Kerala High Court
State Of Kerala vs P.K.Mohanan on 26 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936
OP(C).No. 74 of 2011 (O)
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CMA.NO.639/2002 OF DISTRICT COURT, THRISSUR
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PETITIONERS:
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1. STATE OF KERALA, REPRESENTED BY THE
CHIEF CONSERVATOR OF FORESTS, WILDLIFE,
NORTHERN REGION, PALAKKAD.
2. WILDLIFE WARDEN, PEECHI.
BY GOVERNMENT PLEADER SMT. SHEEBA
RESPONDENT :
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P.K.MOHANAN, S/O.RAMAN AYYAPPAN,
PAZHAYIDATH HOUSE, PATTIKKAD DESOM, PEECHI VILLAGE,
(MANJAKUNNU P.O., PATTIKKAD), THRISSUR.PIN-680 652
BY ADV. SRI.K.RAVIKUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD
ON 24-03-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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OP(C).NO.74/2011
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ORDER NO.P.W.3-898/96 DATED 26/7/2002 OF THE WILDLIFE
WARDEN, PEECHI
P2 COPY OF THE JUDGMENT DATED 07/06/2010 IN CMA.639/2002 OF THE
HONOURABLE DISTRICT JUDGE, THRISSUR.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO.JUDGE
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K.HARILAL, J.
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O.P(C) No.74 of 2011
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Dated this the 24th day of March, 2014
JUDGMENT
The State of Kerala filed this original petition challenging the judgment passed in C.M.A. No.639 of 2002 on the files of the District Court, Thrissur. The above C.M.A. was filed by the respondent herein challenging the order of confiscation passed by the Authorised Officer, Wild Life Warden, Peechi in P.W.3-898/96 in O.R.No.5/1996 of Vaniyampara Forest Station, Peechi Range. The above O.R was registered for cutting and transporting teak trees standing in the forest area. The case of the forest officials is that three tender teak wood trees were unauthorisedly cut and removed from 1960 Pothundi Teak-Elavu mixed plantation situated in Paravattani Reserve in Vaniyampara Station, Peechi Range and thereby the Government sustained a loss of Rs.6,000/-. During OP(C).74/11 :2:
the investigation, it was revealed that the trees were removed from forest by the accused in a Tata Mini Lorry bearing Regn. No.KL-7G/3877, and the said mini lorry was driven by one Mr.Shaji. Thereafter, the D.F.O. conducted enquiry and passed the order confiscating the above said vehicle invoking power under Section 61A of the Kerala Forest Act. Feeling aggrieved, the respondent had filed above C.M.A. before the District Court. After considering the evidence on record, the learned District Judge allowed the C.M.A. by the impugned judgment under challenge. The legality and propriety of the said order are under challenge in this original petition.
2. In this O.P., it is contended that the learned District Judge went wrong in holding that apart from the mahazar mentioned, there is absolutely no independent or convincing evidence to prove that the trees were standing in the reserve forest and that no proper sketch has also been produced to prove the exact location. The above observation is made contrary to the presumption under Section 69 of the Kerala Forest Act. It says that, "When, in any proceedings taken under this Act, or in consequence of anything done under this Act, a question arises as to whether any forest produce is the OP(C).74/11 :3:
property of the Central or State Government, such produce shall be presumed to the property of the Central or State Government, as the case may be, until the contrary is proved. Secondly, the learned District Judge relied on the decision reported in Pushpan Vs. State of Kerala (1984 KLT 1021). The above decision has been overruled by a Full Bench of this Court in the decision reported in State of Kerala Vs. Sukumara Panicker (1987 (2) KLT 341). Thirdly, the learned District Judge had erred in the finding that there is no evidence to prove that the respondent's vehicle had been used for transporting the timber logs.
3. Per contra, the learned counsel for the respondent submits that the respondent as well as the driver of the vehicle had given statements before the authorised officer to the effect that they had taken reasonable and necessary precautions against such illegal use of the vehicle in violation of the provisions of the Forest Act. Therefore, nothing wrong on relying the statement of the respondent as well as the driver of the vehicle so as to arrive at a finding that the vehicle had been used without their knowledge or connivance. The learned counsel further contends that there is no evidence to show that OP(C).74/11 :4:
the trees were cut and removed from the reserve forest area and it is for the prosecution to prove that the said trees were cut from the reserve forest. In the absence of sufficient evidence to show that the vehicle had been used for commission of the forest offence, the court below can be justified in setting aside the order passed by the authorised officer confiscating the vehicle of the respondent.
