IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 OP.No. 10428 of 1998(N) ------------------------------ PETITIONER: --------------- SALOMY ITHAPIRI, AREECKAL HOUSE, AZHAKOM P.O., MUKKANNOOR. BY ADV. SRI.K.PRABHAKARAN RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURM. 2. THE DIVISIONAL FOREST OFFICER, VAZHACHAL DIVISION, CHALAKUDY. 3. THE DISTRICT JUDGE, (THE APPELLATE AUTHORITY) TRICHUR. SRI. P.M. POULOSE – SPL. G.P. FOR FOREST. SRI.C.M.SURESH BABU, SPL.G.P. FOR FOREST THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 10428 of 1998 ORDER ON C.M.P.NO.17892 OF 1998 IN O.P.NO.10428 OF 1998 DISMISSED 26.10.2010 SD/- S. SIRI JAGAN, JUDE. APPENDIX EXT.P1: COPY OF SHOW CAUSE NOTICE NO.C7/6174/95 DT 18/20.7.96. EXT.P2: COPY OF THE REPLY DTD 3.8.96. EXT.P3: COPY OF THE ORDER NO.C7-6174/95 DTD 3.9.96. EXT.P4: COPY OF MEMORANDUM OF APPEAL NO.C.M.A.123/1996 DTD 30.9.1996. EXT.P5: COPY OF JUDGMETN IN C.M.A.123/96 DTD 4.4.98. EXT.P6: COPY OF THE LETTER NO.C7-6174/95 DTD 25.5.98. EXT.P7; COPY OF ENGLISH TRANSLATION OF STATEMENT GIVEN BY THE DRIVER OF THE VEHICLE, SRI. BABU. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------ O.P. No.10428 OF 1998 ------------------------------- Dated this the 26th day of October, 2010 J U D G M E N T The petitioner is the owner of a Matador Tempo Van bearing registration No.KL-7/E-8643, which was being used as a goods vehicle. On 7.11.1995, the forest officials seized the said vehicle alleging involvement in a forest offence on 2.11.1995. The allegation was that on 2.11.1995, certain persons cut a teak wood from the Ezhatumugham forest, made it into pieces and transported the same to Madasseri Wood Industries, Mukkannur for which the said Tempo Van was used. Pursuant to orders of this Court in O.P.No.17707/1995, the Van was later released on the petitioner furnishing bank guarantee for Rs.1 lakh. The petitioner was issued with Ext.P1 show cause notice directing the petitioner to show cause why the vehicle should not be confiscated under Section 61A of the Kerala Forest Act. The petitioner submitted a reply on 3.8.1996, which is produced as Ext.P2 in this original petition, wherein the petitioner took the contention that the alleged offence was committed by the driver O.P.No.10428/98 2 without knowledge of the petitioner and that the petitioner had specifically instructed the driver not to use the vehicle for any illegal activities. A personal hearing was afforded to the petitioner. She was asked to appear for a personal hearing on 7.8.1996. The petitioner did not appear on that date. She sought adjournment. The hearing was postponed to 12.8.1996. On that day, the petitioner again sought an adjournment on the ground that the petitioner is not well and on that basis the hearing was again adjourned to 22.8.1996. On 22.8.1996 also, the petitioner sought adjournment for 45 days on the ground of illness along with a medical certificate. But rejecting the prayer for adjournment, the second respondent passed Ext.P3 order confiscating the vehicle. Against the same, the petitioner filed Ext.P4 appeal before the District Court, Thrissur under Section 61D of the Kerala Forest Act. That appeal was also dismissed by Ext.P5 judgment dated 4.4.1998. The petitioner is challenging Exts.P3 and P5 orders in this original petition, seeking the following reliefs: “1. to call for the records leading to Ext:P3, Ext:P5 and Ext:P6 and quash the same by the issuance of a writ of certiorari, or other appropriate writ, direction or order. O.P.No.10428/98 3 2. to declare that the provisions contained in Sec.61A(2) conferring absolute power of confiscation of the vehicles used in transporting the timper (sic), fire wood, Charcoal, ivory etc. which are the property of the government and the provision contained in Sec.61B(2) which imposed the burden of proof on the owner of the vehicle to establish the absence of knowledge or connivance of his agent and the person incharge of the vehicle and they had taken reasonable and necessary precautions against the use of the vehicle in commission of forest offence, are arbitrary and unconstitutional. 3. to grant interim stay of all further proceedings pursuant to Ext:P3, Ext:P5 and Ext:P6 for confiscation of the petitioners(sic) Metador (sic) Tempo Van bearing registration No.KL-7E-8643 and encashment of the Bank guarantee furnished by the petitioner during the pendency of the Original Petitioner(sic)” 2. The petitioner raises three contentions. First is that Section 61A(2) and Section 61B(2) are arbitrary and unconstitutional. The second is that Ext.P3 order is violative of principles of natural justice, in so far as the petitioner was not granted an adequate opportunity of being heard as provided under Section 61B. The third is that there was no reason for the second respondent to order confiscation of the vehicle, in so far as the petitioner had absolutely no knowledge regarding the commission of offence using the said vehicle and the petitioner had specifically instructed the driver of the vehicle not to use the vehicle for any illegal purposes, thus discharging O.P.No.10428/98 4 the onus cast upon the petitioner under Section 61B(2) of the Act. 3. A counter affidavit has been filed by the State, wherein they have taken a contention that the impugned provisions of the Act are perfectly valid and proper in view of the object and scope of the said legislation as laid down by this Court in STATE OF KERALA v. SUKUMARA PANICKER (FB). It is further contended that there was no violation of principles of natural justice, in so far as the petitioner was given adequate opportunity of being heard and she was given adjournments when asked for, twice. It was when the petitioner