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2002 DIGILAW 288 (KER)

DFO, Kothamangalam v. Sunny Joseph

2002-04-12

R.BHASKARAN, S.SANKARASUBBAN

body2002
Judgment :- 1. This revision has come before us on reference by one of us, Bhaskaran, (J). The facts of the case are as follows: 2. The revision is filed against the order passed by the District Judge, Ernakulam in C.M.A. No. 38 of 1998. The C.M.A. was filed against the order of the Divisional Forest Officer, Kothamangalam confiscating a mini lorry bearing Registration No. KL 7D 2374 belonging to the first respondent. The revision petitioners are Divisional Forest Officer, Kothamangalam and the State of Kerala. 3. The revision petitioners' case is that the first respondent had used his mini lorry for illicit transport of the smuggled timber on 24.3.1993. The timber was alleged to have been transported by one Dr. Kurian. The vehicle was seized on 27.3.1993. The Divisional Forest Officer by order dated 27.2.1998 directed confiscation of the vehicle on the finding that the first respondent used the vehicle at 1'o Clock during night for transporting unfinished door frames, window frames, etc. made of fresh teak wood, rose wood and maruthu. It was found that the first respondent deviated from the main route and avoided the forest checking stations by diverting the route through a rugged soupe route. It was also found that the documents produced to show that these articles locally purchased by Dr. Kurian were not acceptable and therefore, it was presumed that the timber might have been cut and removed from the reserved forest and unauthorisedly brought to the house of Dr. Kurian after cutting and converting it into door frames, window frames, dining table legs, etc. 4. The District Court in appeal found that the vehicle was not seized at the time of transportation of the timber items. It was also found that the first respondent had no opportunity to cross-examine the Range Officer who prepared the report and therefore it is not just and proper to place reliance on the report of the Range Officer to come to the conclusion that the mini lorry was used for transportation of the timer items. Therefore the questions which arise for consideration are whether the mini lorry should have been seized while transporting the timber and whether the first respondent should have been given an opportunity to cross-examine the Range Officer, who prepared the report. It was in these circumstances that the Civil Revision Petition was referred to the Division Bench. 5. Therefore the questions which arise for consideration are whether the mini lorry should have been seized while transporting the timber and whether the first respondent should have been given an opportunity to cross-examine the Range Officer, who prepared the report. It was in these circumstances that the Civil Revision Petition was referred to the Division Bench. 5. The first question is whether the fact that the vehicle was not seized along with the timber deprives the forest officials of the rights to seize and confiscate the vehicle. Learned Counsel for the respondents brought to our notice a decision reported in Divisional Forest Officer v. Amina,1999 (1) KLJ 433. There, a Division Bench of this Court held that "on a plain reading of S.52, it is clear that the vehicles could be seized by the forest authorities or police officers if that was found to be involved in committing the offence. S.52 does not confer any power on the forest authorities to ask the owner of the vehicle to produce the same in the forest office much after the offence allegedly committed.". S.52(1) of the Kerala Forest Act, 1961 says as follows: "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, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any Forest Officer or Police Officer". A reading of this Section does not indicate that there should be simultaneous seizure of the timber or forest produce and tools, ropes, chains, boats, vehicles, etc. It may happen that the forest offence would have been committed with respect to timber. The Forest Authorities would have got information only later. By the time the timber would have been stored in some place as had happened in this case. It cannot be said that because the timber has been stored in a particular place, the vehicle which was used for conveying the timber cannot be seized when it was really involved in the commission of offence. The question depends on the evidence and on the basis of which the Forest Officer has reason to believe that the vehicle was also involved in the offence. The question depends on the evidence and on the basis of which the Forest Officer has reason to believe that the vehicle was also involved in the offence. The decision cited in Divisional Forest Officer v. Amina,1999 (1) KLJ 433, rests