Joseph and Another vs Divisional Forest Officer and Another

K.T. Thomas, J.—The short question is this: Can a party, in proceedings for confiscation of vehicles and/or other articles seized under the provisions of the Kerala Forest Act, 1961 (for short ''the Act'') claim that he has a right to cross-examine the officials involved in the seizure. Petitioners in this Original Petition claim such a right on the premise that denial of the opportunity to cross-examine would violate principles of natural justice.

A jeep, while transporting teak timber, was seized by the forest officials on 29th March 1992. Second Petitioner is the registered owner of the jeep and first Petitioner claims ownership of the timber. Divisional Forest Officer, as Authorised Officer under the Act, issued a notice to both the Petitioners calling upon them to show cause why the jeep as well as timber should not be confiscated u/s 61A of the Act on the allegation that the timber was illegally collected from Government forest and that the jeep was used to transport the timber. Reference was made in the said notice to a report submitted by the Forest Range Officer concerned. First Petitioner, instead of submitting his explanation, filed two petitions before the Divisional Forest Officer, one for furnishing copy of the report of the Range Officer and the other for permission to cross-examine the said Range Officer. (He also seeks permission to examine some other officials attached to the forest department, but it is clear that his aim is to get an opportunity to cross-examine those officials). The Divisional Forest Officer furnished a copy of the report sought for, but declined to afford opportunity to cross-examine the forest officials (vide Ext. P-5). Petitioners have, therefore, filed this Original Petition challenging the aforesaid stand of the Divisional Forest Officer.

The only ground urged in the Original Petition is that right to cross-examine is part of the rule of natural justice. "Negation of that right of cross-examination will amount to violation of the rule of natural justice", according to the Petitioners.

In order to consider the tenability of the aforesaid contention, it is necessary to have an idea of the confiscatory proceedings under the Act.

"Forest offence" is defined in Section 2(e) as the offence punishable under the Act or any rule made thereunder. Kerala Forest Produce Transit Rules, 1975 have been formulated as per the provisions of the Act. Rule 3 says that no person shall transport timber or other forest produce unless it is accompanied by a pass or is stamped by a Government stamp. Rule 23 makes contravention of the above rule punishable. Section 27 of the Act says that any person who fells or removes any tree in a reserved forest shall be punished, etc. (Commission of certain other acts are also made punishable, but those aspects are not very relevant in this context). Chapter VIII of the Act deals with Offences, Penalties and Procedure. Section 52 empowers a Forest Officer or police officer to seize timber or other forest produce together with all tools or vehicles, etc., used if there is reason to believe that a forest offence has been committed. Section 61A of the act enjoins on the officer seizing them to produce them before an officer authorised by Government in this behalf. Such an officer is given the power to order confiscation of the property as well as the vehicle used in committing such offence if he is satisfied that a forest offence has been committed in respect of such property. Section 61B lays down the procedure to be followed by the authorised officer ordering confiscation.

At the first instance, the authorised officer has to issue a notice in writing informing the person concerned of the grounds on which confiscation is proposed. At the next instance, an opportunity should be afforded to the person concerned to make a representation in writing against such grounds and at the third instance he shall be given "a reasonable opportunity of being heard in the matter". Authorised officer cannot order confiscation of the vehicle even if he is satisfied that the vehicle was used for committing a forest offence, if it is proved that (1) the vehicle was used for carrying the contraband without the knowledge or connivance of its owner or his agent or the person in charge of the vehicle and (2) that each of them had taken all reasonable and necessary precautions against such use.

The above provisions indicate that the person interested in getting release of the vehicle can make a representation in writing and he could also avail himself of the opportunity of being heard in the matter. If the authorised officer is satisfied that the vehicle was used to commit a forest offence, he can embark on the alternative resort by proving that the vehicle was used without the knowledge of himself or his agent or driver, and that they all adopted reasonable precautions against such use.

Authorised officer under the Act has no magisterial or judicial function. He cannot convict any one of any offence in exercise of powers under Sections 61A and 61B of the Act. Authorised officer can only deal with properties. Even if authorised officer is satisfied that a forest offence has been committed and a vehicle has been used for the said purpose, the owner of the vehicle cannot be prosecuted for the offence as long as he has not committed the offence. It is in the aforesaid scheme that it has to be borne in mind that the Act does not envisage either any oral examination or cross-examination of any person during confiscatory proceedings.

Then the question is whether right to cross-examination is part of the principles of natural justice.

It is apposite in this context to quote the following observations made by Tucker L.J., in Russel v. Duke of Norfolk 1949 All E.R. 109 at 118. "The requirement of natural justice must depend on the circumstances of the case, the nature of enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth". Observations of Harman J. in Byrne v. Kinematograph Renters Society Ltd. (1958) 1 W.L.R. 762 are equally illuminating:

What then are the requirements of natural justice to a case of this kind? First I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more.

A Bench of two Judges of the Supreme Court (Palekar and Alagiriswami, JJ.) in Hira Nath Mishra and Others Vs. The Principal, Rajendra Medical College, Ranchi and Another, , followed the above principle and observed that principles of natural justice are not inflexible and may differ in different circumstances. Their Lordships, did not accept the contention that cross-examination is such a right denial of which would involve infringement of the principles of natural justice. Of course; the context mentioned in the said case is domestic enquiry conducted by a disciplinary authority in an educational institution. A Bench of three Judges of the Supreme Court consisting of S.M. Sikri C.J., A.N. Ray and M.H. Beg JJ. (as they then were) in Kanungo and Company Vs. Collector of Customs and Others, had occasion to consider the question whether right to cross-examination is a limb of the principles of natural justice. The context was confiscation proceedings adopted by customs authorities under the provisions of Sea Customs Act, 1878. This is what the Bench said: "In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the Appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authoritieis". (Vide Kanungo and Company Vs. Collector of Customs and Others, . A Full Bench of this Court has considered a similar contention in the context of assessment proceedings under the Kerala General Sales Tax Act in M.K. Thomas v. State of Kerala 1977 S.T.C. 40, 278. After referring to certain decisions, the Full Bench concluded that "we are satisfied that the Petitioner in these cases cannot claim the right of cross-examination as part of the reasonable opportunity contemplated by Section 17(3) of the Act (KGST Act)". So far as the confiscatory provisions in both the Acts are concerned, there is much similarity between them. Hence a different stand under the Forest Act is not warranted by the provisions. I have already referred to the relevant provisions of the Act, particularly those relating to proceedings for confiscation under Section. 61A of the Act.

No party has a right to cross-examine the officials involved in the seizure of the vehicle or contraband in proceedings for confiscation u/s 61A of the Act. Hence Petitioners cannot complain that the authorised officer has infringed principles of natural justice by refusing to allow the Petitioners to cross-examine the officials.

For the aforesaid reasons, I dismiss this Original Petition.