Kerala High Court
Joy Joseph vs D.F.O. on 25 January, 2005
Equivalent citations: 2005CRILJ2405, 2005(2)KLT456
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
ORDER K.S. Radhakrishnan, J.
1. Revision petitioner is the registered owner of a mini lorry bearing registration No. KL-7/Q-8946. Lorry was seized by the Sub Inspector of Police, Erattupetta while it was transporting timber logs without any valid documents and handed over to the Forest Ranger Officer, Erumely for further action as per Forest Act. Articles were produced before the Authorised Officer, Divisional Forest Officer, Kottayam on 23.8.1999 for initiating proceedings under Section 61A of the Kerala Forest Act, 1961. During the course of investigation revision petitioner filed O.P.22578/99 for getting the vehicle released and this Court vide judgment dated 7.9.1999 directed release of the vehicle on furnishing sufficient security. Vehicle was released on the original title deed No. 431 relating to 4 acres of land owned by the petitioner and encumbrance certificate issued by the Sub Register, Rajakumari and after executing a bond.
2. Enquiry revealed that the timber logs transported were illegally collected by telling one big green venteak tree which stood in the coffee plantation, within the Cardamom Hill Reserve which is a notified Reserve Forest. A stump mahazar was prepared by the Forest Officer on 25.8.1999 for the illicit felling and removal of the timber. The case was transferred from Erumeli Range to Kumily Forest Range by the Divisional Forest Officer, Kottayam as per Order No. A2-5356/99 dated 21.2.2000 and registered as OR.73/99 in Kumily Forest Range, the Forest Range Officer, Kumily investigated the case and submitted the investigation Report vide letter No. OR.73/99 dated 27.1.2001. Investigating Officer recommended confiscation of mini lorry No. KL-7/Q 8946 along with 80 pieces of timber logs to Government under Section 61 A of Kerala Forest Act, 1961.
3. The D.F.O. then issued a show cause notice dt. 19.2.2001 to the registered owner and others explaining the grounds leading to the confiscation proceedings. Opportunity of hearing was also afforded to the registered owner and others. Notice were returned unclaimed. The D.F.O. considering all aspects of the matter passed an order dt. 27.3.2001 confiscating the vehicle and the materials transported as per Section 61 A of the Kerala Forest Act, 1961.
4. Aggrieved by the said order registered owner took up the matter before the District Judge, Kottayam. Learned District Judge found no illegality in the confiscation proceedings and upheld the order. The fact that lorry has been used to commit the offence cannot be disputed. It is the duty of the registered owner and others to produce relevant documents to show that the goods are transported with valid permit. They could not prove the same. On the other hand, the pass produced No. 22-1998-99 was issued before 31.3.1999 and the pass was valid only for a period of four months. Seizure of the vehicle and the contraband articles in this case was on 22.8.1999. Pass did not cover goods transported. So found by the Forest Officers as well as by the District Judge. I therefore find no illegality in the order of the Divisional Forest Officer which was confirmed by the District Judge.
5. Counsel appearing for the petitioner submitted that in any view of the matter there is no justification in confiscating the vehicle since there is no comparison between the value of the vehicle and the timber seized. Such a ground was taken by the petitioner in ground D of the revision petition and tried to apply the decision in Pushpan v. State, 1984 KLT 1021. The fact that such a decision was overruled has not been stated in the Revision Petition. In ground E of the Revision Petition, petitioner has also referred to the decision in W.A.No. 2521 of 1998. It is also stated that the value of the timber is Rs. 4,000/- and the value of the vehicle assessed by the Assistant Executive Engineer is Rs. 1,59,931/-.
6. The Divisional Forest Officer has filed a counter affidavit wherein it has been stated that the value of the timber seized is Rs. 20,000/-. Further it is also stated that the decision relied on by the petitioner, viz., 1984 KLT 1021 has already been overruled in State of Kerala v. Sukumara Panicker, 1987 (2) KLT 341. Petitioner should not have urged the contention on the basis of an overruled decision. Further petitioner has stated that the value of the timber is only Rs .4,000/-, but the affidavit filed by the Forest Department would show that the value of the timber is Rs. 20,000/-.
