Kerala High Court
Subin George vs State Of Kerala on 10 February, 2023
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
CRL.MC NO. 8539 OF 2022
PETITIONER/ACCUSED NO.9:
SUBIN GEORGE, AGED 36 YEARS
S/O.GEORGE, EDATHALA HOUSE, NEELEESWARAM P.O.,
KALADY, ERNAKULAM DISTRICT, PIN - 683574
BY ADV BABU S. NAIR
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
2 THE ASSISTANT FOREST CONSERVATOR
NATURAL STUDY CENTRE, KALADY, MALAYATTOOR P.O.,
ERNAKULAM DISTRICT, PIN - 683587
3 THE FOREST RANGE OFFICER
RESEARCH RANGE, KODANAD P.O., ERNAKULAM DISTRICT,
PIN - 683544
4 THE DEPUTY RANGE OFFICER
KURISUMUDI FOREST STATION, MALAYATTOOR P.O.,
ERNAKULAM DISTRICT, PIN - 683587
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
PP M.C.ASHI
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
06.02.2023, THE COURT ON 10.02.2023 PASSED THE FOLLOWING:
Crl.M.C. 8539/2022
2
ORDER
Dated this the 10th day of February, 2023 The petitioner is the 9th accused in O.R. No. 1 of 2017 of the Kurisumudi Forest Station, registered for offences punishable under Sections 27(1)(e)(i), (iv) and (v) of the Kerala Forest Act and Section 2 of the Forest (Conservation) Act.
2. The essential facts are as under;
At the request of the Vicar and Parishioners of the St. Thomas Church, Malayattoor, the Government, as per G.O.(Rt) No. 3166/1969/Agri. Dated 30.12.1969, granted lease of 12.7 acres of land for being utilised as parking space at Adivaram and trekking path to the Church atop the hill. On 14.03.2017, the forest officials found machineries and vehicles being employed by the accused for widening the trekking path and tarring the parking space. As the activity was being done within notified reserve forest area, contrary to the lease Crl.M.C. 8539/2022 3 conditions, crime was registered against the Vicar and others. The petitioner was arrayed as an accused, since his vehicles and machinery were being used for the alleged illegal activity. As directed by the investigating officer, the petitioner produced his vehicles at the Forest Station. Thereupon, seizure mahazar and report were prepared and forwarded to the Judicial First Class Magistrate Court, Kalady. Later, the petitioner moved applications under Section 451 Cr.P.C, seeking interim custody of the vehicles. The applications were allowed subject to certain conditions. The first condition required the petitioner to execute bonds for Rs.15 Lakhs with solvent sureties for the like sum. The petitioner was also made to give an undertaking that he will not alienate the vehicles till disposal of the cases. This Crl.M.C. is filed seeking a direction to the jurisdictional Magistrate to cancel the bonds executed by the petitioner and sureties.
3. Learned Counsel for the petitioner contended that, even after five years of registration of the Occurrence Report, the investigation has not reached anywhere and the petitioner Crl.M.C. 8539/2022 4 is being put to extreme prejudice by reason of the restriction against alienation of his vehicles. It is contended that, seizure of property in relation to a forest offence committed in respect of timber or other forest produce can only be in accordance with Section 52 of the Kerala Forest Act, 1961 ('the Act' for short). As per Section 52 (1), if there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence can be seized by any forest officer or police officer. In the instant case the allegation is that the accused had cleared the area and tarred a portion already leased out to the St.Thomas Church. Being so, the action of the accused cannot be termed as forest offence committed in respect of any timber or other forest produce. Moreover, as per Section 61A, only vehicles, machinery etc used for committing forest offence in respect of timber, charcoal, firewood or ivory, which are the property of the Government alone can be confiscated. In the absence of Crl.M.C. 8539/2022 5 any allegation that the accused had committed forest offence in respect of timber, charcoal, firewood or ivory, the question of confiscation does not arise. The continuance of bonds in a case where there is no possibility of the vehicles being confiscated being an abuse of process, the bonds executed by the petitioner and his sureties are liable to be cancelled and the petitioner granted the liberty to deal with his vehicles without any restriction.
4. The learned Public Prosecutor contended that the offence committed by the petitioner and the other accused would fall under Section 27(1) of the Act. In elaboration of this contention, reference is made to the definition of 'forest produce' under Section 2(f) as also the offences enumerated under Section 27(1). It is contended that Section 52 or 61A of the Act has no application, since the vehicles are material objects and can therefore be released only on conclusion of the trial.
5. As rightly contended by the Public Prosecutor the alleged act of the accused in O.R. No. 1 of 2017 would fall Crl.M.C. 8539/2022 6 under Section 27. In this regard it is essential to understand the definition of 'forest produce' in Section 2(f) extracted hereunder;
"S.2(f) "Forest Produce" includes the following when found in or brought from, a forest, that is to say.-
(i) trees and leaves, flowers and fruits and all other parts or produce of trees, and charcoal,
(ii) plants not being trees (including grass, creepers, reeds and moss) and all other parts or produce of such plants,
(ii) wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax and all other parts or produce of animals,
(iv) peat, surface soil, rock and minerals (including limestone and laterite), mineral oils and all produce of mines and minerals."
