STATE OF KERALA Vs P.V. MATHEW (DEAD) BY LRS.
Bench: P. SATHASIVAM,J. CHELAMESWAR
Case number: C.A. No.-003337-003337 / 2012
Diary number: 6278 / 2006
Advocates: BINA MADHAVAN Vs
T. G. NARAYANAN NAIR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3337 OF 2012 (Arising out of S.L.P. (Civil) No. 6300 of 2006)
State of Kerala & Anr. .... Appellant(s)
Versus
P.V. Mathew (Dead) by L.Rs. .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 02.12.2005 passed by the High Court of Kerala at
Ernakulam in C.R.P. No. 1587 of 1999 whereby the High
Court while affirming the order dated 04.12.1998 of the
District Judge, Thrissur in C.M.A. No. 16 of 1997 dismissed
the revision petition filed by the State of Kerala, the appellant
herein.
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3) Brief facts:
(a) According to the prosecution, a case was registered as
C.R. No. 5 of 1990 in Vazhachal Range in Vazhachal Forest
Division of Kerala on the allegation of illicit killing of a wild
elephant. During the course of investigation, three persons,
viz., Nelladan George, Madhura Johny and Chirayath Jose
were taken into custody and questioned. On 01.04.1991,
Nelladan George and Madhura Johny gave statements before
the Divisional Forest Officer, Chalakudy and Chirayath Jose
had given statement before the Range Officer, Flying Squad,
Thrissur. While questioning, they admitted having gone to
Vazhikadavu and shot dead wild tuskers about six months
back. In the statement given by Madhura Johny, he admitted
that about seven months back he along with four others,
namely, Nelladan George, Parambal Chandran, Kaitharam
Paulachan, Kottatti Jose had gone to Vazhikadavu area in a
car bearing Registration No. KL 8 6755 for shooting elephants
with two unlicensed guns. After reaching there, they sent
back the car and went to the forest. After two or three days,
Madhura Johny shot dead two tuskers, one big elephant and
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another small one. They collected the tusks and kept it in a
cave and returned to Thrissur by bus. Again they went to
Vazhikadavu in the same car and collected the tusks hided in
the cave. They brought the tusks to Thrissur and sold it to
Chirayath Jose for Rs.72,000/-. They paid Rs.3,500/- to the
driver of the car for two trips and the balance amount they
divided among them.
(b) After recording the statement, on 09.04.1991, Range
Officer, Thrissur Flying Squad and his party seized the car.
On the same day, the car was produced before the Divisional
Forest Officer, Chalakudy and thereafter he entrusted the car
to the Range Officer, Pariyaram for safe custody and asked
him to conduct a detailed enquiry.
(c) The owner of the vehicle – the respondent herein – filed
O.P. No. 4554 of 1991 before the High Court praying for
release of the vehicle. The High Court, by order dated
30.04.1991, directed to release the vehicle for interim custody
to the respondent herein on furnishing security of immovable
property to the extent of Rs.50,000/-. Accordingly, the car
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was released to the respondent herein on his furnishing the
security.
(d) After investigation, the Forest Range Officer, Pariyaram
submitted a report on 02.10.1996. On 30.10.1996, the
Investigating Officer issued a show cause notice to the original
respondent i.e. P.V. Mathew as to why the car should not be
confiscated to Government under Section 61A of Kerala Forest
Act, 1961 (hereinafter referred to as “the Act”) and called upon
him to appear in person on 26.11.1996. After hearing him
and after perusing the final report of the Investigating Officer,
the Divisional Forest Officer, Chalakudy passed an order dated
20.12.1996 for confiscation of the car.
(e) Aggrieved by the said order of confiscation, the original
respondent preferred an appeal being C.M.A. No. 16 of 1997
before the District Judge, Thrissur. By order dated
04.12.1998, the District Judge allowed the appeal.
(f) Against the order passed by the District Judge, the State
preferred a revision petition being C.R.P. No. 1587 of 1999
before the High Court. The High Court, by the impugned
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judgment dated 02.12.2005, dismissed the revision filed by
the State.
(g) Aggrieved by the said judgment, the State has preferred
this appeal by way of special leave before this Court. During
the pendency of the appeal, sole respondent died and his LRs
were brought on record as R(i) to (viii).
4) Heard Ms. Bina Madhavan, learned counsel for the
appellant-State and Mr. S. Gopakumaran Nair, learned senior
counsel for the respondent.
5) By the impugned judgment, the High Court found that
the vehicle of the respondents which was used for illegally
transporting ivory collected from the forest cannot be
confiscated invoking power under Section 61A of the Act
because ivory is not a “forest produce” coming under Section
2(b) of the Act and no forest offence can be said to have been
committed in respect of ivory. Ms. Bina Madhavan, learned
counsel appearing for the appellant-State, after taking us
through the relevant provisions from the Act including Section
61A, submitted that the Divisional Forest Officer was fully
justified in confiscating the vehicle which transported ivory
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and the District Court as well as the High Court committed an
error in setting aside the same. On the other hand, Mr.
Gopakumaran Nair, learned senior counsel for the
respondents submitted that after the amendment in respect of
the definition “forest produce” in Section 2(f) of the Act, the
forest authorities are not empowered to confiscate unless it is
established that forest offence has been committed in terms of
the Act. He also submitted that the District Court and the
High Court were fully justified in setting aside the order of the
Divisional Forest Officer based on the amended provisions.
6) Among the various provisions of the Act, we are
concerned about the following provisions:
2 (e) “forest offence” means an offence punishable under this Act or any rule made thereunder.
