Kerala High Court
Crystal Granites Ltd vs The State Of Kerala on 23 August, 2017
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939
Crl.MC.No. 7785 of 2017 ()
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CMP 1187/2017 & CMP 1188/2017 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, KALADY.
OR.NO. 3/2017 OF EZHATTUMUGHAM FOREST STATION, ERNAKULAM.
......
PETITIONER:
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CRYSTAL GRANITES LTD.,
CHULLY P.O, THATTUPARA,
AYYAMPUZHA VILLAGE,
ERNAKULAM DISTRICT,
REPRESENTED BY ITS MANAGING DIRECTOR
GEORGE ANTONY
BY SRI.GRASHIOUS KURIAKOSE (SENIOR ADVOCATE)
ADV.SRI.JOSE ABRAHAM
RESPONDENT(S):
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1. THE STATE OF KERALA, REPRESENTED BY
THE GOVERNMENT PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
2. THE FOREST RANGE OFFICER,
ATHIRAPPALLY RANGE,
EZHATTUMUGHAM FOREST STATION,
EZHATTUMUGHAM P.O,
THRISSUR DISTRICT, PIN - 683577.
R1 BY PUBLIC PROSECUTOR SRI.ALEX M THOMBRA
R2 BY SPECIAL GOVERNMENT PLEADER SRI.SANDESH RAJA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07-12-2017, ALONG WITH CRMC. 7786/2017, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
mbr/
Crl.MC.No. 7785 of 2017 ()
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APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE A-1: TRUE COPY OF THE PURCHASE BILL OF THE ABOVE
SAID POCLAIN.
ANNEXURE A-2: TRUE COPY OF THE O.R NO 3/2017 OF THE
EZHATTUMUGHAM FOREST STATION.
ANNEXURE A-3 TRUE COPY OF THE CMP NO.1187/2017 ON THE FILES
OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT,
KALADY.
ANNEXURE A-4: TRUE COPY OF THE CMP NO.1188/2017 FILED BY THE
2ND RESPONDENT.
ANNEXURE A-5: CERTIFIED COPY OF THE COMMON ORDER PASSED IN
CMP NOS.1187/2017 AND 1188/2017 OF THE JUDICIAL
FIRST CLASS MAGISTRATE'S COURT, KALADY.
ANNEXURE A-6: TRUE COPY OF THE COMPLAINT DATED 23/8/2017 FILED
BY THE PETITIONER BEFORE THE AYYAMPUZHA POLICE
STATION.
ANNEXURE A-7: TRUE COPY OF THE WPC.NO.33763/2017 ON THE FILES
OF THIS HON'BLE COURT.
ANNEXURE A-8: TRUE COPY OF THE LETTER DATED 18.11.2017
ADDRESSED TO THE D.F.O. VAZHACHAL.
RESPONDENTS' ANNEXURES:
ANNEXURE R2A: TRUE COPY OF THE JUDGMENT IN WPC.NO.33763/2017
DATED 26.10.2017.
ANNEXURE R2B: TRUE COPY OF THE LETTER DATED 25.10.2017.
ANNEXURE R2C: TRUE COPY OF THE LETTER DATED 30.10.2017 OF
THE PETITIONER.
ANNEXURE R2D: TRUE COPY OF THE LETTER DATED 28.11.2017 OF
THE PETITIONER.
//TRUE COPY//
P.S. TO JUDGE
mbr/
[CR]
B. KEMAL PASHA, J.
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CRL.M.C. Nos. 7785 & 7786 of 2017
...............................................................
Dated this the 7th day of December, 2017
O R D E R
The petitioner is the owner in possession of a proclain machine. He is operating a granite quarry. For clearing the granite quarry, he made use of the poclain machine and cut and removed and also uprooted some sandal wood saplings which was there in his own property. He has allegedly dumped soil on the uprooted sandal wood samplings. OR No.3/2017 of the Ezhattumugham Forest Station has been registered against him and four others for the offences under Sections 47B(1), 47C(1)(i) and Section 52 of the Kerala Forest Act, 1961(for short, 'the Act').
2. The poclain machine was seized from the CRL.M.C.Nos. 7785 & 7786 of 2017 -: 2 :- possession of the petitioner and the same was produced before the Judicial First Class Magistrate's Court, Kalady. The petitioner filed CMP 1187/2017 before the court below for the release of the poclain machine to his interim custody under Section 451 Cr.P.C. The Forest Range Officer filed CMP No.1188/2017 for the return of the poclain machine to his custody for initiating confiscation proceedings under Section 61A of the Act. Both the said petitions were heard. The CMP filed by the petitioner was dismissed and the CMP filed by the Forest Range Officer was allowed. The said order is under challenge in these Crl.M.Cs.
