Kerala High Court
Moosa vs Authorized Officer And on 28 February, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 28TH DAY OF FEBRUARY 2014/9TH PHALGUNA, 1935
OP(C).No. 569 of 2011 (O)
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CMA 76/2009 of THE DISTRICT & SESSIONS COURT, THRISSUR
PETITIONER:
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MOOSA, S/O. SAIDALI,
PANDALAKUNDIL HOUSE, KALLAMKULAM DESOM
VADAKKETHARA VILLAGE, THALAPPILLY TALUK.
BYADVS.SRI.P.VIJAYA BHANU (SR.)
SMT.M.M.DEEPA
SRI.UNNI SEBASTIAN KAPPEN
RESPONDENT(S):
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1. AUTHORIZED OFFICER AND
DIVISIONAL FOREST OFFICER,
THRISSUR, PIN-680001.
2. STATE OF KERALA,
REPRESENTED BY DISTRICT COLLECTOR, THRISSUR.
R1 BYADV. M.P.MADHAVAN KUTTY SPL GP (FORESTS)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C)No.569 of 2011
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1- TRUE COPY OF THE ORDER NO.(TC 3-7275/07) OF THE AUTHORISED
OFFICER AND DIVISIONAL FOREST OFFICER, THRISSUR, DT. 24.01.2009
EXHIBIT P2- TRUE COPY OF THE JUDGMENT IN CMA.76/09 DT.30.9.2010 OF RENT
CONTROLAPPELLATE AUTHORITY, THRISSUR.
RESPONDENT'S EXHIBITS: NIL
OKB.
TRUE COPY
P.A. TO JUDGE
C.R.
K.HARILAL, J.
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O.P(C) No.569 of 2011
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Dated this the 28th day of February, 2014
JUDGMENT
The petitioner is the 4th accused in O.R.No.2/2007 of Elanad Forest Station. This O.P. is filed challenging the order passed in CMA.No.76/2009 on the files of the District Court, Thrissur. The above CMA was filed challenging the order No.TC-3-7275/2007 dtd. 24.1.2009 passed by the Authorised Officer and the Divisional Forest Officer, Thrissur, under Section 61A of the Kerala Forest Act, 1961, (for short 'the Act'). The legality, propriety and correctness of the order passed by the Authorised Officer as well as the judgment passed by the learned District Judge in appeal are under challenge in this O.P.
2. Briefly put, the facts of the case is as follows:
The petitioner is the 4th accused in O.R.No.2/2007 of Elanad Forest Station. On 9.11.2007 the forest officials detected OP(C).569/11 :2:
illicit felling of one dead teak tree and two green teak trees in the Kumblakode area which is a part of the Reserved Forest. During investigation, A1, Mohanan was interrogated and he confessed that the trees were cut and timber were removed for the purpose of construction of his house. The pieces of teak timber were recovered from his house. The value of the sawn timber was assessed as `10,000/-. He further confessed that the timber were transported by a mini lorry to the sawmill owned by the petitioner herein, the 4th accused. The said mini lorry was seized. Thereafter, the petitioner was apprehended and he gave a statement before the Deputy Ranger of Forests confessing his guilt. The machinery of the sawmill was taken into custody and the mill was sealed. He was arrested and produced before the Judicial First Class Magistrate's Court, Wadakkancherry. Then he filed a petition for releasing the machinery and that petition was dismissed by the court below on 28.11.2007. Thereafter, he appeared before the Authorised Officer on 12.8.2008 and gave a statement denying the allegation levelled OP(C).569/11 :3:
against him and the alleged confession. The Authorised Officer conducted an enquiry under Section 61A of the Act and passed the order confiscating the machinery seized from the sawmill owned by the petitioner. Though the petitioner had challenged the above said order in Appeal, the District Court also confirmed the order passed by the Authorised Officer.
3. The learned counsel for the petitioner advanced arguments assailing the findings of the Authorised Officer. The learned counsel contended that no offence under the Act has been committed by the petitioner and the machinery is not liable to be seized for the said offence allegedly committed under Section 27(1)(e)(iii) of the Act. The Authorised Officer ought to have found that there is no evidence to show that the petitioner's sawmill was used for sawing any timber knowing to be illicit. The entire findings are based on the confession statements given by A1 to A4. But the Authorised Officer has not considered the petitioner's contention that he had not given any statement admitting the case of the forest officials.
OP(C).569/11 :4:
4. Per contra, Shri.M.P.Madhavankutty, the learned Special Government Pleader advanced arguments to justify the confiscation proceedings and findings thereunder. According to him, the burden is heavy on the petitioner under Section 61B of the Act and he has to discharge the statutory requirements under sub-section (2) of Section 61B of the Act. But no evidence had been adduced to prove that he has taken reasonable and necessary precaution against using of his sawmill for the commission of forest offence. The alleged act committed by the petitioner, ie: sawing of the forest produce in his sawmill, would definitely constitute the offence under Section 27(1)
(e)(iii) of the Act.
5. Whether the machinery of a sawmill can be seized and confiscated, alleging that the service of the sawmill was used for sawing the timber, illicitly cut and removed from a reserved forest.
