STATE OF KERALA Vs. K CHANDRAN NAIR

JUDGEMENT

(1.) The revision is directed against the cancellation of the order of confiscation passed over a motor vehicle, a mini lorry, bearing registration No. KLI-5311, belonging to the 1st respondent under Section 61A of the Kerala Forest Act, 1961, for short, the 'Act' by the Divisional Forest Officer, Punalur. The above vehicle allegedly involved in the commission of a forest offence was ordered to be confiscated, after conducting an enquiry issuing a show cause notice, and, hearing the 1st respondent/owner of the vehicle. That confiscation order was reversed and set aside in appeal by the District Judge, Kollam. Questioning the propriety, correctness and legality of the cancellation and setting aside of the order of confiscation by the learned District Judge, the State with the forest officials has filed this revision. Short facts involved in the case can be summed up thus:

(2.) I heard the learned Special Government Pleader (Forest) and also the learned counsel for the 1st respondent. The main thrust of argument canvassed by the learned Special Govt. Pleader was that the Transit Rules, the provisions of which had been applied to hold that the forest offence involved would invite only a penalty of Rs. 500/-, by the learned District Judge, who reversed the confiscation order, was totally inapplicable to the facts presented in the case. The 1st respondent/owner of the vehicle has taken a defence that the logs transported in his vehicle and unloaded in the saw mill were collected from a private property, but, that was not substantiated by him with any convincing material. Statements recorded from the persons apprehended, at the banks of the river, while they were involved in removing the cut pieces of timber during the enquiry by the Forest Range Officer and also the previous statement recorded from the owner/1st- respondent also, according to the Govt. Pleader, clearly demonstrate that the timber embedded in the river after being taken out were cut to pieces and two of such pieces had been transported in the vehicle of the 1st respondent to the saw mill. The owner did not plead and prove that the commission of the forest offence was without his knowledge nor that reasonable care had been taken by him to avoid the use of his vehicle in the commission of any such offence as alleged. He was not only the owner but the driver of the vehicle in which the logs were transported to the saw mill and later sold to the proprietor of that mill, makes it crystal clear that the forest offence using the vehicle in the transportation of the logs belonging to the Government was done with his knowledge and participation, and as such, the vehicle used for the commission of such offence, according to the Govt. Pleader, is liable to be confiscated. An order of confiscation passed by the authorised officer was improperly and in fact unjustifiably interfered with by the learned District judge in appeal, that too, applying the provisions of the Transit Rules, which do not have any impact nor even any application to the facts and circumstances involved in the case, according to the Govt. Pleader.

(3.) Per contra, the learned counsel appearing for the 1st respondent/owner of the vehicle contending that no interference with the judgment rendered by the learned District Judge reversing the order of confiscation is called for in the proved facts of the case, assailed even the competency of the Divisional Forest Officer to pass the order of confiscation. The Divisional Officer of forests is not an authorised officer as covered under Section 61A of the Act, and a confiscation order over the property seized as involved in a forest offence under the aforesaid Section can be passed only by an authorised officer of the Government notified in the Gazette and such officer should not be below the rank of Assistant Conservator of Forests, is the submission of the counsel. The Divisional Forest Officer, who has passed the confiscation order is not a notified forest officer empowered to order such confiscation, is the further submission of the counsel. In respect of the forest offence relating to the timber removed from the banks of a river, some of the logs after being cut to pieces are alleged to have been transported in the lorry of the respondent to the saw mill, no prosecution has been launched hitherto is the submission of the counsel to contend that the order of confiscation of the vehicle was totally improper and unjustified. Adverting to Section 42 of the Act, it is contended that in respect of adrift and stranded timber as covered by that Section, it can be deemed to be the property of the Government only if such timber was found in an area notified by the Government but not otherwise. In the present case, it has not been established that the banks of Kallada river from where the adrift and stranded timber was allegedly removed was a notified area, is the submission of the counsel. Lastly, canvassing that the value of the timber allegedly transported in the vehicle is very meagre and it has no nexus with the value of the vehicle, the learned counsel urged that interference with the judgment passed by the learned District Judge reversing the confiscation order would be unjust, and as such, the revision is only to be turned down.