The discretionary nature of the power to confiscate under the Kerala Forest Act, S.61A, and the need to exercise it judiciously in line with the Act's policy and purpose.

1. State of Kerala petitioner in OP No. 8122 of 1985-D- is the appellant in this Writ Appeal. The Original Petition was filed to quash Ext. P2 order passed by the District Judge, Thodupuzha in disposing of the appeal (CMA No. 28 of 1983), filed under S.61D of the Kerala Forest Act, preferred against Ext.P1 order dated 20-10-1983 of the Authorised Officer Divisional Forest Officer, Munnar, Devicolam confiscating vehicle KEE. 8538. The registered owner of the said vehicle (Tempo Van) was the first respondent in the OP. and is also the first respondent in this Writ Appeal.

2. The short facts, necessary for the disposal of this Writ Appeal, are as follows:

" The first respondent, a retired Constable, was the owner of a tempo van No. KEE. 8538 The van was used to transport 36 pieces of teak materials without a valid permit. The transport was admitted. But, the first respondent pleaded that he was not aware of the fact that the transport of teak was not supported by any valid permit. After enquiry, the Authorised Officer found that the van was used for the commission of a forest offence, with the knowledge of the driver-cum-owner for the transport of 36 Nos. of teak pieces illicitly felled, converted and removed from Nermugham portion of Inchathotty beat of the Neriamangalam Range. It was held, that the forest offence was one punishable under S.27 of the Kerala Forest Act and the violation of the provisions of the Kerala Forest Produce Transit Rules stood proved and that the van KEE 8538 was used for the commission of such offence with the knowledge of the driver-cum-owner. So, by Ext. P1 order, the Authorised Officer directed that the tempo van KEE 8538, along with all other accessories and the seizures in the Van at the time of seizure on 12-7-1983, be confiscated to Government under S.61A of the Kerala Forest Act. The first respondent filed CMA. 28 of 1983 before the District Judge, Thodupuzha and assailed Ext.P1 order. The learned District Judge held that there is no evidence to prove that the first respondent had taken all necessary precautions as against the use of the vehicle for illicit transport of the forest produce. However, the learned District Judge noticed that the value of the article carried in the vehicle was only Rs. 5000/-, but the value of the vehicle was Rs. 40,000/-. As per Exts. Al and A2, produced in Court, the value of the vehicle was about Rs. 70,000/-. Placing reliance on the ratio of the decision reported in Pushpan v. State of Kerala (1984 KLT 1021) to the effect "that the confiscation of the vehicle is illegal and unsustainable and if the value of the contraband alleged to have been carried in the vehicle is negligible compared to the value of the vehicle", the learned District Judge held that the confiscation of the vehicle is unsustainable. Ext. P1 order passed by the Authorised Officer was set aside. The State filed OP. No. 8122 of 1985 and assailed the aforesaid order (Ext. P2) passed in appeal by the District Judge. Bhaskaran Nambiar, J. held that in view of the Division Bench decision reported in Pushpan's case (1984 KLT 1021), which is binding on him, the decision of the District Judge cannot be interfered with. However, the learned Single Judge noticed the submission of the State that the decision in Pushpan's case (1984 KLT 1021) requires reconsideration. Aggrieved by the decision of the learned Single Judge, the State has filed this writ appeal. By order dated 9-12-1985, their Lordships the Chief Justice and Mr. Justice K. Sukumaran admitted the writ appeal and referred the matter to a Full Bench, by the following order of reference:

"An important question about the correctness of the principle laid down by the Division Bench of this Court reported in 1984 KLT 1021 regarding the power of confiscation under S 61A of the Kerala Forest Act, arises for consideration in this case. We are therefore of the opinion that this is a fit case for being referred to the Pull Bench. Hence we refer t