6. According to Section 52 of the Act, the forest officials and police officers are empowered to seize timber or other forest produce, together with all tools, ropes, OP(C).569/11 :5:
chains, boats, vehicles and cattle, when there is a reason to believe that a forest offence has been committed in respect of that timber or other forest produce.
7. According to Section 61A, notwithstanding anything contained in the provisions of Chapter VIII, where an 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 Section 52 of the Act, shall, without unreasonable delay, produce it together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence before the officer authorised by the Government in this behalf by notification in gazette. According to sub-section (2), the Authorised Officer seizes any timber, charcoal, firewood, or ivory which is the Government property or where any such property is produced before him under sub-section (1) and he is satisfied that a forest offence has been committed in respect of such property, the Authorised Officer may order confiscation of the property seized together with tools, ropes, chains, boats, vehicles and cattle used in committing OP(C).569/11 :6:
such offence.
8. According to Section 2(e), a "forest offence" means an offence punishable under the Forest Act or Rules made thereunder. According to Section 27(e)(iii), any person who saws and converts any tree including the fallen or felled tree in a reserve forest or in a land proposed to be constituted a Reserve Forest shall be punished with imprisonment and fine. Needless to say, it is also within the ambit of the above section that the owner or the agent of a sawmill whose mill was used for sawing or converting a timber or any other item mentioned under Section 61A as property of the Government and involved in a forest offence is also liable to be prosecuted under Section 27(e)
(iii) of the Forest Act. If that be so, the machineries and tools in that sawmill are also liable to be seized and confiscated under Section 61A of the Forest Act as the same have been used in committing the forest offence.
9. On a plain reading of the expressions 'saws' and 'converts' employed under Section 27(1)(e)(ii) in juxta position, it can also be held that tools take in its fold OP(C).569/11 :7:
machinery used for converting the timber or other items and it not only means tools used for cutting or felling or removing the tree from the area within the forest but also tools or machineries used for sawing and converting the timber at a place far away from the forest area in a sawmill. So, it is incumbent on the owner of the mill or his agent to make sure that the timber which has been brought to the mill for sawing is not a timber, illicitly cut and removed from the forest. He can take reasonable and necessary precaution as contemplated under Section 61B (2) of the Act by requiring the production of necessary documents which would show that the timber is not a Government property.
10. In view of Section 61B(2) of the Act, the burden is heavy on the petitioner to prove his innocence by satisfying the statutory requirements under the three postulates laid down in the decision in State of Kerala Vs. Mathew (1995 (2) KLT 772). In this decision, this Court held as follows:
"5. The restriction against confiscation contained in OP(C).569/11 :8:
sub-section (2) can operate only on the combination of three postulates. First is that the owner or his agent was totally unaware of the illicit use. Second is that he had taken all reasonable and necessary precautions against such use. Third is, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. If the owner succeeds in satisfying only the first two postulates, he would not get the benefit of the restriction against confiscation. The third condition is as important as the other two and unless that also is established no advantage would practically ensure to the owner of the vehicle. Sub-section (2) would remain at bay if the third condition remains unsatisfied."
Going by the above decision, it could be seen that the three postulates are conjunctive and unless the petitioner discharges his burden under the postulates, the machinery is not liable to be released to the petitioner.
11. Coming to the evidence on record, it could be seen that no evidence had been adduced by the petitioner to discharge the burden under the above postulates. The only materials available on record are the evidence collected by the forest officials. Going by the said evidence, it is seen that all the accused in the case except OP(C).569/11 :9:
the timber illicitly collected from the forest were taken to the sawmill owned by the petitioner. The petitioner in his statement before the Deputy Ranger, Elanad, had stated that he knew that the timber was brought from the forest before agreeing to saw the same. He was offered double the sawing charge by the first accused and he received `1,000/- as sawing charges. He accepted before the Authorised Officer that he himself signed on the mahazar dtd. 11.11.2007 and the statement recorded on 11.11.2007 before the Deputy Ranger, Elanad. He himself admitted that he did not care to check the place from where the timber has been brought to his mill, before sawing the same. The aforesaid evidence is supported by the statements of A1 to A3. There was no evidence to suggest that the timber was obtained by legal means. The owner of the vehicle Sri. Jayaraj (A5) stated that on that day Sri. Prakasan (A3), the driver of the vehicle, contacted him over mobile phone and sought his permission to transport some timber from the house of the first accused to the sawmill owned by the petitioner, which is situated at Pazhayannur.
OP(C).569/11 :10:
Prakasan (A3) claimed that he refused to transport the sawn pieces from the mill back to the house of Mohanan the next day as the rent offered was less. Thus, the evidence available on record proves that the sawmill owned by the petitioner was used for sawing the forest produce which was illicitly cut and removed from the forest area and thereby his sawmill and the machinery therein were used for commission of the forest offence under Section 27(1)(e)(iii) of the Act. In the absence of any contra evidence proving innocence of the petitioner, I hold that there is no illegality or impropriety in the impugned order under challenge.
This Original Petition is dismissed accordingly.
Sd/-
(K.HARILAL, JUDGE) okb.