IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 26915 of 2008(D) -------------------------- CMP.1395/2008 of J.M.F.C.-III,THRISSUR .................... PETITIONER(S): --------------- THOMAS.T.K, AGED 60 YEARS, S/O. KOCHUVAREETH, THEKKENATH PANDARA VALAPPIL, PAZHAMUKKU ANGADI, OLLUR.P.O, THRISSUR. BY ADV. SRI.S.SUDHISH KUMAR SRI.J.JULIAN XAVIER RESPONDENT(S): --------------- 1. THE FOREST RANGE OFFICER, PONGANAMKAD FOREST STATION, PONGANAMKAD, THRISSUR. 2. AUTHORISED OFFICER/DIVISIONAL FOREST OFFICER, COLLECTORATE, AYYANTHOL, THRISSUR. BY SPECIAL GOVT. PLEADER SRI. RANJITH THAMPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 26915 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2008 JUDGMENT The petitioner's vehicle, a motor cycle, is allegedly involved in the commission of a forest offence. The crux of the allegation is that sandal oil was being transported in a Qualis car. The petitioner's vehicle had allegedly proceeded in front of the said car and it is alleged that the vehicle was proceeding as a pilot vehicle for the Qualis car which followed. Proceedings were initiated in respect of the transportation of sandal oil in the Qualis car and the petitioner's vehicle was also seized. The allegation is that the vehicle was used in the commission of a forest offence. The seizure was reported to the learned Magistrate. The vehicle has thereafter been produced before the authorised officer for action under Section 61A of the Kerala Forest Act. The seizure of the motor cycle was on 30.1.2008. 2. The petitioner applied for release of the vehicle under Section 457 Cr.P.C. and it is that application that has been W.P.C.No. 26915 of 2008 2 dismissed by the impugned order on the plea that it is reported that the forest authorities have taken steps for confiscation under Section 61A of the Kerala Forest Act. 3. The learned counsel for the petitioner submits that appropriate direction may be issued for interim release of the vehicle whether invoking the powers under Section 457 Cr.P.C. or the powers under Article 226 of the Constitution. The counsel submits that the vehicle was seized on 30.1.2008 and the same has been unnecessarily exposed to sun and rain in the custody of the authorities. Every court must imbibe the sense of urgency which is reflected in the decision in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638) and the sad scenario of costly vehicles suffering damage and deterioration unnecessarily in the custody of courts and authorities must be avoided, submits the counsel. 4. A notice dt. 29.7.2008 was issued to the petitioner to show cause why the vehicle should not be confiscated under section 61A of the Kerala Forest Act. On 19.8.2008 an objection was filed and arguments were heard. But even now no orders under Section 61A has W.P.C.No. 26915 of 2008 3 been passed. In these circumstances it is prayed that the vehicle may be directed to be released to the petitioner subject to any appropriate terms and conditions. 5. The learned counsel for the petitioner contends that prima facie the proceedings under Section 61A would not lie as the article in respect of which the forest offence is committed is not timber, charcoal, firewood or ivory and that the vehicle of the petitioner cannot be said to be “used in committing any forest offence”. For both these reasons, it is contended that the proceedings under Section 61A is not justified. Assuming the same to be justified, it is not necessary to insist that the vehicle must be exposed to damage and deterioration in the custody of the authorities. The long delay from 30.1.2008 till this day may be taken into account. Subject to any appropriate condition the vehicle may be directed to be released, it is prayed. 6. The counsel contends that notwithstanding the decision of the Division Bench in Standard Essential Oil Industries v. Forest Range Officer (2005 (2) KLT 250) the petitioner wants to contend that transportation of sandal oil is not equivalent to commission of a W.P.C.No. 26915 of 2008 4 forest offence in respect of timber, charcoal, firewood and ivory. The petitioner wants to challenge the decision of the Division Bench in Standard Essential Oil Industries (supra). At any rate, the counsel contends that the vehicle of the petitioner, which is alleged to have proceeded ahead of the vehicle in which sandal oil was allegedly transported cannot be said to be “used in committing the offence”. In any view of the matter, the vehicle may be directed to be released. 7. The learned Special Govt. Pleader submits that orders are expected to be passed in the Section 61A proceedings within a very short time and it is not necessary now to pass any orders in this writ petition. If order under Section 61A is passed in favour of the petitioner, the vehicle shall be released to him. If the order were against the petitioner, he will not be entitled for release of the vehicle subject to the provisions of Section 61D of the Kerala Forest Act. In these circumstances reasonable time may be given to the authorised officer to pass orders under Section 61A, prays the Special Govt. Pleader. I am satisfied that subject to appropriate conditions the vehicle can be directed to be released to the W.P.C.No. 26915 of 2008 5 petitioner. Such a direction, I am satisfied, shall serve the ends of justice eminently. 8. In the result: a) This Writ Petition is allowed. b) The impugned order is set aside. c) The Authorised Officer shall proceed to pass final orders under section 61A as expeditiously as possible, at any rate, within a period of 15 days from this date, i.e. on or before 21.10.2008. d) If orders are not passed by 21.10.2008, the vehicle, KL 08/7 1876 i.e. motor cycle, shall be released to the petitioner on the following terms and conditions. (i) He shall execute a bond for an amount equal to the value of the vehicle and produces a bank guarantee from any Nationalised Bank for such amount to be fixed by the learned Magistrate. ii) In such bond to be executed by the petitioner before the Magistrate, he shall undertake to produce the vehicle as and when directed by the learned Magistrate or if so directed by the authorities under Section 61A of the Kerala Forest Act. W.P.C.No. 26915 of 2008 6 Iii) If the bond is executed and the bank guarantee is produced to the satisfaction of the learned Magistrate, the Magistrate shall issue release order and thereupon the vehicle shall forthwith be released to the petitioner in whosesoever custody it be. (R. BASANT) Judge tm