State of Kerala &
ANR. Vs. P.V. Mathew (Dead) by L.R.S.
Civil Appeal No. 3337
of 2012 arising out of S.L.P. (Civil) No. 6300 of 2006)
J U D G M E N T
P. Sathasivam,J.
1.
Leave
granted.
2.
This
appeal is directed against the final judgment and order dated02.12.2005 passed
by the High Court of Kerala at Ernakulam in C.R.P. No.1587 of 1999 whereby the High
Court while affirming the order dated04.12.1998 of the District Judge, Thrissur
in C.M.A. No. 16 of 1997dismissed the revision petition filed by the State of
Kerala, the appellantherein.
3.
Brief
facts:
a. According to the
prosecution, a case was registered as C.R. No. 5 of1990 in Vazhachal Range in Vazhachal
Forest Division of Kerala on the allegation of illicit killing of a wild elephant.
During the course of investigation, three persons, viz., Nelladan George, Madhura
Johny and Chirayath Jose were taken into custody and questioned. On 01.04.1991,Nelladan
George and Madhura Johny gave statements before the Divisional Forest Officer,
Chalakudy and Chirayath Jose had given statement before the Range Officer,
Flying Squad, Thrissur. While questioning, they admitted having gone to
Vazhikadavu and shot dead wild tuskers about six months back. In the statement
given by Madhura Johny, he admitted that about seven months back he along with four
others, namely, Nelladan George, Parambal Chandran, Kaitharam Paulachan, Kottatti
Jose had gone to Vazhikadavu area in a car bearing Registration No. KL 8 6755 for
shooting elephants with two unlicensed guns. After reaching there, they sent backthe
car and went to the forest. After two or three days, Madhura Johny shot dead
two tuskers, one big elephant and another small one. They collected the tusks
and kept it in a cave and returned to Thrissur by bus. Again they went to Vazhikadavu
in the same car and collected the tuskshided in the cave. They brought the tusks
to Thrissur and sold it to Chirayath Jose for Rs.72,000/-. They paid Rs.3,500/-
to the driver of the car for two trips and the balance amount they divided
among them.
b. After recording the
statement, on 09.04.1991, Range Officer, Thrissur Flying Squad and his party
seized the car. On the same day, the car wasproduced before the Divisional
Forest Officer, Chalakudy and thereafter he entrusted the car to the Range Officer,
Pariyaram for safe custody and asked him to conduct a detailed enquiry.
c. The owner of the
vehicle the respondent herein filed O.P. No.4554 of 1991 before the High Court praying
for release of the vehicle. The High Court, by order dated 30.04.1991, directed
to release the vehicle for interim custody to the respondent herein on furnishing
security of immovable property to the extent of Rs.50,000/-. Accordingly, the car
was released to the respondent herein on his furnishing the security.
d. After investigation,
the Forest Range Officer, Pariyaram submitted are port on 02.10.1996. On
30.10.1996, the Investigating Officer issued a show cause notice to the
original respondent i.e. P.V. Mathew as to why the car should not be
confiscated to Government under Section 61A of Kerala Forest Act, 1961
(hereinafter referred to as the Act) and called upon him to appear in person on
26.11.1996. After hearing him and after perusing the final report of the Investigating
Officer, the Divisional Forest Officer, Chalakudy passed an order dated
20.12.1996 for confiscation of the car.
e. Aggrieved by the said
order of confiscation, the original respondent preferred an appeal being C.M.A.
No. 16 of 1997 before the District Judge, Thrissur. By order dated 04.12.1998, the
District Judge allowed the appeal.
f. Against the order
passed by the District Judge, the State preferred a revision petition being
C.R.P. No. 1587 of 1999 before the High Court. The High Court, by the impugned judgment
dated 02.12.2005, dismissed the revision filed by the State.
g. Aggrieved by the said
judgment, the State has preferred this appeal by way of special leave before
this Court. During the pendency of the appeal, sole respondent died and his LRs
were brought on record as (i) to(viii).
1.
2.
3.
4.
Heard
Ms. Bina Madhavan, learned counsel for the appellant-State and Mr. S.
Gopakumaran Nair, learned senior counsel for the respondent.
5.
