Dismissed

Divisional Forest Officer v. Madhavan

Kerala HC1 Feb 2013CRP/92/2012

Case brief

AI extract

What is this about?

In a civil revision, the Kerala High Court held that reeds do not fall within the definition of 'timber' under Sec.61A of the Kerala Forest Act, 1961. Consequently, the Authorised Officer lacked the power to confiscate the vehicle for transporting reeds. The civil revision challenging the District Judge's acquittal order was dismissed.

What did the court decide?

The civil revision petition was dismissed; no interference with the learned District Judge's judgment.

Divisional Forest Officer Vs Madhavan — Constitutional and Fundamental Rights | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934

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CRP.No. 92 of 2012 ()

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AGAINST THE JUDGMENT IN CMA.64/2011 OF DISTRICT COURT, PALAKKAD

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PETITIONERS/RESPONDENTS :

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1. THE DIVISIONAL FOREST OFFICER MANNARKKAD.

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2. THE FOREST RANGE OFFICER, PALAKKAYAM.

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BY GOVT. PLEADER

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RESPONDENT/APPELLNAT :

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MADHAVAN

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S/O. KRISHNAN, PADINJAREKARA HOUSE, KANJIRAPUZHA POST MANNARKAD TALUK, PALAKKAD DISTRICT, KANJIRAPUZHA P.O.-678591.

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CAVEATOR BY ADV. SRI.M.R.ANISON

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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...2/-

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CRP.No. 92 of 2012 ()

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APPENDIX

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PETITIONERS' ANNEXURES :

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ANNEXURE I : TRUE COPY OF THE PROCEEDINGS BEARING NO. A1-562/11 DATED 22-06-2011 PASSED BY THE DIVISIONAL FOREST OFFICER, MANNARKKAD.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.S. TO JUDGE

THOMAS P. JOSEPH, J. ===================== Civil Revision Petition No. 92 of 2012

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============================== Dated this the 1^st day of February, 2013

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O R D E R

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This civil revision is preferred by State Government aggrieved by the judgment dated 16.12.2011 in CMA No. 64 of 2011 of learned District Judge, Palakkad setting aside Annexure -1, order of confiscation passed by the Authorised Officer and Divisional Forest Officer (for short “ the Authorised Officer”), Mannarkkad on 22.06.2011 confiscating vehicle belonging to the respondent.

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The short facts are:

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On 25.11.2011 the Forest Officials intercepted goods vehicle No.KL-9W/1405 belonging to the respondent and which according to the forest officials carried 30 gunny bags of reeds. A case was registered as O.R. No. 1 of 2011. The vehicle and articles were seized and produced before the Authorised Officer with a recommendation to initiate proceedings for confiscation of vehicle. Authorised Officer gave notice to the respondent and others requiring them to pay the value of the vehicle in lieu of confiscation but there was no proper response for that. Later, Authorised Officer initiated confiscation proceedings, issued

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C.R.P. No. 92 of 2012

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notice to the respondent under Sec.61B of the Kerala Forest Act, 1961 (for short “the Act”). In response to that notice, respondent filed a statement and appeared through counsel. At the time of hearing the respondent did not adduce any evidence except his counsel saying that the respondent is nothing to say what is already stated in the written statement. Based on the materials available, Authorised Officer passed Annexure – 1, order confiscating the vehicle for the reason that it was carrying forest produce in violation of the Kerala Forest Produce (Transit) Rules, 1975.

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Respondent challenged that order before learned District Judge. Learned District Judge by the impugned judgment allowed the appeal and set aside order of confiscation.

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Learned Special Government Pleader for petitioner contends that the judgment of learned District Judge is erroneous. It is argued that as per Sec.2(e) of the Act, “forest offence” means an offence punishable under the Act or any Rule made thereunder”. It is argued that the Rules above referred is a Rule made in accordance with the provisions of the Act and hence violation of the Rule would amount to a forest offence as

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understood in Sec.2(e) of the Act. It is further argued that under Sec.61A of the Act when a “forest offence” is believed to have been committed in respect of timber, charcoal, firewood or ivory which is property of the Government, it is within the power of the Authorised Officer to confiscate the vehicle after complying the requirements of the said provisions and Sec.61B of the Act.

