Kerala High Court
M.K. Sasidharan vs The Forest Range Officer And Ors. on 25 June, 1999
Equivalent citations: 1999CRILJ4844
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
ORDER K.S. Radhakrishnan, J.
1. Question that has come up for consideration is whether second respondent is disabled from proceeding with Section 61-A of the Kerala Forest Act, 1961, if there is failure on the part of the Authorised Officer in reporting the seizure to the Magistrate in accordance with Section 52(2) of the Act.
2. Idukki Flying Squad Range Officer got information of illegal transportation of forest produce from the Cardamom Hill Reserve near Kizhakke Mattukada. The Range Officer and his staff intercepted Jeep bearing registration No. KL-6-1511/ carrying Choorapathri timber on 10-11-1997. Timber seized did not bear any Government stamp mark or any private property mark. As soon as the jeep was intercepted, driver and certain persons, who were in the jeep, escaped and they could not be apprehended. Vehicle and the timber logs were seized and the matter was reported by the Officer to the-Divisional Forest Officer, Kottayam, vide his letter dated 11-11-1997, along with the mahazar dated 10-11-1997, to take further action under Section 61-A of the Forest Act. Copy of the letter was also forwarded to the Divisional Forest Officer, Flying Squad, Idukki, as well as to the Forest Range Officer, Kumily. Jeep and the timber were kept in safe custody at the office of the Ayyappancoil Range.
3. The department was unaware of the whereabouts of the registered owner and no person came forward to claim the vehicle. Divisional Forest Officer, Kottayam, then sent a letter No. A2/10726/97 dated 12-11-1997 to the Regional Transport Officer, Idukki for ascertaining the details of the registered owner. Regional Transport Officer, Idukki vide his letter dated 16-12-1997 directed the second respondent to contact the Joint Regional Transport Officer, Vandiperiyar. Copy of the said letter was also forwarded to the Joint Regional Transport Officer, Vandiperiyar. The Joint Regional Transport Officer, Vandiperiyar vide his letter dated 13-1-1998 informed the second respondent that the registered owner of the vehicle is one M. A. Ravindran, as per the records kept in that office.
4. Second respondent later wrote to the Range Officer, Kumily directing him to submit a report with regard to seizure for taking further action in the matter. Forest Range Officer, Kumily then sent his report dated 22-4-1999 to the second respondent so as to take further action under Section 61-A of the Act and the proceedings are underway.
5. Second respondent in the meantime received a letter dated 12-3-1999 from the petitioner claiming ownership and possession of the vehicle and sought release of the vehicle. According to him, the vehicle was seized from his possession on 10-11-1997 and that he had not committed any forest offence. According to him, the seizure of the vehicle was illegal and the department is unauthorisedly keeping the vehicle without reporting the seizure to the Magistrate having jurisdiction. Petitioner claimed ownership on the basis of an agreement dated 25-2-1995 stated to be executed by the registered owner.
6. Petitioner then filed O.P. No. 8819 of 1999 seeking a direction to the second respondent to dispose of his petition dated 12-3-1999. This Court disposed of the Writ Petition directing the second respondent to pass orders on the said representation. Second respondent has now issued Ext. P-6 order dated 29-4-1999 stating that vehicle could be released only after getting information from the registered owner. Petitioner then sent a letter dated 4-5-1999 purported to have been issued by the registered owner for release of the vehicle in favour of the petitioner. Since no action has been taken by the second respondent to release the vehicle, petitioner has approached this Court.
7. I heard counsel on either side. Counsel for the petitioner contended that respondents ought to have released the vehicle since the petitioner was the owner and was in possession of the vehicle. Counsel relied on Ext. P-7 letter dated 4-5-1999 purported to have been written by the registered owner. According to him the vehicle was seized from his custody and therefore respondents ought to have released the vehicle to the petitioner. Counsel further submitted that the seizure of the vehicle itself is illegal due to the non-compliance of Section 52(2) of the Act. According to counsel, as per Section 52(2) it was obligatory on the part of the Authorised Officer on seizure of the vehicle and the timber to submit a report of seizure to the Magistrate having jurisdiction to try the offence after marking the timber. Counsel submitted that the failure to comply with the said statutory provision makes the seizure illegal and therefore no proceedings under Section 61-A of the Act could be initiated.