By
the impugned judgment, the High Court found that the vehicle of the respondents
which was used for illegally transporting ivory collected from the forest
cannot be confiscated invoking power under Section 61A of the Act because ivory
is not a forest produce becoming under Section 2(b)of the Act and no forest
offence can be said to have been committed in respect of ivory. Ms. Bina Madhavan,
learned counsel appearing for the appellant-State, after taking us through the
relevant provisions from the Act including Section 61A, submitted that the
Divisional Forest Officer was fully justified in confiscating the vehicle which
transported ivory and the District Court as well as the High Court committed an
error in setting aside the same. On the other hand, Mr. Gopakumaran Nair, learned
senior counsel for the respondents submitted that after the amendment in respect
of the definition forest produce in Section 2(f) of the Act, the forest authorities
are not empowered to confiscate unless it is established that forest offence
has been committed in terms of the Act. He also submitted that the District
Court and the High Court were fully justified in setting aside the order of the
Divisional Forest Officer based on the amended provisions.
6.
Among
the various provisions of the Act, we are concerned about the following
provisions: 2 (e) forest offence means an offence punishable under this Act or any
rule made there under. 2 (f) forest produce includes-
(i) the following
whether found in or brought from, a forest or not, that is to say- timber,
charcoal, wood oil, gum, resin, natural varnish, bark lac, fibres and roots of
sandalwood and rosewood; and (ii) the following when found in, or brought from,
a forest, that is to say,-
a. trees and leaves,
flowers and fruits, and all other parts or produce not herein before mentioned,
of trees;
b. plants not being
trees (including grass, creepers, reeds and moss) and all parts or produce of
such plants; and
c. silk cocoons, honey
and wax;
d. peat, surface oil,
rock and minerals (including limestone, laterite), mineral oils and all products
of mines or quarries; 52. Seizure of property liable to confiscation.-
(1) When there is reason
to believe that a forest offence has been committed in respect of any timber or
other forest produce, such timber, or produce, together with all tools, ropers,
chain, boats, vehicles and cattle used in committing any such offence may be seized
by any Forest Officer or Police Officer. Explanation:- The terms boats and vehicles
in this section, section 53, section 55, section 61A and section 61B) shall include
all the articles and machinery kept in it whether fixed to the same or not.
(2) Every officer
seizing any property under sub-section (1) shall place on such property or the
receptacle, if any, in which, it is contained a mark indicating that the same has
been so seized and shall, as soon as may be make a report of such seizure to the
Magistrate having jurisdiction to try the offence on account of which the
seizure has been made: Provided that, when the timber or forest produce with
respect to which such offence is believed to have been committed is the property
of the Government and the offender is unknown, it shall be sufficient if the
Forest Officer makes, as soon as may be, a report of the circumstances to his
official superior. 61A. Confiscation by Forest Officers in certain cases.-
(1) Notwithstanding
anything contained in the foregoing provisions of this chapter, where a forest
offence is believed to have been committed in respect of timber, charcoal,
firewood or ivory which is the property of the Government, the officer seizing
the property under sub-section (1) of Section 52 shall, without any
unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles
and cattle used in committing such offence, before an officer authorized by the
Government in this behalf by notification in the Gazette, not being below the
rank of an Assistant Conservator of Forests (hereinafter referred to as
authorized officer).
(2) Where an
authorized officer seizes under sub-section (1) of section 52 any timber, charcoal,
firewood or ivory which is the property of the Government, or where any such property
is produced before an authorized officer under sub-section (1) of this section
and he is satisfied that a forest offence has been committed in respect of such
property, such authorized officer may, whether or not a prosecution is
instituted for the commission of such forest offence, order confiscation of the
property so seized together with all tools, ropes, chains, boats, vehicles and cattle
used in committing such offence. It is clear that definition 2(f) was amended and
the present provision was substituted by Act 23 of 1974.
A perusal of the
amended provision clearly shows exclusion of ivory within the ambit of forest produce.
