Kerala High Court

Subin George vs State Of Kerala on 10 February, 2023

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
     FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
                        CRL.MC NO. 8539 OF 2022
PETITIONER/ACCUSED NO.9:

          SUBIN GEORGE, AGED 36 YEARS
          S/O.GEORGE, EDATHALA HOUSE, NEELEESWARAM P.O.,
          KALADY, ERNAKULAM DISTRICT, PIN - 683574

          BY ADV BABU S. NAIR



RESPONDENTS/STATE   & COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
          ERNAKULAM, KOCHI, PIN - 682031

    2     THE ASSISTANT FOREST CONSERVATOR
          NATURAL STUDY CENTRE, KALADY, MALAYATTOOR P.O.,
          ERNAKULAM DISTRICT, PIN - 683587

    3     THE FOREST RANGE OFFICER
          RESEARCH RANGE, KODANAD P.O., ERNAKULAM DISTRICT,
          PIN - 683544

    4     THE DEPUTY RANGE OFFICER
          KURISUMUDI FOREST STATION, MALAYATTOOR P.O.,
          ERNAKULAM DISTRICT, PIN - 683587

          BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

          PP M.C.ASHI




     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
06.02.2023, THE COURT ON 10.02.2023 PASSED THE FOLLOWING:
 Crl.M.C. 8539/2022
                                      2




                                    ORDER

Dated this the 10th day of February, 2023

The petitioner is the 9th accused in O.R. No. 1 of 2017 of

the Kurisumudi Forest Station, registered for offences

punishable under Sections 27(1)(e)(i), (iv) and (v) of the

Kerala Forest Act and Section 2 of the Forest (Conservation)

Act.

2. The essential facts are as under;

At the request of the Vicar and Parishioners of the St.

Thomas Church, Malayattoor, the Government, as per G.O.(Rt)

No. 3166/1969/Agri. Dated 30.12.1969, granted lease of 12.7

acres of land for being utilised as parking space at Adivaram

and trekking path to the Church atop the hill. On 14.03.2017,

the forest officials found machineries and vehicles being

employed by the accused for widening the trekking path and

tarring the parking space. As the activity was being done

within notified reserve forest area, contrary to the lease Crl.M.C. 8539/2022

conditions, crime was registered against the Vicar and others.

The petitioner was arrayed as an accused, since his vehicles

and machinery were being used for the alleged illegal activity.

As directed by the investigating officer, the petitioner produced

his vehicles at the Forest Station. Thereupon, seizure

mahazar and report were prepared and forwarded to the

Judicial First Class Magistrate Court, Kalady. Later, the

petitioner moved applications under Section 451 Cr.P.C,

seeking interim custody of the vehicles. The applications

were allowed subject to certain conditions. The first condition

required the petitioner to execute bonds for Rs.15 Lakhs with

solvent sureties for the like sum. The petitioner was also

made to give an undertaking that he will not alienate the

vehicles till disposal of the cases. This Crl.M.C. is filed

seeking a direction to the jurisdictional Magistrate to cancel

the bonds executed by the petitioner and sureties.

3. Learned Counsel for the petitioner contended that,

even after five years of registration of the Occurrence Report,

the investigation has not reached anywhere and the petitioner Crl.M.C. 8539/2022

is being put to extreme prejudice by reason of the restriction

against alienation of his vehicles. It is contended that,

seizure of property in relation to a forest offence committed in

respect of timber or other forest produce can only be in

accordance with Section 52 of the Kerala Forest Act, 1961

('the Act' for short). As per Section 52 (1), if 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 such offence can be seized by any

forest officer or police officer. In the instant case the allegation

is that the accused had cleared the area and tarred a portion

already leased out to the St.Thomas Church. Being so, the

action of the accused cannot be termed as forest offence

committed in respect of any timber or other forest produce.

Moreover, as per Section 61A, only vehicles, machinery etc

used for committing forest offence in respect of timber,

charcoal, firewood or ivory, which are the property of the

Government alone can be confiscated. In the absence of Crl.M.C. 8539/2022

any allegation that the accused had committed forest offence

in respect of timber, charcoal, firewood or ivory, the question

of confiscation does not arise. The continuance of bonds in a

case where there is no possibility of the vehicles being

confiscated being an abuse of process, the bonds executed by

the petitioner and his sureties are liable to be cancelled and

the petitioner granted the liberty to deal with his vehicles

without any restriction.

4. The learned Public Prosecutor contended that the

offence committed by the petitioner and the other accused

would fall under Section 27(1) of the Act. In elaboration of

this contention, reference is made to the definition of 'forest

produce' under Section 2(f) as also the offences enumerated

under Section 27(1). It is contended that Section 52 or 61A of

the Act has no application, since the vehicles are material

objects and can therefore be released only on conclusion of

the trial.

5. As rightly contended by the Public Prosecutor the

alleged act of the accused in O.R. No. 1 of 2017 would fall Crl.M.C. 8539/2022

under Section 27. In this regard it is essential to understand

the definition of 'forest produce' in Section 2(f) extracted

hereunder;

"S.2(f) "Forest Produce" 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,

(ii) wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax and all other parts or produce of animals,

(iv) peat, surface soil, rock and minerals (including limestone and laterite), mineral oils and all produce of mines and minerals."