8. A statement has been filed on behalf of respondents 1 to 3, which states that petitioner has not produced any authentic document to show the ownership and possession of the vehicle. According to respondents 1 to 3, vehicle was not seized from the petitioner and that as soon as the vehicle was seized, the matter was reported to the second respondent for taking further action under Section 61-A of the Act. Further it is stated that the vehicle and the timber seized are kept in safe custody in the office of the Ayyappancoil Range. Range Officer, Kumily also in the meanwhile conducted an enquiry and submitted a report recommending confiscation of seizure to the second respondent. Further it was pointed out that registered owner has never turned up claiming vehicle and that the petitioner could not establish ownership and possession on reliable materials, especially when the vehicle was not taken possession from the petitioner. According to respondents, department is justified in taking further action under Section 61-A of the Act.
9. In order to examine the question whether respondents are justified in proceeding with Section 61-A of the Act, even if the Authorised Officer failed to report the seizure to the Magistrate concerned, it is relevant to examine the scope of Sections 52 and 61-A to F of the Kerala Forest Act. Section 52 is extracted below :
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, Section 55, Section 61-A and Section 61-B 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 (1) 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.
Section 52 enables the Authorised Officer to seize timber or other forest produce in respect of which there is reason to believe that a forest offence has been committed together with all tools, ropes, chains, boats, vehicles, etc. Section 52(2) says that as soon as the seizure is made, the Authorised Officer 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 seizure has been made. The power of confiscation rests not with the Authorised Officer who seized the vehicle, but with the Magistrate having jurisdiction. Power is also given to the Authorised Officer to release the vehicle under Section 53. Section 54 deals with the procedure to be followed by the Magistrate upon receipt of report of seizure from the Authorised Officer. It enables the Magistrate to take such measures as may be necessary for the trial of the accused and the disposal of the property according to law; Section 55 of the Act also enables the Magistrate to order confiscation of tools, ropes, chains, boats, vehicles, etc., if ultimately the accused is convicted. Power of confiscation could be exercised by a Magistrate on conviction and the Magistrate has got power to convict a person in addition to order confiscation of the forest produce as well as vehicle.
10. Legislature felt that the procedure of confiscation and conviction as provided in Sections 52, 54 and 55 by a Magistrate is inadequate and ineffective to stop the exploitation of forest wealth. It was, therefore, found necessary to introduce adequate provisions in the Act so as to effectively prevent the illicit removal of timber, ivory, etc. belonging to Government from the forest. Accordingly, Legislature has introduced Sections 61-A to F in the Act, by Act 28 of 1975. The object of the said amendment, as I have already mentioned, is to more efficiently curb the ever increasing exploitation of forest wealth. Legislature felt the machinery of criminal prosecution as provided in Section 52(2) was ineffective to stop the menace of exploitation of forest wealth and it was felt that a separate independent forum is necessary in appropriate cases to order confiscation of vehicle used in the commission of forest offence and hence Sections 61-A to F were incorporated in the Forest Act under Act 28 of 1975.
11. Section 61-A of the Act is extracted below :
61. Confiscation by Forest Officer in certain cases:- 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 authorised 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 Authorised Officer).
(2) Where an Authorised 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 the Authorised Officer under Sub-section (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such Authorised 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.
(Emphasis supplied) Officers so appointed Under Section 61-Aof the Act have to perform quasi-judicial function. Under Section 61-B of the Act they have to issue a show cause notice to the registered owner of the property or the person from whom the vehicle was seized. Section 61-B(2) enables those persons to prove their innocence. Adequate provisions have been made in Section 61-C to enable the Conservator of Forests to revise the order passed by the Authorised Officer, after giving an opportunity of being heard to the affected parties. Appeal is also provided under Section 61-D of the Act to the person aggrieved to the District Judge having jurisdiction over the area. In other words, for an action taken under Section 61-A of the Act, Legislature has made all sufficient safeguards before an order of confiscation is made.
