IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WP(C).No. 32115 of 2007(W) ------------------------- CMA.645/2001 of ADDL. DISTRICT COURT, THODUPUZHA ................ PETITIONER : -------------------- THE STATE OF KERALA, REPRESENTED BY THE CONSERVATOR OF FORESTS, HIGH RANGE CIRCLE, KOTTAYAM. BY GOVERNMENT PLEADER SRI. M.P. PRAKASH RESPONDENT: -------------------- RAJAMANI, S/O MURUGAN, KEEZHANTHOOR KARA, KEEZHANTHOOR VILLAGE, MARAYOOR-685620. BY ADV. SRI.M.C.JOHN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2011, ALONG WITH WPC NO. 32498 OF 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 32115 of 2007(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER NO. M.5-4487/2001 DATED 2.11.2001 OF THE DIVISIONAL FOREST OFFICER, MUNNAR. EXT.P2 : COPY OF COMMON JUDGMENT DATED 10.1.2007 IN CMA NO. 645/2001 & CONNECTED CASES. EXT.P3 : COPY OF G.O.(MS) NO. 126/73/AD DATED 3.4.1973. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. -------------------------------------------- W.P.(C) Nos.32115, 32498, 33197, 33379, 33467, 33937 & 34276 of 2007 ---------------------------------------------- Dated this the 27th day of January, 2011 JUDGMENT These writ petitions are filed by the State under Article 227 of the Constitution of India challenging a common order passed by the Additional District Judge/Special Judge for NDPS Act cases, Thodupuzha in C.M.A.Nos.644/01, 645/01, 646/01, 677/01, 678/01, 2/2002, 3/2002 and 7/2002 under Section 61D of the Kerala Forest Act. Those CMAs arose from a common order, Ext.P1, passed by the Munnar Divisional Forest Officer as authorised officer under Section 61A of the Kerala Forest Act, whereby several consignments of sandal wood were directed to be confiscated under Section 61A of the Act. The contention in these writ petitions is that confiscation were on the ground that the sandal wood constitutes forest produce and it is the burden of the person in possession to prove that the same is not the property of the State Government, by virtue of Section 69 of the Kerala Forest Act. It is submitted before me that there is no W.P.(C)Nos.32115/07 & Con.cases 2 finding in the impugned judgment that the respondents have discharged their burden of proof by producing appropriate evidence, insofar as no evidence whatsoever is even referred to in the judgment. Therefore, without a finding that the respondents have discharged their burden, the District Judge could not have validly quashed the orders under Section 61A of the Act, is the contention raised by the State. 2. The contention of the respondents is that sufficient evidence is on record to prove that the sandal wood in question was extracted from the property belonging to the respondents and it is taking into account those evidence that the District Judge had concluded that the sandal wood is the property of the respondents, although there is no detailed discussion of each and every document in support of the contentions of the respondents. Therefore, they would argue in support of the impugned order. 3. I have considered the rival contentions in detail. At the outset I am constrained to say that the impugned judgment is very shabby. The judgment simply says that since the respondents had proved title to their property by producing the title deeds to the property, they have proved their title to W.P.(C)Nos.32115/07 & Con.cases 3 the sandal wood in question also. It is true that at the time of seizure, the sandal wood was from the property belonging to the respondents, the title to which may have been proved by them. That does not ipso facto prove that the sandal wood in question was extracted from that property itself. The question as to whether the sandal wood was extracted from the property belonging to the respondents depends on other evidence as to whether there were sandal wood trees in the properties of the respondents, whether there was evidence to show that the sandal wood seized was in fact, extracted from that property, whether stumps of the sandal wood trees area available in the property etc. There is absolutely no discussion in the judgment in respect of that crucial and vital question, apart from holding that since the ownership to the property has been proved by the respondents, they have proved ownership of the sandal wood also. That is not at all sufficient for the purpose of an appeal under Section 61D especially in view of Section 69. The respondents are expected to prove by evidence that the sandal wood in question was not forest produce belonging to the Government. Such a finding is conspicuously absent in the impugned judgment. As such, for W.P.(C)Nos.32115/07 & Con.cases 4 that reason I am inclined to set aside the impugned judgment. I do so and direct the District Judge to restore the Appeals to file and dispose of them afresh, after hearing both sides and entering specific finding as to whether the respondents have discharged their burden under Section 69 of the Act by producing adequate evidence to show that the sandal wood in question was extracted from their property and is not from the property of the Government. If the District Judge so finds it necessary, it would be open to him/her to afford a further opportunity to the parties to adduce evidence, if they so wish. Fresh orders shall be passed by the District Judge, as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. I note that out of the eight C.M.As, only seven C.M.As have been allowed and C.M.A.No.644/2001 had been dismissed. I make it clear that this judgment does not relate to that C.M.A and the District Judge is not expected to reconsider that CMA by virtue of this judgment. These writ petitions are disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)Nos.32115/07 & Con.cases 5 W.P.(C)Nos.32115/07 & Con.cases 6