6. It is thus clear that, trees, leaves, flowers, fruits and

other parts of trees, plants and produce of plants, peat,

surface soil, rock and minerals fall within the definition of

'forest produce'. Under Section 27 (1) cultivating, clearing,

breaking up any land in reserve forest for cultivation or for any

other purpose or putting up any shed or other structures and

as per Section 27(1)(vi), or removal of any forest produce are

made punishable offences. The allegation against the

petitioner and others being that they had cleared forest area Crl.M.C. 8539/2022

for the purpose of widening the trekking path and had tarred

the parking space, thereby altering its nature, it prima facie

appears that the offences under Section 27(1) of the Act are

made out.

7. In order to answer the contention based on Section

52, it is necessary to have a close look at the provision;

"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 and section 55 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 (I) 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."

Crl.M.C. 8539/2022

As discussed earlier, when there is a reason to believe that a

forest offence has been committed in respect of any timber or

other forest produce, the vehicles used in committing such

offence can be seized by the forest officer. As per Section

52(2), the officer seizing the vehicle shall, as soon as may be,

make a report of such seizure to the Magistrate having

jurisdiction to try the offence. The case diary reveals that,

after preparing the seizure mahazar and report, the Station

House Officer had made a report in Form I to the jurisdictional

Magistrate, as contemplated in Section 52(2) of the Act. The

procedure to be followed on receipt of the report under Section

52(2) is prescribed in Section 54.

8. Section 53 deals with the power of the competent

officer to 'release' the vehicles, other articles or cattle seized

under Section 52, to the owner on execution of a bond for

production of the property, if and when required, before the

Magistrate having jurisdiction to try the offence. Therefore,

the release under Section 53 is interim in nature and is subject Crl.M.C. 8539/2022

to the orders to be passed by the jurisdictional court. But,

when it comes to Section 54, the Magistrate is given the

power to 'dispose' the property according to law. There is no

mention or indication that such power can be exercised only

after conclusion of trial. Thus, while 'release' under Section 53

is temporary, 'disposal' under Section 54 is final. In this

context, Section 56, providing for disposal on conclusion of

trial for forest offences, of produces in respect of which it is

committed, also assumes relevance. Thus, the Forest Act

prescribes a separate procedure for release of vehicles and

articles.

9. A Division Bench of this court, after considering the

scope and ambit of the power under Section 54 of the Act in

State of Kerala v. Ancy Philip (2006(1) KLT 699) held that,

when timber or other forest produce are seized alleging

commission of forest offence in respect thereof, the same has

necessarily to be tried by the Magistrate having jurisdiction to

try the offence. It was also held that in order to have a

successful prosecution of the accused, it is essential that the Crl.M.C. 8539/2022

forest produce, which is the subject matter of the offence, is

produced before the Magistrate since, without the thondi

article, it is impossible to have a successful prosecution. The

Division Bench judgment was challenged before the Apex

Court in State of Kerala v. Ancy Philip (2008(3) KLT 477

(SC)). Being contextually relevant, paragraph 5 of the

judgment is extracted hereunder;

"5. In the instant case, the forest officials had allegedly seized 41 rosewood timber and 54. rosewood billets. The High Court has relied on S. 54 of the Act which refers "disposal of the property according to law", would necessarily mean that the disposal of the property confiscated under the provisions of S. 61A has to be under the orders of Magistrate. It is true that in addition to the criminal prosecution, the appellants are entitled to proceed against timber under S. 61A of the Act, but timber can also be disposed of after obtaining necessary orders from the Magistrate concerned under S.54 of the Act. However, the Single Judge and the Division Bench had misinterpreted the above provision, namely, S. 54 and held that disposal can only be done after physical production of timber before the Magistrate and after obtaining necessary orders. This is a perverse finding.

The same was not warranted by the provisions of law, as the prosecution has to produce the relevant records showing such seizure and the officer, who has seized those articles, has to satisfy that an offence has been committed by the accused. As rightly pointed out, the High Court did not consider the effect of Crl.M.C. 8539/2022

the non-obstante clause in S. 61A as well as the legal presumption available under S. 69 of the Act. Likewise, the interpretation to S. 54 is not acceptable. We accept the stand taken by the State and set aside the order of the High Court and the Special Magistrate is permitted to proceed with the trial of the accused in accordance with law."

Thus, the Supreme Court categorically held that, under

Section 54, the Magistrate has the power to order disposal of

the property without its physical production. Hence I find that

the jurisdictional Magistrate is having the power to order

disposal of the petitioner's vehicle under Section 54.

10. As rightly contended by the counsel for the

petitioner, there cannot be any confiscation of the vehicles

under Section 61A, since the offences are not committed in

respect of timber, charcoal, firewood or ivory which is the

property of the Government. This is an aspect that should

weigh with the Magistrate while considering the application for

disposal filed under Section 54 of the Act.