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2014 DIGILAW 389 (KER)

STATE OF KERALA v. BENNY K. J. , S/O. JOHN

2014-05-30

K.HARILAL

body2014
JUDGMENT The State of Kerala, the petitioner herein is the first respondent in CMA No.85/07 on the files of the District Court, Thrissur, which was filed by the respondent herein against Order No.TO.356/06 on the files of the Divisional Forest Officer, Thrissur, by which the respondent's vehicle had been seized and confiscated under Section 61A(2) of the Kereala Forest Act. It is the case of the respondent that the vehicle bearing Regn.No.KL-4/C-972 was seized on 13-1-2006 by the officers of the Kerala Forest Department in connection with OR.No.1/2006 of Pattikkad Forest Range Office. The above OR was registered against cutting and removal of teak trees from Vellanimala area, a part of Paravattanimala Reserve Forest. The accused were arrested and they had stated that the teak trees were collected from the reserve forest and were transported in a vehicle bearing Regn.No.KL-4/C-972. The teak logs were recovered from the house of one Shijo, who was allegedly the driver of the above vehicle during the commission of the forest offence. Based on the statement given by the said Shijo, the above vehicle was seized on 13-1-2006 from the house of the respondent. Later, the vehicle was released to the respondent on furnishing Bank guarantee as per the order passed by this Court in W.P(C) No.5023/06. After hearing the affected parties, the Authorised Officer passed the order confiscating the vehicle invoking power under Section 61A(2) of the Forest Act. The respondent had preferred the above CMA and after re-appreciating the entire evidence on record, the learned District Judge set aside the order passed by the Authorised Officer under Section 61A(2) of the Kerala Forest Act. The legality and propriety of the findings under which the order of confiscation was set aside are under challenge in this O.P. 2. The learned Special Government Pleader submits that the impugned order under challenge is illegal and unsustainable as the findings are against the legal principles well settled by this Court in D.F.O., Kothamangalam Vs. Sunny Joseph ( 2002(3) KLT 641 ) and State of Kerala Vs. Mathew, 1995(2) KLT 772 . It is also contended that the learned District Judge has not considered the statutory mandate under Section 69 of the Kerala Forest Act. In short, the entire findings are legally unsustainable and are liable to be set aside. 3. Sunny Joseph ( 2002(3) KLT 641 ) and State of Kerala Vs. Mathew, 1995(2) KLT 772 . It is also contended that the learned District Judge has not considered the statutory mandate under Section 69 of the Kerala Forest Act. In short, the entire findings are legally unsustainable and are liable to be set aside. 3. Per contra, the learned counsel for the respondent advanced arguments to justify the findings in the impugned order. According to him, there was no evidence to show that the teak logs seized from the house of the driver of the vehicle were government property. Similarly, the confession statements were recorded not in accordance with law and thereby those statements are not sufficient to bring home the guilt of the accused. It is also contended that there is no evidence to show that the seized teak logs were transported to the house by using the respondent's vehicle. 4. The short question that arises for consideration is, whether there is any illegality or impropriety in the findings by which the confiscation order passed by the Authorised Officer has been set aside? Going by the impugned order, it is seen that the learned District Judge has not placed reliance on the confession statement given by the accused immediately after the seizure of the materials and the arrest of the accused. In the impugned order, it is stated that no warning was given to the respondent and there was no such endorsement in his statement also. But, at the same time, the impugned order itself shows that the statement was given with the knowledge that it would be used against him in court as evidence. It means and indicates that they were well aware about the consequences thereof. I am of the opinion that insofar as an ordinary prudent man is concerned, if he is well aware of the fact that his statement would be used against him, he would have well understood that he has to face consequences thereof also. In the above view, I find that the statement given by the accused immediately after the seizure of the vehicle and arrest can be relied on as confession statement under Section 72(d) of the Forest Act. 5. In the above view, I find that the statement given by the accused immediately after the seizure of the vehicle and arrest can be relied on as confession statement under Section 72(d) of the Forest Act. 5. Coming to the contention that the seizure of the vehicle was not simultaneous with the seizure of the teak woods, the legal position is well settled by this Court in D.F.O., Kothamangalam Vs. Sunny Joseph ( 2002(3) KLT 641 ). The relevant dictum reads as follows: A reading of this Section does not indicate that there should be simultaneous seizure of the timber or forest produce and tools ropers, 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. " 6. As regards the contention that there is no evidence to show that the teak logs seized from the house of Shijo are the properties of the Government, the learned District Judge ought to have remembered the statutory presumption under Section 69 of the Forest Act. According to Section 69, when in any proceedings taken under the Forest Act or in consequence of anything done under the Forest Act and the 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, unless the contrary is proved. In short, the burden is on the respondent to prove that the forest produces seized by the forest officials are not Government property In the instance case, admittedly, no evidence had been adduced by the respondent to prove the contrary that the teak logs seized are not Government property. In short, the burden is on the respondent to prove that the forest produces seized by the forest officials are not Government property In the instance case, admittedly, no evidence had been adduced by the respondent to prove the contrary that the teak logs seized are not Government property. Therefore, the findings arrived at by the learned District Judge is legally unsustainable in view of Section 69 of the Forest Act. 7. As regards the contention that there is no evidence to show that the teak logs seized from the house of Shijo were transported to that house by using the respondent's vehicle, the statement admitting the said fact given by the respondent, Shijo, Thankachan, Vinod and the other accused are sufficient to place reliance. It is seen that Section 62 says that any evidence recorded under clause (d) of Section 72 shall be admissible in any subsequent trial of the alleged offender before the Magistrate, provided that it has been taken in the presence of the accused persons and recorded in the manner provided by the Cr.P.C. I do not find any legal infirmity in the statement recorded by the forest officials. If that be so, the confession statement given by Shijo itself is sufficient to prove the said fact. 8. I have already held that the statement recorded by the Authorised Officer is reliable to bring home the allegation against the respondent and other accused. If that be so, that statement wherein the accused themselves admitted that the teak logs were transported to the house of Shijo by using the respondent's vehicle, is sufficient to prove that the respondent's vehicle had been used for the commission of the forest offence. 9. It is to be borne in mind that the respondent had not discharged the burden of proof cast under the three postulates provided under Section 61B of the Kerala Forest Act. Absolutely, there is no evidence to show that the respondent and his driver had taken reasonable and necessary precautions so as to prevent his vehicle from being used for commission of forest offence. At all points, this O.P(Civil) succeeds. Consequently, the impugned order under challenge is set aside and the order passed by the Authorised Officer confiscating the respondent's vehicle would stand restored. The Authorised Officer will be at liberty to proceed against the vehicle in accordance with law. This Original Petition is disposed of accordingly.