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2014 DIGILAW 256 (KER)

Shaji Jose v. State of Kerala

2014-03-18

ANIL K.NARENDRAN

body2014
JUDGMENT : Anil K. Narendran, J. This Original Petition is filed seeking a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P3 confiscation order passed by the 2nd respondent who is the authorised officer under Section 61A of the Kerala Forest Act, 1961, Exhibit P5 judgment of the appellate authority under Section 61D of the said Act and Exhibit P6 consequential notice issued by the 2nd respondent requesting the petitioner to produce jeep bearing registration No. KLI-204 in order to finalise the confiscation proceedings. 2. According to the petitioner, he is the owner of a rubber estate called 'Anakal Estate' in Thachampara village in Palakkad District. During the 2nd week of September, 1994, one Moidu, brother of Thiamu, who was the supervisor of the petitioners estate came and asked for about 175 meters of wood reeper which was borrowed by the petitioners late father. The petitioner agreed to return the same and with his permission Moidu cut down a fallen vaka tree from the petitioners estate. It was then taken to the nearby sawmill in the petitioners jeep bearing registration No. KLO-214 and after sawing the wood reeper was taken back in the said vehicle to the petitioners estate and kept in the store room. The wood reeper due to Moidu was kept separately. On 19/09/1994, the petitioner saw the said Moidu, along with Chandaran, Balankutty and three others taking timber through his estate and on enquiry the petitioner was told that the said timber is from the nearby forest. The petitioner made a complaint before the Palakkayam Forest Station and on that basis O.R.No.20/1994 was registered against them. When Chandran was questioned by the forest officials he said that, he along with Moidu, Balankutty and others cut trees from the forest for the petitioner and the trees cut down were taken to the nearby sawmill in the petitioners jeep bearing registration No.KLI-204 and after sawing, the timber is kept in the store room of the petitioners estate. On the basis of the above statement of Chandran, O.R.No.21/1994 was registered against the petitioner and his driver. On the basis of the above statement of Chandran, O.R.No.21/1994 was registered against the petitioner and his driver. On 22/09/1994, on reaching the Range Office, the Range Officer forcibly took the key of the petitioners jeep bearing registration No. KLI-204 and then seized the wood reeper from the estate store room, alleging illegal felling and transportation of vaka trees from the vested forest and for storing the vaka timber in the estate store room. 3. The 2nd respondent vide Exhibit P1 initiated proceedings under Section 61A of the Kerala Forest Act, 1961 (hereinafter referred to as 'the Act' only) to confiscate the petitioners jeep bearing registration No. KLI-204 on the allegation that the said vehicle was used for committing a forest offence, namely, illicit transportation of forest timber. The petitioner approached this Court in O.P.No.16551/1994 and by judgment dated 08/12/1994, the 2nd respondent was directed to release the vehicle to the petitioner on certain conditions including furnishing of bank guarantee for the value of the vehicle. To Exhibit P1 show cause notice, the petitioner submitted Exhibit P2 reply, but the 2nd respondent by Exhibit P3 ordered confiscation of the vehicle and being aggrieved by the order of confiscation he preferred Exhibit P4 appeal before the District Judge, Palakkad, under Section 61D of the Act. The said appeal ended in dismissal, vide Exhibit P5 judgment. In view of Exhibit P5 judgment, the 2nd respondent issued Exhibit P6 notice requesting the petitioner to produce the vehicle in order to finalise the confiscation proceedings. It is in that circumstances, the petitioner filed this Original Petition, under Articles 226 and 227 of the Constitution of India, challenging Exhibits P3, P5 and P6. 4. The 2nd respondent filed counter affidavit contending that, on 22/09/1994, one Chandran was apprehended by the forest officials of Palakayam Forest Station of Mannarkkad Range for illicit felling of vaka and chadachi trees from Chullippara forest and O.R.No.20/1994 was registered. The said Chandran admitted that, he along with five others cut and collected three vaka trees and one chadachi tree from the vested forest and as pointed out by the accused persons, the forest officials found out vaka timber in the petitioners estate store room. The said Chandran admitted that, he along with five others cut and collected three vaka trees and one chadachi tree from the vested forest and as pointed out by the accused persons, the forest officials found out vaka timber in the petitioners estate store room. According to the 2nd respondent, the petitioner admitted that, the said timber was transported in his jeep bearing registration No. KLI-204 to sawmill at Ponnamkodu and after sawing the swan timber was taken to his estate and kept in the store room. As per the statements given by the accused persons in O.R. No. 20/1994, a case was registered against the petitioner and his driver