the vehicle.
21. Having given my anxious consideration to the contentions urged by the learned Counsel for the parties, I am of the view that this is not a fit case for interference of the impugned order. In the result, writ petition fails and it is accordingly dismissed. No costs.