Dismissed

Safiya.v v. the Divisional Forest Officer

Kerala HC11 Jan 2021WP(C)/27267/2020

Case brief

AI extract

What is this about?

Petitioner challenged the seizure and subsequent confiscation of her vehicle used for transporting sandalwood. The Court held that Section 52 does not mandate simultaneous seizure of the vehicle and contraband, that the Forest Range Officer could rely on confession statements for seizure, and that the petitioner must approach the appropriate forum under Section 61D since the confiscation order was

What did the court decide?

Prayer to release the seized vehicle and declare the seizure proceedings illegal was not granted; the writ petition was dismissed.

Safiya.v Vs the Divisional Forest Officer — Land Acquisition | Kerala HC (2021)

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W.P(c).No.27267/2020-G

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

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WP(C).No.27267 OF 2020(G)

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PETITIONER:

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SAFIYA.V, AGED 31 YEARS, W/O.ASHARAF, NONDATH VEEDU, AGALI P.O., MANNARKKAD, PALAKKAD DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENTS:

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1 THE DIVISIONAL FOREST OFFICER, MANNARKKAD, PALAKKAD DISTRICT, PIN -678 582.

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2 THE FOREST RANGE OFFICER, AGALI FOREST RANGE, PALAKKAD DISTRICT, PIN 678 581.

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SPL.GOVERNMENT PLEADER (FOREST)SRI.K.SANDESH RAJA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.V.ASHA, J.

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--------------------------------------- W.P.(C) No.27267 of 2020-G

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--------------------------------------- Dated this the 11 th day of January, 2021

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JUDGMENT

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The seizure of petitioner's vehicle by the 2^nd respondent is under challenge in this Writ Petition. It is stated that a Maruti Alto car bearing Reg.No.KL-50H/8824 owned by the petitioner, who is a teacher, was seized by the forest officials on the basis of a confession statement of petitioner's husband, recorded by the Forest Range Officer – the 2^nd respondent, that her car was used for removal of sandal wood pieces from the forest. It is stated that on 21.07.2020, the 2^nd respondent along with certain other forest officials intercepted a motorbike and registered O.R.No.21/2020 against 3 persons alleging that they were transporting sandalwood pieces on their motor bike. On the basis of their confession statement, petitioner's husband was also made an accused. Petitioner's car was seized thereafter based on the confession statement of her husband submitted before the Forest Range Officer. It is stated that though the petitioner filed an application under Section 451 Cr.P.C seeking interim custody of the vehicle, the Judicial First Class Magistrate, Mannarkkad rejected the application as per Ext.P4 order on 15.09.2020 on the ground that the car was already produced before the authorised officer for confiscation under Section 61A of the Kerala Forest Act. It is stated that the petitioner filed Crl.M.C. No.4511/2020 challenging Ext.P4 order. Though

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this Court dismissed the Cr.M.C as per Ext.P5 order, on a finding that a petition under Section 482 Cr.P.C will not lie for releasing a vehicle, the petitioner claims that this Court had arrived at a finding that seizure of a vehicle as envisaged under Section 52 of the Kerala Forest Act should have been along with the contraband articles and that the seizure of vehicle and articles should have been simultaneous. Therefore, it is the claim of the petitioner that the seizure of her vehicle by the Forest Range Officer was without any authority for the same, in the light of the findings in Ext.P4 order of this Court. Relying on the judgment in Luca Beltrami

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v. State of Kerala [2020 (5) KLT 24], it is also argued that the recording of confessional statement by the Forest Range Officer was also without any authority. The Writ Petition is filed in the above background seeking the following reliefs:

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“i) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to release the vehicle bearing registration No.KL-50H/8824 to the petitioner forthwith;

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ii) Declare that the seizure of the vehicle belonged to the petitioner bearing registration No.KL-50H/8824, under Section 52 of the Forest Act, and the consequent proceedings initiated against it under Section 61A of the Forest Act are perse illegal, and without jurisdiction;

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iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”

