IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 12303 of 2007(M) --------------------------------------- (CMA.20/2006 of ADDL. DISTRICT COURT-II, KOZHIKODE DT.16/6/2006) .................... PETITIONER(S): ---------------------- V.P.IBRAHIM, S/O. USSAIN HAJEE, VAZHAPPARAMBIL HOUSE, VENNAKODE, MALAYAMMA P.O., REC (VIA), KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): ------------------------- CONSERVATOR OF FOREST, NORTHERN CIRCLE, KANNUR. BY GOVERNMENT PLEADER SRI. PAULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON 4/11/2010 DELIVERED THE FOLLOWING: sts WP(C) NO. 12303/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE SHOW CAUSE NOTICE DATED 5/8/2006 ISSUED BY THE RESPONDENT TO THE PETITIONER. P2 COPY OF THE ORDER DATED 29/11/2005 ISSUED BY THE RESPONDENT. P3 COPY OF THE JUDGMNT DATED 16/6/2006 IN CMANO. 20/2006 OF THE DISTRICT COURT, KOZHIKODE. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.12303 Of 2007 ---------------------- Dated this the 4th day of November, 2010. J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India. Petitioner is the appellant in C.M.A.No.20 of 2006 on the file of the District Court, Kozhikode. The Conservator of Forests, Northern Circle, Kannur, by order dated 29.11.2005, held that the vehicle belonging to the petitioner has been used for committing offence under Section 61C of the Kerala Forest Act and therefore ordered confiscation of the said vehicle along with 27 logs of Eucalyptus timber and 2 MT Eucalyptus debris. In the appeal preferred by the petitioner the said order was confirmed and the appeal stands dismissed. 2. Lorry No.KRZ/9189 with 27 logs of Eucalyptus timber and 2 MT Eucalyptus debris was seized on 12.8.1991 by the Divisional Forest Officer attached to the Flying Squad, Kozhikode on the allegation that timber logs were collected and transported from Eucalyptus Plantation, Thariyode of Kalpetta Range. It is the department's case that the timber logs were transported under the cover of Form VI subsidiary permit. The said permit W.P.(C).No.12303 Of 2007 ::2:: authorised transportation of 4 MT of Eucalyptus debris only. 3. It is the case of the petitioner/appellant that the driver of the vehicle was cheated by the contractor who was authorised to collect Eucalyptus debris from the Eucalyptus plantation, that the contractor convinced the driver by showing the permit and the driver was misled by the contractor and made the driver to believe that Eucalyptus timber can be transported. According to the petitioner he is totally unaware of the use of the vehicle for illicit transport of 27 logs of Eucalyptus timber. It is submitted that the petitioner and the driver have taken all reasonable and necessary precautions against the illicit use, but the driver of the vehicle was mislead and cheated by a permit holder who made to believe the driver that the permit he holds is a valid permit for transporting Eucalyptus timber as well. 4. The vehicle was seized under Section 61B(2) of the Kerala Forest Act on satisfaction that a forest offence has been committed by illicit transport of 27 logs of Eucalyptus timber. In the denovo enquiry conducted by the authorised officer as directed by the District Court, Kozhikode, as per order dated W.P.(C).No.12303 Of 2007 ::3:: 13.9.1995, the authorised officer issued orders exempting the vehicle under Section 61A of the Kerala Forest Act. The revisional authority, namely, Conservator of Forests, Northern Circle, in exercise of the powers conferred under Section 61C of the Kerala Forest Act, revised the order exempting the vehicle and passed Ext.P2 order dated 29.11.2005 and ordered confiscation of the vehicle with 27 logs of Eucalyptus timber and 2 MT Eucalyptus debris. 5. In the denovo enquiry conducted by the Conservator of Forests, it was found that Eucalyptus timber transported in the vehicle owned by the appellant belong to the Government. It was also found that Eucalyptus trees were cut from the Eucalyptus plantation at Thariyode. The defence of the appellant is under Section 61B of the Kerala Forest Act which provides that no order confiscating any vehicle shall be made under Section 61A, if the owner of the vehicle proves to the satisfaction of the authorised officer that it was used in carrying the timber without the knowledge or connivance of the owner himself, his agent if any, and the person in charge of the vehicle and that each of W.P.(C).No.12303 Of 2007 ::4:: them had taken all reasonable and necessary precautions against such use. 6. The Conservator on facts found that the driver of the vehicle has not taken any reasonable and necessary precaution against illicit transport of timber. The contentions raised by the appellant are considered and found that the contentions are not proved. It is contended that the contractor handed over the permit to the driver who believed that the permit is valid for transporting Eucalyptus timber. The original authority after appreciating the facts on record found that the vehicle was used for transporting Eucalyptus timber without valid permit and further held that there is no evidence to accept the contentions for grant of protection under 61B(2) of the Kerala Forest Act. The original authority also on facts held that the driver acted as agent and without taking necessary precautions illicitly transported timber and that the owner of the vehicle also failed to prove that he had taken necessary precautions against misuse of the vehicle. 7. The appellate court confirmed Ext.P2 decision. The W.P.(C).No.12303 Of 2007 ::5:: appellate court held that the stand of the driver and registered owner that the driver was simply cheated by the contractor is not conceivable. The appellate court did not accepted the contention that the contractor handed over the permit to the driver who believed that the same permitted transportation of Eucalyptus timber loaded in the vehicle. The learned Judge observed that the driver was expected to verify before permitting to load his vehicle with forest produce whether the permit handed over to him permitted transportation of such forest products. The learned Judge also agreed with the original authority that the person in charge of the vehicle has not taken reasonable and necessary precautions. 8. During the course of arguments, I have perused the permit issued to the contractor. The permit authorises the licensee to transport only 4 MT Eucalyptus debris. It is an admitted case that what was transported in the lorry was 2 MT Eucalyptus debris and 27 logs of Eucalyptus timber having a girth of 52cm- 113cm. The very fact that the load contains not only Eucalyptus debris but logs of Eucalyptus timber also, would W.P.(C).No.12303 Of 2007 ::6:: evidently show that the person in charge of the vehicle, namely, the driver had not taken reasonable and necessary precautions against illicit use of the vehicle. In the said circumstances, this Court agree with the findings recorded by the court below. The writ petition is devoid of any merit and accordingly, dismissed. HARUN-UL-RASHID, Judge. bkn/-