IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 CRP.No. 422 of 2010() --------------------- CMA.35/2009 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... REVN. PETITIONER/ APPELLANT ------------------------------ CHACKO BABY, S/O. CHACKO, AGED 54, VANDANAKKARA HOUSE, EAST MARADY P.O., MUVATTUPUZHA. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS/RESPONDENTS: -------------------------- 1. THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, KOTHAMANGALAM. 2. THE FOREST RANGE OFFICER, KOTHAMANGALAM. ADV. SRI. M P PRAKASH SPL. G.P (FOREST) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.422 of 2010 --------------------------------------- Dated this 02nd day of November, 2010 ORDER This revision is in challenge of judgment of learned Additional District Judge-IV, Ernakulam in C.M.A.No.35 of 2009 confirming the order of confiscation passed by the conservator of forest (herein after referred to as the 'Authorised Officer') under Section 61A(2) of the Kerala Forest Act. (for short, “the Act”). Petitioner whose articles are allegedly seized challenge judgment of learned Additional District Judge. 2. Heard counsel for petitioner and learned Government Pleader appearing for respondents. 3. Case of respondents is that on 17-03-2005 forest officials inspected the furniture manufacturing unit of petitioner and allegedly found unaccounted timer and some semi furnished articles in that premises. Thereon, believing the same to be property of the government, the same were seized as per a mahazar and produced before the Authorised Officer. In connection with that, respondent No.2 registered O.R.No.3 of 2005 against petitioner for alleged violation of Sections 39 and 40 of the Act. Another case was also registered against petitioner C.R.P.No. 422 of 2010 : 2 : for allegedly causing obstruction to the official duty of forest officials. Following registration of the case under the Act, respondent No.1 cancelled N.O.C given to the manufacturing unit of petitioner. Petitioner challenged that order in this court in W.P (C).No.17268 of 2007 where according to the petitioner, it was reported on behalf of the respondents that since no offence under the Act was disclosed a refer report was filed in O.R.No.3 of 2005. The case for alleged obstruction of official duty of forest officials was tried in C.C.No.386 of 2005 and petitioner claims to have got an acquittal in that proceeding. Based on the report and production of the seized articles before the Authorised Officer, that officer ordered confiscation of the articles. That order was confirmed by the learned Additional District Judge. Learned counsel for petitioner contends that no notice was issued to the petitioner as required under Sec.61B(a) and hence the order of confiscation as confirmed by the learned Additional District Judge is vitiated and liable to be set aside. Learned counsel also has an argument that even as per the version of respondents that no forest offence is involved, the Authorised Officer could not have entered a satisfaction that a forest offence was committed. C.R.P.No. 422 of 2010 : 3 : 4. On the question whether notice under Sec.61B(a) of the Act has been served on petitioner, learned Special Government Pleader after perusal of the file has submitted that no notice is seen issued to the petitioner. Under Sec.61B(a) of the Act it is mandatory that before the Authorised Officer proceeds to conduct the enquiry under Sec.61A(2) of the Act notice in writing is given to the person against whom enquiry is proposed to be enquired informing him all the grounds on which the articles are proposed to be confiscated and such person is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation. On hearing learned counsel for petitioner and learned Special Government Pleader two things are revealed, namely no notice as contemplated under Sec.61B (a) of the Act was served on petitioner and there was no proper enquiry conducted by the Authorised Officer except that he has relied on some reports. In that view of the matter, the impugned order of confiscation as confirmed by the learned Additional District Judge cannot be sustained and is liable to be set aside. 5. Though learned counsel for petitioner has argued that no forest offence is involved even as per the version of C.R.P.No. 422 of 2010 : 4 : respondents (as allegedly submitted in W.P(C).No.17268 of 2007) I do not think it necessary to go into that question in this proceeding. Learned counsel requested that petitioner may be permitted to raise that contention before the Authorised Officer. Petitioner will be free to raise that contention before the Authorised Officer. Resultantly this revision is allowed in the following lines: (i) The order of confiscation dated 14-08-2007 passed by the Authorised Officer as confirmed by the learned Additional District Judge -IV, Ernakulam in C.M.A.No.35 of 2009 is set aside. The matter is remitted to the Authorised Officer. (ii) It is made clear that this order will not stand in the way of the Authorised Officer conducting proper enquiry into the matter after complying with Sec.61B of the Act. (iii) Petitioner is permitted to raise all his contentions in the matter before the Authorised Officer in case any such enquiry is conducted. (THOMAS P JOSEPH, JUDGE) Sbna/-