STATE OF KERALA Vs. GOPALAN

JUDGEMENT

(1.) BY Ext. P1 order dated 1-8-1985 the Divisional Forest officer, Trivandrum, Authorised Officer under the Kerala Forest Act, hereinafter referred to as 'the Act', ordered confiscation of 14 items of ivory pieces u/s. 61-A (2) of the Act. First respondent, a licensed dealer in ivory goods and the owner of the items ordered to be confiscated, challenged the order of confiscation before the District Judge, Trivandrum in C. M. Appeal No. 115/1985 as provided by S. 61d of the Act. The learned District Judge reversed the order of confiscation holding that the Authorised Officer had not conducted a proper verification of the stock and the goods of the dealer with a sincere desire to find out the truth. The learned judge also found that the Authorised officer had not afforded an opportunity to the owner of the ivory articles to adduce any evidence or to examine any witness in support of his contentions. This order of the learned District Judge is under challenge.

(2.) IN Ext. P1 order, the Authorised Officer under the act, observed: "therefore under S. 69 of the K. F. Act the above articles are presumed to be Government property. The source of the above items can only be illicit in nature and therefore I am convinced that they are collected from reserve Forests. Therefore the opposite party has committed a forest offence under S. 27 (i) (d) of the K. F. Act. " S. 2 (f) of the Act defines forest produce. It is an inclusive definition, sub-clause (c) of clause (ii) of S. 2 (f) takes in silk cocoons, honey and wax as forest produce. Under the repealed Travancore-Cochin forest Act, 1951, (Act III of 1952), while defining the forest produce, wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax and all other parts of produce of animals were taken in within the definition of forest produce. While enacting the Kerala Forest Act, items other than cocoons, honey and wax alone were included by name as forest produce. Other items mentioned along with these items in Act III of 1952 were excluded from the purview of the definition. Therefore, the definition of forest produce in S. 2 (f) does not take in its ambit ivory or tusk. Consequently tusk or ivory cannot be termed as a forest produce.

(3.) THE learned District Judge while dealing with the nature of the ivory articles seized from the shop of the first respondent came to the conclusion that those articles were obtained by the dealer, licensee, from valid sources. THE learned judge further found that the Authorised Officer did not afford the first respondent sufficient opportunity to let in documentary evidence and to examine witnesses in support of his case that the ivory seized from his shop were purchased validly. Under S. 61b (1) (c) of the Act the authorised Officer is bound to give reasonable opportunity of being heard to the person whose articles are sought to be confiscated. If such an opportunity is not given, the order passed by the Authorised Officer should be taken as one passed without jurisdiction. Such an order cannot stand. On the basis of the evidence before court, the learned District Judge came to the conclusion that the Authorised Officer has not only failed to give opportunity to the Ist respondent to adduce evidence but also failed to properly consider the matter and came to the finding that the ivory seized is property belonging to the government. This finding of fact is not open to challenge in this proceeding under Art. 226 of the Constitution either.