12. Legislature has also employed the non-obstante clause in Section 61-A in order to see that Section 61 -A has overriding effect over other provisions of Chapter VIII. In other words, officers exercising powers under Section 61-A may proceed with confiscation proceedings dehors any other provision under that Chapter. Section 61 -A of the Act is independent of the powers conferred on the Magistrate under Section 52(2) of the Act. Therefore the failure on the part of the Authorised Officer to report the seizure of the vehicle and the timber to the Magistrate authorising him to proceed under Section 52(2) of the Act cannot restrict or take away the power of the Authorised Officer to proceed under Section 61-A of the Act. Section 61-A of the Act starts with a non obstante clause and therefore as pointed out by the Supreme Court in Superintendent and Remembrance of Legal Affairs v. Satyen Bhowmick (1981) 2 SCC 109 : (1981 Cri LJ 341), a non obstante clause has the effect of overriding the provisions of a law or the law in which the said clause is inserted. Reference in this con nection may be made to the decision of the Supreme Court in Kalliani Amma v. K. Devi (1996) 4 SCC 76 : (AIR 1996 SC 1963). Therefore it is with that purpose that the Legislature has introduced Sections 61-A to F so that a separate and independent forum is given power to safeguard the property confiscated under the Forest Act.
13. A Division Bench of the Bombay High Court had occasion to come across the scope of similar provisions in the Indian Forest (Maharashtra) Amendment Act, 1984, Act VII of 1985, in Kama Laxman Gawali v. State of Maharashtra 1990 Cri LJ 163. While dealing with the same, the Division Bench held as follows :
The object behind the Amendment Act No. VII of 1985 is to more efficiently curb the ever-increasing exploitation of forest wealth by unscrupulous persons in various ways. Machinery of criminal prosecution and forfeiture contained in the Act was found to be ineffective to stop the menace and hence one more separate and independent forum has been provided for and that is of a forest authority, which in appropriate cases is empowered to order confiscation of property used in the commission of forest offence. Such officer performs quasi-judicial function. Procedure for enquiry into the relevant facets is contemplated and the order is subjected to revision or appeal.
The dictum laid down by a Division Bench of the Bombay High Court also justifies the introduction of Sections 61-A to F by Act 28 of 1975 in our Act so as to effectively prevent illegal transportation of timber belonging to the Government from the Forest.
14. Therefore the contention of counsel for the petitioner that the failure of the Authorised Officer in reporting the matter to the Magistrate has affected jurisdiction of the second respondent to proceed under Section 61-A of the Act cannot be accepted. It is always open to the Authorised Officer to report the matter to the Magistrate so that Magistrate could also initiate criminal prosecution. Section 61-A takes care of only civil liability of the offenders and the Magistrate takes care of criminal liability as well.
15. In the instant case, however, I am of the view that department though seized the vehicle and the forest produce as early as on 10-11-1997, they have not taken prompt action to complete the proceedings under Section 61-A of the Act. Section 61-A obliges the officer to produce the timber, vehicle, etc., before the Authorised Officer without delay. The officer should have taken prompt action in this direction. The officer who seized the vehicle on 10-11-1997 had sent his report and the mahazar on the next day itself to the second respondent. The second respondent should have taken prompt action. The mere fact that nobody came forward to claim the vehicle and the timber is not a reason for delaying the proceedings under Section 61-A of the Forest Act.
16. Petitioner claims ownership and possession on the basis of an alleged agreement dated 25-2-1995 and letter dated 4-5-1999 purported to have been executed by the registered owner. It is the definite stand of the department that the vehicle was not taken possession from the petitioner. The burden is on the claimant to establish his possession and ownership with relevant materials. As per Section 61-B of the Forest Act before confiscating the vehicle, a show cause notice be issued only to the person from whom the vehicle was seized or the registered owner. In any view of the matter, since petitioner claimed ownership and possession of the vehicle, notice may be issued to him, apart from the registered owner and complete the proceedings. It is open to the petitioner to establish his claim before the authorised officer.
17. In the said circumstances, I do not find any illegality on the part of the respondents in not releasing the vehicle. I make it clear that it is highly necessary, since the seizure was made on 10-11-1997, for the respondents to complete the Section 61 -A proceedings at the earliest. The 2nd respondent should issue notice to the registered owner, petitioner, etc. before finalising the proceedings. Accordingly, there will be a direction to the second respondent to complete the confiscation proceedings within the two months from the date of receipt of a copy of this judgment.
Original Petition is disposed of as above.