IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 OP(C).No. 2323 of 2011(O) -------------------------------- CMA.14/2003 of DISTRICT COURT, THRISSUR .................... PETITIONER --------------- STATE OF KERALA REP BY THE CHIEF CONSERVATOR OF FORESTS, WILDLIFE,PALAKKAD. BY SPL. GOVERNMENT PLEADER (FOREST) RESPONDENT(S): -------------------- RAVINDRAN, S/O.RAVUNNI EZHUTHASSAN THATTAMPARAMBIL HOUSE, KOZHUKULLY P.O.MOORKANIKKARA, TRICHUR DISTRICT 680 752. R1 BY ADV. SRI.RAJIT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2323/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DATED 07/08/2010 IN C.M.A. NO.14/2003. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2323 of 2011 ==================================== Dated this the 15th day of November, 2011 J U D G M E N T Original Petition is in challenge of judgment in C.M.A. No.14 of 2003 of the court of learned District Judge, Thrissur interfering with the order of confiscation of Jeep No.KRQ-2127 passed by the authorized Officer under Section 61A of the Kerala Forest Act. The vehicle was seized (allegedly) for transportation of 7 pieces of rose wood on 20.03.2000. Learned District Judge held that the statements which were relied by the Authorized Officer were recorded under Section 164 of the Code of Criminal Procedure (for short, “the Code”) in violation of sub-sec.(2) of the said provision in so far as the said statements did not reveal that learned Magistrate had warned the persons who gave the confession statements that they are not required to give any such statement and if given, such statements would be used as evidence against them. Learned District Judge was also impressed by the contention that the statements recorded from the persons concerned are hit by Article 20(3) of the Constitution. 2. Learned Government Pleader has contended that at O.P(C) No.2323 of 2011 -: 2 :- the time the statements were recorded the persons concerned were not made accused and hence the bar under Article 20(3) of the Constitution does not arise. Reliance is placed on the decision in Veera Ibrahim v. State of Maharashtra (AIR 1976 SC 1167). It is also contended that statements were not recorded by the learned Magistrate under Sec.164 of the Code. Instead, statements were recorded by the forest officials. 3. Learned counsel for respondent submitted that as per the impugned order statements were recorded under Sec.164 of the Code in which case non-compliance with sub-sec.(2) is fatal and such statements cannot be used as evidence against the respondent. 4. Learned Government Pleader submitted that at the time statements of the persons concerned were recorded, they were not made accused. If that be so learned District Judge has to consider whether those statements are hit by Article 20(3) of the Constitution in the light of the decision in Veera Ibrahim v. State of Maharashtra, referred supra. 5. It is also seen that statements were not recorded by the the learned Magistrate but were recorded by the forest officials in which case question of application of sub-sec.(2) of O.P(C) No.2323 of 2011 -: 3 :- Sec.164 of the Code does not arise. It is without referring to that matter that learned District Judge has decided the matter as if statements were recorded by the learned Magistrate and are hit by sub-sec.(2) of Sec.164 of the Code. In that view of the case, the matter requires reconsideration for which the matter has to be remitted to the learned District Judge. Original Petition is allowed. Exhibit P1, judgment dated 07.08.2010 in C.M.A. No.14 of 2003 is set aside and the said appeal is remitted to learned District Judge, Thrissur for fresh decision after hearing both sides. It is directed that until disposal of the appeal the Bank Guarantee furnished by the respondent will remain in force. THOMAS P. JOSEPH, JUDGE. vsv