STATE OF KERALA Vs. MARINA VARGHESE

JUDGEMENT

(1.) The Divisional Forest Officer, Kothamangalam as per Ext. P1 order dated 10.12.1987 ordered confiscation of the vehicle belonging to the first respondent. The first respondent took up the matter in appeal before the second respondent. The second respondent by Ext. P2 order allowed the appeal and reversed Ext. P1 order. The main question on which the second respondent allowed the appeal was that unless it is proved that the vehicle in question was involved in the commission of the forest offence coming within the provisions of the Forest Act relating to any forest produce the vehicle cannot be ordered to be confiscated. At the time of removal of the alleged timber in the alleged vehicle the teak poles cannot be said to be the property belonging to the Government since these teak poles were sold in public auction and therefore, it became the property of the auction purchaser and ceased to be the property of the Government. It must be noted that this ground was not raised by the first respondent in the original memorandum of appeal. The second respondent allowed the above ground to be raised only at the time of argument by allowing the petition filed by the first respondent for the above purpose. But the second respondent did not consider the question as to whether the title to the property was passed to the auction bidder immediately after the auction and whether the property was still in the custody of the petitioner or in the custody of the auction bidder. Now it has been averred in the Original Petition that the auction took place on 26.6.1987. Confirmation of the above auction was only on 29.7.1987 by the Conservator of Forests, Kottayam. The theft was on 6.7.1987. Without the confirmation order the auction bidder cannot acquire any title to the property. The auction held on 26.6.1987 can either be confirmed or set aside. Till that it cannot be said that the Government is not having any title over the property. Therefore, it is obvious that the theft took place while the property was still that of the Government. It is also pertinent to point out that the theft took place while the property still remained in the forest depot

(2.) In order to overcome the above difficulty the learned counsel for the first respondent relied on a decision of this Court reported in Bhargavan v. Divisional Forest Officer ( 1994 (2) KLT 29 ). In that the teak poles were auctioned, confirmation made and passes were issued. The theft took place from the deport of the petitioners wherein the teak poles were stored. Therefore, there cannot be any doubt about the passing of title of the teak poles to the auction purchaser. Therefore, the above ruling cannot help the first respondent.

(3.) The other ground on which the second respondent allowed the appeal is that there is no mens rea on the part of the first respondent because the owner was unaware of the dubious dealings of the driver involved. But now it is an accepted principle that under S.61A of the Forest Act is the duty of the owner of the vehicle to show that he had taken reasonable and necessary precautionary measures against the user of the vehicle involved in forest offences. The matter was no longer res Integra because of atleast three decisions of this Court, (please see Baby v. Forest Range Officer ( ILR 1986 (2) Ker. 57 ) and State of Kerala v. Pushpan ( 1984 KLT 257 ). The third decision is of a Division Bench of this Court reported in State of Kerala v. Mathew ( 1995 (2) KLT 772 ) wherein the two earlier decisions referred to above have been relied on. Dealing with the above question the Division Bench held as follows: