A C JOHN Vs. DIVISIONAL FOREST OFFICER KOTTAYAM

JUDGEMENT

(1.) Question involved in these Writ Petitions is as to whether an authorised officer of the Forest Department has got power to release the vehicle seized pending confiscation proceedings under Section 61A of the Kerala Forest Act, 1961, hereinafter called the 'Act'. In all these cases, forest authorities took the view that pending confiscation proceedings, they have no power to release the vehicle, if the offence is believed to have been committed in respect of timber, charcoal, firewood, or ivory, which is the property of the Government.

(2.) Chapter VIII of the Act deals with offence, penalties and procedure. Section 52 of the Act authorises Forest Officer or Police Officer, when there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, to seize such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence. Officer who is seizing the 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. Magistrate upon receipt of any such report shall take such measures as may be necessary for the trial of the accused and the disposal of the property, according to law. When any person is convicted of a forest offence, all timber or other forest produce in respect of which such offence has been committed, and all tools, ropes, chains, boats, vehicles, cattle or any other article used in committing such offence shall be liable, by order of the convicting Magistrate to confiscation. Section 53 enables any Forest Officer of a rank not inferior to that of a Ranger, who or whose subordinate has seized any tools, boats, vehicles or cattle under the provisions of Section 52 to release the same on the execution by the owner thereof a bond for the production of the property so released, if and when so required before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

(3.) However, Section 61A of the Act says notwithstanding anything contained in Sections 52 to 61, where a forest offence is believed to have beencommitted in respect of timber, charcoal, firewood or ivory which is the property of the Government the officer seizing the property under Sub-Section (l) 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 Assistant Conservator of Forests. Where an authorised officer seizes under Sub-Section (1) of Section 52 any timber, charcoal, firewood, or ivory which is the property of Government, or where any such property is produced before an authorised 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 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. However, no order confiscating any timber, charcoal, firewood, ivory, tools, ropes, chains, boats, vehicles or cattle shall be made under Section 61A unless the person from whom the same is seized is given a notice in writing informing him of the grounds on which it is proposed to confiscate such timber, charcoal, firewood, ivory, tools, ropes, chains, boats, vehicles or cattle. He should also be given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation and a reasonable opportunity of being heard in the matter. However, no order confiscating any tool, rope, chain, boat, vehicle or cattle shall be made under Section 61A if the owner of the tool, rope, chain, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying the timber, charcoal, firewood or ivory without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, rope, chain, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use.