IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 103 of 2008(K) ------------------------------------ PETITIONERS: --------------------- 1. P.FIROZ, S/O.PARAKKOTTIL ALI, PARAKKOD HOUSE, VADAMANNAPURAM P.O., ALANALLUR. 2. PARAKKOTTIL ALI, S/O.KUTTIPPU HAJI, VADAMANNAPURAM P.O., ALANALLUR, MANNARKKAD, PALAKKAD DISTRICT. BY ADV. SMT.VANAJA MADHAVAN. RESPONDENTS: ------------------------ 1. DIVISIONAL FOREST OFFICER, SOUTH DIVISION, NILAMBUR. 2. THE MOTOR AND ORIENTAL FINANCE LTD., M.G.F.HOUSE, 17-8 ASAF ALI ROAD, NEW DELHI -110 002. R1 BY SPL.GOVT. PLEADER (FORESTS) SRI. P.M. POULOSE, R2 BY ADV. SRI.G.HARIHARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON 18/05/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.103/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DT. 15/02/1996. EXT.P.2: COPY OF THE JUDGEMENT DT. 29/09/2007 IN CMA.NO.24/96 OF ADDL. DISTRICT JUDGE, MANJERI. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------- W.P (C) No.103 of 2008 -------------------------- Dated this the 18th May, 2010 J U D G M E N T First petitioner claims to be the owner of a Tata Pick up Lorry bearing Reg.No.KL7C 6230. The vehicle was purchased after availing financial facilities from the 2nd respondent. The vehicle was seized by the Flying Squad D.F.O on 21.7.1994 alleging that it was involved in a forest offence. The specific allegation was that on 5.7.1994 was that the Forest Officials noticed one teak tree was cut and removed from the reserve forest. A Mahazar prepared and case was registered as O.R No.13/94. 2. It is claimed that on 13.7.1994 three teak logs were recovered from a rubber garden at Mannadi and persons who were found transported the timber logs, were arrested. According to the Forest Officials, the petitioner would say that they came to know that those teak logs were transported from the reserve forest to the places from where it was recovered by the vehicle owned by the petitioners. They sought release of the vehicle W.P (C) No.103 of 2008 2 denying the allegations. 3. It seems that the Forest Officials refused to release the vehicle. The petitioners approached this Court and obtained an order for releasing the vehicle. 4. First respondent thereafter initiated proceedings under Section 61A of the the Kerala Forest Act for confiscation of the vehicle. It is pointed out by the petitioners that on 30.4.1995 while the proceedings were going on the vehicle was taken away by the Financier for default of payment due from the petitioner. Though the police was informed about the high handed action of the Financier, they pleaded that the vehicle had been taken away by the Financier and presented before the Court. 5. It seems that petitioners were issued with show cause notice under Forest Act. They filed a detailed written statement stating that they were not involved in any offence. The complaint of the petitioners is that without giving an opportunity to be heard and present their case, the Forest Officer passed an order confiscating the vehicle. 6. The petitioners carried the matter in appeal as W.P (C) No.103 of 2008 3 C.M.A. 24/96 before the Additional District Court, Manjeri. The said court confirmed the confiscation order. The said order is challenged in this writ petition. 7. Learned counsel appearing for the petitioners pointed out that there is absolutely no evidence to show that the vehicle owned by the petitioners was used for transporting the teak logs. The offence was detected on 5.7.1994. Three persons who were involved in the transport of logs were arrested on 13.7.1994. Learned counsel pointed out that respondent Forest Officials got information on 3.8.1994 about the involvement of their vehicle. On that basis, the vehicle was seized. It is pointed out that other evidence relied on by the Forest Officials is in respect of three accused persons. According to the learned counsel, the materials produced by the Forest Officials are inadequate and insufficient. 8. Learned Government Pleader stated that even after notice as contemplated by Section 61A of the Kerala Forest Act was issued to the petitioners. The Forest Officers had sufficient materials to come to the conclusion W.P (C) No.103 of 2008 4 that teak logs were cut and removed from the reserve forest in the vehicle owned by petitioners. 9. Learned Government Pleader relied on the presumption under Section 69 of the Act in support of his contentions. 10. It is not in dispute that forest offence was detected on 5.7.1994 and crime was registered as O.R No.13/94. According to the Forest Officials, they found that one teak tree was cut and removed and had occasion to recover three logs of teak tree from a rubber plantation. Three persons were arrested on 13.7.1994. They were questioned on several occasions. It is surprising to note that till 22.9.1994 they did not speak about the vehicle in which the logs has been transported. It is here one has to be notice that going by the evidence given by the Forest Officers, the vehicle was found parked at a far away place and on the basis of the information received by them, it was seized. 11. First of all that itself is suspicious. Then again, identification of the vehicle by the accused is long after the seizure. W.P (C) No.103 of 2008 5 12. The accused persons had not disclosed the vehicle in which it was transported nor did the Forest Officers also ask about the same when they initially questioned the accused and statements taken. Obviously, one of the important aspects to be considered at that point of time being the question of the teak logs had been transported in the vehicle involved, would have been disclosed in the first instance itself. The statements of three accused persons stating about the involvement of the vehicle were given long after the seizure and the arrest. 13. Even though it is stated that petitioners did not respond to the notice, according to the petitioners it is not correct. They had filed a detailed objection to the proposal to the confiscation of the vehicle. Their grievance is that subsequently they were not heard and without hearing them, the impugned order has been passed. The order of the Divisional Forest officer shows that petitioners did not turn up. Whatever that be, even assuming that the petitioner did not turn up, is not a ground to order automatic confiscation. W.P (C) No.103 of 2008 6 14. It is to be shown that the forest products were transported with the aid of the vehicle. The vehicle is liable for confiscation until and unless the owner shows that it was used for the purpose without his consent and knowledge and he has taken all reasonable precautions against such use. True Section 69A of the Act comes to the aid of Forest Officials. But initial burden to prove that the vehicle was involved in the forest offence is that on the prosecution itself. That burden cannot be shifted on to respondents. 15. The lower court has mainly taken the decision on the ground that the petitioner had not responded to the notice issued by the Forest Officials. It is stated that the said observation is not correct. They filed a detailed objection and prayed some more time. Even though they were assured that they would be given notice and posting date, that was not done. The order has been passed moulding principles of natural justice. 16. As already noticed except for the statements said to have been given by accused long afterwards there is nothing to show that the vehicle was involved in the offence. W.P (C) No.103 of 2008 7 The statement given by three accused persons is after the seizure and long after their arrest. It is also unbelievable that at the time of arrest, the Forest Officials would not have enquired about the vehicle used for transportation and it is in the third last statement they had identified the vehicle and gave details. The respondents have only relied on the so called highly belated statements of the accused to establish the case against the petitioners. Those statements are far from satisfactory and are least convincing. There are no other materials to connect the vehicle to the offence. 17. Hence this Court is unable to accept the findings of the authorities below. In the result, this petition is allowed and the impugned orders are set aside and the proceedings taken against the petitioners for confiscation of the vehicle shall stand dropped. P.BHAVADASAN, JUDGE ma W.P (C) No.103 of 2008 8 W.P (C) No.103 of 2008 9