STATE OF KERALA & ANR.versusP.V. MATHEW (DEAD) BY L.RS.

                      [2012] 2 S.C.R. 673


                 STATE OF KERALA & ANR.                                A
                            v.
               P.V. MATHEW (DEAD) BY L.RS.
                (Civil Appeal No. 3337 of 2012)

                         APRIL 2, 2012
                                                                       B
     [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

     KERALA FOREST ACT, 1961:

      s.52 read with s.2(f) (as amended by Amendment Act 23            c
of 1974), s,61 A (as inserted by Amendment Act 28 of 1975
and s. 69 - Confiscation of vehicle used in committ:ng a forest
offence - Vehicle confiscated on the allegation that the same
was used by the offenders to go to the forest to kill an elephant
and to transport the tusks therein - Held: It is significant to note   D
that the definition of ''forest produce" in s. 2(f) does not include
any part of living or dead wild animals which is being taken
care of by the Wild Life (Protection) Act, 1972 - Consequent
to the amendment of expression "forest produce" in s. 2(f) of
the Act, the claim of the State that even in the absence of
"ivory" in the definition "forest produce", in view of s. 61A of       E
the Act, the authorities are entitled to confiscate the vehicle
cannot be sustained - The definition of "forest produce" in the
Act uls 2(f) doesn't take ivory in its purview - The presumption
under Sec.69 of the Act applies only to the "Forest Produce"
so even if s.61A of the Act takes in its fold 'ivory' as one of        F
the items liable to be confiscated the presumption uls 69 of
the Act will not be available to the Government as it is not a
''forest produce".

     In a case registered on the allegation of illicit killing         G
of a wild elephant in 1990, one of the accused stated on
1.4.1991 that the vehicle of the original respondent was
used by the accused to go to the forest and again to
transport of the tusks.· After the investigation by order
                           673                                         H
    674     SUPREME COURT REPORTS             [2012] 2 S.C.R.

A dated20.12.1996 the vehicle was confiscated. The appeal
  of the original respondent was allowed by the District
  Judge. The High Court declined to interfere.

       In the instant appeal filed by the State, it was
  contended for the respondent that after the amendment
8
  of definition of "forest produce" in s.2(f) of the Kerala
  Forest Act, 1961, the forest authorities wee not
  empowered to confiscate the vehicle unless it was
  established that a forest offence was committed in terms
  of the Act.
c
          Dismissing the appeal, the Court

         HELD: 1.1 Clause (iii) of the unamended s. 2(f) has
    been deleted by Act 23 of 1974 and the present definition
D   of "f~rest produce" does not include "ivory". Section 52
    of the Act which deals with seizure of property liable to
    confiscation,_~cfearly contemplates that the power of
    confiscation is confined to only those vehicles used in
    committing any forest offence in respect of any timber or
E   other forest produce. Though a reading of s. 61A of the
    Act as inserted by Amendment Act, 28 of 1975 shows that
    ivory is also included in respect of any forest offence
    under the Act and under sub-s. (2) ther~of, the vehicle
    used for committing such offence is also liable to
    confiscation by the Authorised Officer. However,
F   consequent to the amendment of expression "forest
    produce" in s. 2(f) of the Act, the claim of the State that
    even in the absence of "ivory" in the definition "forest
    produce", in view of s. 61A of the Act, the authorities are
    entitled to confiscate the vehicle cannot be sustained. It
G   is significant to note that the definition of "forest
    produce" in s. 2(f) does not include any part of living or
    dead wild animals which is being taken care of by the Wild.
    Life (Protection) Act, 1972. [para 7] [682-E-H; 683-A]

H
STATE OF KERALA & ANR. v. P.V. MATHEW (DEAD) 675
                  BY L.RS.

     1.2 Inasmuch as "ivory" being not a "forest produce"      A
as defined in s. 2(f) after the Amendment Act 23 of 1974,
no forest offence as defined in s. 2(e) of the Act can be
said to have been done in respect of the "ivory" as
alleged .in the instant case and, therefore, the action
taken u/s 61A of the Act cannot be supported. [para 6]         B
[681-F-G]

     1.3 In the instant case, neither any property was
seized from the car nor had any seizure taken effect as
provided under sub-s. (1) of s. 52. Inasmuch as seizure        c
u/s 52 of the Act has not taken place and no forest
offence in respect of a "forest produce" is shown to have
been committed or established in the case, there is
absolutely no justification for the seizure and the order
of confiscation of the aforesaid car as the same is beyond     D
the jurisdiction of the authorized officer. These aspects
have been rightly considered by the District Court as well
as the High Court. [para 8] [683-D-F]
     1.4 Inasmuch as the provisions of the Wild Life
(Protection) Act, 1972 take care of wild animals skins,        E
tusks, horns, bones, honey, wax and other parts or
produce of animals, in the absence of specific charge
under the said Act, the Authorized Officer was not
justified in ordering confiscation of the vehicle. [para 8]
[683-F-G]                                                      F

