IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRP.No. 110 of 2003(A) ---------------------- CMA.51/1995 of DISTRICT COURT, MANJERI ORDER No.T.3516/94 DTD.14.8.1995 OF THE DIVISIONAL FOREST OFFICER,NILAMBUR NORTH .................... REVN. PETITIONERS: APPELLANTS: ---------------------------------------- 1. CHOORAPILAN HAMZA S/O. CHOORAPILAN MUHAMMED, MORAYOOR AMSOM AND DESOM ERNAD TALUK. 2. THANDUPARAKKAL UMMER, S/O.ALAVI HAJI, THANIKADAVU, VAZHIKADAVU AMSOM, ERNAD TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: RESPONDENTS: ------------------------------------ 1. THE DIVISIONAL FOREST OFFICER, NILAMBUR NORTH. 2. RANGE OFFICER, FOREST RANGE OFFICE, VAZHIKADAVU. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SPL.GOVT.PLEADER SRI.M.P.PRAKASH SRI.RANJITH THAMPAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008, ALONG WITH CRP NO. 150 OF 2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.No.110/2003 2 C.M.P.No.258/2003 IN C.R.P.No.110/2003 DISMISSED 03/06/2008 Sd/- HARUN-UL-RASID,JUDGE TRUE COPY P.A.TO JUDGE HARUN-UL-RASHID,J =========================== C.R.P.Nos.110 & 150 of 2003 ==================-=========== Dated this the 3rd day of June, 2008 ORDER Both these revisions arises out of the common judgment in CMA.Nos.50 and 51 of 1995 on the file of the District Judge, Manjeri. The revision petitioners are the appellants in the respective appeals. The first revision petitioner in C.R.P.No.110/2003 is the present owner of the lorry bearing registration No.KL-10-4644. The registered owner of the said lorry is the second petitioner. The petitioner in C.R.P.No.150/2003 is the registered owner of a Jeep bearing registration No. KRM 1535. The facts of the case leading to the confiscation order passed by the Divisional Forest Officer which was confirmed in appeal by the District Judge is as follows: 2. In the early hours of 6.4.1994, the Forest Officials seized the said lorry loaded with bamboo poles and the jeep allegedly running as pilot vehicle for the said lorry. The Forest Officials, after preparing the Mahazar and under the bonafide belief that the vehicles are used of illicit transportation of bamboo poles collected from the reserve forest, have taken the C.R.P.Nos.110 & 150/2003 2 vehicles into custody by order dated 14.8.1995. The Divisional Forest Officer, Nilambur, passed the order of confiscation of the said vehicles. 3. The Mahazar shows that 1009 bamboo poles were loaded in the lorry from the reserve forest. Apart from the driver and cleaner of the lorry, a third person who is said to be the Manager of Golden Star Enterprises was also travelling in that lorry on the date of incident. It is an admitted fact that the Golden Star Enterprises is the licensee of Gwalior Ryons and the licensee for collection and transportation of bamboo poles from forest depots to the depots of the Gwalior Ryons. Sri. Geroge Mathew is one of the partners of the said firm, including him, five persons were travelling in the jeep. The Forest Officials recorded the statement of all the said persons stating that the bamboo poles were collected from the Vellakatta IV coop and was meant to be supplied to the Gwalior Ryons. In the statement given by Sri.Geroge Mathew who is the partner of the company, he conceded that the bamboo poles seized were collected by him unauthorisedly from the reserve forest and that on previous occasions he used to transport bamboo poles in such illicit manner. From the available materials and on the basis of the attended circumstances the findings entered by the Divisional C.R.P.Nos.110 & 150/2003 3 Forest Officer confirmed by the District Judge that the transport of bamboo poles is done illegally and without pass is a finding validly made. 4. The next question to be considered is whether confiscation of the vehicles made under Section 61 A is sustainable under the law. Under Sub Section 2 Section 61 B of the Kerala Forest Act 1961 no order of confiscating the vehicle shall be made unless it was proved that the vehicle was used in carrying the articles without the knowledge and connivance of the owner himself or any of the person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use. 5. The person who hired the vehicle is the licensee of the Gwalior Ryons. He had been transporting bamboo poles from the forest depot to the depots of Gwalior Ryons. The driver of the lorry had also occasion to transport bamboo poles from forest depot to Gwalior Ryons. On some occasions, when the vehicle was hired by the licensee, it has come out in evidence that the manager of the company also accompanied with the driver and cleaner of the lorry. The licensee of the Gwalior Ryons was a passenger, along with his own people in the pilot jeep. When a licensee requested the owner and driver to hire the lorry for C.R.P.Nos.110 & 150/2003 4 transportation of bamboo poles to the Gwalior Ryons Company, no prudent persons may entertain any doubt about the transactions between the Forest Department and the Gwalior Ryons Company. It is natural that if offer comes to a lorry owner or driver to transport bamboo poles from forest to Gwalior Ryons, naturally they think that the transportation is intended to be done legally. On going through the evidence, I have also found that there is no other attendant circumstances to doubt the events that led to the transportation of bamboo poles. The authorised officer also failed to prove the attendant circumstances, pointing out the conduct of the lorry owner or driver conniving with the licensee for the illicit transportation. The circumstances under which the vehicle was transported cannot be presumed that the vehicle was intended to be used for illegal transporting of bamboo poles and there is no evidence to show that this was done with the knowledge or connivance of the owner or driver of the vehicle. The circumstance in this case shows that no further necessary precautions against illegal use is necessary. The District Judge has relied on the so called statement of the driver that, on previous occasions also illicit transportations were made and that the drivers of the vehicles was aware of that. This statement is wrongly stated in the C.R.P.Nos.110 & 150/2003 5 judgment. I have asked the Government Pleader to read the entire statement. In fact, the records will show that what the driver stated is that he had occasion to transport the bamboo poles at the instance of the same licensee and there was no occasion for him to doubt the genuineness of the transportation. 6. It is not necessary in all cases that the Officer should confiscate the vehicle under Section 61A of the Act. In this case, we find that even though allegations are made against the driver of the lorry and jeep, it is very difficult to believe unless more convincing evidence was there to conclude that the driver knew that the trip was undertaken for committing offence. If a person hires a vehicle, the driver may not be able to know the intention of the person and if the driver carries such person, it cannot be said that he connived with him to commit the offence. One cannot readily infer that the driver was also aware unless there are other circumstances to show that the driver was involved in the offence. Such evidence is lacking. I follow the view taken by the Division Bench in the case reported in D.F.O v. Krishnan Nair (2002(1) KLJ 657). 7. In the light of the facts and circumstances discussed above, this Court is of the view that the confiscation of bamboo poles is validly made, at the same time, confiscation of the C.R.P.Nos.110 & 150/2003 6 vehicles namely, the lorry and jeep, and the resultant order is not legal and valid. In the result, I set aside the order passed by the Divisional Forest Officer, Nilambur dated 14.8.1995 and the judgment of the District Judge, Manjeri, in C.M.A.Nos.50 and 51 of 1995. It is submitted by the counsel for the revision petitioner that during the pendency of the proceedings, the vehicles were released on the basis of the bank guarantee and solvency certificate before the Magistrate Court, Manjeri. The Judicial First Class Magistrate Court, Manjeri is directed to return the bank guarantee produced in this case and D.F.O to return the solvency certificate. The civil revision petitions are allowed. HARUN-UL-RASHID, JUDGE dvs