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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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