Jose as O.R. No. 21/1994 for illegal felling and transportation of vaka trees from the vested forest and for storing the vaka timber in his estate store room. The forest officials seized the vaka timber from the petitioners estate store room and also the vehicle bearing registration No.KLI-204 used for committing the forest offence. Thereafter, the petitioner and others were issued with Exhibit P1 show cause notice. Pursuant to the judgment of this Court in O.P.No.16551/1994, the vehicle was released to the petitioner subject to the conditions stipulated in the said judgment and on furnishing bank guarantee for Rs. 60,000/-. Before issuing Exhibit P3 order, the petitioner was afforded with reasonable opportunity to prove his innocence and there is no violation of Section 61B(1)(c) of the Act. There is no illegality in the confiscation order and the Original Petition is liable to be dismissed. 5. Heard arguments of the learned counsel for the petitioner and the learned Special Government Pleader for the respondents. 6. The learned counsel for the petitioner contended that, Exhibit P3 confiscation order has been passed mainly based on the statement of persons who are accused in O.R.No.20/1994, which was registered on the basis of the complaint made by the petitioner. Other than the statement given by the accused in O.R.No.20/1994, there is no evidence to prove that the timber recovered from the petitioners estate store room was cut and removed from the forest. The vehicle used for transportation of timber is jeep bearing registration No.KLO-214 and not that bearing registration No.KLI-204. Further, the 2nd respondent passed Exhibit P3 confiscation order without giving the petitioner an opportunity of being heard, which is in violation of Section 61B(1)(c) of the Act. 7. The vehicle used for transportation of timber is jeep bearing registration No.KLO-214 and not that bearing registration No.KLI-204. Further, the 2nd respondent passed Exhibit P3 confiscation order without giving the petitioner an opportunity of being heard, which is in violation of Section 61B(1)(c) of the Act. 7. Per contra, the learned Special Government Pleader supported the findings in Exhibit P3 confiscation order and Exhibit P5 judgment and contended that the proceedings initiated against the petitioner, which has culminated in Exhibit P6 communication issued by the 2nd respondent for confiscating the vehicle, is perfectly legal. The learned Special Government Pleader also relied upon the judgment of a Division Bench of this Court in State of Kerala v. Mathew [ 1995 (2) KLT 772 ] and another judgment of the Patna High Court in Manoj Kumar Sharma v. State of Bihar [2004 Crl.L.J. 1156 (Patna)] in support of his contentions. 8. The petitioner has filed this Original Petition, under Articles 226 and 227 of the Constitution of India, challenging Exhibit P3 confiscation order passed by the 2nd respondent under Section 61A of the Act, Exhibit P5 judgment of the appellate authority under Section 61D of the Act and Exhibit P6 consequential notice issued by the 2nd respondent. In Varkey Abraham v. District Judge [ 1994 (1) KLT 580 ] this Court considered the nature of the jurisdiction exercised by the District Judge under Section 61D of the Kerala Forest Act and held that the District Judge functions as a civil court while considering an appeal under Section 61D of the Act and a decision rendered in exercise of jurisdiction under Section 61D is not amenable to challenge under Article 226 of the Constitution of India. In State of Kerala v. Margrate Joshy [ 1999 (3) KLT 359 ] a Division Bench of this Court held that, the finality referred to in Section 61D(2) of the Kerala Forest Act does not exclude the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure. The Division Bench further observed that, the correctness of the decision of the District Judge in an appeal under Section 61D of the Kerala Forest Act can be scrutinised by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The Division Bench further observed that, the correctness of the decision of the District Judge in an appeal under Section 61D of the Kerala Forest Act can be scrutinised by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The Apex Court in Surya Dev Rai v. Ram Chander Rai and others [ 2003 (6) SCC 675 ] held that, the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure by Amendment Act 46 of 1999 does not take away, and could not have taken away, the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court, nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the Code of Civil Procedure, and is available to be exercised subject to rules of self-discipline and practice which are well settled. In paragraph 38 of the judgment, the Apex Court summarised the parameters for exercise of jurisdiction under Articles 226 and 227 of the Constitution which reads as follows; 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder - (1) Amendment by Act 46 of 1999 with effect from 1/7/2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in super-session or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." In the light of the principles laid down as above, I have to