7. The Apex Court in State of West Bengal v. Gopal Sarkar, (2002) 1 SCC 495, has held that exercise of the power of confiscation is independent of any proceeding of prosecution initiated in respect of forest offence committed. I am of the view of the view of the decision of the Full Bench of this Court in Sukumara Panicker's case, supra, judgment in W.A.No. 2521 of 1998 cannot be applied to the facts of this case. I may also refer to the decision of the Apex Court in State of Jharkhand v. Govind Singh, 2005 (1) KLT 34 (SC) = 2004 (8) Supreme 678, wherein the Apex Court has dealt with in detail the scope of Section 52(3) of the Indian Forest Act, 1927. That was a case where truck was found loaded with 11.8 tonnes of coal. Confiscation proceeding No. 3/1997 was instituted and show cause notice was issued. After considering the reply submitted by the respondent Divisional Forest Officer ordered confiscation of the truck. Appeal was preferred against the said order before the Deputy Commissioner which was dismissed. Matter was taken up in revision which was also dismissed. Aggrieved by the same Writ Petition was filed under Article 226 of the Constitution. Contention was raised by the respondent that there was no prohibition in directing release of the vehicle on payment of fine in lieu of confiscation. It was noted that the value of the coal was not established and considering the value of coal which was being transported it would be inequitable to direct confiscation. High Court therefore held that to meet the ends of justice the power to impose fine in lieu of confiscation can be read into under Section 52(3) of the Act. Accordingly fine of Rs. 50,000/- was imposed and the seizing authority was directed to release the vehicle on payment thereof. Apex Court interfered with the order of the High Court and decided the scope of Section 52 as well as Section 68 of the Act and held as follows:-
"Therefore, on a combined reading of Section 52 and Section 68 of the Act as amended by the Bihar Act, the vehicle as liable for confiscations may be released on payment of the value of the vehicle and not otherwise. This is certainly a discretionary power, exercise of which would depend upon by gravity of the offence. The officer is empowered to release the vehicle on the payment of the value thereof as compensation. This discretion has to be judicially exercised, Section 68 of the Act deals with power to compound offences. It goes without saying that when the discretionary power is conferred, the same has to be exercised in a judicial manner after recording of reasons by the concerned officer as to why the compounding was necessary to be done. In the instant case, learned Single Judge did not refer to the power available under Section 68 of the Act and on the contrary, introduced the concept of reading into Section 52 of the Act, a power to levy fine in lieu of confiscation which is impermissible. In the impugned judgment nowhere the value of the truck which as liable for confiscation was indicated. It appears that the first appellate court and the revisional authority did not consider it to be a fit case where the vehicle was to be released and were of the considered view that confiscation was warranted. They took specific note of the fact that fake and fabricated documents were produced to justify possession of the seized articles. In any event the respondent had not made any prayer for compounding in terms of Section 68 of the Act.
Confiscation in terms of Sub-section (3) of Section 52 of the Act is the immediate statutory action which provides that when forest offence as defined in Section 2(3) of the Act is believed to have been committed in respect of the seized vehicle, the authorised officer may confiscate the forest produce and the vehicle involved in the transportation of the forest produce. Foundation for action in terms of Section 52(3) of the Act is the belief entertained by the concerned officer that forest offence has been committed. It is not the value of the forest produce which is irrelevant, but the value of the article liable for confiscation. In the instant case it is the truck carrying the forest produce".
I may examine whether any power is conferred on the forest officials to release the vehicles on payment of fine. Section 52 of the Act deals with seizure of property liable to confiscation, which reads as follows:
52. 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 timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence, may be seized by any Forest Officer or Police Officer.
Explanation: The term "boats" and "vehicles" in this section (Section 53, Section 55, Section 61A and Section 61B) shall include all the articles and machinery kept in it whether fixed to the same or not.
(2) Every officer seizing any property under Sub-section (1) shall place on such property or the receptacle, if any, in which, it is contained a mark indicating that the same has been so seized and shall, as soon as may be make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made;
Provided that, when the timber or 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 Forest Officer makes, as soon as may be, a report of the circumstances to his superior".
Section 53 states that any Forest Officer of a rank not inferior to that of a Ranger, who or whose subordinate has seized any tools, boats, vehicles or cattle under the provisions of Section 52, may release the same on the execution by the owner thereof a bond for the production of the property so released, if an when so required before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Section 61 -A empowers the officers to confiscate vehicles. This provision is extracted below for easy reference.
61A. Confiscation by Forest Officers in certain cases: Notwithstanding anything contained in the foregoing provisions of this Chapter, where a forest of fence 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 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 the authorised officer).
(2) 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.
Section 68 confers power to compound offences, which is extracted below:
68. Power to compound offence: (1) Any Forest Officer not below the rank of an Assistant Conservator of Forests may accept from any person, reasonably suspected of having committed any forest offence other than an offence under Section 62 or Section 65 a sum of money by way of compensation for the offence which may have been committed and where any property has been seized as liable to confiscation, may release the same on payment of the value thereof as estimated by such officer or confiscate such property to the Government.
On the payment of such sum of money or such value of both, as the case may be, to such officer, the accused person, if in custody, shall be discharged, the property seized shall be released and no further proceedings shall be taken against such person or property.
Section 61A(2) states that where an Authorised Officer seizes the property of the Government, and if the property is produced before the Authorised Officer if he is satisfied that a forest offence has been committed in respect of such property, he may order confiscation of the property so seized together with all tools. No power has been conferred on the Forest Officer to release the vehicle in lieu of confiscation. On a bare reading of Section 52, 61A and 68 would show that the vehicle liable for confiscation may be released on payment of the value of the vehicle and not otherwise. Value of the forest produce confiscated is irrelevant and the accused has no legal right to insist that the vehicle be released on payment of fine in lieu of confiscation. In the instant case, the value of the timber seized was Rs. 20,000/- and the value of the vehicle was Rs. 1,59,931/-. In view of the decision of the Full Bench in 1987 (2) KLT 341 read with the decision of the Apex Court reported in 2005 (1) KLT 34 (SC) the request of the petitioner to release of the lorry on payment of fine in lieu of confiscation cannot be granted.
8. In the light of the above mentioned principle laid down in the decision aforesaid, I find no illegality in the order passed by the authorities below confiscating the timber and the vehicle. Petition therefore lacks merits and it is accordingly dismissed.