       1.5 The definition of "forest produce" in the Act u/s
  2(f) doesn't take ivory in its purview. The presumption
  under Sec.69 of the Act applies only to the "Forest
  Produce" so even if s.61A of the Act takes in its fold       G
  'ivory' as one of the items liable to be confiscated the
  presumption u/s 69 of the Act will not be available to the
-.Government as it is not a "forest produce". [para 9] [683-
  G-H; 684-A]
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    676      SUPREME COURT REPORTS                [2012] 2 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3337 of 2012.

        From the Judgment & Order dated 02.12.2005 of the High
    Court of Kerala at Ernakulam in C.R.P. No. 1587 of 1999.

B         Bina Madhavan, Praseena E. Joseph for the Appellants.

        S. Gopakumaran Nair, K.N. Madhusoodhanan,
    T.G.Narayanan Nair for the Respondents.

          The Judgment of the Court was delivered by
c
          P. SATHASIVAM, J. 1. Leave granted.

       2. This appeal is directed against the final judgment and
  order dated 02.12.2005 passed by the High Court of Kerala
D at Ernakulam in C.R.P. No. 1587 of 1999 whereby the High
  Court while affirming the order dated 04.12.1998 of the District
  Judge, Thrissur in C.M.A. No. 16 of 1997 dismissed the
  revision petition filed by the State of Kerala, the appellant
  herein.
E         3. Brief facts:
       (a) According to the prosecution, a case was registered
  as C.R. No. 5 of 1990 in Vazhachal Range in Vazhachal Forest
  Division of Kerala on the allegation of illicit killing of a wild
F elephant. During the course of investigation, three persons, viz.,
  Nelladan George, Madhura Johny and Chirayath Jose were
  taken into custody and questioned. On 01.04.1991, Nelladan
  George and Madhura Johny gave statements before the
  Divisional Forest Officer, Chalakudy and Chirayath Jose had
G given statement before the Range Officer, Flying Squad,
  Thrissur. While questioning, they admitted having gone to
  Vazhikadavu and shot dead wild tuskers about six months back.
  In the statement given by Madhura Johny, he admitted that
  about seven months back he along with four others, namely,
H Nelladan George, Parambal Chandran, Kaitharam Paulachan,
                                             .
 STATE OF KERALA & ANR. v. P.V. MATHEW (DEAD) 677
          BY L.RS. [P. SATHASIVAM, J.]

  Kottatti Jose had gone to Vazhikadavu area in a car bearing A
  Registration No. KL 8 6755 for shooting elephants with two
  unlicensed guns. After reaching there, they sent back the car
  and went to the forest. After two or thre~ days, Madhura Johny
  shot dead two tuskers, one big elephal)f and another small one,.
  They collected the tusks and kept it in a cave and returned to     s.
  Thtissur by bus. Again they went to Vazhikadavu in the same
  car and collected the tusks hided in the cave. They brought the
  tusks to Thrissur and sold it to Chirayath Jose for Rs.72,000/-
  . They paid Rs.3,500/- to the driver of the car for two trips and
_ the balance amount they divided among them.                       c
      (b) After recording the statement, on 09.04.1991, Range
 Officer, Thrissur Flying Squad and his party seized the car. On
 the same day, the car was produced before the Divisional
 Forest Officer, Chalakudy and thereafter he entrusted the car
 to the Range Officer, Pariyaram for safe custody and asked him      D
 to conduct a detailed enquiry.

      {c) The owner of the vehicle - the respondent herein - filed
 O.P. No. 4554 of 1991 before the High Court praying for
 release of the vehicle. The High Court, by order dated              E
 30.04.1991, directed to release the vehicle for interim custody
 to the respondent herein on furnishing security of immovable
 property to the extent of Rs.50,000/-. Accordingly, the car was
 released to the respondent herein on his furnishing the security.

      {d) After investigation, the Forest Range Officer, Pariyaram
                                                                     F
 submitted a report on 02.10.1996. On 30.10.1996, the
 Investigating Officer issued a show cause notice to the original
 respondent i.e. P.V. Mathew as to why the car should not be
 confiscated to Government under Section 61A of Kerala Forest
 Act, 1961 {hereinafter referred to as "the Act") and called upon    G
 him to appear in person on 26.11.1996. After hearing him and
 after perusing the final report of the Investigating Officer, the
 Divisional Forest Officer, Chalakudy passed an order dated
 20.12.1996 for confiscation of the car.
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    678      SUPREME COURT REPORTS                   [2012] 2 S.C.R.