consider whether the exercise of jurisdiction under Article 227 of the Constitution of India is warranted in the case on hand. 9. As borne out from Exhibit P3, on 22/9/1994, the forest staff of Palakkayam Forest Station, who were on beat duty in Chullippara forest, apprehended one person with a saw. On questioning it was found out that he is one Chandran, an absconding accused in O.R. No. 20/1994 of Palakkayam Forest Station, registered on 19/9/1994. On detailed questioning, he admitted that he along with five others cut and removed three vaka trees and the branches of chadachi tree from Chullippara forest, out of which the timber involved in O.R. No. 20/1994 was cut and removed for one Samuel who is conducting a ration shop and the remaining trees were cut and removed for the petitioner. The trees cut and removed for the petitioner was transported in the petitioners jeep bearing registration No.KLI-204 to sawmill at Ponnumkode and after sawing, the timber was kept in the store room of the petitioners estate. The said Chandran further stated that he came to the forest in order to take back the saw used on the previous day for cutting the trees and that M/s. Rajan S/o. Chami, Rajan S/o. Thampi, Kunjan S/o. Kunjachan and Balankutty S/o. Kunjachan, who are residents of Anakkal Colony, were with him for cutting and removing the trees. After apprehending the above said persons, the forest staff proceeded to Anakkal Estate owned by the petitioner and taken into custody the timber kept in the store room and also the jeep bearing registration No. KLI-204 used for transportation of the said timber, after preparing a mahazar dated 22/9/1994. After apprehending the above said persons, the forest staff proceeded to Anakkal Estate owned by the petitioner and taken into custody the timber kept in the store room and also the jeep bearing registration No. KLI-204 used for transportation of the said timber, after preparing a mahazar dated 22/9/1994. The timber and vehicle thus taken into custody were produced before the 2nd respondent for further action under Section 61A of the Act. As directed by the 2nd respondent, the Range Officer, Mannarkkad, after inspecting the vehicle and conducting detailed investigation, submitted a mahazar dated 16/10/1994. Out of the nine accused persons, the petitioner and seven others gave statement before the Deputy Ranger, Palakkayam. After completing the investigation the Range Officer, Mannarkkad, submitted a final report dated 26/10/1994 reporting that the seized timber is illegally cut and removed from Chullippara forest under the jurisdiction of Palakkayam Forest Station and it was transported in the petitioners jeep bearing registration No. KLI-204. He has reported further that neither the petitioner nor his driver had taken any reasonable precaution against such illegal transportation of forest timber. Thereafter, the 2nd respondent vide Exhibit P1 show cause notice initiated proceedings under Section 61A of the Act to confiscate the jeep bearing registration No. KLI-204 on the allegation that it was used for illicit transportation of forest timber. To the said notice, the petitioner submitted Exhibit P2 reply contending, inter alia, that unless and until there is tangible evidence to show that the seized wood is from the forest and that the same was transported in the vehicle in question, the confiscation of the vehicle will be against the principles of natural justice and good conscience. 10. In the enquiry conducted by the 2nd respondent, the stand taken by the petitioner was that, one Moidu, brother of Thiamu, who was the supervisor of the petitioners estate, came and asked for 200 kole wood reeper and sought permission to cut a fallen vaka tree from his estate. The petitioner agreed for the same and the tree cut by Moidu was taken to sawmill at Ponnumkodu in the petitioners jeep bearing registration No. KLO-214. Though, the petitioner admitted transportation of vaka and chadachi timber in his jeep to Ponnumkodu by his driver Jose and his estate worker Kunjan, according to him the said timber was cut from his estate and not from the forest. Though, the petitioner admitted transportation of vaka and chadachi timber in his jeep to Ponnumkodu by his driver Jose and his estate worker Kunjan, according to him the said timber was cut from his estate and not from the forest. Further, the vehicle used for transportation of the timber was a petrol jeep bearing registration No. KLO-214 and not the diesel jeep mentioned in the mahazar, bearing registration No. KLI-204. In the enquiry conducted by the 2nd respondent, one Balankutty S/o. Kunjachan admitted that, he along with Moidu and others cut and removed two vaka trees and branches of chadachi tree from the forest area as requested by the petitioner and it was brought to the petitioners estate. One Kunjappa S/o. Moideen, who is running sawmill at Ponnumkode admitted that, during the month of September, the petitioners employee Jose brought few pieces of vaka tree and chadachi tree for sawing in the petitioners jeep bearing registration No. KLI-204 and the said Jose had on earlier occasions also brought timber to his sawmill in the very same