State Of Kerala & Ors vs Ancy Phillip & Anr

the Kerala Forest Act, 1961 (hereinafter referred to as `the Act')

alleging that they had cut and removed certain trees from the

forest. The respondents/accused denied the prosecution case

and, during the course of the trial, they insisted that the

timber, which was seized by the forest officials during the

course of investigation, is to be produced in the Court. They

approached the High Court by filing O.P. No. 25171 of 1999

praying to issue a writ of mandamus directing respondent

Nos. 2 and 3 therein to issue pass and permit enabling the

1 first petitioner therein to transport rosewood timbers and

rosewood billets as per Exts. P2 and P2 (a) from Vayaloor

Pettickal in Palakkad District to Ernakulam. In the same

petition, they also prayed for a direction to the Divisional

Forest Officer, Agali for disposal of their representation Ext. P6

expeditiously. By order dated 02.06.2000, the learned Single

Judge directed the officer, who registered the case, for

production of timber in question before the appropriate Court

within one month from the date of receipt of copy of the order.

With the said direction, the learned Judge disposed of the writ

petition.

3) Aggrieved by the said direction, the State of Kerala and

two officers of the Forest Department filed Writ Appeal No.

2246 of 2000 before the Division Bench. The Division Bench,

by impugned order dated 31.01.2006, placing reliance on

Section 54 of the Act and finding no infirmity in the direction

issued by the learned Single Judge for production of the

timber before the appropriate Court dismissed the writ appeal.

The said order is under challenge before this Court in this

appeal.

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4) Heard both sides.

5) In the instant case, the forest officials had allegedly

seized 41 rosewood timber and 54 rosewood billets. The High

Court has relied on Section 54 of the Act which refers

"disposal of the property according to law", would necessarily

mean that the disposal of the property confiscated under the

provisions of Section 61A has to be under the orders of

Magistrate. It is true that in addition to the criminal

prosecution, the appellants are entitled to proceed against

timber under Section 61A of the Act, but timber can also be

disposed of after obtaining necessary orders from the

Magistrate concerned under Section 54 of the Act. However,

the Single Judge and the Division Bench had mis-interpreted

the above provision, namely, Section 54 and held that disposal

can only be done after physical production of timber before

the Magistrate and after obtaining necessary orders. This is a

perverse finding. The same was not warranted by the

provisions of law, as the prosecution has to produce the

relevant records showing such seizure and the officer, who

has seized those articles, has to satisfy that an offence has

3 been committed by the accused. As rightly pointed out, the

High Court did not consider the effect of the non-obstante

clause in Section 61A as well as the legal presumption

available under Section 69 of the Act. Likewise, the

interpretation to Section 54 is not acceptable. We accept the

stand taken by the State and set aside the order of the High

Court and the Special Magistrate is permitted to proceed with

the trial of the accused in accordance with law.

6) The appeal is allowed accordingly. No costs.

......................................CJI. (K.G. BALAKRISHNAN)

.........................................J. (P. SATHASIVAM)

........................................J. (J.M. PANCHAL)

NEW DELHI;

11TH JULY, 2008.

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