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According to the statement filed on behalf of the 1^st respondent, the

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petitioner has filed this Writ Petition on 07.12.2020 suppressing the confiscation proceedings initiated as per Annexure R1(a) notice dated 12.10.2020 and culminated in Annexure R1(b) order issued on 25.11.2020. It is stated that the vehicle was seized under Section 52 r/w Section 47H of the Kerala Forest Act, 1961 and the 2^nd respondent produced the same before the authorised officer to

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proceed under Section 61A of the Kerala Forest Act. The authorised officer thereafter issued Annexure R1(a) notice dated 12.10.2020 under Section 61(B) to the petitioner, who is the R.C owner of the vehicle affording her an opportunity to file her reply on or before 31.10.2020 and fixing the date for personal hearing on 30.10.2020. It is stated that the petitioner had submitted her reply on 30.10.2020. But since the reply was not satisfactory, the vehicle was confiscated as per Annexure R1(b) order on 25.11.2020. It is stated that the petitioner ought to have filed appeal under Section 61D of the Kerala Forest Act before the District Court in case she was aggrieved by Annexure R1(b) order instead of filing this Writ Petition. The learned Government Pleader also argued that the petitioner who did not approach this Court shall not be granted any relief.

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It is stated that O.R.21/2020 was registered in Ommala Forest Station on 27.7.2020 for illicit felling of sandal trees from the vested forest in VFC item No.111 of Goolikadav malavaram. The petitioner's car, which was used for committing the offence was seized by the Forest Range Officer, who produced it before the authorised officer on 26.08.2020 to proceed under Section 61A. It is stated that the timber along with all other tools including the vehicle used for committing such offence are to be produced before the authorised officer and are liable for confiscation under Section 61A of the Act. It is also stated that the petitioner's vehicle was seized based on the statement given by her husband that he has used that vehicle for transporting sandalwood. It is also the case of the 1^st respondent that Section 52 does not provide that the seizure of the vehicle should

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be simultaneous with that of seizure of sandalwood. It is also stated that the Forest Range Officer has conducted an enquiry in the matter and an enquiry report was submitted before the authorised officer on 24.09.2020. The Forest Range Officer recommended confiscation of the vehicle which was found involved in illicit transportation of sandalwood collected from the reserve forest. Annexure R1(a) notice and R1(b) order were issued thereafter. It is stated that the vehicle was seized by the forest officials in their effort to protect the sandal forest from destruction.

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Sri. Babu S. Nair, the learned counsel for the petitioner, argued that in view of the findings in Ext.P5 order, the very seizure of the vehicle itself is without authority and therefore the proceedings leading to confiscation are also without authority and once this Court rendered a finding in Ext.P5 that the vehicle cannot be seized except along with the contraband articles, the respondents shall be directed to release the vehicle. Relying on the judgment in Luca Beltrami 's case (supra), the learned counsel for the petitioner argued that the seizure was made on the basis of confession statement before the Range Forest Officer, who does not have any authority to record any confession statement and therefore seizure of the vehicle based on such confession statement is also without authority. Therefore, this Court has to release the unauthorisedly seized vehicle.

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On the other hand, the learned Special Government Pleader (Forest)

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Sri. Sandesh Raja argued that Section 61A of the Kerala Forest Act starts with a

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non obstante clause, according to which the Forest Officer is having every authority to seize the vehicle if a forest offence is believed to have been committed in respect of timber and it is not necessary that the vehicle can be confiscated or seized only along with the contraband article, as held by the Division Bench in the judgment in DFO, Kothamangalam v. Sunny Joseph : 2002 KHC 845. It is also pointed out that confiscation is a civil proceeding and the judgments rendered in criminal proceedings cannot govern the confiscation proceedings. It is pointed out that under Section 47H r/w Section 52 and 51A, the vehicle owned by the petitioner, could be seized, when the Forest Range Officer, found that it was used for illicit transportation of sandalwood. Relying on the judgment in State of Kerala v. Bharath Booshan Aggarwal : 2009 (1) KHC 313 the learned Special Government Pleader argued that the Forest Officials are duty bound to protect and preserve the forest, which is the property of the State Government, for the next generation and that the seizure of the vehicle was effected in the process of such protection. Relying on the judgment in Kunhali and Ors. v. Forest Range Officer & Anr. :2012 KHC 231 it was argued that the action of the respondents in seizing the vehicle on the basis of the statements recorded by the Forest Officials during the course of inquiry, cannot be held illegal. It was pointed out that the petitioner was given opportunity to present her case in the proceedings before the 1^st respondent.

