Kerela Forest Act, 1961: ss. 61A and 69 – Confiscation by forest officers in certain cases – On facts, order of confiscation of
125 kgs of sandalwood oil by the Divisional Forest Officer – Said order dismissed by the Single Judge, however, the Division Bench of the High Court upheld the order of confiscation u/s. 61A – Correctness of – Held: Order by the Divisional Forest Officer sufficient to show that the order of confiscation was passed u/s 69 and not u/s. 61A – Perusal of the order of Single Judge of the High Court shows that Single Judge rejected the idea of confiscation of sandalwood oil u/s. 61A and held that though the order of confiscation cannot be passed u/s. 61A but by virtue of s. 69, unless a fact to the contrary is proved, it can be presumed that the seized property belongs to the Government and it enables the Government to possess the same – Thus, the Division Bench misdirected itself in framing the issue and upholding confiscation u/s. 61A and, hence, the order is bad in law – Furthermore, s.69 operates only as a tool to help the government in proving its title to the property but the said Section cannot be read as to give any power of confiscation of the property – Power of confiscation of sandalwood oil get vested in the authorities through s. 61A only after the Kerala Forest (Amendment) Act, 2010 when certain specific provisions relating to Sandalwood were inserted through Chapter VI A and Section 47H – Instant case being related to the situation prior to the time of amendment in 2010 was made, the amended provisions do not apply – Thus, the order of confiscation of sandalwood oil set aside. Allowing the appeal, the Court
HELD: 1.1 The order passed by the Divisional forest Officer is in itself sufficient to show that the order of confiscation is passed under Section 69 of the Kerela Forest Act, 1961 and not under Section 61A. Further, a perusal of the order of Single Judge of the High Court shows that Single Judge rejected the very idea of confiscation of sandalwood oil under Section 61A of the Act and held that though the order of confiscation cannot be passed under Section 61A of the Act but by virtue of Section 69 of the Act, unless a fact to the contrary is proved, it can be presumed that the seized property belongs to the Government and it enables the Government to possess the same. Further, the Division Bench misdirected itself in framing the issue and upholding confiscation under Section 61A and, hence, on that account, the order is bad in law. [Para 13] [538-B-C]
1.2 Section 61A of the Act was inserted to prevent the illicit removal of timber, charcoal, firewood and ivory belonging to the government from the forests. The said provision confers power of confiscation on Forest Officers authorised by the Government in certain cases. The essence of the Section lies in the fact that when forest offence is satisfactorily believed to have been committed in respect of timber, charcoal, firewood and ivory which is the property of the Government then the authorized officer may confiscate the property irrespective of the pendency of any criminal proceedings in this regard. [Para 15] [539-C-D]
1.3 A perusal of the definition of forest produce, as given by Section 2(f) of the Act, shows that other than timber, charcoal, firewood it includes wood oil, gum, resin, natural varnish bark, roots of sandalwood etc. However, the use of the specific words “timber, charcoal, firewood and ivory” under Section 61A instead of “any forest produce or ivory” makes it clear that the intention of the legislature in providing armory under Section 61A is only with regard to certain category specified therein and not for every forest produce as defined under Section 2(f) of the Act. Undoubtedly, sandalwood oil is a forest produce but Section 61A of the Act is limited only to the categories specified therein and does not give power of confiscation of sandalwood oil. [Para 16] [539-F-G]
1.4 Section 69 of the Act is only a rule of evidence which raises a mandatory presumption that a forest produce, unless proved otherwise, is a property of the government in case where any proceedings are going on under the Act or anything is done under the Act. The Section operates only as a tool to help the government in proving its title to the property but the said Section cannot be read as to give any power of confiscation of the property. The power of confiscation of sandalwood oil get vested in the authorities through Section 61A only after the Kerala Forest (Amendment) Act, 2010 when certain specific provisions relating to Sandalwood were inserted through Chapter VI A and Section 47H. The instant case being related to the situation prior to the time of amendment in 2010 was made, the amended provisions do not apply. Hence, the order of confiscation of sandalwood oil is liable to be set aside. The High Court erred in upholding the order of confiscation. The order of confiscation is set aside. [Paras 17, 18, 19] [539-H; 540-A-B; E-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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