A        (e) Aggrieved by the said order of confiscation, the original
    respondent preferred an appeal being C.M.A. No. 16 of 1997
    before the District Judge, Thrissur. By order dated 04.12.1998,
    the District Judge allowed the appeal.

          (f) Against the order passed by the District Judge, the State
8
    preferred a revision petition being C.R.P. No. 1587 of 1999
    before the High Court. The High Court, by the impugned
    judgment dated 02.12.2005, dismissed the revision filed by the
    State.

C        (g) Aggrieved by the said judgment, the State has preferred
    this appeal by way of special leave before this Court. During
    the pendency of the appeal, sole respondent died and his LRs
    were brought on record as R(i) to (viii).

D       4. Heard Ms. Bina Madhavan, learned counsel for the
    appellant-State and Mr. S. Gopakumaran Nair, learned senior
    counsel for the respondent.

        5. By the impugned judgment, the High Court found that
  the vehicle of the respondents which was used for illegally
E transporting ivory collected from the forest cannot be
  confiscated invoking power under Section 61A of the Act
  because ivory is not a "forest produce" coming under Section
  2(b) of the Act and no forest offence can be said to have been
  committed in respect of ivory. Ms. Bina Madhavan, learned
F counsel appearing for the appellant-State, after taking us
  through the relevant provisions from the Act including Section
  61A, submitted that the Divisional Forest Officer was fully
  justified in confiscating the vehicle which transported ivory and
  the District Court as well as the High Court committed an error
G in setting aside the same. On the other hand, Mr. Gopakumaran
  Nair, learned senior counsel for the respondents submitted that
  after the amendment in respect of the definition "forest produce"
  in Section 2(f) of the Act, the forest authorities are not
  empowered to confiscate unless it is established that forest
H
STATE OF KERALA & ANR. v. P.V. MATHEW (DEAD) 679
         BY L.RS. [P. SATHASIVAM, J.]
offence has been committed in terms of the Act. He also A
submitted that the District Court and the High Court were fully
justified in setting aside the order of the Divisional Forest Officer
based on the amended· provisiohs.

    6. Among the various provisions of the Act, we are
                                                       8
concerned about the following provisions:

     2 (e) "forest offence" means an offence punishable under
     this Act or any rule made thereunder.

     2 (f) "forest produce" includes-                                  c
      (i)    the following whether found in or brought from, a
             forest or not, that is to say-

             timber, charcoal, wood oil, gum, resin, natural
             varnish, bark lac, fibres and roots of sandalwood and D
             rosewood; and

      (ii)   the following when found in, or brought from, a forest,
             that is to say,-

             (a)   trees and leaves, flowers and fruits, and all E
                   other parts or produce not herein before
                   mentioned, of trees;

             (b)   plants not being trees (including grass,
                   creepers, reeds and moss) and all parts or F
                   produce of such plants; and

             (c)    silk cocoons, honey and wax;

             (d)    peat, surface oil, rock and minerals (including
                    limestone, laterite), mineral oils and all G
                    products of mines or quarries;

     52. Seizure of property liable to confiscation.- (1) When
     there is reason to believe that a forest offence has been
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    680       SUPREME COURT REPORTS                  [2012) 2 S.C.R.


A         committed in respect of any timber or other forest produce,
          such timber, or produce, together with all tools, ropers,
          chain, boats, vehicles and cattle used iri committing any
          such offence may be seized by any Forest Officer or Police
          Officer.
B
          Explanation:- The terms 'boats' and 'vehicles' in this
          section, 9section 53, section 55, section 61A and section
          61 B) shall include all the articles and machinery kept in it
          whether fixed to the same or not.
c         (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 .
D         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
E
          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.

          61A. Confiscation by Forest Officers in certain
F         cases.- (1) 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 is the property of the
          Government, the officer seizing the property und~r sub-
G         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 authorized by the Government in this
          behalf by notification in the Gazette, not being below the
H
 STATE OF KERALA & ANR. v. P.V. MATHEW (DEAD) 681
          BY L.RS. [P. SATHASIVAM, J.]
      rank of an Assistant Conservator of Forests (hereinafter         A
      referred to as authorized officer).

      (2) Where an authorized 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       8
      property is produced before an authorized 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 authorized officer may, whether or not a
      prosecution is instituted for the commission of such forest      C
      offence, order confiscation of the property so seized
      together with all tools, ropes, chains, boats, vehicles and
      cattle used in committing such offence."