Further, after the amendment of the expression forest produce under Section 2(f)
of the Act consequent to the enactment of the Wild Life (Protection) Act, 1972
it could not be said that ivory is a forest produce or that possession and
transportation of ivory without valid authority is an offence punishable under
the Act or any rule made there under. Inasmuch as ivory being not a forest
produce as defined in Section 2(f) after the Amendment Act 23 of 1974, no
forest offence as defined in Section 2(e) of the Act can be said to have been
done in respect of the ivory as alleged in the instant case and, therefore, the
action taken under Section 61A of the Act cannot be supported.
1.
2.
3.
4.
5.
6.
7.
As
rightly pointed out by learned senior counsel for the respondents that after
the Wild Life (Protection) Act, 1972, Section 2(f) of the Act came to be
amended. The un amended Section 2(f) of the Act reads as under: 2 (f) forest
produce includes the following when found in or brought from, a forest, that is
to say-
(i) trees and leaves,
flowers and fruits and all other parts or produce of trees, and charcoal,
(ii) plants not being
trees (including grass, creepers, reeds and moss) and all other parts or
produce of such plants, (iii) wild animals and skins, tusks, horns, bones, silk
cocoons, honey and wax and all other parts or produce of animals, (iv) peat,
surface oil, rock and minerals (including limestone and laterite), mineral oils
and all produce of mines and minerals; Clause (iii) of the un amended Section
2(f) has been deleted by Act 23 of1974 and the present definition of forest produce
does not include ivory. We have already extracted Section 52 of the Act which deals
with seizure of property liable to confiscation.
The said Section clearly
contemplates that the power of confiscation is confined to only those vehicles
used in committing any forest offence in respect of any timber or other forest
produce. Though a reading of Section 61A of the Act as inserted by Amendment
Act, 28 of 1975 shows that ivory is also included in respect of any forest
offence under the Act and under sub-section (2)thereof, the vehicle used for
committing such offence is also liable to confiscation by the Authorised Officer.
However, consequent to
the amendment of expression forest produce in Section 2(f) of the Act, the claim
of the State that even in the absence of ivory in the definition forest
produce, in view of Section 61A of the Act, the authorities are entitled to
confiscate the vehicle cannot be sustained. For the sake of repetition, we
reiterate that the definition of forest produce in Section2(f) does not include
any part of living or dead wild animals which is being taken care of by the
Wild Life (Protection) Act, 1972. In view of the same, the interpretation and
the argument of the learned counsel for the State cannot be accepted.
1.
2.
3.
4.
5.
6.
7.
8.
Further,
since seizure of ivory is not justified even under Section52 of the Act, the
power of confiscation under Section 61A commences only when a valid seizure of
the property is effected under the Act and the report is made to the Authorised
Officer. Therefore, we are of the view that the District Court has rightly held
that the fact that offences punishable under other analogous statutes have been
committed in respect of ivory which is the property of the Government cannot
expose the appellant vehicle to the consequence of confiscation under Section
61A of the Act .
We have already
quoted the entire Section 61A. In the instant case, neither any property was
seized from the car nor had any seizure taken effect as provided under sub-section
(1) of Section 52. Inasmuch as seizure under Section 52 of the Act has not taken
place and no forest offence in respect of a forest produce is shown to have
been committed or established in the case, there is absolutely no justification
for the seizure and the order of confiscation of the aforesaid car is beyond the
jurisdiction of the authorized officer.
These aspects have been
rightly considered by the District Court as well as the High Court and we are in
entire agreement with the same. Inasmuch as the provisions of the Wild Life
(Protection) Act, 1972 take care of wild animals skins, tusks, horns, bones,
honey, wax and other parts or produce of animals, in the absence of specific charge
under the said Act, the Authorized Officer was not justified in ordering
confiscation of the vehicle.
9.
The
definition of "forest produce" in the Act under Section 2(f) doesn't
take ivory in its purview. The presumption under Sec.69 of the Act applies only
to the "Forest Produce" so even if Sec.61A of the Act takes in its
fold ivory as one of the items liable to be confiscated the presumption under
Section 69 of the Act will not be available to the Government as it is not a
forest produce.
10.
In
the light of the above discussion, we are unable to agree with the stand of the
State. Consequently, the appeal fails and the same is dismissed. No order as to
costs.
……………………J.
(P. SATHASIVAM)
……………………J.
(J. CHELAMESWAR)
NEW
DELHI;
APRIL
2, 2012.
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