on the facts of that case. Here, there was not much delay in seizing the vehicle. The offence was detected on 24.3.1993 and the vehicle was seized on 27.3.1993. We make it clear that in cases where the forest produce and the vehicle are not seized simultaneously, the vehicle can be seized only if there is evidence to connect the vehicle with forest offence and that the seizure is not to be done after a long time. The seizure of the vehicle after a long time will put the owner and driver of the vehicle into great hardship with regard to discharging their burden which is imposed on them under S.52 and 61A of the above Act. 6. The next question to be considered is whether there is a right for the accused in this case, viz., owner and driver of the lorry, to cross-examine the Range Officer. The Range Officer had reported that the lorry was used for the transportation of timber. According to the accused, the timber that was found in Dr. Kurian's house was not the timber transported through the lorry in question. According to him, a certificate was issued by the Village Officer for the timber that was transported. Learned Government Pleader brought to our notice the decision reported in Joseph v. Authorised Officer, 1993 (1) KLT 212 wherein Thomas, J. (as he then was) relying on a Supreme Court decision in Kanungo & Co. v. Collector, 1972 SC 2136, held that there is no provision to cross-examine the Forest Officials. Learned counsel for the respondents cited a decision reported in Lal v. Assistant Excise Commissioner, 2001 (1) KLT 840, wherein one of us, Bhaskaran, J. is a party, dealing with the confiscation proceedings under S.67C of the Abkari Act in which this Court granted permission for cross-examining certain witnesses in the confiscation proceedings. 7. Another decision cited is Karn Vir Mehta v. Collector of Customs, Cochin, 1998 (97) ELT 42 was a case arising under the Customs Act. The facts in that case are as follows: The Commissioner of Customs held that the proforma invoice of M/s. Copy Kits Trading Co. 7. Another decision cited is Karn Vir Mehta v. Collector of Customs, Cochin, 1998 (97) ELT 42 was a case arising under the Customs Act. The facts in that case are as follows: The Commissioner of Customs held that the proforma invoice of M/s. Copy Kits Trading Co. Ltd., Singapure is for the reconditioned components of photocopier machines model NP 270 and it was issued to another trader, namely, M/s. International Trading Business Machines, Madras. The prices indicated in the proforma invoices are the prices of identical goods. Since the identical goods are being sold at Singapore at a much higher price, the declared value appears to be a manipulated price and is not the correct price. Relying on the decision of the Supreme Court in Sharp Business Machines Pvt. Ltd. v. Collector of Customs, 1990 (49) ELT 640, the Commissioner of Customs held that there is no bar against relying on quotations for the purpose of increasing the assessable value if the declared value is found to be a manipulated one. Since the proforma invoice of M/s. Copy Kits Trading Co., is for identical goods and since it is issued from Singapore from where the imported goods also have been despatched, there is every justification to enhance the value on the basis of this quotation. The identical nature of the goods was proved by an expert named Shri. K.P. Gopalakrishnan, an employee of M/s. Copy Tech Sales and Services (P) Ltd., which undertakes repair works of Cannon Photocopiers. Thus, on the basis of a quotation for similar goods from another firm of Singapure and on the basis of the expert opinion given by Goplakrishnan, the Commissioner of Customs came to the conclusion that the invoice produced by the petitioner showed much lesser value than the actual price. The contention before this Court was that no opportunity was given to the petitioner to cross-examine Gopalakrishnan to test his competence as an expert and as such there was miscarriage of justice in relying on the statement of Gopalakrishnan. Considering that contention, the High Court held that it is evident from the impugned order that the petitioner had requested the Commissioner to give him an opportunity to cross-examine Gopalakrishnan before his opinion was accepted. Admittedly, no such opportunity was given to him. Considering that contention, the High Court held that it is evident from the impugned order that the petitioner had requested the Commissioner to give him an opportunity to cross-examine Gopalakrishnan before his opinion was accepted. Admittedly, no such opportunity was given to him. There is nothing on record to show as to on what basis Gopalakrishnan claims to be an expert on photocopier machines. He seems to be an employee doing some repair works of photocopiers of various models of Cannon Company in a retail shop. Denial of the opportunity to the petitioner to cross examine Gopalakrishnan inspite of his request, is an act of violation of the principles of natural justice. This case proceeded on the basis that there was a request to cross examine the witness and on that basis it was held that there is violation of the principles of natural justice. 