jeep. The said Kunjappa further stated that, during the month of November the petitioner came to his sawmill and obtained his signature in a blank paper informing that it is for the purpose of making an application for releasing his jeep from the custody of forest officials and it was using the said blank paper the petitioner submitted an application dated 22/11/1994 before the Divisional Forest Officer, Mannarkkad. One Thiamu, who was the supervisor of the petitioners estate for about 8 to 9 years, admitted that, after the cutting and removal of trees from the forest the petitioner send him out of service as he refused to accede to the petitioners request to give false statement before the forest officials regarding the trees cut and removed from the forest. He has also stated that, few days prior to his termination, the petitioner has asked him to cut two vaka trees standing in the estate in order to show the stumps to the forest officials as that of the timber seized from the estate store room. Though, an attempt was made by the petitioner to show that the vehicle used for transportation of timber was a petrol jeep bearing registration No. KLO-214 and not the diesel jeep bearing registration No. KLI- 204, that attempt did not succeed. 11. Though, an attempt was made by the petitioner to show that the vehicle used for transportation of timber was a petrol jeep bearing registration No. KLO-214 and not the diesel jeep bearing registration No. KLI- 204, that attempt did not succeed. 11. In State of Kerala v. Sukumara Panicker [ 1987 (2) KLT 341 ] a Full Bench of this Court has categorically stated that, the power vested in the authorised officer under Section 61A of the Act should be exercised bearing in mind the policy and purpose and background of the Act. Illicit removal of the Government property is a matter which should be viewed with serious concern. Section 61A of the Act itself was enacted to effectively check such illicit removal and with a view to provide deterrent provisions for effectively preventing such illicit removal. Any act done or conduct pursued in the matter of illicit removal should be so effectively dealt with, which will also prevent recurrence. This is an important or vital aspect to be borne in mind while exercising the powers under Section 61A(2) of the Act. Section 61B(2) gives an opportunity to the owner of the vehicle to prove his innocence or absence of complicity in the matter and to substantiate that he was diligent in taking precautions against unauthorised use of the vehicle. 12. Going by Section 69 of the Act, when, in any proceedings taken under the Forest Act, or in consequence of anything done under the said Act, a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State Government, as the case may be, until the contrary is proved. Therefore, Section 69 of the Act provides for a statutory presumption that the forest produce belongs to Government and casts the burden on the person proceeded against to establish the contrary. 13. In the case on hand, though the petitioner contended that the timber seized from his estate store room was actually cut and removed from his estate and not from the Government forest, noting was brought on record to substantiate the said contention. 13. In the case on hand, though the petitioner contended that the timber seized from his estate store room was actually cut and removed from his estate and not from the Government forest, noting was brought on record to substantiate the said contention. As the petitioner himself had admitted transportation of seized timber in his jeep, there is absolutely no merit in the contention that, unless there is actual seizure of timber from the jeep no valid confiscation proceedings can be initiated against the said vehicle. It was relying on the materials made available, including the statement made by the petitioner and others, the 2nd respondent in Exhibit P3 concluded that the timber involved in the case was cut and removed from Chullippara Government forest. The circumstances and probabilities of the case clearly established that the timber seized from the petitioners estate store room was cut and removed from the Government forest and that his jeep bearing registration No. KLI-204 was used for illicit transportation of the said forest timber. Keeping in mind the object sought to be achieved by the Act and also the statutory presumption available under Section 69 of the Act, one cannot insist that usage of vehicle for illicit transport of forest timber should be proved beyond reasonable doubt like in a criminal case. The attempt made by the petitioner to show that the vehicle used for transportation of timber was a petrol jeep bearing registration No. KLO-214 did not succeed and that aspect was also taken note of by the 2nd respondent in Exhibit P3 order. In such circumstances, the 2nd respondent rightly concluded in Exhibit P3 order that the timber seized from the store room of the petitioners estate was cut and removed from Chullippara Government forest and his jeep bearing registration No. KLI-204 was used for the illicit transportation of the said forest timber. 