4. In view of the rival submissions at the Bar, the question to be considered in this Original Petition is whether there is any illegality or impropriety in any of the findings in the impugned judgment under challenge? As regards the first point raised by the petitioner, it is seen that the logs, which were allegedly cut and removed from the reserve forest, were seized by the forest officials and produced before the competent officer. Going by Section 69 of the Kerala Forest Act, the presumption is that when any proceedings taken under the Forest Act or in consequence of anything done under the Forest Act, the question arises as to whether any forest produce belongs to the Central or State Government, such produce shall be presumed to be the property of the Central or State Government, as the case may be, until the contrary is proved. It provides a OP(C).74/11 :5:
statutory presumption that forest produce belongs to the Government and casts burden on the person against whom the proceedings are initiated to establish contrary.
5. The above view is supported by the decision in Baby Vs. Forest Range Officer (ILR 1986 (2) (Ker) 57). If it is proved that the forest produce in possession of the accused person corresponds to logs illegally cut and removed from the Government Forest, the burden will shift upon the accused to prove that the said logs were not illegally cut and removed from the Government Forest. When applying the above proposition in the instance case, it is seen that the respondent has miserably failed to discharge the burden cast on him under Section 69 of the Forest Act. Consequently, I find that the finding of the court below, that there is no legally acceptable evidence to prove that the trees were standing in the reserve forest, is absolutely illegal and unsustainable.
6. Coming to the question, whether there is sufficient evidence to prove that the appellant's vehicle was used for the commission of the forest offence, the authorised officer had relied on the statements of the driver and the other persons, who were engaged to load the logs to the lorry. In the OP(C).74/11 :6:
statement given by the driver himself before the authorised officer, he admitted that before the commission of the offence, he was well aware of the fact that the usage of the vehicle for such purpose is illegal and liable to be punished under law. But, he had done the above act after receiving an amount of `5,000/- as hire charge from one Kunjukutty @ Yohannan, the hirer of the vehicle. In addition to his statement, the authorised officer had recorded the statements of Viswappan @ Viswanathan and Yohannan. Going by the order passed by the authorised officer, it could be seen that the above forest offence was committed in furtherance of a conspiracy hatched under the leadership of one Viswanathan @ Viswappan and the driver of the vehicle also seems to be one of the conspirators. It is seen that the illegally cut and removed 12 teak woods were transported to the sawmill, namely St.Joseph's Mill, using the respondent's vehicle with the full knowledge of the driver Shaji that he was committing a forest offence. Therefore, I find that there are sufficient evidence to prove that the respondent's vehicle was used for the commission of the offence.
7. The learned counsel for the respondent further drew my attention to the statement of the respondent that he had OP(C).74/11 :7:
taken all reasonable precautions against the illegal use of the vehicle and he had given statement to that effect before the authorised officer. But, I am of the opinion that the statement of the owner of the vehicle alone is not sufficient to discharge the burden cast under Section 61B(2) of the Kerala Forest Act. Contrary to the statement of the respondent, its driver has given statement to the effect that before commission of the offence, he was well aware of the fact that the vehicle was going to be used for the commission of a forest offence. Therefore, the statement of the owner and driver of the vehicle are mutually opposed and destructive.
8. In State of Kerala Vs. Mathew (1995 (2) KLT 772), this Court held that restriction against confiscation contains in 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. The second is that he has taken all reasonable and necessary precautions against such use. The third is that the person in charge of the vehicle had also taken reasonable and necessary precautions against such use. If the owner succeeds to satisfy only the first two postulates, he will not get the benefit of the third postulate. The third condition is OP(C).74/11 :8:
as important as the other two and unless that also is established, no advantage would practically enure to the owner of the vehicle. Sub-section (2) would remain at bay, if the third condition remains unsatisfactory.
9. In the light of the above discussions, I find that the order passed by the court below is illegal and unsustainable under law. I find that the appreciation of evidence is vitiated by perversity. Consequently, the impugned order passed by the District Court is set aside and the order passed by the authorised officer will stand restored. The authorised officer is at liberty to proceed against the vehicle, if the vehicle had been released earlier.
The Revision Petition is allowed.
(K.HARILAL, JUDGE) stu/okb.