IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 36963 of 2004(A) -------------------------- PETITIONER: --------------- SIBY AUGUSTINE, S/O. AUGUSTINE, AGED 30 YEARS, VELIYATH HOUSE, POLINJAPALAM, ADIMALI P.O. BY ADV. SRI.RAJU K. MATHEWS RESPONDENTS: --------------- 1. THE FOREST RANGE OFFICER, DEVIKULAM RANGE, DEVIKULAM. 2. THE DIVISIONAL FOREST OFFICER, MUNNAR, DEVIKULAM. SPL. GOVERNMENT PLEADER MR. H. HANIL KUMAR FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).36963/04 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF ORDER DT.14.12.2004 IN CRL.M.P.2578/04 OF JFCM, DEVIKULAM. EXT.P2:-TRUE COPY OF REPRESENTATION DT.2.11.04 SUBMITTED BEFORE R2 RESPONDENT'S EXHIBITS:- EXT.R1(a):-TRUE COPY OF MAHAZAR PREPARED BY THE FOREST STAFF DT.21.10.04 EXT.R1(b):-TRUE COPY OF OCCURRENCE REPORT DT. 21.10.04 EXT.R1(c):-TRUE COPY OF REPORT DT.9.10.04 OF THE FOREST RANGE OFFICER, MARAYR. EXT.R1(d):-TRUE COPY OF FINAL REPORT DT. 28.7.07 IN OR 81/04 okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 36963 OF 2004 ------------------------------ Dated this the 7th day of July, 2009 J U D G M E N T ---------------------- 1. The Owner of Goods Vehicle bearing Registration No:KL-7/S 5063 is the petitioner. His vehicle was intercepted and taken into custody at the Forest Check Post, Palar, on 29.10.2004, alleging illicit transport of Eucalyptus logs conducted on 10.10.2004. Pursuant to seizure of the vehicle, the 1st respondent registered O.R.No:81/04 against few persons, including the driver of the vehicle, alleging offences punishable under Section 27(1)(e)(iii) of the Kerala Forest Act and Section 5 of the Kerala Preservation of Trees Act, before the Judicial First Class Magistrate Court, Devikulam, as evidenced by Ext.R1(b). Since the vehicle was produced before the Magistrate Court, the petitioner filed Crl:M.P.No:2578/04 before that Court seeking interim custody of the vehicle, pending trial of the case. The learned Magistrate dismissed the said petition, as per Ext.P1 order, recording objection raised by the 1st respondent to the effect that proceedings for confiscation of the vehicle had already been initiated under Section 61A of the Kerala Forest Act, and the same is pending finalisation before the Divisional W.P.(C).36963/04 2 Forest Officer. But in Ext.P1 order, paragraph 4 reads as follows:- “4. Subsequently Forest Range Officer filed a report to the effect that no offence was committed by the accused under Forest Act or under Kerala Preservation of Trees Act. But the actual offence committed by the accused is the violation of Kerala Forest Produce Transit Rules, 1975.” In view of the above observation, the petitioner in this writ petition is seeking to quash the proceedings initiated for confiscation of the vehicle on the ground that no vehicle is liable to be confiscated on the allegation of involvement in any offence punishable under the Kerala Forest Produce Transit Rules, 1975. In this regard the counsel for petitioner has pointed out decision of this Court in Bhargavan Vs. Divisional Forest Officer (1994 (1) KLT 29). 2. By virtue of an interim order, dt:21.12.2004 this Court directed release of the vehicle to the petitioner on condition of the petitioner furnishing Bank Guarantee for the value of the vehicle. It is submitted that in compliance with the interim order, the vehicle was already released to the petitioner and the same is in his custody. 3. In the counter affidavit filed by the 1st respondent it is stated that a final report of investigation has already been filed before the Magistrate Court as evidence by Ext.R1(d) and the W.P.(C).36963/04 3 offence alleged therein are punishable under Section 27(1)(e)(iii) of the Kerala Forest Act and Section 5(2) of the Kerala Preservation of Trees Act 1986. A copy of the summary of the case attached along with R1(d) was made available for my perusal. The submission of any interim report to the effect that the accused had committed only offence punishable under Kerala Forest Produce Transit Rules, 1975, is denied by the respondents. It is further submitted in the counter affidavit that on the basis of the final report, trial of the case had already been initiated before the Magistrate Court, as C.C.No:299/07. It is also submitted that the 2nd respondent has not so far finalised the proceedings initiated for confiscation under Section 61A of the Forest Act, presumably due to pendency of the criminal case before the Magistrate Court. 4. Heard the learned counsel appearing for petitioner and the learned Government Pleader. The question arising for consideration is as to whether a proceedings for confiscation under Section 61A is maintainable or not ? According to the petitioner if the offence alleged is punishable only under Kerala Forest Produce Transit Rules, 1975, then no confiscation proceedings is sustainable. But on the other hand, specific case of the respondents based on the final report is that the case is charge sheeted for offences punishable under the Forest Act and W.P.(C).36963/04 4 the Preservation of Trees Act. Hence this Court is not in a position to quash the proceedings pending before the 2nd respondent under Section 61A of the Kerala Forest Act. But in the circumstances of the case it is only just and proper that the petitioner should be permitted to take all such contentions before the 2nd respondent. 5. In the result the writ petition is disposed of directing the 2nd respondent to finalise the proceedings initiated for confiscation of the petitioner's vehicle, as early as possible. It is made clear that the petitioner is at liberty to raise dispute regarding maintainability of the proceedings, based on the contentions raised in this writ petition, before the 2nd respondent. 6. The petitioner also sought for a direction to the learned Magistrate for an early disposal of the criminal case. It is for the petitioner to approach the Magistrate Court for priority in disposal of the case. There is no reason to presume that the learned Magistrate will not take earnest efforts for disposal of the case in question at the earliest. C.K.ABDUL REHIM, JUDGE. okb