The definition of forest produce does not include ivory or tusk, and the Authorised Officer must establish the confiscated ivory as the property of the Government independently of the presumption u/S. 69 of the Act.

1. By Ext. P1 order dated 1-8-1985 the Divisional Forest Officer, Trivandrum, Authorised Officer under the Kerala Forest Act, hereinafter referred to as 'the Act', ordered confiscation of 14 items of ivory pieces u/S. 61-A(2) of the Act. First respondent, a licensed dealer in ivory goods and the owner of the items ordered to be confiscated, challenged the order of confiscation before the District Judge, Trivandrum in C. M. Appeal No. 115/1985 as provided by S.61D of the Act. The learned District Judge reversed the order of confiscation holding that the Authorised Officer had not conducted a proper verification of the stock and the goods of the dealer with a sincere desire to find out the truth. The learned judge also found that the Authorised Officer had not afforded an opportunity to the owner of the ivory articles to adduce any evidence or to examine any witness in support of his contentions. This order of the learned District Judge is under challenge.

2. In Ext. P1 order, the Authorised Officer under the Act, observed: "Therefore under S.69 of the K. F. Act the above articles are presumed to be Government property. The source of the above items can only be illicit in nature and therefore I am convinced that they are collected from Reserve Forests. Therefore the opposite party has committed a forest offence under S.27 (i) (d) of the K. F. Act."

S. 2 (f) of the Act defines forest produce. It is an inclusive definition, sub-clause (c) of clause (ii) of S.2 (f) takes in silk cocoons, honey and wax as forest produce. Under the repealed Travancore-Cochin Forest Act, 1951, (Act III of 1952), while defining the forest produce, wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax and all other parts of produce of animals were taken in within the definition of forest produce. While enacting the Kerala Forest Act, items other than cocoons, honey and wax alone were included by name as forest produce. Other items mentioned along with these items in Act III of 1952 were excluded from the purview of the definition. Therefore, the definition of forest produce in S.2(f) does not take in its ambit ivory or tusk. Consequently tusk or ivory cannot be termed as a forest produce.

3. S.69 of the Act lays down a presumption regarding the owner-ship of the forest produce. When a 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. This presumption u/S. 69 applies only to forest produce as defined by the Act. If a question arises, in a proceeding under the Act, as to whether an article other than forest produce is the property of the Government, the party who asserts it to be so must establish it independently of the presumption. Tusk being not an item mentioned in the definition of forest produce, cannot fall within the mischief of that section. In the case of tusk, when there arose a question as to whether it is the property of the State, then the Officer who asserts it to be so, must establish the same by legally acceptable evidence. He cannot bank on the presumption u/S. 69 of the Act. In the instant case there is no evidence worth the name to substantiate such a case. The Authorised Officer miserably failed to show that the ivory in question belong to the State.

4. S.61 A of the Act allows ivory among many other things mentioned therein to be confiscated. In the case of ivory the officer must clearly enter a finding that it is a property of the Government. In the absence of such a finding, independent of the presumption u/S. 69, the Authorised officer was not justified in ordering confiscation. In the instant case the Authorised Officer had ordered confiscation without finding the pieces of ivory seized as property of the State Government but by resort to the presumption u/S. 69 of the Act. Such a procedure is un-supportable.

5. The learned District Judge while dealing with the nature o