Point of Law: Offence of cutting or felling of trees or removal, sawing or converting of a felled or fallen tree is not confined to the act committed inside a reserved forest.

JUDGMENT :

Vinod Chandran, J.

Whether the machinery in a sawmill is liable to seizure under Section 52 of the Kerala Forest Act, 1961 ['Forest Act' for brevity], a precursor to confiscation, on the ground that it had been used to saw timber illegally felled or removed from a reserved forest?

2. A learned Single Judge of this Court, in W.P(C)No.22429 of 2017, doubted the correctness of the decision of another learned Single Judge in Moosa v. Authorised Officer [2014 (2) KHC 731]. The Learned Single Judge who referred the matter, was of the opinion that an offence under Section 27(1)(e)(iii) of the Act would attract seizure of tools used for sawing timber in the reserved forest and not machinery in a sawmill. Confiscation, being a penal provision has to be construed strictly and when there are two views possible, the Court should lean in favour of the person on whom the penalty is to be imposed, was the observation. The legislature has failed to explain unambiguously, the 'tools used in committing offence', the implementing officer cannot seize the tools used for sawing such timber, that too in far off places and a contrary interpretation would put to peril the prospects of a sawmill owner who will have to conduct a roving enquiry into the antecedents of every customer who approaches him. The learned Single Judge opined that such a seizure and confiscation was not intended by the legislature, from Section 52.

3. This Court in Kallara Sukumaran v. Union of India [1987 (1) KLT 226] held that when a learned Single Judge refers a question, then the entire case would have to be referred. The Writ Appeal is from an order which declined similar contentions by a sawmill owner. We propose to answer the reference and then consider the cases on merits.

4. Sri.M.P. Madhavankutty, appearing for the writ petitioner, asserts that Section 27(1)(e)(iii) only takes in the cutting of trees from the reserved forest, meaning the offence committed inside the forest. It is also argued that there are various other enactments and statutory rules for the preservation of trees and promotion of tree growth; which have not been invoked against the petitioner. The nominal heading of Section 27 is specifically read to point out that the penalty therein can only be for trespass or damage, occasioned in reserved forests and for committing any act within such forests which is prohibited under law. Voicing the oft-quoted proposition, it is asserted that in construing penal and taxation statutes, the Court has to apply the strict rule of interpretation as has been held in R.Kalyani v. Janak C.Mehta & Others [(2009) 1 SCC 516], Govind Impex (P) Ltd. & Others v. Appropriate Authority [(2011) 1 SCC 529] and Achal Industries (M/s.) v. State of Karnataka [(2019) 7 SCC 703].

5. Sri. Babu S. Nair, appearing for the appellant, painstakingly took us through the provisions to urge that Sections 52, 61A and 61B consistently uses the words 'used in committing such an offence', which lays bare the intention of the legislature to subject only the tools so used in the commission of the offence to seizure and confiscation. The use of the word 'machinery' in the Explanation to Section 52 reveals the clear intention of the legislature, which avoided that word in the body of the provision. To counter the arguments of the Special Government Pleader, it is pointed out that Section 27(1)(d) speaks only of receipt or possession and here the timber has only been sawed, which does not answer the description of either a receipt or a possession as such. Distinguishing the context in which a learned Single Judge of the Gauhati High Court held to the contrary in Surma Valley Saw Mill (P) Ltd. v. State of Assam [1998 KHC 1975 = AIR 1998 Gau.35], it is pointed out that there was a specific rule making the sawing, conversion and removal of timber an offence, which is absent in the Act which we are concerned with.

6. Sri. Nagaraj Narayanan, Special Government Pleader (Forests) appearing for the State