3. Heard the learned Senior Counsel for the petitioner and the learned Special Government Pleader for Forest.
4. According to the learned Senior Counsel, this is not a case wherein confiscation proceedings can be initiated under Section 61A of the Act, when a forest offence has not been committed 'in respect of the property of the CRL.M.C.Nos. 7785 & 7786 of 2017 -: 3 :- Government' within the meaning of Section 61A of the Forest Act. It has also been argued that Section 47H of the Act cannot also be pressed into service when the proclain machine involved has not been made use of for the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil, within the meaning of the said provision. The argument is that when it is not liable to be confiscated under Section 61A, being the registered owner, the poclain machine is liable to be released to the interim custody of the petitioner under Section 451 Cr.P.C.
5. Per contra, the learned Special Government Pleader for Forest has argued that the poclain machine is liable to be seized under Section 47H of the Act, independently of the fact that it has not been made use of, for the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil. The argument is that a purposive interpretation should be given CRL.M.C.Nos. 7785 & 7786 of 2017 -: 4 :- to the provisions contained under Section 47H by interpreting the provision, with a view to protecting the preservation of sandal wood trees. It has been argued that the terms "or any other contrivance used in the manufacture or distillation of sandalwood oil, or in the process of sale of sandalwood or sandalwood oil" shall be read in isolation by treating as separate from the forgoing provisions of the said Section.
6. It has been further argued that the present claim of the petitioner is barred by the principles of res judicata, when another writ petition that was filed by the petitioner seeking the custody of the poclain machine was withdrawn and especially when no leave has been granted by this Court to have recourse to other proceedings in the same matter.
7. It has been further argued that where an offence is believed to have been committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill, CRL.M.C.Nos. 7785 & 7786 of 2017 -: 5 :- distilling unit, boiler-plant, tools, ropes, chains, boats or vehicles, should be liable for confiscation under Section 61A.
8. Another argument is that when confiscation proceedings have already been initiated under Section 61A, the criminal court shall ceased to have jurisdiction to entertain a claim under Section 451 Cr.P.C. in respect of the subject matter of confiscation.
9. Admittedly, Section 61A will come into play when a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory, which is 'the property of the Government'. Here, in this particular case, the sandalwood saplings were allegedly cut and removed and uprooted, were from the property of the petitioner. In such case, normally it cannot be said that the forest offence has been allegedly committed in this case in respect of 'the property of the Government'.
10. Apart from the case of the property of the CRL.M.C.Nos. 7785 & 7786 of 2017 -: 6 :- Government, a special provision is there within the meaning of Section 47H of the Kerala Forest Act in respect of the sandalwood and sandalwood oil. The provision reads:
"47H: Seizure of sandalwood, sandalwood oil, etc. and confiscation thereon:- Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court, where an offence is believed to have been committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill, distilling unit, boiler- plant, tools, ropes, chains, boats, vehicles or any other contrivance used in the manufacture or distillation of sandalwood oil, or in the process of sale of sandalwood or sandalwood oil shall be liable to be seized under Section 52 and the provisions contained in sections 61A, 61B, 61C, 61D, 61E and 61F shall mutatis mutandis apply to the seizure and confiscation thereof."
CRL.M.C.Nos. 7785 & 7786 of 2017 -: 7 :- In case the said properties come within the purview of Section 47H, the same are liable to be seized under Section 52 of the Act and the provisions contained in Section 61A shall mutatis mutandis apply to the seizure and confiscation thereof. Therefore, the crux of the matter is a decision as to whether Section 47H is applicable in the case of the proclain machine involved in this case.
11. It seems that a forest offence has been allegedly committed when sandalwood trees or sandalwood samplings, as the case may be, were cut and removed or uprooted even from the private property of the petitioner. Now, the wordings in Section 47H show that where an offence is believed to have been committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill, distilling unit, boiler-plant, tools, ropes, chains, boats, vehicles or any other contrivance used in the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil shall be seized. CRL.M.C.Nos. 7785 & 7786 of 2017 -: 8 :-
12. Sandalwood includes sandalwood oil, within the meaning of the definition given in Section 47A(a). That is the reason why the provision under Section 47H has been worded by making a provision that "where an offence is believed to have been committed in respect of any sandal wood". When such an offence is believed to have been committed in respect of sandalwood, the other properties noted in the said provision used in the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil shall be seized under Section 52 of the Act. That can only be the interpretation given to Section 47H. Otherwise, it need not have been mentioned anything with regard to the mill, distilling unit, boiler-plant, tools, ropes, chains, boats, vehicles etc. If a mill is there wherein the sandalwood oil has been extracted from sandalwood by committing offence in respect of any sandalwood, the mill is also liable to be seized. When the tools etc. are made use of for extracting sandalwood oil or CRL.M.C.Nos. 7785 & 7786 of 2017 -: 9 :- for transporting sandalwood in the process of its sale, then those properties can also be seized under Section 52.
