IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 CRP.No. 1148 of 2004() ---------------------- CMA.105/2003 of ADDL.DISTRICT COURT, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT: ------------------------------- V.S.RAJESH, S/O. SREEDHARAN NAIR, VILAYANCHALIL HOUSE, THAMARASSERY P.O., KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/RESPONDENTS: --------------------------- 1. DIVISIONAL FOREST OFFICER, KOZHIKODE. 2. THE RANGE OFFICER, THAMARASSERY FOREST RANGE OFFICE, THAMARASSERY, KOZHIKODE. BY SPL.GOVERNMENT PLEADER (FORESTS) SRI.M.P.PRAKASH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2010 ALONG WITH WPC NO. 23674 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () ----------------------------------- Dated this the 19th day of February, 2010 O R D E R The revision and the writ petition arise from a common judgment rendered by the learned District Judge, Kozhikode in C.M.A.Nos.47 and 105 of 2003. The above two miscellaneous appeals were filed against the orders passed by the Divisional Forest Officer, Kozhikode division confiscating two mini lorries bearing Nos.KL-11/B-9720 and KL-11/H-4119, both allegedly involved in the illicit transportation of forest produce from a reserve forest. 2. Revision petitioner in C.R.P.No.1148 of 2004 is the owner of a mini lorry, KL-11/B-9720, which was ordered to be confiscated by the Divisional Forest Officer. The other vehicle involved in the confiscation proceedings, namely, KL-11/H- 4119 belong to the 1st respondent in the writ petition. Though C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 2 the Divisional Forest Officer had ordered for confiscation of both the vehicles on the basis of the findings entered in his enquiry conducted in accordance with Section 61B of the Kerala Forest Act, in the appeals preferred by the respective owners of the vehicles, C.M.A.No.47 of 2003 filed by the 1st respondent in the writ petition and C.M.A.No.105 of 2003 by the petitioner in the revision, the learned District Judge has set aside the confiscation order passed over the vehicle KL-11/H-4119 owned by the 1st respondent in the writ petition. Confiscation order passed against the other vehicle, KL-11/B- 9720, owned by the appellant in C.M.A.No.105 of 2003, (the petitioner in the C.R.P) was confirmed by the learned District Judge holding that no grounds have been made out to interfere with the order of confiscation. Revision has been filed by the above said owner impeaching the propriety and correctness of the judgment rendered by the learned District Judge confirming the order of confiscation over his vehicle dismissing his appeal C.M.A.No.105 of 2003. State along with the Forest Officer has filed the writ petition challenging the propriety and correctness of the judgment rendered by the C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 3 learned District Judge setting aside the order of confiscation passed over the vehicle KL-11/H-4119 belonging to the appellant in C.M.A.47 of 2003 by allowing the above appeal. 3. I heard the learned counsel appearing for the revision petitioner and also the Special Govt. Pleader (Forests). The respondents in the writ petition are also represented by the same counsel who appeared for the petitioner in the revision. Since common questions of fact and law are involved and the revision and writ petition arise from a common judgment passed by the court below, after being heard together, they are disposed under a common judgment. 4. Short facts involved in the case leading to the confiscation proceedings of the two vehicles can be summed up thus: During the course of a routine inspection on 31.7.2002, the Forest Range Officer, Thamarassery Forest Range found some persons cutting down timber from the reserve forest. C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 4 Seeing the forest party, one among them ran away and made himself scarce, but, his companions, the remaining two persons found at the site were apprehended. They were found engaged in sawing a fallen tree. A mahazar was prepared over the stump, and the forest produce with the tools seen was seized into custody. A crime was registered over the occurrence and during its investigation the culprit, who had escaped from the spot was also apprehended. The investigation disclosed that a number of rose wood trees were cut and removed from the reserve forest on 31.10.2002 and transported from that site in the mini lorry KL-11/B-9720 owned by the revision petitioner to the residence of one Mammunni, and, later, from his residence, it was transported in another mini lorry KL-11/H-4119 owned by the 1st respondent, to a saw mill and cut to pieces of various sizes. Involvement of the two vehicles owned by the respective persons as indicated above, the revision petitioner and also the 1st respondent in the writ petition, being revealed in the investigation, the forest official concerned filed a report before the authorised officer along with the statements C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 5 recorded from the persons apprehended, who were involved in the commission of the forest offence. The District Forest Officer, prima facie, being satisfied that proceedings under Section 61A of the Kerala Forest Act for the confiscation of the vehicles involved in the commission of the forest offence have been made out, issued show cause notice to the owners of both the vehicles. Pursuant to such notice after conducting enquiry, satisfied from the materials produced that confiscation of the vehicles has to be made, orders thereof were passed confiscating the two vehicles, and that gave rise to the two C.M.Appeals at the instance of the respective owners of the vehicles. 