IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 20440 of 2010(O) -------------------------- CMA.29/2009 of DISTRICT COURT, KALPETTA .................... PETITIONER: --------------- GEORGE.P.J., S/O. JOSEPH, AGED 44 YEARS, PEPPATHIYIL HOUSE, ALATTIL.P.O. THALAPUZHA, MANTHAVADY, WAYANAD. BY ADV. SMT.VIDHYA. A.C SRI.A.C.VENUGOPAL RESPONDENT: --------------- STATE REPRESENTED BY DIVISIONAL FOREST OFFICER, NORTH WAYANAD FOREST DIVISION, MANATHAVADY. GOVERNMENT PLEADER: SRI P M POULOSE SPL. GP (FORESTS) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.20440 of 2010 --------------------------------------- Dated this 05th day of July, 2010 JUDGMENT This revision is in challenge of order dated 04-04-2009 on I.A.No.163 of 2009 in C.M.A.No.29 of 2009 of the court of learned District Judge, Wayanad. Vehicle belonging to the petitioner was seized by the forest officials on 07-06-2008 for alleged illicit trespassing of timber collected from reserve forest on 25-02-2008. Forest officials registered a case as O.R.No.4 of 2008. After the vehicle was taken custody, petitioner approached this court in W.P.C.No.22528 of 2008 for its interim custody. Learned Government Pleader on instruction then submitted that confiscation proceeding under the Kerala Forest Act have been initiated. This court directed the authorities concerned to dispose of the confiscation proceeding within three months from the date of judgment (14-10-2008) and further that if proceedings are not so completed, vehicle shall be released to the petitioner on his executing bond undertaking to produce the same and subject to appropriate conditions. Final proceedings were completed within the time aforesaid and vehicle is now ordered to be confiscated. Aggrieved, petitioner filed C.M.A.No.29 of 2009 in the court of W.P.C.No.20440 of 2010 : 2 : learned District Judge, Wayanad. He moved two applications - I.A.Nos.162 and 163 of 2009 the former for stay of order confiscating the vehicle and the latter for interim custody of the vehicle. Learned District Judge vide Ext.P6, order dated 04-04-2009 allowed I.A.No.162 of 2009 and the order of confiscation was stayed until disposal of the appeal but relying on the decision of Supreme Court in State of Karnataka Vs. K Krishnan (2000(5) SC 646) stated that vehicle cannot be released to the petitioner until C.M appeal is disposed of and accordingly dismissed I.A.No.163 of 2009. That order is under challenge in this writ petition. Learned counsel for petitioner contends that vehicle was taken in custody on 07-06-2008 and is remaining idle, it is getting rusted and damaged. Learned Government Pleader appearing for respondent relying on the decisions in State of Karnataka Vs. K Krishnan (supra) and 2004(4) SCC 129 (State of West Bengal Vs. Sujith Kumar Rana) contended that the vehicle shall not be released to the petitioner. 2. The decision of State of Karnataka Vs. K Krishnan (supra) of course say that vehicles which are liable to be forfeited shall not generally be released and in any exceptional circumstances (for such release) furnishing of bank guarantee W.P.C.No.20440 of 2010 : 3 : should be the minimum condition. In State of West Bengal Vs. Sujith Kumar Rana (supra) what was considered was application of Section 482 of the Code of Criminal Procedure in view of Section 59G of the West Bengal Act 22 of 1988. The Supreme Court held that jurisdiction of the Criminal court under section 482 of the Code is excluded by the said provision. That however has no application to the facts of the case. Going by the decision in State of Karnataka Vs. K Krishnan (supra) it is not as if under no circumstance the interim custody of the vehicle cannot be given to petitioner. But, it can only be under exceptional circumstance. 3. What then is the exceptional circumstance in this case is the next question?. It is contended that in respect of the place wherefrom timber was allegedly removed there is civil dispute which is yet to be resolved. It is also stated that for the last more than two years the vehicle is exposed to sun and rain and its value has deteriorated. Petitioner states that the said vehicle is the only livelihood of himself and family. There is no point in the vehicle being allowed to rusted and damaged as that would not benefit any of the parties in the proceeding. Having considered the circumstances, I am inclined to think that these facts present an exceptional circumstance in which request of petitioner has to be W.P.C.No.20440 of 2010 : 4 : considered favourably but, it has to be subject to stringent conditions to ensure production of vehicle as and when required and also that petitioner does not indulge in similar alleged activities with respect to the said vehicle. Resultantly this writ petition is allowed and the impugned order on I.A.No.163 of 2009 is set aside. That application is allowed and interim custody of the vehicle will be given to petitioner until disposal of the C.M appeal subject to the following conditions. (i) Petitioner shall execute a bond in the court of learned District Judge for the sum of Rs. 75,000 (Rupees Seventy Five Thousand Only) undertaking to produce the vehicle as and when required to do so and not to encumber or dispose of the vehicle in any manner. (ii) Petitioner shall produce bank guarantee for Rs.75,000/- (Rupees Seventy Five Thousand Only) before the learned District Judge, Wayanad. (iii) In case order of confiscation is finally upheld and the vehicle is not available in its present condition for confiscation it will be W.P.C.No.20440 of 2010 : 5 : open to the department to realise the actual value of the vehicle as on the date of confiscation from the amount of bank guarantee. In case proceeding before the forest tribunal is decided ultimately in favour of petitioner it will be open to them to realise the amount realised by the department from the bank guarantee from the department as provided under law. (iv) In case vehicular records including R.C book and permit are in the custody of respondent, the same shall be produced in the court below and on petitioner substituting the same with its certified photocopy, he can get back the original documents from the said court. If vehicular records are in the custody of petitioner he shall produce notary attested photocopy of the said documents in the court below before vehicle is released to him. (v) Petitioner shall use the vehicle only on the strength of valid vehicular records as required under the Motor Vehicle Act and the rules. (vi) Petitioner shall not use the vehicle W.P.C.No.20440 of 2010 : 6 : for any illicit purpose and in case of any noncompliance of the condition, order granting interim custody will remain canceled and it will be open to the court below to take custody of the vehicle. (vii) The bank guarantee shall initially be for a period of two years and on expiry of that period the bank concerned shall renew the same periodically for appropriate period until otherwise directed by learned District Judge. (viii) On compliance of the condition Nos. i, iii, and vi respondent shall release vehicle to the petitioner by way of interim custody. (THOMAS P JOSEPH, JUDGE) Sbna/-