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I have considered the contentions raised by the learned Counsel on either side. As the contention of Sri. Babu S. Nair, the learned counsel for the

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W.P(c).No.27267/2020-G

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petitioner, is that the seizure of the vehicle itself was without authority, it is necessary to have a look at the relevant provisions in the Kerala Forest Act.

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Section 47H of the Kerala Forest Act reads as follows:

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“47H: Seizure of sandalwood, sandalwood oil etc. and confiscation thereon:Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court, where an offence is believed to have been committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill, distilling unit, boiler-plant, tools, ropes, chains, boats, vehicles or any other contrivance used in the manufacture or distillation of sandalwood oil, or in the process of sale of sandalwood or sandalwood oil shall be liable to be seized under section 52 and the provisions contained in sections 61A, 61B, 61C, 61D, 61E and 61F shall mutatis mutandis apply to the seizure and confiscation thereof.”

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Section 52 reads as follows:

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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, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.

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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.

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(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:

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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.”

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Section 61A reads as follows:

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W.P(c).No.27267/2020-G

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“61A. Confiscation by Forest Officers in certain cases:- 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 the property of the Government, the officer seizing the property under subsection (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 authorised 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 the authorised officer).

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(2) Where an authorised 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 authorised officer under subsection (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised 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.

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In Ext. P5 order, this Court found force in the contention of the petitioner that the seizure of sandalwood and that of vehicle should be simultaneous and observed that it is doubtful whether a subsequent seizure would fulfil the requirements in Section 52 of the Act. In this context it is relevant to note the dictum laid down by the Division Bench in the judgment in Sunny Joseph's case (supra) . In that case this Court allowed the revision petition filed against the order passed by the District Court which had set aside the confiscation proceedings on the ground that the vehicle was not seized at the time of transportation of timber. In para.5 the Division Bench held as follows:

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“A reading of this Section does not indicate that there should be simultaneous seizure of the timber or forest produce and tools, ropes, chains, boats, vehicles, etc. It may happen that the forest offence would have been committed with respect to timber. The Forest Authorities would have got information only later. By

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the time the timber would have been stored in some place as had happened in this case. It cannot be said that because the timber has been stored in a particular place, the vehicle which was used for conveying the timber cannot be seized when it was really involved in the commission of offence. The question depends on the evidence and on the basis of which the Forest Officer has reason to believe that the vehicle was also involved in the offence. The decision cited in Divisional Forest Officer v. Amina, 1999 (1) KLJ 433, rests on the facts of that case. Here, there was not much delay in seizing the vehicle. The offence was detected on 24.3.1993 and the vehicle was seized on 27.3.1993. We make it clear that in cases where the forest produce and the vehicle are not seized simultaneously, the vehicle can be seized only if there is evidence to connect the vehicle with forest offence and that the seizure is not to be done after a long time. The seizure of the vehicle after a long time will put the owner and driver of the vehicle into great hardship with regard to discharging their burden which is imposed on them under S.52 and 61A of the above Act.”

