Dr. AR. Lakshmanan, J.

The Conservator of Forests, Kollam, who filed the Original Petition, No. 20297 1993 to quash Ext. P2 judgment passed by the District Court, Thiruvananthapuram in C.M.A. No. 75/1991 dated 20.8.1992, is the appellant in this Writ Appeal. The Writ Petition was dismissed by P.V. Narayanan Nambiar, J., holding that the Ivory is not liable for confiscation since Ivory is not a "forest produce" under S.2(f) of the Kerala Forest Act, hereinafter referred to as "the Act". Being aggrieved, the Writ Appeal has been filed.

2. We have heard Mr. S. James Vincent, learned Special Government Pleader (Forests) and P. V. Ramesh Shankar for the respondent.

3. The Forest Range Officer (Vigilance), Forest Head Quarters, Trivandrum and party on 10.7.1990 seized 6.495 Kgs. of Ivory in various designs from the premises of the respondent, K. Thankaraj. The seizure was preceded by a search of the premises and the seizures were produced be fore the Authorised Officer, viz., the Divisional Forest Officer, Trivandrum for proceeding under S.61A of the Act. The Authorised Officer issued a show-cause notice to the respondent and in reply, it is stated that he is a licensed dealer in Ivory. He furnished copies of stock register and other records, which he was bound to keep as per the rules. It is his contention that the articles seized were made of the Ivory lawfully purchased by him and incorporated in his stock register. After inquiry, the Authorised Officer passed orders, No. G3/5081/90

dated 17.4.1991 confiscating the seizures, which proceedings has been marked as Ext. P1.

4. The respondent challenged the order of confiscation under S.61D of the Act in CMA 75/1991 before the District Judge, Trivandrum, who, by judgment dated 20.8.1992 (Ext. P2), allowed the appeal and set aside the confiscation order, which is challenged in the Original Petition filed by the Conservator of Forests as unsustainable. It is submitted that the District Judge decided the issue in favour of the respondent on an impression that Ivory having not been included in the definition of " forest produce" in S.2(f) of the Act, it cannot be treated as a Government property. The District Judge held that the presumption available under S.69 of the Act is, hence, not attracted. It is also argued before the learned judge that S.2(f) of the Act is an inclusive one, whereas S.61A is very clear that notwithstanding anything contained in the foregoing provisions of Chapter VIII, where the forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory, which is the property of the Government, they are liable to be seized and confiscated and in view of S.61A, it is submitted that the reasoning of the learned District judge that Ivory is not a "forest produce" is not sustainable.

5. The Original Petition was contested by the respondent. It was submitted that the order of confiscation was made under S.61A(2) of the Act and the same was done by casting the burden on the respondent to prove that the seized ivory is not a "forest produce" and for this purpose, the Divisional Forest Officer relied on S.69 of the Act and drew a presumption that the ownership of the seized ivory rests with the Government, which is wholly illegal and unjust.

6. Before the learned Single Judge a judgment reported in State of Kerala v. Gopalan,1988 (2) KLT955(K.Sreedharan,J.) was cited by the respondent. It is held in the above decision that though S.61A of the Act takes in its fold "Ivory" as one of the items liable for confiscation, the presumption under S.69 of the Act will not be available to the Government as it is not a "forest produce" de fined in S.2(f) of the Act. Accepting the principle laid down in the above judgment, P. V. Narayanan Nambiar, J., dismissed the Original Petition filed by the Conservator of Forests holding that Ext. P1 order was purely basing on the presumption and according to the Authorised Officer, the onus of proof was on the respo