continued to ask for adjournment, the same was rejected and the matter was finally disposed of. As far as the third contention of the petitioner is concerned, the contention of the respondents is that the petitioner has not discharged her onus under Section 61B(2) of the Act. According to the respondents, apart from a blank statement in the reply to the show cause notice that the petitioner had specifically instructed the driver not to use the vehicle for any illegal purposes, no evidence whatsoever has been adduced by the petitioner to prove her case. O.P.No.10428/98 5 4. I have considered the rival contentions in detail. It is no secret that the forest wealth of this country is dwindling year by year. It is in an attempt to prevent the destruction of our natural wealth that the legislature has enacted the Kerala Forest Act in tune with Articles 48A and 51A(g) of the Constitution of India. Article 48A makes it the responsibility of the State to endeavour to protect and improve the environment and to safeguard the forest and wild life of the country and under Article 51A(g), it is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. The scope and ambit of Sections 61A and 61B of the Forest Act have been elaborately considered by the Full Bench of this Court in Sukumara Panicker's case (supra). In the course of discussion, in that judgment, after noting the preamble of the Act and the constitutional provisions, the Full Bench had held thus: “ xxxx xxxx xxxx xxxx A preamble is a key to open the mind of the Legislature, though it cannot be used to control or qualify precise and unambiguous language of the enactment.(Tribhuban Parkash v. Union of India- AIR.1970 SC.540 at p. 543). We must approach the O.P.No.10428/98 6 provisions of the Act in the light of the policy and purpose deducible from the terms of the aforesaid long title and the preamble and must understand and construe the various provisions of the Act, as will substantially subserve the policy and purpose. It is evident that Ss.61A and 61B were inserted at a time when there were large scale illicit removal of timber, belonging to the Government, from the forests in the State and the then existing provisions of law were found inadequate, necessitating the enactment of deterrent provisions for effectively preventing such illicit removal. Forest produce, like timber, is a valuable public property. The preservation of forests and its wealth is most essential for the welfare of humanity. It should be preserved in public interest. In Part IVA- 'Fundamental Duties', in the Constitution of India, Article 51A (g) enjoins, that it shall be the duty of every citizen of India, to protect and improve the natural environment including forests, lakes, rivers etc. So, the provisions of the Kerala Forest Act, 1961 should be so construed as to effectuate the said mandate of the Constitution of India. When timber or any other goods which is the property of the Government, is illegally or clandestinely removed or an offence is committed in respect of the said property, the said unauthorised action or offence should be viewed with serious concern. In order to protect such public property and to ensure that offences against such property are not committed, very wide powers are given to authorised officers, under S. 61A of the Act. The very nature of the offence calls for imposition of deterrent punishment, viewed in the background and history of the legislation. Th property seized, which is the subject matter of a forest offence, together with all tools, vehicles etc., used in the commission of such offence may be ordered to be confiscated by the authorised officer. xxxx xxxx xxxxx xxxx ......................... Moreover, the legislation in question, by its very nature, scheme and background should receive a much more strict interpretation and offences under the Forest Act should be dealt with differently and in a deterrent manner. The statutes considered in the decision of O.P.No.10428/98 7 the Supreme Court and in the decision of this Court, are far different in content, purpose and object. S.61A deals with the procedure relating to confiscation by an authorised officer, in certain cases. The power has to be exercised when 'forest offence' is believed to have been committed in respect to certain property of the government. It is only when the authorised officer is 'satisfied' that such offence has been committed in respect of such property, he may order confiscation of the property so seized with all tools and vehicles used in committing such offence. A reading of S.61A(2) of the Act shows that the power vested in the authorised officer to confiscate the vehicle is discretionary. It should be exercised judicially and reasonably, bearing in mind the purpose and object of the legislation, which we have adverted to earlier. The language used in S.61A(2) of the Act is no doubt 'permissive'. But the power is vested in a public official, to effectuate or aid the enforcement of 'public duty'- and considered in the backdrop of Art.51A(g) of the Constitution of India, the long title and preamble to the Act and the mischief sought to be remedied by the Amendment Act, (Act 28 of 1975)- we are of the view, it refers to a compellable duty or obligatory to exercise the power on fulfilment of the conditions specified in the section. It is for the officer concerned to consider in each case having regard to all the circumstances, whether confiscation of the vessel is to be made. But, it leaves no room for doubt in our mind that the power vested in the authorised officer under S.61A of the Act should be exercised bearing in mind the policy and purpose and background of the Act which we have enumerated