WWW.LIVELAW.IN CA 4952/2008
1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 4952/2008 WILD LIFE WARDEN
Appellant VERSUS
KOMARRIKKAL ELIAS
Respondent O R D E R
The respondent preferred a civil revision petition forming
the
subject
matter
of
CRP
No.
1435/2000(B),
assailing the order passed in C.M.A. No. 113/1999 by the District Judge, Wayanad, Kalpetta.
It was alleged that the
respondent had unauthorisedly collected and stored elephant tusks and unlicensed gun and other accessories.
A case was
registered as O.R. No. 4/1998 with Sulthanbathery Range. The Jeep bearing registration number KL/12/A/316 belonging to the respondent was seized by the Assistant Wild Life Warden, Sulthanbathery from a workshop where it was kept for
repairs.
A
criminal
proceeding
was
also
initiated
against the respondent under the Kerala Forest Act, 1961 (for brevity, ‘the 1961 Act’).
It is not in dispute that
the respondent has been acquitted in that case. The
Assistant
Wild
Life
Warden,
Sulthanbathery
Signature Not Verified Digitally signed by DEEPAK GUGLANI Date: 2018.05.09 16:49:26 IST Reason:
directed for confiscation of the items seized and the Jeep belonging to the respondent.
The said order was challenged
before the District Judge, Wayanad, who came to hold that
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2 the elephant tusk was not a forest produce, and accordingly remanded the matter to the authority of first instance. The appellate authority, while remanding the matter, opined that there was no clinching evidence on record to arrive at the finding that it was a Government property and further the presumption as contemplated under Section 69 of the 1961 Act could not be attracted. Being respondent single
grieved
preferred
Judge
of
the
by
a
this
civil
High
order
revision
Court
came
of
remand,
and
the
to
hold
the
learned that
the
presumption was not attracted and further the elephant tusk was not a forest produce, for it was not mentioned in the definition as a forest produce or under Section 61A of the 1961 Act. Section 2(f) of the 1961 Act that defines ‘forest produce’, reads as follows:“2(f) (i) the
“forest produce” includesfollowing
whether
found
in
or
brought
from, a forest or not, that is to saytimber, charcoal, wood oil, gum, resin, natural varnish, bark lac, fibres and roots of sandalwood and rosewood; and (ii) the following when found in, or brought from, a forest, that is to say,(a)
trees and leaves, flowers and fruits, and
all other parts or produce not herein before mentioned, of trees; (b)
plants not being trees (including grass,
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3 creepers, reeds and moss) and all parts or produce of such plants; and (c)
silk cocoons, honey and wax;
(d)
peat,
surface
oil,
rock
and
minerals
(including limestone, laterite), mineral oils and all products of mines or quarries). Section
61A
provides
offiers in certain cases. “61A.
for
confiscation
by
forest
It reads as follows:-
Confiscation
by
Forest
Officers
in
certain cases.(1)
Notwithstanding
foregoing
anything
provisions
of
contained
this
Chapter,
in
the
where
a
forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which
is
the
property
of
the
Government,
the
officer seizing the property under sub-section (1) of
section
52
shall,
without
any
unreasonable
delay, produce it, together with all tools, ropes, chains,
boats,
committing authorized
vehicles
such by
the
and
offence, Government
cattle
before in
used
an
this
in
officer behalf
by
notification in the Gazette, not being below the rank
of
an
(hereinafter
Assistant referred
Conservator to
as
the
of
Forests
authorized
officer). (2)
Where an authorized officer seizes under sub-
section (1) of section 52 any timber, charcoal, firewood or ivory which is the property of the Government, or where any such property is produced before an authorized officer under sub-section (1) of this section and he is satisfied that a forest offence
has
been
committed
in
respect
of
such
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4 property, such authorized officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains,
boats
vehicles
and
cattle
used
in
committing such offence.” Learned counsel for the appellant would submit that if Section 61A is appositely read, it would include the ivory as the property of the Government.
According to him,
the High Court has misconstrued the inclusive definition that is engrafted in Section 2(f) of the 1961 Act, which does not include ivory as a forest produce to conclude that there could not have been a seizure or a confiscation.
It
has been brought to our notice that Sections 48 to 51 that dealt
with
repealed
preservation
after
coming
of into
wild
elephants,
force
of
the
have
been
Wild
Life
(Protection) Act, 1972 (for brevity, ‘the 1972 Act’) by the Parliament. Chapter VIII of the 1961 Act that contains Sections 52
to
69
deals
with
seizure
of
property
for
respondent
liable
to
confiscation. Learned that
action
was
counsel taken
the
treating
the
would
elephant
submit
tusk
as
a
forest produce and not as a property of the Government. In this context, we may usefully refer to Section 39(1) of the 1972 Act.
Clause (c) of the said provision
was inserted by Act 44 of 1991 with effect from 2.10.1991.
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5 From a reading of the said provision, it is quite clear that an ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed, shall be deemed to be the property of the State Government, and where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such
animal
shall
be
the
property
of
the
Central
Government. In view of the aforesaid, there cannot be an iota of doubt that elephant tusk is a property of the Government and there is a declaration to that effect under Section 39(1) of the 1972 Act. conclusion
arrived
In view of the aforesaid, the
at
by
the
High
Court
that
the
presumption does not arise under Section 69 of the 1961 Act, is incorrect.
Whether it is a forest produce or not
under Section 2(f) of the 1961 Act, is immaterial.
It is
worth noting here that learned counsel for the respondent submits that he has never claimed the elephant tusk to be his property. In
view
of
the
aforesaid,
the
only
issue
that
remains alive is with regard to the Jeep that was seized from
the
hearing,
custody we
have
of
the
been
appellant.
apprised
that
In the
the Jeep
released in favour of the respondent long back.
course has
of
been
Be that as
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6 it may, as the offence is almost twenty years old, we do not
intend
to
direct
for
recovery
of
obtaining factual matrix of the case.
the
Jeep
in
the
We say so, as no
finding has been recorded that the Jeep was used for or involved in transportation of the subject elephant tusk. The above.
appeal
is
allowed
to
the
extent
indicated
There shall be no order as to costs.
..................CJI [Dipak Misra] ....................J. [A.M. Khanwilkar] ....................J. [Dr. D.Y. Chandrachud] New Delhi; May 8, 2018.
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7 ITEM NO.103
COURT NO.1 S U P R E M E C O U R T O F RECORD OF PROCEEDINGS
SECTION XI-A I N D I A
Civil Appeal No. 4952/2008 WILD LIFE WARDEN
Appellant VERSUS
KOMARRIKKAL ELIAS
Respondent
Date : 08-05-2018 This matter was called on for hearing today. CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y. CHANDRACHUD For Appellant Mr. Nishe Rajen Shonker, AOR Ms. Anu K. Joy, Adv. Mr. Alim Anvar, Adv. For Respondent Mr. K. Rajeev, AOR Mr. Bijo Mathew Joy UPON hearing the counsel the Court made the following O R D E R The appeal is allowed to the extent indicated in the signed order. Pending interlocutory applications, if any, shall stand disposed of.
(Deepak Guglani) (H.S. Parasher) Court Master Assistant Registrar (signed order is placed on the file)
