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2022 Supreme(Online)(KER) 54071
HIGH COURT OF KERALA
MARY JOSEPH, J
KRISHNAN K. S. – Appellant
Versus
STATE OF KERALA – Respondent
WP(Crl.) 337 2021
SRI.PEEYUS A.KOTTAM, SRI.JOMON J. MALIEKAL, SRI.HRITHWIK D. NAMBOOTHIRI
The court clarified the burden of proof required under Section 61-B of the Kerala Forest Act for vehicle owners contesting confiscation related to illegal timber transport.
Headnote:
Forest - Writ Petition - Kerala Forest Act - Sections 27(I)(e), 61-B - The court analyzed the legal standards under the Kerala Forest Act regarding confiscation of vehicles used for illegal timber transport, emphasizing the need for the owner to prove three conditions to avoid confiscation.
Fact of the Case:
The petitioner, a small road transport operator, sought to quash a confiscation order after his vehicle was seized while transporting timber. The driver was misled about the validity of the transit pass presented to him.
Finding of the Court:
The court found that the driver acted on a perceived valid authority due to language barriers and was misled by the person requesting transportation, which satisfied the conditions to contest the confiscation. The order for confiscation was deemed unsustainable.
Issues: Whether the vehicle was subject to confiscation under the Kerala Forest Act when the owner and driver took precautions yet were misled regarding the legality of timber transportation.
Ratio Decidendi: The court established that the owner must prove three postulates under Section 61-B of the Kerala Forest Act to avoid confiscation: total unawareness of illegal activity, reasonable precautions taken by the owner, and the actions of the person in charge of the vehicle.
Final Decision: Writ Petition allowed; the confiscation order was set aside.
JUDGMENT
Dated this the 15th day of February, 2022 This Writ Petition is filed under Article 226 of the Constitution of India seeking the following reliefs:
“a) Call for the entire records leading to Ext.P4 proceedings of the 3rd respondent and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction;
b) Grant such other reliefs which are just and necessary in the interest of justice.”
2. It is averred in the petition that the petitioner is self employed and is a small road transport operator. A LGV Tipper bearing registration No.KL-45-B-1950 is registered in his name and true copy of it’s certificate of Registration is produced alongwith the petition on hand as Ext.P1. The vehicle has been driven by petitioner’s brother’s son Abhijith, for the last two years. One Mr.Surendran was constructing a residential building at Manianpara and he used to hire the above vehicle during 2020 for transportation of building materials to his worksite. After unloading the construction materials Mr.Surendran requested the driver of the petitioner to transport few teak logs kept in the premises of his residential house to the workshop of Chettiar Mani @ Radhakrishnan for making some house hold articles. The petitioner has specifically insisted his driver Abhijith not to transport any teak wood or other timber items in the tipper lorry unless and until the required authorisation from the forest officials is shown to him. When Mr.Surendran approached Abhijith, the driver, the latter insisted for the pass issued by the forest officials. One pass was given and Mr.Surendran made the driver convince that the transportation of timber logs is permitted by the pass issued by the forest officials. The contents of the pass was written in English. Abhijith was not conversant with English and therefore he believed that the pass shown to him is a valid one. Mr.Surendran also made him believe that the wooden logs sought to be transported in the vehicle to the workshop is permitted by the pass shown, true copy of which is produced alongwith the petition on hand as Ext.P2. Therefore on being convinced, Abhijith allowed the timber to be loaded in the vehicle for transportation. In the course of transit the vehicle was seized by the 5th respondent and OR.No.11/2020 of Neriamangalam Forest Range was registered alleging commission of offences punishable under Sections 27(I)(e), iii & iv of Kerala Forest Act , 1961 (for short ‘the Act’). After seizure of the vehicle, petitioner submitted a written request before the Forest Divisional Officer on 17.12.2020 for release of the vehicle alongwith a copy of the pass shown to Abhijith, the driver, true copy of which is produced alongwith the petition on hand as Ext.P3. The 3rd respondent by proceedings No.M8(WL)6161/2020 issued on 30.08.2021, ordered the vehicle to be confiscated, true copy of which is produced alongwith the petition on hand as Ext.P4. Aggrieved by Ext.P4, the petitioner has approached this Court in this Writ Petition.
3. Sri.Peeyus A Kottam, the learned counsel for the petitioner has drawn the attention of this Court to the statements recorded from the witnesses and the seizure mahazar prepared in the case on hand. The specific case of the petitioner was that his driver was instructed to permit loading of timbers in the vehicle for transportation only on being convinced of the authority of the person approaching him, to do so. According to Abhijith, a document alleging as transit pass was shown to him by Mr.Surendran when he was approached with a request for transportation of those. According to him he was not conversant with English language and therefore when the pass was shown and when Mr.Surendran made him convince of its validity, he believed it as a valid pass issued by the forest officials for transportation of the timber. According to the petitioner he had taken all reasonable precautions by instructing his driver and his driver had also taken reasonable care pr