herein above. Illicit removal of the government property is a matter which should be viewed with serious concern. S.61A itself was enacted to effectively check such illicit removal and with a view to provide deterrent provisions for effectively preventing such illicit removal. Any act done or conduct pursued in the matter of illicit removal should be so effectively dealt with, which will also prevent recurrence. This is an important or vital aspect to be borne in mind while exercising the powers under S.61A(2) of the Act. S.61B(2) gives an opportunity to the owner of the vehicle to prove O.P.No.10428/98 8 his innocence or absence of complicity in the matter and to substantiate that he was diligent in taking precautions against unauhtorised use of the vehicle” That decision practically upholds the constitutional validity of the impugned provisions, although not in so many words. The said decision would, without any doubt, show that very strict interpretation is called for, to fully implement the said law in order to protect the forest wealth of the country. In fact, I am of opinion that strict and absolute liability is called for in respect of violation of provisions of the Act, if the forest wealth of the country is to survive, which only has been implemented by Sections 61A and 61B of the Act. On the other hand, instead of enforcing a strict liability against owners of the offending vehicles, an opportunity has been given to owners of the vehicles to prove that the offence was committed without the knowledge and connivance of the owner of the vehicle, but putting the onus of proving the same squarely on the owner. I am of opinion that unless such strict measures are adopted, the illegal exploitation of the forest wealth of the country cannot be effectively prevented. Section 61B (2) is sufficient protection against arbitrary exercise of that power. Therefore, O.P.No.10428/98 9 I do not find anything arbitrary or unconstitutional in the impugned provisions. As such, there is no merit in the contention of the petitioner against the constitutional validity of the impugned provisions. 5. The second contention is regarding violation of principles of natural justice, in so far as the petitioner's application for adjournment of the case has been rejected, which according to the petitioner was arbitrarily. I am not inclined to accept that contention for more than one reason. First is that the petitioner had sought adjournment twice both of which were granted. It is when the petitioner again sought for an adjournment by 45 days that the same has been rejected. In this connection, it may be noted that although in Ext.P4 appeal, the petitioner had raised a contention of violation of principles of natural justice on the ground that the adjournment was not given, a reading of Ext.P5 judgment would go to show that such contention was not raised at the time of arguments in so far as there is no reference to that contention in that judgment. The petitioner has not chosen to include a ground in the original petition that although the O.P.No.10428/98 10 petitioner had raised a contention of violation of principles of natural justice, the District Judge had not considered the same. If the petitioner had such a case, the petitioner's remedy was to file a petition to review Ext.P5 judgment appropriately, which also the petitioner has not done. Therefore, I am not inclined to entertain this belated challenge on the ground of violation of principles of natural justice against Ext.P3. 6. The third contention is that the petitioner had in fact discharged her onus under Section 61B(2) of the Act. But I find that apart from a blank statement in Ext.P2 reply that the petitioner had instructed the driver not to use the vehicle for illegal purposes, the petitioner had not taken any effort whatsoever to prove the same by adducing any evidence. The blank statement in the reply to the show cause notice unsupported by any evidence cannot be treated as sufficient discharge of the onus of the petitioner under Section 61B(2). The fact that the vehicle was in fact used for illegal transportation of forest timber can no more be disputed in view of the overwhelming evidence in support of that finding. O.P.No.10428/98 11 In fact, the petitioner has not made any serious efforts to challenge the finding that the vehicle was actually used for illegal transportation of forest timber. That being so, it was for the petitioner to prove that the petitioner had taken sufficient care and caution to prevent the illegal use of the vehicle. As I have already stated, apart from stating in the reply that she had taken such care and caution, she has not done anything to prove the same by adducing appropriate evidence. In the above circumstances, I do not find any merit in the challenge against Exts.P3 and P5. Accordingly, the original petition is dismissed. By interim order dated 16.6.1998 in C.M.P.No.17892/1998 a Division Bench of this Court had permitted the petitioner to retain the vehicle on condition that the petitioner keeps the bank guarantee alive till disposal of the original petition. In view of the facts and circumstances of the case, I direct that instead of proceeding against the same, the respondents shall encash the bank guarantee, in so far as at this point of time there is no point in proceeding against the vehicle as such. If the bank guarantee has not already been encashed, the respondents are free to do so. If for any reason O.P.No.10428/98 12 the bank guarantee could not be invoked it would be open to the respondents to recover from the petitioner the said amount of Rs.1 lakh by resort to revenue recovery proceedings. S. SIRI JAGAN, JUDGE acd O.P.No.10428/98 13