5. The learned District Judge as seen from the impugned judgment found that the materials produced in the case convincingly established the involvement of the vehicle KL-11/B-9720 in the illicit transportation of the forest produce from the reserved forest to the residence of Mammunni. Confiscation order passed over that vehicle was upheld by the learned District Judge negativing the challenges raised by the C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 6 owner/the revision petitioner. So far as the order confiscating the other vehicle, considering all materials and especially the statement made by the driver of the vehicle that he was unaware of that teak logs were also in the timber. When his vehicle was hired and used to transport various items of timber to a saw mill. The explanation offered by the driver was found reasonable to hold that there was no incriminating circumstance to conclude that he had knowingly done any act in the illicit transportation of the forest produce in his lorry or committing of a forest offence. In that view of the matter, the learned District Judge set aside the confiscation order passed over the vehicle KL-11/H-4119. As already stated, the owner of the vehicle KL-11/B-9720 has filed the revision against the confiscation order passed over his vehicle confirmed by the learned District Judge, and the State against the judgment, setting aside of the confiscation order passed over the other vehicle KL-11/H-4119 belonging to the 1st respondent in the writ petition. 6. The learned counsel for the revision petitioner C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 7 inviting my attention to Section 52 (1) of the Kerala Forest Act, 1961 contended that in the present case there was no material whatsoever showing the involvement of the vehicles in the commission of any forest offence leave alone the transportation of forest produce in such vehicles. Section 52 (1) of the Act contemplates of the seizure of the vehicle involved in the forest offence only when it is being used in the course of the transportation, is the submission of the counsel. Section contemplate of seizure of the timber or other forest produce, together with tools, vehicles etc. and not of a seizure of the vehicle separately long after the commission of the offence on an allegation that it had been used for illicit transportation of timber or other forest produce, is the submission of the counsel. It is further submitted that other than the statements recorded from the persons who are imputed of having committed the forest offence, there was no other material to connect the involvement of the vehicles in the commission of the forest offence, leave alone the illicit transportation of the forest produce as alleged in the case. Referring to Section 72 (d) of the Kerala Forest Act, it is C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 8 contended the evidence recorded by the forest officer to be accepted and acted upon should satisfy that such evidence has been recorded in the manner provided by the Code of Criminal Procedure. Lastly, it is also contended by the learned counsel that in the show cause notice issued by the authorised officer, the grounds on which preliminary satisfaction was arrived to proceed for confiscation of the vehicle had not been given expression to, and to that extent, the owners of the vehicles proceeded against were prejudiced in submitting their representations to the proposed confiscation. That material irregularity in the issue of notice which had been canvassed in the appeal memorandum, according to the counsel, has significance and vital importance as it has a bearing on the legality and correctness of the confiscation proceedings initiated against the owners of the vehicles. On the other hand, the learned Special Govt. Pleader inviting my attention to Forest Range Officer v. Aboobacker (1989 (1) KLT 871) contended that the statements collected during the course of investigation by the forest officer as well as the statements taken by the forest officer in the course of the C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 9 enquiry over the confiscation proceedings are relevant materials and can be safely acted upon in passing final orders of confiscation. Reference is also made by the learned counsel on D.F.O., Kothamangalam v. Sunny Joseph (2002 (3) KLT 641) to contend that there need not be simultaneous seizure of the timber or forest produce. The learned District Judge went wrong in interfering with the order of confiscation passed over the vehicle KL-11/H-4119 owned by the 1st respondent in the writ petition solely on the basis of the explanation offered by the driver of that vehicle, is the submission of the learned Special Govt. Pleader. The material circumstance that the forest produce involved and transported in that vehicle to the saw mill is rose wood is pointed out to contend that it could be identified as a forest produce even by a layman. According to the Special Govt. Pleader, that circumstance was not taken into account and considered by the learned District Judge while interfering with the confiscation order. So much so, it is contended that the order setting aside the confiscation order of that vehicle in favour of the 1st respondent in the writ petition is liable to be interfered C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 10 with and the order of confiscation passed over the vehicle (KL-11/H-4119) by the District Forest Officer has to be restored. It is further submitted that the revision against the concurrent decision ordering confiscation of the vehicle (KL-11/B-9720) does not have any merit, and it is liable to be dismissed. 