2 (f) “forest produce” includes- (i) the following whether found in or brought from, a
forest or not, that is to say- timber, charcoal, wood oil, gum, resin, natural varnish, bark lac, fibres and roots of sandalwood and rosewood; and
(ii) the following when found in, or brought from, a forest, that is to say,- (a) trees and leaves, flowers and fruits, and all other
parts or produce not herein before mentioned, of trees;
(b) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants; and
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(c) silk cocoons, honey and wax; (d) peat, surface oil, rock and minerals (including
limestone, laterite), mineral oils and all products of mines or quarries;
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, ropers, chain, boats, vehicles and cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.
Explanation:- The terms ‘boats’ and ‘vehicles’ in this section, 9section 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.
(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:
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.
61A. Confiscation by Forest Officers in certain cases.- (1) 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 is the property of the Government, the officer seizing the property under sub-section (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 authorized 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 authorized officer).
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(2) Where an authorized 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 authorized 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 authorized 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.”
It is clear that definition 2(f) was amended and the present
provision was substituted by Act 23 of 1974. A perusal of the
amended provision clearly shows exclusion of “ivory” within
the ambit of “forest produce”. Further, after the amendment
of the expression “forest produce” under Section 2(f) of the Act
consequent to the enactment of the Wild Life (Protection) Act,
1972 it could not be said that “ivory” is a forest produce or
that possession and transportation of “ivory” without valid
authority is an offence punishable under the Act or any rule
made thereunder. Inasmuch as “ivory” being not a “forest
produce” as defined in Section 2(f) after the Amendment Act
23 of 1974, no forest offence as defined in Section 2(e) of the
Act can be said to have been done in respect of the “ivory” as
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alleged in the instant case and, therefore, the action taken
under Section 61A of the Act cannot be supported.
7) As rightly pointed out by learned senior counsel for the
respondents that after the Wild Life (Protection) Act, 1972,
Section 2(f) of the Act came to be amended. The unamended
Section 2(f) of the Act reads as under:
“2 (f) “forest produce” includes the following when found in or brought from, a forest, that is to say-
(i) trees and leaves, flowers and fruits and all other parts or produce of trees, and charcoal,
(ii) plants not being trees (including grass, creepers, reeds and moss) and all other parts or produce of such plants,
(iii) wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax and all other parts or produce of animals,
(iv) peat, surface oil, rock and minerals (including limestone and laterite), mineral oils and all produce of mines and minerals;”
Clause (iii) of the unamended Section 2(f) has been deleted by
Act 23 of 1974 and the present definition of “forest produce”
does not include “ivory”. We have already extracted Section 52
of the Act which deals with seizure of property liable to
confiscation. The said Section clearly contemplates that the
power of confiscation is confined to only those vehicles used in
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committing any forest offence in respect of any timber or other
forest produce. Though a reading of Section 61A of the Act as
inserted by Amendment Act, 28 of 1975 shows that ivory is
also included in respect of any forest offence under the Act
and under sub-section (2) thereof, the vehicle used for
committing such offence is also liable to confiscation by the
Authorised Officer. However, consequent to the amendment of
expression “forest produce” in Section 2(f) of the Act, the claim
of the State that even in the absence of “ivory” in the definition
“forest produce”, in view of Section 61A of the Act, the
authorities are entitled to confiscate the vehicle cannot be
sustained. For the sake of repetition, we reiterate that the
definition of “forest produce” in Section 2(f) does not include
any part of living or dead wild animals which is being taken
care of by the Wild Life (Protection) Act, 1972. In view of the
same, the interpretation and the argument of the learned
counsel for the State cannot be accepted.
8) Further, since seizure of ivory is not justified even under
Section 52 of the Act, the power of confiscation under Section
61A commences only when a valid seizure of the property is
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effected under the Act and the report is made to the
Authorised Officer. Therefore, we are of the view that the
District Court has rightly held that “the fact that offences
punishable under other analogous statutes have been
committed in respect of ivory which is the property of the
Government cannot expose the appellant’s vehicle to the
consequence of confiscation under Section 61A of the Act”.
We have already quoted the entire Section 61A. In the instant
case, neither any property was seized from the car nor had
any seizure taken effect as provided under sub-section (1) of
Section 52. Inasmuch as seizure under Section 52 of the Act
has not taken place and no forest offence in respect of a “forest
produce” is shown to have been committed or established in
the case, there is absolutely no justification for the seizure and
the order of confiscation of the aforesaid car is beyond the
jurisdiction of the authorized officer. These aspects have been
rightly considered by the District Court as well as the High
Court and we are in entire agreement with the same.
Inasmuch as the provisions of the Wild Life (Protection) Act,
1972 take care of wild animals skins, tusks, horns, bones,
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honey, wax and other parts or produce of animals, in the
absence of specific charge under the said Act, the Authorized
Officer was not justified in ordering confiscation of the vehicle.
9) The definition of "forest produce" in the Act under Section
2(f) doesn't take ivory in its purview. The presumption under
Sec.69 of the Act applies only to the "Forest Produce" so even
if Sec.61A of the Act takes in its fold ‘ivory’ as one of the items
liable to be confiscated the presumption under Section 69 of
the Act will not be available to the Government as it is not a
“forest produce”.
10) In the light of the above discussion, we are unable to
agree with the stand of the State. Consequently, the appeal
fails and the same is dismissed. No order as to costs.
………….…………………………J. (P. SATHASIVAM)
………….…………………………J. (J. CHELAMESWAR)
NEW DELHI; APRIL 2, 2012.
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