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Therefore, the only requirement is that there should be evidence to connect the vehicle with forest offence. It is relevant to note that even in Ext.P5 order, though it was observed that power to seize the vehicle is dependent on the presence of contraband article, the learned Judge had only expressed its doubt over the legality of the seizure of the vehicle. It cannot be said that there is a final conclusion. Relevant portion of para.7 of Ext.P5 order reads as follows:

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“ “7. xxxxx

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On a careful reading of the aforementioned provisions, I find substance in the contention of the learned counsel that seizure and confiscation of vehicles, tools etc. can be affected together with contraband like timber or other forest produce, regarding which a forest offence is believed to have been committed. The power to seize is dependent on the presence of contraband, indicative of the vehicles, tools etc., having been used for commission of the offence. In the instant case, there was no contraband present inside or anywhere near the petitioner's vehicle, while seizure was affected. As such, legality of the seizure is highly doubtful.”

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It appears that when Ext. P5 order was passed, the judgment of the Division Bench

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in Sunny Joseph 's case ( supra ) was not brought to the notice of this Court.

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Therefore, I find that the contention of the learned Counsel for the petitioner that the seizure is illegal or without authority cannot be accepted.

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Regarding the contention of the learned Counsel for the petitioner relying on the judgment in Luca Betrami 's case ( supra ), it is to be noted that in the said judgment this Court found that the confession statements and the mahazar prepared were the only materials with the respondents to substantiate the offence of trespass against the petitioner therein. At the same time, this Court in paragraph 7 of the judgment observed that those materials were undoubtedly material pieces of evidence in a forest offence. It is also relevant to note that in the judgment in Kunhali and Ors. v. Forest Range Officer & Anr. :2012 KHC 231, this Court has held that confession statements given by the accused persons to the Forest Range Officer are admissible in evidence, though he is not invested with the power under Section 72 of the Kerala Forest Act; it can be used for corroborating other evidence. It was a case wherein the offence alleged against the accused was under Section 27(1)(e)(iv) for cutting and removing rosewood trees from the reserved forest. The questions whether the statement recorded by the Range Officer or other official at the time of interrogation in this case can be accepted as evidence or not and whether it can be treated as confession or not are to be considered by the appropriate authorities at the relevant time in the appropriate proceedings. The present case is not concerned with the criminal proceedings registered against the petitioner. The vehicle siezed has already been confiscated under the provisions contained in Section 61A, 61B etc., which are independent proceedings.

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As pointed out by the learned Government Pleader the petitioner did not choose to state anything regarding Annexure R1(a) notice or Annexure R1(b) order of confiscation in this Writ Petition, which he filed after he received the notice as well as the order of confiscation issued on 25.11.2020 well before the Writ Petition was filed. He did not choose to challenge the same also even after the respondents produced the same. The confiscation order is not issued in the criminal proceedings, but it is under a separate scheme, against which the petitioner has got an effective statutory remedy under Section 61D of the Act. The observation in Ext.P5 order would not dilute the effect of the confiscation which is not challenged in the Writ Petition. An order which is issued against the petitioner will continue to be in force until and unless it is set aside by a court of law, even if it is issued contrary to law, as held by the Full Bench of this Court in Pavitran v.

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State of Kerala : 2009(4) KLT 20 wherein it was held as follows in para 8:

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“Whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding. See the observations of Wade in Administrative Law, 6^th Edn.

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“The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. A

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common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result:”

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It is up to the petitioner to invoke the statutory remedy available against Annexure

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R1(b) order and it is a matter to be adjudicated based on evidence. Therefore, the prayers sought in the Writ Petition cannot be granted.

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The Writ Petition is accordingly dismissed.

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(P.V.ASHA, JUDGE)

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rtr/

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF CALICUT TO THE PETITIONER DATED 7.10.2016. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY OF CALICUT TO THE PETITIONER DATED 6.12.2017. EXHIBIT P3 TRUE COPY OF THE OCCURRENCE REPORT IN O.R.NO.21/2020 OF THE OMMALA FOREST STATION. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 15.9.2020 OF THE J.F.C.M. MANNARKKAD IN C.M.P. NO.1769/2020. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 1.12.2020 IN CRL.M.C.NO.4511/2020 OF THIS HON'BLE COURT.

Safiya.v v. the Divisional Forest Officer

Case brief

What is this about?

What did the court decide?

Safiya.v v. the Divisional Forest Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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