14. Sections 61A to 61F of the Act, inserted by Amendment Act 28 of 1975, confer power of confiscation on Forest Officers authorised by the Government in certain cases. Going by the said provisions, the authorised officer can confiscate the articles together with tools, vehicles, etc. used in committing the offence irrespective of whether a prosecution has been launched or not. Section 61B of the Act provides for issuance of a show cause notice before a confiscation order being passed under Section 61A of the Act. Going by the said provisions, the authorised officer can confiscate the articles together with tools, vehicles, etc. used in committing the offence irrespective of whether a prosecution has been launched or not. Section 61B of the Act provides for issuance of a show cause notice before a confiscation order being passed under Section 61A of the Act. As per Sub-section (2), without prejudice to the provisions of Sub-section (1), no order confiscating any tool, rope, chain, boat, vehicle, or cattle shall be made under Section 61A if the owner of the tool, rope, chain, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying the timber, charcoal, firewood or ivory without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the tool, rope, chain, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use. 15. In State of Kerala v. Mathew [ 1995 (2) KLT 772 ], a Division Bench of this Court held that, the restriction against confiscation contained in Sub-section (2) of Section 61B of the Act can operate only on the combination of three postulates, the first is that the owner or his agent was totally unaware of the illicit use, the second is that he had taken all reasonable and necessary precautions against such use and the third is that the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. Paragraphs 5 and 6 of the judgment read thus: "5. The restriction against confiscation contained in sub-section (2) can operate only on the combination of three postulates. First is that the owner or his agent was totally unaware of the illicit use. Second is that he had taken all reasonable and necessary precautions against such use. Third is, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. If the owner succeeds in satisfying only the first two postulates, he would not get the benefit of the restriction against confiscation. The third condition is as important as the other two and unless that also is established no advantage would practically enure to the owner of the, vehicle. Sub-section (2) would remain at bay if the third condition remains unsatisfied. 6. The third condition is as important as the other two and unless that also is established no advantage would practically enure to the owner of the, vehicle. Sub-section (2) would remain at bay if the third condition remains unsatisfied. 6. The contention that such a strict view would adversely affect an innocent vehicle owner cannot be countenanced since any narrow or liberal interpretation of confiscatory provisions in the Act can eventually lead to disastrous consequences for forest wealth which is a very endangered bounty of nature. The idea behind extension of confiscatory provisions to vehicles etc., is to convey a peremptory and explicit message to the vehicle owners not to allow their vehicles to be used for depletion of forest wealth. If any vehicle is caught in the nefarious act of carrying illicit forest produce, it is not enough that the owner establishes his innocence alone. If he wants to retrieve his vehicle he must show further that the person who was in charge of the vehicle has taken reasonable and necessary precautionary measures against such user of the vehicle. The owner cannot rest with establishing his innocence in the matter. It may be that having succeeded in showing his innocence his failure to establish the next limb might lead to hard consequences to him. Legislature intended, by providing such stringent conditions, to prevent harder consequences for the society and for the posterity." 16. In Manoj Kumar Sharma v. State of Bihar [2004 KHC 2308 : 2004 Crl.L.J. 1156 (Patna)], a Single Bench of the Patna High Court held that, when the legislature has cast a duty on the owner to satisfy certain requirement to avoid confiscation the Court cannot substitute its opinion according to its own notion of justice. Paragraph 10 of the judgment reads thus: "10. Generally speaking whoever seeks relief from an adjudicating authority on existence of a particular fact such person has to prove that fact but the legislature in its wisdom can alter this rule and put on the other person the onus to prove such facts. In my opinion when the legislature has cast duty on the owner to satisfy certain requirement to avoid confiscation the Court cannot substitute its opinion according to its own notion of justice. In my opinion when the legislature has cast duty on the owner to satisfy certain requirement to avoid confiscation the Court cannot substitute its opinion according to its own notion of justice. Here the legislature has chosen to provide that no order of confiscation shall be made if the owner of the property or the person interested in such property proves to the satisfaction of the Forest Officer that vehicle was used without his knowledge or connivance and not only this all reasonable and necessary precautions were taken against use of the vehicle. In the face of the aforesaid language there is no escape from the conclusion that once it is established that vehicle has been used in commission of forest offence, the onus shifts on the owner of the vehicle to establish that the vehicle was used without his knowledge or connivance or that of his servant and agent and also to establish that he had taken all reasonable and necessary precaution against the use of the vehicle. Nothing has been brought on record by the petitioner to satisfy those requirements and as such the authority did not err in confiscating the truck in question." 