IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 2819 of 2008(I) ------------------------------------ CMA.3/2004 of DISTRICT COURT, KALPETTA .................... PETITIONER(S): ------------------------ STATE OF KERALA, REPRESENTED BY THE REGIONAL CHIEF CONSERVATOR OF FORESTS, NORTHERN REGION, KOZHIKODE. BY SRI.M.P.PRAKASH,SPL.GP FOR FOREST RESPONDENT(S): -------------------------- M.K.NANDAKUMAR, S/O. RAMDAS, DAS COTTAGE, P.O.KOTTACKAL, MALAPPURAM DISTRICT. R1 BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 2819 OF 2008 ------------------------------- DATED THIS THE 12TH DAY OF OCTOBER, 2010 JUDGMENT State of Kerala is the petitioner herein. The writ petition is filed challenging the correctness of Ext.P2 judgment passed by the District Court, Kalpetta Wayanad. Respondent is the registered owner of the vehicle KL-10/H 7765. On 30/10/2000 at 4.30 p.m. the said vehicle was seized by the Forest Officials, Varayal Forest Station stating that the vehicle was used for illicit removal of trees from the reserve forest. The case of the department is that 15 logs of anjili tree were transported in the said vehicle from the house compound of one Chandran to the house of one Ali Haji. 2. The Divisional Forest officer, Valad Division passed lst order holding that the the vehicle was not involved in the commission of the offence and as such issued direction to release the vehicle to the owner. The order is dated 31/1/2004. -2- WP(C).No.2819/2008 Subsequently, suo motu action was taken by the Conservator of Forests, North Circle and notice was issued to the vehicle owner. After conducting enquiry, the vehicle was ordered to be confiscated. The said order dated 20/7/04 is challenged in the appeal. 3. Before the Appellate Court the respondent/owner contended that he had taken all reasonable and necessary precautionary measures against the use of the vehicle for illicit transportation of the timber. The learned Appellate Judge, after hearing both sides, held that he is not inclined to accept the plea raised by the appellant that he had taken reasonable and necessary precautionary measures against the user of his vehicle in the commission of forest offence, namely, in the transport of forest timber. The learned Judge also held that in the particular factual background, the contention that the order of confiscation has to be annulled, cannot be sustained. It was further held that the value of the vehicle when compared to the value of the article transported, it would work injustice, if the order of confiscation is confirmed. The -3- WP(C).No.2819/2008 learned Judge held that the value of the vehicle on a comparison with the value of the trees removed the confiscation as a whole may in this case appear to be disproportionate. Therefore, the court held that it would be just and proper for a reasonable approach is adopted to meet the ends of justice. The learned Judge allowed the appeal in part and ordered that in lieu of the order of confiscation of the vehicle the appellant is directed to deposit a sum of Rs.25,000/- within two months from the date of the judgment failing which the respondent shall be at liberty to proceed against the said vehicle and also against the appellant for realisation of the said amount. 4. The learned Special Government Pleader (Forests) brought to my notice the decision reported in State of Jharkand v. Govind Singh (2005 (1) KLT 34 (SC)) in which it was held that the vehicle seized for the alleged involvement in the commission of forest offense cannot be released on payment of fine alone in lieu of confiscation. Following the Apex Court's decision this Court in the decision reported in Joy Joseph v. DFO, Kottayam (2005 (2) KLT 456) held that no power has been -4- WP(C).No.2819/2008 conferred on the forest officer to release the vehicle on payment of fine in lieu of confiscation. In view of the legal position as stated above, the order passed by the learned District Judge directing payment of Rs.25,000/- in lieu of the order of confiscation of the vehicle, is liable to be set aside. 5. In the result, Ext.P2 judgment is set aside. The case is remanded to the District Court, Kalpetta, Wayanad for fresh consideration in accordance with law, untrammelled by any of the observations and findings in Ext.P2 judgment. The appeal shall be disposed of within a period of three months from the date of receipt of a copy of this judgment. Writ Petition is disposed of with the above direction. HARUN-UL-RASHID, JUDGE. kcv.