Kerala High Court
Safiya.V vs The Divisional Forest Officer on 11 January, 2021
W.P(c).No.27267/2020-G 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WP(C).No.27267 OF 2020(G)
PETITIONER:
SAFIYA.V,
AGED 31 YEARS,
W/O.ASHARAF, NONDATH VEEDU,
AGALI P.O., MANNARKKAD, PALAKKAD DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENTS:
1 THE DIVISIONAL FOREST OFFICER,
MANNARKKAD, PALAKKAD DISTRICT, PIN -678 582.
2 THE FOREST RANGE OFFICER,
AGALI FOREST RANGE,
PALAKKAD DISTRICT, PIN 678 581.
SPL.GOVERNMENT PLEADER (FOREST)SRI.K.SANDESH RAJA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.27267/2020-G 2
P.V.ASHA, J.
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W.P.(C) No.27267 of 2020-G
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Dated this the 11th day of January, 2021
JUDGMENT
The seizure of petitioner's vehicle by the 2nd respondent is under challenge in
this Writ Petition. It is stated that a Maruti Alto car bearing Reg.No.KL-50H/8824
owned by the petitioner, who is a teacher, was seized by the forest officials on the
basis of a confession statement of petitioner's husband, recorded by the Forest
Range Officer - the 2nd respondent, that her car was used for removal of sandal
wood pieces from the forest. It is stated that on 21.07.2020, the 2 nd respondent
along with certain other forest officials intercepted a motorbike and registered
O.R.No.21/2020 against 3 persons alleging that they were transporting sandalwood
pieces on their motor bike. On the basis of their confession statement, petitioner's
husband was also made an accused. Petitioner's car was seized thereafter based on
the confession statement of her husband submitted before the Forest Range
Officer. It is stated that though the petitioner filed an application under Section
451 Cr.P.C seeking interim custody of the vehicle, the Judicial First Class
Magistrate, Mannarkkad rejected the application as per Ext.P4 order on
15.09.2020 on the ground that the car was already produced before the authorised
officer for confiscation under Section 61A of the Kerala Forest Act. It is stated
that the petitioner filed Crl.M.C. No.4511/2020 challenging Ext.P4 order. Though
this Court dismissed the Cr.M.C as per Ext.P5 order, on a finding that a petition
under Section 482 Cr.P.C will not lie for releasing a vehicle, the petitioner claims
that this Court had arrived at a finding that seizure of a vehicle as envisaged under
Section 52 of the Kerala Forest Act should have been along with the contraband
articles and that the seizure of vehicle and articles should have been simultaneous.
Therefore, it is the claim of the petitioner that the seizure of her vehicle by the
Forest Range Officer was without any authority for the same, in the light of the
findings in Ext.P4 order of this Court. Relying on the judgment in Luca Beltrami
v. State of Kerala [2020 (5) KLT 24], it is also argued that the recording of
confessional statement by the Forest Range Officer was also without any authority.
The Writ Petition is filed in the above background seeking the following reliefs:
"i) Issue a writ of mandamus or any other appropriate writs, orders or
directions commanding the respondents to release the vehicle bearing
registration No.KL-50H/8824 to the petitioner forthwith;
ii) Declare that the seizure of the vehicle belonged to the
petitioner bearing registration No.KL-50H/8824, under Section 52 of the Forest
Act, and the consequent proceedings initiated against it under Section 61A of
the Forest Act are perse illegal, and without jurisdiction;
iii) Grant such other reliefs as this Hon'ble Court may deem fit and
proper in the circumstances of the case."
2. According to the statement filed on behalf of the 1 st respondent, the
petitioner has filed this Writ Petition on 07.12.2020 suppressing the confiscation
proceedings initiated as per Annexure R1(a) notice dated 12.10.2020 and
culminated in Annexure R1(b) order issued on 25.11.2020. It is stated that the
vehicle was seized under Section 52 r/w Section 47H of the Kerala Forest Act,
1961 and the 2nd respondent produced the same before the authorised officer to
proceed under Section 61A of the Kerala Forest Act. The authorised officer
thereafter issued Annexure R1(a) notice dated 12.10.2020 under Section 61(B) to
the petitioner, who is the R.C owner of the vehicle affording her an opportunity to
file her reply on or before 31.10.2020 and fixing the date for personal hearing on
30.10.2020. It is stated that the petitioner had submitted her reply on 30.10.2020.
But since the reply was not satisfactory, the vehicle was confiscated as per
Annexure R1(b) order on 25.11.2020. It is stated that the petitioner ought to have
filed appeal under Section 61D of the Kerala Forest Act before the District Court
in case she was aggrieved by Annexure R1(b) order instead of filing this Writ
Petition. The learned Government Pleader also argued that the petitioner who did
not approach this Court shall not be granted any relief.