17. In the case on hand, the petitioner himself had admitted transportation of timber in his vehicle, which during the relevant time was driven by his own employee. The only contention of the petitioner was that the timber so transported was not forest timber, but it was cut and removed from his own estate. But, noting was brought on record to substantiate the said contention. Though, an attempt was made by the petitioner to show that the vehicle used for transportation of timber was a petrol jeep bearing registration No. KLO-214 and not the diesel jeep bearing registration No. KLI-204, that attempt did not succeed. In such circumstances, the 2nd respondent rightly found in Exhibit P3 order that, neither the petitioner nor his driver has taken any reasonable and necessary precautions against the use of jeep bearing registration No. KLI-204 for illicit transportation of forest timber. 18. The further contention raised by the petitioner is that Exhibit P3 confiscation order has been issued without giving him an opportunity of being heard, which is in violation of Section 61B(1)(c) of the Act. 18. The further contention raised by the petitioner is that Exhibit P3 confiscation order has been issued without giving him an opportunity of being heard, which is in violation of Section 61B(1)(c) of the Act. Sections 61A to 61F of the Act were inserted by Amendment Act 28 of 1975 in order to prevent illicit removal of timber, ivory, etc. belonging to the Government from the forest. Section 61A confers the authorised officer the power of confiscation. As per Section 61B, before ordering confiscation under Section 61A, the authorised officer shall give a show cause in writing informing the grounds on which confiscation is proposed, an opportunity of making representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation and a reasonable opportunity of being heard in the matter. In M/s. Fedco (P) Ltd. and another v. S.N. Bilgrami and others [ AIR 1960 SC 415 ] a Constitution Bench of the Apex Court held that, the requirement that a reasonable opportunity of being heard must be given has two elements, the first is that an opportunity to be heard must be given and the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. Paragraphs 8 and 9 of the judgment read thus; "8. The requirement that a reasonable opportunity of being heard must be given has two elements. The first is that an opportunity to be heard must be given; the second is that this opportunity must be reasonable. Both these matters are justiciable and it is for the Court to decide whether an opportunity has been given and whether that opportunity has been reasonable. 9. There can be no invariable standard for "reasonableness" in such matters except that the Court's conscience must be satisfied, that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him that the grounds on which the action is proposed are either non-existent or even if they exist they do not justify the proposed action. The decision of this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the action proposed, the grounds on which the action is proposed, the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made, his admissions by conduct or otherwise of some or all the allegations and all other matters which help the mind in coming to a fair conclusion on the question. . 19. In the case on hand, the petitioner was issued with Exhibit P1 show cause notice informing the grounds on which confiscation is proposed and giving him an opportunity of making representation against the grounds of confiscation within seven days of receipt of notice. On receipt of Exhibit P1, the petitioner submitted an application dated 23/11/1994 before the 2nd respondent to furnish copy of certain documents and based on that application, he was furnished with copy of mahazar, inquiry report and the statement of other accused persons and witnesses. Thereafter, the petitioner submitted Exhibit P2 representation against the grounds of confiscation mentioned in Exhibit P1 show cause notice. Then the 2nd respondent issued notice dated 3/12/1994 to the petitioner and other accused persons directing them to appear before him on 30/12/1994 in order to produce or state anything regarding the case. The petitioner submitted an application dated 7/12/1994 in order to summon three witnesses and the 2nd respondent issued notice dated 8/12/1994 directing the said witnesses to appear before him