8. Another decision cited is M.Krishnaguoda v. Authorised Officer & Superintendent of Excise, Gulbarga, ILR 1996 Karnataka 1951. There, the Court was considering the right of confiscation under S.43B of the Karnataka Excise Act. The Karnataka High Court said that a perusal of the impugned order passed by the Authorised Officer goes to show that no enquiry was held, no witnesses have been examined and no documents have been marked. Even if the petitioner remained absent at the enquiry, it was incumbent upon the Authorised Officer to have gone through the material which was placed before him to show that there was a contravention of the provisions under the Act. There was absolutely no material to show that the property seized in the case namely Chloral Hydrate is an intoxicant or liquor within the meaning of the Act. The chemical examiner's report itself did not support such a contention. No witness was examined to prove that it was a contraband article. We don't think, the above decision will be helpful so far as the present case is concerned. 9. In Joseph v. Authorised Officer, 1993 (1) KLT 212, a learned Single Judge of this Court relied on the decision of the Supreme Court reported in Kanungo & Co. v. Collector, Customs, Calcutta, AIR 1972 Supreme Court 2136. The question that came up for consideration in that case was whether the principles of natural justice is to be applied with regard to the information received by persons under the Customs Act. v. Collector, Customs, Calcutta, AIR 1972 Supreme Court 2136. The question that came up for consideration in that case was whether the principles of natural justice is to be applied with regard to the information received by persons under the Customs Act. The Supreme Court held that the principles of natural justice do not require that in matters like this and the persons who have given information need be examined in the presence of the appellant or should be allowed to be cross examined by them on the statements made before the Customs Authorities. Thus, the decision of the Supreme Court shows that in such cases, the principles of natural justice does not arise and we agree with Thomas, J. (as he then was) that the same principles can be applied with regard to confiscation proceedings under the Forest Act. Another decision cited was M.K. Thomas v. State of Kerala, 1977 STC (Vol. 40) 278. The question that arose in that case was whether there was right to cross examine under S.17(3) of the Kerala General Sales Tax Act. This Court held that no right exists. 10. In the above view of the fact, we are of the view that the decision of Thomas,J. (as he then was) reported in Joseph v. Authorised Officer, 1993 (1) KLT 212, does not require any reconsideration and has interpreted the Section and given the law correctly. 11. Learned counsel for the respondent submitted that in spite of our above conclusions on the questions of law, the order under appeal does not require any interference. According to the learned counsel for the respondent, so far as the driver of the vehicle is concerned, he has taken all precautions to transport the illicit timber. S.61B of the Forest Act says that no order of confiscation of any vehicle shall be passed, if the owner of the tool, rope, etc. proves to the satisfaction of the authorised officer that it was used in carrying the timber without the knowledge or connivance of the owner himself or his agent and the person in charge of the tool, rope etc. and that each of them had taken all reasonable and necessary precautions against such use. In this case, it is now found that before transportation of timber in the lorry, a certificate has been issued by the Village Officer. and that each of them had taken all reasonable and necessary precautions against such use. In this case, it is now found that before transportation of timber in the lorry, a certificate has been issued by the Village Officer. This certificate was shown to the driver before the timber were transported. It is on the basis of this certificate that the driver allowed to transport the timber. From the records, it does not appear that the Village Officer, who issued the certificate, has been questioned. In such other circumstances, it cannot be said that no precautions were taken against the illegal transportation of timber by the driver. In the above view of the matter, we confirm the order of the learned District Court and dismiss the Civil Revision Petition.