Supreme Court - Daily Orders
Wild Life Warden vs Komarrikkal Elias on 8 May, 2018
Author: Chief Justice
Bench: Chief Justice, A.M. Khanwilkar, D.Y. Chandrachud
CA 4952/2008
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 4952/2008
WILD LIFE WARDEN Appellant
VERSUS
KOMARRIKKAL ELIAS Respondent
O R D E R
The respondent preferred a civil revision petition forming the subject matter of CRP No. 1435/2000(B), assailing the order passed in C.M.A. No. 113/1999 by the District Judge, Wayanad, Kalpetta. It was alleged that the respondent had unauthorisedly collected and stored elephant tusks and unlicensed gun and other accessories. A case was registered as O.R. No. 4/1998 with Sulthanbathery Range. The Jeep bearing registration number KL/12/A/316 belonging to the respondent was seized by the Assistant Wild Life Warden, Sulthanbathery from a workshop where it was kept for repairs. A criminal proceeding was also initiated against the respondent under the Kerala Forest Act, 1961 (for brevity, ‘the 1961 Act’). It is not in dispute that the respondent has been acquitted in that case.
The Assistant Wild Life Warden, Sulthanbathery Signature Not Verified Digitally signed by DEEPAK GUGLANI directed for confiscation of the items seized and the Jeep Date: 2018.05.09 16:49:26 IST Reason: belonging to the respondent. The said order was challenged before the District Judge, Wayanad, who came to hold that CA 4952/2008 2 the elephant tusk was not a forest produce, and accordingly remanded the matter to the authority of first instance. The appellate authority, while remanding the matter, opined that there was no clinching evidence on record to arrive at the finding that it was a Government property and further the presumption as contemplated under Section 69 of the 1961 Act could not be attracted.
Being grieved by this order of remand, the respondent preferred a civil revision and the learned single Judge of the High Court came to hold that the presumption was not attracted and further the elephant tusk was not a forest produce, for it was not mentioned in the definition as a forest produce or under Section 61A of the 1961 Act.
Section 2(f) of the 1961 Act that defines ‘forest produce’, reads as follows:-
“2(f) “forest produce” includes-
(i) the following whether found in or brought
from, a forest or not, that is to say-
timber, charcoal, wood oil, gum, resin, natural varnish, bark lac, fibres and roots of sandalwood and rosewood; and
(ii) the following when found in, or brought from, a forest, that is to say,-
(a) trees and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, of trees;
(b) plants not being trees (including grass, CA 4952/2008 3 creepers, reeds and moss) and all parts or produce of such plants; and
(c) silk cocoons, honey and wax;
(d) peat, surface oil, rock and minerals (including limestone, laterite), mineral oils and all products of mines or quarries). Section 61A provides for confiscation by forest offiers in certain cases. It reads as follows:-
“61A. Confiscation by Forest Officers in certain cases.-
(1) 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 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 authorized 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 authorized officer).
(2) Where an authorized 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 authorized officer under sub-section (1) of this section and he is satisfied that a forest offence has been committed in respect of such CA 4952/2008 4 property, such authorized 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.” Learned counsel for the appellant would submit that if Section 61A is appositely read, it would include the ivory as the property of the Government. According to him, the High Court has misconstrued the inclusive definition that is engrafted in Section 2(f) of the 1961 Act, which does not include ivory as a forest produce to conclude that there could not have been a seizure or a confiscation. It has been brought to our notice that Sections 48 to 51 that dealt with preservation of wild elephants, have been repealed after coming into force of the Wild Life (Protection) Act, 1972 (for brevity, ‘the 1972 Act’) by the Parliament.
Chapter VIII of the 1961 Act that contains Sections 52 to 69 deals with seizure of property liable to confiscation.
Learned counsel for the respondent would submit that action was taken treating the elephant tusk as a forest produce and not as a property of the Government.
In this context, we may usefully refer to Section 39(1) of the 1972 Act. Clause (c) of the said provision was inserted by Act 44 of 1991 with effect from 2.10.1991. CA 4952/2008 5 From a reading of the said provision, it is quite clear that an ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed, shall be deemed to be the property of the State Government, and where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal shall be the property of the Central Government.
In view of the aforesaid, there cannot be an iota of doubt that elephant tusk is a property of the Government and there is a declaration to that effect under Section 39(1) of the 1972 Act. In view of the aforesaid, the conclusion arrived at by the High Court that the presumption does not arise under Section 69 of the 1961 Act, is incorrect. Whether it is a forest produce or not under Section 2(f) of the 1961 Act, is immaterial. It is worth noting here that learned counsel for the respondent submits that he has never claimed the elephant tusk to be his property.
In view of the aforesaid, the only issue that remains alive is with regard to the Jeep that was seized from the custody of the appellant. In the course of hearing, we have been apprised that the Jeep has been released in favour of the respondent long back. Be that as CA 4952/2008 6 it may, as the offence is almost twenty years old, we do not intend to direct for recovery of the Jeep in the obtaining factual matrix of the case. We say so, as no finding has been recorded that the Jeep was used for or involved in transportation of the subject elephant tusk.
The appeal is allowed to the extent indicated above. There shall be no order as to costs.
..................CJI [Dipak Misra] ....................J. [A.M. Khanwilkar] ....................J. [Dr. D.Y. Chandrachud] New Delhi;
May 8, 2018.
CA 4952/2008 7 ITEM NO.103 COURT NO.1 SECTION XI-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No. 4952/2008 WILD LIFE WARDEN Appellant VERSUS KOMARRIKKAL ELIAS Respondent
Date : 08-05-2018 This matter was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD For Appellant Mr. Nishe Rajen Shonker, AOR Ms. Anu K. Joy, Adv.
Mr. Alim Anvar, Adv.
For Respondent Mr. K. Rajeev, AOR Mr. Bijo Mathew Joy UPON hearing the counsel the Court made the following O R D E R The appeal is allowed to the extent indicated in the signed order.
Pending interlocutory applications, if any, shall stand disposed of.
(Deepak Guglani) (H.S. Parasher)
Court Master Assistant Registrar
(signed order is placed on the file)