3. It is stated that O.R.21/2020 was registered in Ommala Forest Station
on 27.7.2020 for illicit felling of sandal trees from the vested forest in VFC item
No.111 of Goolikadav malavaram. The petitioner's car, which was used for
committing the offence was seized by the Forest Range Officer, who produced it
before the authorised officer on 26.08.2020 to proceed under Section 61A. It is
stated that the timber along with all other tools including the vehicle used for
committing such offence are to be produced before the authorised officer and are
liable for confiscation under Section 61A of the Act. It is also stated that the
petitioner's vehicle was seized based on the statement given by her husband that he
has used that vehicle for transporting sandalwood. It is also the case of the 1 st
respondent that Section 52 does not provide that the seizure of the vehicle should
be simultaneous with that of seizure of sandalwood. It is also stated that the Forest
Range Officer has conducted an enquiry in the matter and an enquiry report was
submitted before the authorised officer on 24.09.2020. The Forest Range Officer
recommended confiscation of the vehicle which was found involved in illicit
transportation of sandalwood collected from the reserve forest. Annexure R1(a)
notice and R1(b) order were issued thereafter. It is stated that the vehicle was
seized by the forest officials in their effort to protect the sandal forest from
destruction.
4. Sri. Babu S. Nair, the learned counsel for the petitioner, argued that in
view of the findings in Ext.P5 order, the very seizure of the vehicle itself is
without authority and therefore the proceedings leading to confiscation are also
without authority and once this Court rendered a finding in Ext.P5 that the vehicle
cannot be seized except along with the contraband articles, the respondents shall
be directed to release the vehicle. Relying on the judgment in Luca Beltrami 's
case (supra), the learned counsel for the petitioner argued that the seizure was
made on the basis of confession statement before the Range Forest Officer, who
does not have any authority to record any confession statement and therefore
seizure of the vehicle based on such confession statement is also without authority.
Therefore, this Court has to release the unauthorisedly seized vehicle.
5. On the other hand, the learned Special Government Pleader (Forest)
Sri. Sandesh Raja argued that Section 61A of the Kerala Forest Act starts with a
non obstante clause, according to which the Forest Officer is having every
authority to seize the vehicle if a forest offence is believed to have been committed
in respect of timber and it is not necessary that the vehicle can be confiscated or
seized only along with the contraband article, as held by the Division Bench in the
judgment in DFO, Kothamangalam v. Sunny Joseph: 2002 KHC 845. It is also
pointed out that confiscation is a civil proceeding and the judgments rendered in
criminal proceedings cannot govern the confiscation proceedings. It is pointed out
that under Section 47H r/w Section 52 and 51A, the vehicle owned by the
petitioner, could be seized, when the Forest Range Officer, found that it was used
for illicit transportation of sandalwood. Relying on the judgment in State of
Kerala v. Bharath Booshan Aggarwal : 2009 (1) KHC 313 the learned Special
Government Pleader argued that the Forest Officials are duty bound to protect and
preserve the forest, which is the property of the State Government, for the next
generation and that the seizure of the vehicle was effected in the process of such
protection. Relying on the judgment in Kunhali and Ors. v. Forest Range Officer
& Anr. :2012 KHC 231 it was argued that the action of the respondents in seizing
the vehicle on the basis of the statements recorded by the Forest Officials during
the course of inquiry, cannot be held illegal. It was pointed out that the petitioner
was given opportunity to present her case in the proceedings before the 1 st
respondent.
6. I have considered the contentions raised by the learned Counsel on
either side. As the contention of Sri. Babu S. Nair, the learned counsel for the
petitioner, is that the seizure of the vehicle itself was without authority, it is
necessary to have a look at the relevant provisions in the Kerala Forest Act.
Section 47H of the Kerala Forest Act reads as follows:
"47H: Seizure of sandalwood, sandalwood oil etc. and confiscation thereon:-
Notwithstanding anything contained in any law for the time being in force or in any
judgment, decree or order of any court, where an offence is believed to have been
committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill,
distilling unit, boiler-plant, tools, ropes, chains, boats, vehicles or any other
contrivance used in the manufacture or distillation of sandalwood oil, or in the
process of sale of sandalwood or sandalwood oil shall be liable to be seized under
section 52 and the provisions contained in sections 61A, 61B, 61C, 61D, 61E and 61F
shall mutatis mutandis apply to the seizure and confiscation thereof."
Section 52 reads 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.
Explanation:- The terms `boats' and `vehicles' in this section [section 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."
Section 61A reads as follows:
"61A. Confiscation by Forest Officers in certain cases:- 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 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 authorised 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 the authorised officer).
(2) Where an authorised 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 authorised 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 authorised 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.
7. In Ext. P5 order, this Court found force in the contention of the
petitioner that the seizure of sandalwood and that of vehicle should be
simultaneous and observed that it is doubtful whether a subsequent seizure would
fulfil the requirements in Section 52 of the Act. In this context it is relevant to
note the dictum laid down by the Division Bench in the judgment in Sunny
Joseph's case (supra). In that case this Court allowed the revision petition filed
against the order passed by the District Court which had set aside the confiscation
proceedings on the ground that the vehicle was not seized at the time of
transportation of timber. In para.5 the Division Bench held as follows:
"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 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."