13. An interpretation of the said provision does not show that the terms 'or any other contrivance' alone is applicable to the terms 'manufacture or distillation of sandalwood or sandalwood oil or for the sale of sandalwood or sandalwood oil'. When an offence is believed to have been committed in respect of any sandalwood, all the other materials and properties noted in the provision contained in Section 47H 'used in the manufacture or distillation of sandalwood or sandalwood oil or in the process of sale of sandalwood or sandalwood oil are liable to be seized under Section 52. If these properties or equipments are not made use of for the manufacture or distillation of sandalwood or sandalwood oil or in the process of sale of sandalwood or sandalwood oil, the said properties will not come within the scope of Section 47H, and therefore, those properties are not liable to be seized under Section 52. Only for a seizure CRL.M.C.Nos. 7785 & 7786 of 2017 -: 10 :- of such materials coming under Section 47H or under Section 52 of the Act, confiscation proceedings can be initiated under Section 61-A of the Act. If not, Section 61A cannot have no application when a forest offence has been committed in respect of a private property, whether it is sandalwood or other properties.
14. Regarding the question of res judicata, it seems that the petitioner had earlier approached this Court through a writ petition for a direction to the Forest Range Officer to hand over possession of the poclain machine to the petitioner. When the petitioner could learn that he could only make a demand under Section 451 Cr.P.C. from the court below, the writ petition was withdrawn. The said writ petition was not one challenging the impugned order. When it was not one challenging the impugned order, it cannot be said that these Crl.M.C.s are hit by the principles of res judicata.
15. Regarding the question of jurisdiction raised by CRL.M.C.Nos. 7785 & 7786 of 2017 -: 11 :- the learned Special Government Pleader for Forest, it has to be noted that in a case wherein confiscation proceedings can be legally initiated and proceeded with under Section 61A of the Act, the criminal courts do not have jurisdiction to order the release of the properties involved therein under Section 451 Cr.P.C. Here, when no offence has been committed in respect of the property of the Government, Section 61A of the Act has no application. When the property involved is not made use of in the process of manufacture and distillation of sandalwood or sandalwood oil or in the process of sale of sandalwood or sandalwood oil, the enabling provision under Section 47H of the Act cannot come into play to invite confiscation proceedings under Section 61A.
16. Regarding the interpretation of Section 47H, it is made clear that the terms "the sandalwood, the sandalwood oil, mill, distilling unit, boiler-plant, tools, ropes, chains, boats, vehicles or any other contrivance" should be CRL.M.C.Nos. 7785 & 7786 of 2017 -: 12 :- conjointly read with the terms 'used in the manufacture or distillation of sandalwood oil or in the process of sale of sandalwood or sandalwood oil'. That is the only interpretation that can be given to the provisions contained in Section 47H of the Kerala Forest Act.
17. Admittedly, the poclain machine belongs to the petitioner. There is no dispute with regard to the title. In such case when confiscation proceedings are not maintainable under Section 61A , the criminal court, where the property has been produced, has the power to order its release under Section 451 Cr.P.C. There is nothing under the Kerala Forest Act which takes away the jurisdiction of the criminal court under Section 451 Cr.P.C. in a case like this. If as a matter of fact, confiscation proceedings could be validly proceeded with under Section 61A of the Act, and such proceedings have already been initiated, criminal courts have no jurisdiction to release the property involved, under Section 451 Cr.P.C.
CRL.M.C.Nos. 7785 & 7786 of 2017 -: 13 :-
18. From the discussions made above, it has clearly come out that the petitioner is entitled to get the poclain machine released to his custody, being proper custody under Section 451 Cr.P.C., pending conclusion of the inquiry or trial. The Forest Range Officer is not entitled to get the said property into his custody for confiscation proceedings, when confiscation proceedings cannot be effected in respect of that property under Section 61A of the Act.
In the result, these Crl.M.C.s are allowed and the impugned common order passed by the court below is quashed. C.M.P.No.1187/2017 stands allowed. C.M.P.No.1188/2017 is dismissed. The court below shall obtain a valuation of the poclain machine from an expert and impose necessary conditions for the release of the property. It is made clear that the court below shall not impose bank guarantee or cash security. When the property has already been taken possession of by the authorised officer and confiscation proceedings have been initiated, the CRL.M.C.Nos. 7785 & 7786 of 2017 -: 14 :- officer shall return the poclain machine to the court below through the Forest Range Officer.
B. KEMAL PASHA, JUDGE.
ul/sd/-
// true copy // P.S. to Judge.