on 30/12/1994. On 30/12/1994, the 2nd respondent recorded the statement of the petitioner and one Kunjan and the enquiry continued on 5/1/1995, 30/9/1995 and 8/2/1995. Though, the petitioner admitted transportation of timber in his vehicle, which during the relevant time was driven by his own employee, it was contended that the timber so transported was not forest timber but, timber cut and removed from his own estate. But, noting was brought on record to substantiate the said contention. Though, an attempt was made by the petitioner to show that the vehicle used for transportation of timber was a petrol jeep bearing registration No. KLO-214 that attempt did not succeed. But, noting was brought on record to substantiate the said contention. Though, an attempt was made by the petitioner to show that the vehicle used for transportation of timber was a petrol jeep bearing registration No. KLO-214 that attempt did not succeed. As borne out from Exhibit P3, in the enquiry conducted by the 2nd respondent, the petitioner was given a reasonable opportunity to make his submissions and also to substantiate his contentions. Only after affording such a reasonable opportunity, the 2nd respondent has issued Exhibit P3 order confiscating the petitioners vehicle. In the above circumstances, I find that the opportunity that was given to the petitioner to present his case amounted to a reasonable opportunity of being heard against the confiscation proposed. It is pertinent to note that, in Exhibit P4 memorandum of appeal the petitioner has no case that the 2nd respondent passed Exhibit P3 order without giving him an opportunity of being heard in violation of Section 61B(1)(c) of the Act. In such circumstances, the contention of the petitioner that Exhibit P3 confiscation order has been issued in violation of Section 61B(1)(c) of the Act is only to be rejected and I do so. 20. Aggrieved by Exhibit P3 order of confiscation, the petitioner preferred Exhibit P4 appeal before the District Judge, Palakkad, under Section 61D of the Act. Before the appellate authority, the appellant assailed the order of confiscation mainly on the plea that, the 2nd respondent initiated action for confiscation of vehicle in the absence of reliable or credible evidence and that, the whole case was foisted against him by some hostile elements and the 2nd respondent has wrongly placed reliance on their version and hence the order of confiscation is illegal. The appellate authority considered Exhibit P4 appeal, with reference to the records relating to Exhibit P3 order of confiscation, and concluded that the timber seized from the petitioners estate store room was cut and removed from Government forest and that the vehicle used for illicit transportation of the said timber was jeep bearing registration No. KLI-204 owned by the petitioner. The appellate authority considered Exhibit P4 appeal, with reference to the records relating to Exhibit P3 order of confiscation, and concluded that the timber seized from the petitioners estate store room was cut and removed from Government forest and that the vehicle used for illicit transportation of the said timber was jeep bearing registration No. KLI-204 owned by the petitioner. In arriving at such a conclusion, the appellate authority relied on the evidence collected in the investigation conducted by the Forest Officers under Section 66 of the Act and the statement/admission made by the petitioner and others in the enquiry conducted by the 2nd respondent pursuant to Exhibit P1 show cause notice, and also taken note of the statutory presumption available under Section 69 of the Act. Having examined the entire materials on record including Exhibit P3, the appellate authority concluded that there is no illegality either in the order of confiscation or in the enquiry or in the procedure adopted by the 2nd respondent in evaluating the materials on record. Therefore, vide Exhibit P5 judgment, the appellate authority dismissed Exhibit P4 appeal concurring with the findings in Exhibit P3 order of confiscation. As held by the Apex Court, the supervisory jurisdiction of this Court has to be exercised sparingly and only in appropriate cases where the judicial conscience dictates it to act lest a gross failure of justice or grave injustice should occasion. The petitioner could not point out any patent error in the view taken by the appellate authority in Exhibit P5 judgment in concurring with the findings in Exhibit P3 order of confiscation, warranting interference under Article 227 of the Constitution, and the challenge against the same is only to be rejected and I do so. 21. Pursuant to the judgment of this Court in O.P.No.16551/1994, interim custody of the vehicle was given to the petitioner subject to the conditions stipulated in the said judgment. In view of Exhibit P5 judgment, the 2nd respondent has issued Exhibit P6 notice requesting the petitioner to produce jeep bearing registration No. KLI-204, in order to finalise the confiscation proceedings, and there is absolutely no illegality in the said notice. In such circumstances, the challenge made in this Original Petition fails and the same is dismissed, without costs.