Therefore, the only requirement is that there should be evidence to connect the
vehicle with forest offence. It is relevant to note that even in Ext.P5 order,
though it was observed that power to seize the vehicle is dependent on the
presence of contraband article, the learned Judge had only expressed its doubt over
the legality of the seizure of the vehicle. It cannot be said that there is a final
conclusion. Relevant portion of para.7 of Ext.P5 order reads as follows:
""7. xxxxx
On a careful reading of the aforementioned provisions, I find substance in the
contention of the learned counsel that seizure and confiscation of vehicles, tools
etc. can be affected together with contraband like timber or other forest produce,
regarding which a forest offence is believed to have been committed. The power to
seize is dependent on the presence of contraband, indicative of the vehicles, tools
etc., having been used for commission of the offence. In the instant case, there
was no contraband present inside or anywhere near the petitioner's vehicle, while
seizure was affected. As such, legality of the seizure is highly doubtful."
It appears that when Ext. P5 order was passed, the judgment of the Division Bench
in Sunny Joseph's case (supra) was not brought to the notice of this Court.
Therefore, I find that the contention of the learned Counsel for the petitioner that
the seizure is illegal or without authority cannot be accepted.
8. Regarding the contention of the learned Counsel for the petitioner
relying on the judgment in Luca Betrami's case (supra), it is to be noted that in the
said judgment this Court found that the confession statements and the mahazar
prepared were the only materials with the respondents to substantiate the offence
of trespass against the petitioner therein. At the same time, this Court in paragraph
7 of the judgment observed that those materials were undoubtedly material pieces
of evidence in a forest offence. It is also relevant to note that in the judgment in
Kunhali and Ors. v. Forest Range Officer & Anr. :2012 KHC 231, this Court has
held that confession statements given by the accused persons to the Forest Range
Officer are admissible in evidence, though he is not invested with the power under
Section 72 of the Kerala Forest Act; it can be used for corroborating other
evidence. It was a case wherein the offence alleged against the accused was under
Section 27(1)(e)(iv) for cutting and removing rosewood trees from the reserved
forest. The questions whether the statement recorded by the Range Officer or
other official at the time of interrogation in this case can be accepted as evidence
or not and whether it can be treated as confession or not are to be considered by
the appropriate authorities at the relevant time in the appropriate proceedings. The
present case is not concerned with the criminal proceedings registered against the
petitioner. The vehicle siezed has already been confiscated under the provisions
contained in Section 61A, 61B etc., which are independent proceedings.
9. As pointed out by the learned Government Pleader the petitioner did
not choose to state anything regarding Annexure R1(a) notice or Annexure R1(b)
order of confiscation in this Writ Petition, which he filed after he received the
notice as well as the order of confiscation issued on 25.11.2020 well before the
Writ Petition was filed. He did not choose to challenge the same also even after
the respondents produced the same. The confiscation order is not issued in the
criminal proceedings, but it is under a separate scheme, against which the
petitioner has got an effective statutory remedy under Section 61D of the Act. The
observation in Ext.P5 order would not dilute the effect of the confiscation which is
not challenged in the Writ Petition. An order which is issued against the petitioner
will continue to be in force until and unless it is set aside by a court of law, even if
it is issued contrary to law, as held by the Full Bench of this Court in Pavitran v.
State of Kerala: 2009(4) KLT 20 wherein it was held as follows in para 8:
"Whenever an adverse order is passed against a person, unless the same is challenged
before the appropriate forum, within the prescribed time limit, the said order will become
final and the person, affected by it, will also be bound by it. It is a well settled principle in
Administrative Law that, there are no void orders in absolute sense in administrative
matters. There are only voidable orders. Unless a person aggrieved takes recourse to the
appropriate remedy at the appropriate time, even an illegal order will be treated as valid
and binding. See the observations of Wade in Administrative Law, 6 th Edn.
"The truth of the matter is that the court will invalidate an order only if the right remedy is
sought by the right person in the right proceedings and circumstances. The order may be
hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack
of standing, because he does not deserve a discretionary remedy, because he has waived
his rights, or for some other legal reason. In any such case the 'void' order remains
effective and is, in reality, valid. It follows that an order may be void for one purpose and
valid for another, and that it may be void against one person but valid against another. A
common case where an order, however void, becomes valid is where a statutory time limit
expires after which its validity cannot be questioned. The statute does not say that the void
order shall be valid; but by cutting off legal remedies it produces that result:"
It is up to the petitioner to invoke the statutory remedy available against Annexure
R1(b) order and it is a matter to be adjudicated based on evidence. Therefore, the
prayers sought in the Writ Petition cannot be granted.
The Writ Petition is accordingly dismissed.
Sd/- (P.V.ASHA, JUDGE)
rtr/
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
UNIVERSITY OF CALICUT TO THE PETITIONER
DATED 7.10.2016.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
UNIVERSITY OF CALICUT TO THE PETITIONER
DATED 6.12.2017.
EXHIBIT P3 TRUE COPY OF THE OCCURRENCE REPORT IN
O.R.NO.21/2020 OF THE OMMALA FOREST
STATION.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 15.9.2020 OF
THE J.F.C.M. MANNARKKAD IN C.M.P.
NO.1769/2020.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 1.12.2020 IN
CRL.M.C.NO.4511/2020 OF THIS HON'BLE COURT.
