REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1 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)
2
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.
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 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 b� the respondent herein b� 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 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 b� the Actb� ) 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 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 b� forest produceb� 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 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 b� forest produceb� 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) b� forest offenceb� means an offence punishable under this Act or
any rule made thereunder.
2 (f) b� forest produceb� 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
(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 b� boatsb� and b� vehiclesb� 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).
(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.b�
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 b� ivoryb� within the ambit of b� forest produceb� . Further,
after the amendment of the expression b� forest produceb� under Section 2(f)
of the Act consequent to the enactment of the Wild Life (Protection) Act,
1972 it could not be said that b� ivoryb� is a forest produce or that
possession and transportation of b� ivoryb� without valid authority is an
offence punishable under the Act or any rule made thereunder. Inasmuch as
b� ivoryb� being not a b� forest produceb� 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 b� ivoryb� as 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:
b� 2 (f) b� forest produceb� 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;b�
Clause (iii) of the unamended Section 2(f) has been deleted by Act 23 of
1974 and the present definition of b� forest produceb� does not include
b� ivoryb� . 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 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 b� forest produceb� in Section 2(f) of the Act, the
claim of the State that even in the absence of b� ivoryb� in the definition
b� forest produceb� , 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 b� forest produceb� 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 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 b� 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 appellantb� s
vehicle to the consequence of confiscation under Section 61A of the Actb� .
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 b� forest produceb� 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, 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 b� ivoryb� 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 b� forest produceb� .
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.
b�&b�&b�&b�&.b�&b�&b�&b�&b�&b�&b�&b�&b�&b�&J.
(P. SATHASIVAM)
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(J. CHELAMESWAR)
NEW DELHI;
APRIL 2, 2012.
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