IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 1552 of 2009(I) ------------------------------------ [CMA.NO.27/1996 OF ADDL. DISTRICT COURT, PATHANAMTHITTA] .................... PETITIONER: ------------------- STATE OF KERALA, REPRESENTED BY THE CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, KOLLAM. BY SRI.M.P.PRAKASH,SPL.GOVT. PLEADER (FOREST). RESPONDENT: ---------------------- SANTHOSH.N., KUZHIVILAYIL, VATTAKKAVUMKAL, KONNI. BY ADV. SRI.SUNIL JACOB JOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1552/2009-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS NO. ORDER NO. KN.C 10 349/96 DTD. 31/05/1996 OF THE DIVISIONAL FOREST OFFICER, KONNI. EXT.P.2: COPY OF THE JUDGMENT DTD. 20/02/2007 IN CMA.NO.27/1996 OF THE ADDL. DISTRICT COURT, PATHANAMTHITTA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 1552 OF 2009 ------------------------------- DATED THIS THE 8TH DAY OF OCTOBER, 2010 JUDGMENT State of Kerala is the petitioner and is the lst respondent in CMA.No.27/1996 on the file of the Additional District Court, Pathanamthitta. The respondent herein is the appellant in the said CMA. This writ petition is filed under Article 227 of the Constitution of India seeking to set aside the judgment in CMA.No.27/96. Ext.P1 is the order passed by the Divisional Forest Officer, Konni under Section 61A of the Kerala Forest Act confiscating the Jeep bearing Regn.No.KL1-5165 which was invoved in the case. The vehicle was seized on 21/1/1996 by the Officers of the Forest Department in connection with OR.No.1/1996 of Kumaramperoor Forest Station of Konni Range. The case was registered for the illicit collection of teak billets from the forest dumping depot Njaloor and was transported in the said vehicle. The Divisional Forest Officer, who is the authorised -2- WP(C).No.1552/2009 officer, passed order dated 31/5/1996, by which the timber and vehicle are confiscated. Ext.P1 is the copy of the order of confiscation. 2. The respondent who is the owner of the vehicle challenged Ext.P1 order passed in CMA.No.27/96. The learned District Judge set aside the order passed by the Divisional Forest Officer and allowed the CMA as per judgment dated 20/2/2007, which is produced and marked as Ext.P2. The learned District Judge held that the Forest Officer has not considered the value of the vehicle and teak billets while issuing the order. 3. The learned Government Pleader (Forests) submitted that the value of the vehicle is not a relevant aspect for the purpose of considering the question as to whether the vehicle is liable to be confiscated or not. He also relied on the Full Bench decision reported in State v. Sukumara Panicker (1987 (2) KLT 341) and the decision of the Apex Court reported in State of Jharkhand and another v. Govind Singh ((2005)10 SCC 437). -3- WP(C).No.1552/2009 The learned Judge relied on the decision reported in State of Kerala v. Ancy Philip (2006 (1) KLT 699) and held that the Forest Officers are bound to produce the timber involved in the forest offence before the Magistrate concerned for a successful prosecution, that confiscation as contemplated under Section 61A of the Kerala Forest Act can be done only after the production of the timber before the Magistrate and after obtaining necessary order in this regard as provided under Section 54 of the Kerala Forest Act. 5. The learned Special Government Pleader (Forest) relying on the decision reported in D.F.O., Kothamangalam v. Sunny Joseph 2002 (3) KLT 641 submitted that the reasoning of the learned Judge that timber and vehicle shall be seized simultaneously is not legally sustainable, since this Court held that there need not be simultaneous seizure of the timber and vehicle. He also submitted that the decision relied on by the Appellate Court was subsequently reversed by the Apex Court. In the decision -4- WP(C).No.1552/2009 reported in State of Kerala v. Ancy Philip (2008 (3) KLT 477 (SC) the Apex Court held that the single Judge and the Division Bench had misinterpreted Section 54 of the Act and held that disposal can only be done after physical production of timber before the Magistrate and after obtaining necessary orders is a perverse finding and that the same was not warranted by the provisions of law. The Apex Court held that the High Court did not consider the effect of the non-obstante clause in Section 61A as well as the legal presumption available under Section 69 of the Act and that the interpretation of Section 54 is not acceptable. 6. Since Ext.P2 judgment passed by the Appellate Court is also based on the decision of this Court, which was subsequently reversed by the Apex Court, this Court is of the view that the matter requires re-consideration at the hands of the District Judge. In view of the reversal of the judgment of this Court, in exercise of the jurisdiction vested under Article 227 of the Constitution of India, this Court direct the Additional District Court, Pathanamthitta to -5- WP(C).No.1552/2009 decide the matter afresh, in the light of the decision of the Apex Court referred supra and to dispose of the appeal in accordance with law within a period of three months from the date of receipt of a copy of this judgment. Both parties are at liberty to raise all contentions before the District Court at the time of hearing. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -6- WP(C).No.1552/2009