6. I have considered the rival submissions made by the learned counsel for the revision petitioner, who appeared for the 1st respondent in the writ petition as well, and also the learned Special Govt. Pleader (Forest) Considering the submissions made with reference to the common judgment impugned in the revision and the writ petition, I find that the challenges canvassed in the revision against the decision of the learned District Judge confirming the confiscation order passed by the Divisional Forest Officer over the vehicle KL- 11/B-9720 owned by the revision petitioner cannot be accepted either on fact or under law. As rightly pointed out by the Special Govt. Pleader (Forest), there need not be a simultaneous seizure of the vehicle in which the forest C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 11 produce had been transported, with the timber or forest produce during the course of commission of the forest offence. If that be so in very many cases where involvement of the vehicles in the illicit transportation is detected long after the cutting removal of the trees and forest produce, no confiscation proceedings can be initiated. I need not dwell much on that aspect since this Court in D.F.O., Kothamangalam v. Sunny Joseph (2002 (3) KLT 641) has unequivocally stated that the wordings in Section 52 of the Kerala Forest Act do not contemplate of a simultaneous seizure of timber or forest produce and vehicle. The confiscation orders have been passed by the authorised officer solely on the basis of the statements of the alleged culprits involved in the commission of forest offence, and so much so, there is no worth mentioning evidence to support the involvement of the vehicles proceeded for confiscation, another challenge raised by the learned counsel for the revision petitioner and the 1st respondent in the writ petition, cannot be accepted. The mahazer prepared over the site where the offenders were apprehended, the circumstance that C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 12 such persons were involved in sawing the cut down timber in a reserved forest etc. have also to be taken into account in appreciating the statements recorded from them during the investigation of the crime registered over the occurrence. It has also come out that the driver of the vehicle KL-11/B-9720 owned by the revision petitioner had also given a statement that the forest produce cut down from the reserve forest had been removed from the reserve forest to the house of one Mammunni. During the course of the enquiry conducted by the forest officer, as seen from the impugned judgment, that driver had retracted from the previous statement. However, after scrutiny of the materials placed, the involvement of the above driver and also the vehicle in the illicit transportation of the forest produce from the reserve forest to the house of the aforesaid Mammunni, as concluded by the authorised officer was approved by the learned District Judge. After examining the file relating to the confiscation proceedings, the District Judge was satisfied that the confiscation order passed over that vehicle is proper and correct. I find no ground has been made out for interfering with the confiscation order as C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 13 confirmed by the learned District Judge over the vehicle KL-11/B-9720, in exercise of the revisional jurisdiction. In the show cause notice, the owners had not been informed of the grounds on which proceedings were initiated for confiscation of the vehicles, no doubt, was a challenge which should have been raised atleast before the appellate court and not before this Court in revision. There is nothing on record to show that the show cause notice issued suffers from any material defect. But, on the contrary, what is seen is that reasonable opportunity had been given before the confiscation order had been passed. 7. The writ petition filed by the State challenging the order setting aside of the confiscation order over the vehicle KL-11/H-4119 owned by the 1st respondent in the petition does not warrant any interference, as it is seen that the explanation offered by the driver of that vehicle, which had been found reasonable and acceptable by the learned District Judge, is possible in the given facts of the case. At any rate, there was nothing on record that the driver or the owner of the vehicle C.R.P.NO.1148 OF 2004 & W.P.(C).NO.23674 OF 2005 () 14 had any knowledge or that they have not taken reasonable opportunity to prevent the use of the vehicle for illicit transportation of the forest produce. That being so, the writ petition deserves only to be dismissed. Both the revision and writ petition are dismissed. S.S.SATHEESACHANDRAN JUDGE prp