  It is clear that definition 2(f) was amended and the present
  provision was substituted by Act 23 of 1974. A perusal of the        D
  amended provision clearly shows exclusion of "ivory" within the
  ambit of "forest produce". Further, after the amendment of the
  expression "forest produce" under Section 2(f) of the Act
  consequent to the enactment of the Wild Life (Protection) Act,
  1972 it could not be said that "ivory" is a forest produce or that   E
  possession and transportation of "ivory" without valid authority
  is an offence punistfable under the Act or any rule made
· thereunder. Inasmuch as "ivory" being not a "forest produce"
  as defined in Section 2(f) after the Amendment Act 23 of 1974,
  no forest offence as defined in Section 2(e) of the Act can be       F
  said to have been done in respect of the "ivory" as alleged in
  the instant case and, therefore, the action taken under Section
  61A of the Act cannot be supported.
      7. As rightly pointed out by learned senior counsel for the
 respondents that after the Wild Life (Protection) Act, 1972,          G
 Section 2(f) of the Act came to be amended. The unamended
 Section 2(f) of the Act reads as ·under:
      "2 (f) "forest produce" includes the following when found
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     682          SUPREME COURT REPORTS               [2012) 2 S.C.R.

 A         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,
 B                  reeds and moss) and all other parts or produce of
                    such plants,

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

            (iv)    peat, surface oil, rock and minerals (including ·
                    limestone and laterite), mineral oils and all produce
                    of mines and minerals;"

· D Clause (iii) of the unamended Section 2(f) has been deleted
    by Act 23of1974 and the present definition of "forest produce"
    does not include "ivory". We have already extracted Section 52
    of th"e Act which deals with seizure of property liable to
    confiscation. The said Section clearly contemplates that the
  E power of confiscation is confined to only those vehicles used
    in committing any forest offence in respect of any timber or
    other forest produce. Though a reading of Section 61A of the
    Act as inserted by Amendment Act, 28 of 1975 shows that ivory
    is also included in respect of any forest offence under the Act
  F and under sub-section (2) thereof, the vehicle used for
    committing such offence is also liable to confiscation. by the
    Authorised Officer. However, consequent to the amendment of
    expression "forest produce" in Section 2(f) of the Act, the claim
    of the State that even in the absence of "ivory" in the definition
  G "forest produce", in view of Section 61A of the Act, the
    authorities are entitled to confiscate the vehicle cannot be
    sustained. For the sake of repetition, we reiterate that the
    definition of "forest produce" in Section 2(f) does not include
    any part of living or dead wild animals which is being taken care
  H of by the Wild Life (Protection) Act, 1972. In view of the s,ame,
                      .
 STATE OF KERALA & ANR. v. P.V. MATHEW (DEAD) 683
          BY L.RS. [P. SATHASIVAM, J.]
 the interpretation and the argument of the learned counsel for          A
 the State cannot be accepted.

        8. Further, since seizure of ivory is not justified even under
  Section 52 of the Act, the power of confiscation under Section
  61A commences only when a valid seizure of the property is             B
  effected under the Act and the report is made to the Authorised
  Officer. Therefore, we are of the view that the District Court has
  rightly held that "the fact that offences punishable under other
  analogous statutes have been committed in respect of ivory
  which is the property of the Government cannot expose the              c
  appellant's vehicle to the consequence of confiscation under
  Section 61A of the Act". We have already quoted the entire
  Section 61A. In the instant case, neither any property was
  seized from the car nor had any seizure taken effect as
  provided under sub-section (1) of Section 52. Inasmuch as              D
. seizure under Section 52 of the Act has not taken place and
  no forest offence in respect of a "forest produce" is shown to
  have been committed or established in the case, there is
  absolutely no justification for the seizure and the order of
  confiscation of the aforesaid car is beyond the jurisdiction of        E
  the authorized officer. These aspects have been rightly
  considered by the District Court as well as the High Court and
  we are in entire agreement with the same. Inasmuch as the
  provisions of the Wild Life (Protection) Act, 1972 take care of
  wild animals skins, tusks, horns, bones, honey, wax and other
  parts or produce of animals, in the absence of specific charge         F
  under the said Act, the Authorized Officer was not justified in
  ordering confiscation of the vehicle.

      9. The definition of "forest produce" in the Act under
 Section 2(f) doesn't take ivory in its purview. The presumption         G
 under Sec.69 of the Act applies only to the "Forest Produce"
 so even if Sec.61A of the Act takes in its fold 'ivory' as one of
 the items liable to be confiscated the presumption under
 Section 69 of the Act will not be available to the Government
 as it is not a "forest produce".                                        H
    684      SUPREME COURT REPORTS                  [2012] 2 S.C.R.


A       10. In the light of the above discussion, we are unable to
    agree with the stand of the State. Consequently, the appeal fails.
    and the same is dismissed. No order as to costs.

    R.P.                                        Appeal dismissed.