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A further argument learned Special Government Pleader had advanced is that though respondent is relying upon a pass issued to one Appukuttan for collection of reeds from the reserve forest, goods in question were intercepted and seized from a place beyond the places referred to in the pass and hence there is violation of the Rules as above stated.

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Learned counsel for the respondent has supported judgment of learned District Judge. It is argued that in so far as “reeds” do not come within the mischief of Sec.61A of the Act, question of Authorised Officer confiscating the vehicle does not arise. It is further argued that it is strictly in accordance with the pass issued to Appukuttan that goods were transported in the lorry. Learned counsel has also an argument that reeds had been converted into finished products - handle for big shoppers

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C.R.P. No. 92 of 2012

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and hence no more continued to be “reeds” liable to be confiscated under any of the provisions of the Act or Rules.

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For the purpose of deciding this civil revision it is sufficient that I go into the question whether the Authorised Officer was competent to confiscate the vehicle in accordance with the provisions of Sec.61A of the Act. The said provision refers to timber, charcoal, fire wood or ivory which is the property of Government and with respect to which a “forest offence” is believed to have been committed. Therefore, apart from the fact that there must be a belief that a forest offence is committed, such offence must be with respect to timber, charcoal, fire wood or ivory so that Authorised Officer could initiate action for confiscation of the same together with the tools, ropes, chains, boats, vehicles and cattle under Sec. 61A of the Act.

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It is not disputed that the goods seized in this case were made of reeds (allegedly) collected from the reserve forest.

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“Timber” is defined in Sec.2(k) of the Act as:

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“Timber includes trees when they have fallen

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or have been fallen and all wood whether cut

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C.R.P. No. 92 of 2012

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up or fashioned or hollowed out for any purpose or not”.

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The expression “trees” is defined in Sec.2(l) as including palms, bamboos, stumps, brush - wood etc. The above definitions does not take in reeds within the expression either timber or trees. On the other hand in Sec. 2(f) 'forest produce' is defined as including (under Sec. (ii) (b)) plants not being trees including grass, creepers, reeds and moss. Therefore, “reeds” do not come within the category of timber as understood in Sec.61(A) of the Act.

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Learned Special Government Pleader when faced with the above situation, tried to salvage the situation by taking recourse to Sec.52 of the Act. There, it is stated that when there is reason to believe that a forest offence is committed in respect of any timber or other 'forest produce' (which would take in reeds as well) such timber produce together with all tools, ropes, chains, boats, vehicles and cattle are used in committing such offence may be seized by any Forest Officer or Police Officer.

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The said provision only deals with the power of Forest

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Officer or Police Officer for seizure. Going by Sections 53 to 61, the articles belonging to the Government other than the category mentioned in Sec.61(A) of the Act are to be produced before the Magistrate whether or not a case is booked. That provision cannot be invoked in this case so far as the order of confiscation by the Authorised Officer is concerned. It follows that so far as the reeds in question from which the products were allegedly made does not come within the four corners of Sec.61A of the Act, the Authorised Officer had not power to order confiscation of the vehicle as well.

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Learned counsel for respondent has another argument based on the pass issued to Appukuttan. In the view I have taken it is not necessary to go into that question.

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I make it clear that if the State is entitled to take up the matter of confiscation before the Magistrate concerned as per the provisions of the Act, it is open to the State to do so in which case it is open to the respondent to raise appropriate contentions. Those contentions if dealt with by the learned District Judge will stand vacated. In the view I have taken that reeds do not come within the purview of Sec.61A of the Act, the

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order of confiscation made by the Authorised Officer cannot stand. Hence, I do not find reason to interfere with the judgment of the learned District Judge.

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Resultantly, the civil revision is dismissed with the observation that if otherwise the State is entitled to bring the matter of confiscation of the vehicle and goods seized before the Magistrate concerned in accordance with the provisions of Sec.55 or any other provision of the Act it is open to the State to do so with opportunity to the respondent to take appropriate defence and that any finding entered by the learned District Judge in that regard will stand vacated.

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smv

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Sd/- THOMAS P.JOSEPH, JUDGE //True copy//

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P.A. To Judge

Divisional Forest Officer v. Madhavan

Case brief

What is this about?

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Divisional Forest Officer v. Madhavan

Case brief

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