6. It is thus clear that, trees, leaves, flowers, fruits and other parts of trees, plants and produce of plants, peat, surface soil, rock and minerals fall within the definition of 'forest produce'. Under Section 27 (1) cultivating, clearing, breaking up any land in reserve forest for cultivation or for any other purpose or putting up any shed or other structures and as per Section 27(1)(vi), or removal of any forest produce are made punishable offences. The allegation against the petitioner and others being that they had cleared forest area Crl.M.C. 8539/2022 7 for the purpose of widening the trekking path and had tarred the parking space, thereby altering its nature, it prima facie appears that the offences under Section 27(1) of the Act are made out.
7. In order to answer the contention based on Section 52, it is necessary to have a close look at the provision;
"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 timber or other 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 terms 'boats and vehicles' in this section, section 53 and section 55 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 (I) 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 the 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 official superior."Crl.M.C. 8539/2022 8
As discussed earlier, when there is a reason to believe that a forest offence has been committed in respect of any timber or other forest produce, the vehicles used in committing such offence can be seized by the forest officer. As per Section 52(2), the officer seizing the vehicle shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence. The case diary reveals that, after preparing the seizure mahazar and report, the Station House Officer had made a report in Form I to the jurisdictional Magistrate, as contemplated in Section 52(2) of the Act. The procedure to be followed on receipt of the report under Section 52(2) is prescribed in Section 54.
8. Section 53 deals with the power of the competent officer to 'release' the vehicles, other articles or cattle seized under Section 52, to the owner on execution of a bond for production of the property, if and when required, before the Magistrate having jurisdiction to try the offence. Therefore, the release under Section 53 is interim in nature and is subject Crl.M.C. 8539/2022 9 to the orders to be passed by the jurisdictional court. But, when it comes to Section 54, the Magistrate is given the power to 'dispose' the property according to law. There is no mention or indication that such power can be exercised only after conclusion of trial. Thus, while 'release' under Section 53 is temporary, 'disposal' under Section 54 is final. In this context, Section 56, providing for disposal on conclusion of trial for forest offences, of produces in respect of which it is committed, also assumes relevance. Thus, the Forest Act prescribes a separate procedure for release of vehicles and articles.
9. A Division Bench of this court, after considering the scope and ambit of the power under Section 54 of the Act in State of Kerala v. Ancy Philip (2006(1) KLT 699) held that, when timber or other forest produce are seized alleging commission of forest offence in respect thereof, the same has necessarily to be tried by the Magistrate having jurisdiction to try the offence. It was also held that in order to have a successful prosecution of the accused, it is essential that the Crl.M.C. 8539/2022 10 forest produce, which is the subject matter of the offence, is produced before the Magistrate since, without the thondi article, it is impossible to have a successful prosecution. The Division Bench judgment was challenged before the Apex Court in State of Kerala v. Ancy Philip (2008(3) KLT 477 (SC)). Being contextually relevant, paragraph 5 of the judgment is extracted hereunder;
"5. In the instant case, the forest officials had allegedly seized 41 rosewood timber and 54. rosewood billets. The High Court has relied on S. 54 of the Act which refers "disposal of the property according to law", would necessarily mean that the disposal of the property confiscated under the provisions of S. 61A has to be under the orders of Magistrate. It is true that in addition to the criminal prosecution, the appellants are entitled to proceed against timber under S. 61A of the Act, but timber can also be disposed of after obtaining necessary orders from the Magistrate concerned under S.54 of the Act. However, the Single Judge and the Division Bench had misinterpreted the above provision, namely, S. 54 and held that disposal can only be done after physical production of timber before the Magistrate and after obtaining necessary orders. This is a perverse finding. The same was not warranted by the provisions of law, as the prosecution has to produce the relevant records showing such seizure and the officer, who has seized those articles, has to satisfy that an offence has been committed by the accused. As rightly pointed out, the High Court did not consider the effect of Crl.M.C. 8539/2022 11 the non-obstante clause in S. 61A as well as the legal presumption available under S. 69 of the Act. Likewise, the interpretation to S. 54 is not acceptable. We accept the stand taken by the State and set aside the order of the High Court and the Special Magistrate is permitted to proceed with the trial of the accused in accordance with law."
Thus, the Supreme Court categorically held that, under Section 54, the Magistrate has the power to order disposal of the property without its physical production. Hence I find that the jurisdictional Magistrate is having the power to order disposal of the petitioner's vehicle under Section 54.
10. As rightly contended by the counsel for the petitioner, there cannot be any confiscation of the vehicles under Section 61A, since the offences are not committed in respect of timber, charcoal, firewood or ivory which is the property of the Government. This is an aspect that should weigh with the Magistrate while considering the application for disposal filed under Section 54 of the Act.
In the result, Crl.M.C. is disposed of permitting the petitioner to move applications under Section 54 of the Act before the jurisdictional Magistrate. Upon such applications being filed, the Magistrate shall pass appropriate orders Crl.M.C. 8539/2022 12 thereon expeditiously. The long pendency of the matter and the absence of any prospect for confiscation under Section 61A shall be taken into account while considering the applications. The orders passed under Section 54 of the Act would hold the field, as far as release of petitioner's vehicles is concerned.
Sd/-
V.G.ARUN JUDGE sb Crl.M.C. 8539/2022 13 APPENDIX OF CRL.MC 8539/2022 PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE OCCURRENCE REPORT ON FORM NO.1 IN O.R.NO.1/2017 OF THE KURISUMUDI FOREST STATION Annexure B A TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT DATED, 14- 12-2018