Forest Act Note

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FOREST LAWS NOTE

FOREST ACT 1961

S.2(f) “forest produce” includes: -

(i) the following whether found in, or brought from, a forest or not, that is to say -

timber, charcoal (porous black form of carbon obtained as a residue when wood or other organic matter

is heated in the absence of air) , wood-oil, gum, resin, natural varnish, bark, lac (Lac is a

resinous secretion obtained from body of a hemipterous insect, Laccifera lacca), 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 hereinbefore mentioned, of trees

(b) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants; and

(c) silk cocoons, honey and wax;

(d) peat (partly decomposed vegetable matter forming a deposit on acidic, boggy ground, dried for use in

gardening and as fuel), surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries.

“forest produce” meaning of – it only includes articles which

are normally found in the forest and which are the

spontaneous and wild growth in the forest – it does not include

products which are the result of plantation, agriculture and

cultivation. 1995 (2) KLT 93 (Aliyakutty Paul v. State of

Kerala)

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S.2(f) - Sandal wood oil will come within the definition of

forest produce’ under S.2(f). - 1993 (1) KLT 886 (SC)

(Forest Range Officer v. Mohammed Ali) (1992 (2) KLT 502

Reversed) 1993 (1) KLT 91 (K. Sreedharan & L. Manoharan,

JJ.) (Khushboo Enterprises v. Forest Range Officer)

Ss. 61-A & 2(d) & (f) -- Sandalwood oil falls within the

definition of forest produce -- Order of confiscation can

be passed under S.61-A. - 2005 (2) KLT 250 (Jj.Subhashan

Reddy & A.K. Basheer) (Standard Essential Oil Industries

v. Forest Range Officer)

Ss.2(f), 61A & 69 - Ivory cannot be termed as a forest

produce - Presumption applies only in regard to articles

defined as forest produce by the Act - In the case of ivory

burden is on the forest officials to prove that it belongs to

the Government. - 2000 (1) KLT 633 (Dr. AR. Lakshmanan

& S. Sankarasubban, JJ.) (State of Kerala v. Thankaraj)

S.2(f),S.27(1)(d),S.69 -- Forest produce -- Licensed

manufacturer of sandal wood oil holding valid licence from

Central Excise -- Whether can possess, handle, transport or

export unaccounted quantity of sandal wood oil without

disclosing source of raw material -- Since sandal wood oil is a

forest produce and Government property, licensee cannot

possess unaccounted and unlimited or excessive quantity of

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finished or purified sandal wood oil without revealing the

source and other details (V. K. Mohanan, J.) (State of Kerala

v. Bharath Booshan Aggarwal) ILR 2009 (1) Ker. 248 : 2009

(1) KLJ 321 : 2009 (1) KLT SN 31.

S.2(g) - “land at the disposal of government” includes all unoccupied land, all temporarily occupied land and all land occupied without permission, whether assessed or unassessed; but does not include land, the properties of land holders such as jenmies, dewaswams, or holders of Inam Lands; and also holdings of land in any way subject to the payment of land revenue direct to Government and all other registered holdings of land in proprietary right.

S.2(i) “river” includes streams, canals, backwaters, creeks (short arm of river) and other channels, natural or artificial.

S.2(k) “timber” includes trees when they have fallen or have been felled, and all wood, whether cut up or fashioned or hollowed out for any purpose or not.

S.2(l) “tree” includes palms, bamboos, stumps, brush-wood (a thick growth of small trees and shrubs and canes.

The term “forest” has not been defined anywhere in the Kerala Forest Act.

The word “forest” must be understood according to its

dictionary meaning. This description covers all statutory

recognized forests, whether designated as reserved, protected

or otherwise for the purpose of s.2(i) of the Forest

Conservation Act. The term “forest land”, occurring in s.2, will

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not only include “forest” as understood in the dictionary sense,

but also any area recorded as forest in the government record

irrespective of the ownership 1997 (2) SCC 267

(T.N.Godavarman Thirumulpad v. Union of India & ors.)

S.3 – Power to reserve forests : The Government may constitute any land at the disposal of the Government a Reserved Forest in the manner hereinafter provided.

S.4 Notification by Government – Whenever it is proposed to constitute any land a Reserved Forest, the Government shall publish a notification in the Gazette –

(a) specifying as nearly as possible, the situation and limits of such land;

(b) declaring that it is proposed to constitute such land a Reserved Forest; and

(c) appointing an officer (hereinafter called the Forest Settlement Officer) to inquire into and determine the existence, nature and extent of any rights claimed, by or alleged to exist in favour of any person in or over any land comprised within such limits, or to any forest produce of such land to deal with the same as provided in this Act.

The officer appointed under cl.(c) of this section shall ordinarily be a person other than a Forest Officer; but a Forest Officer may be appointed by the Government to attend, on behalf of the Government at the enquiry prescribed by this chapter.

S.6 Proclamation by Forest Settlement Officer – When notification has been issued under s.4, the Forest Settlement Officer shall publish in the Gazette and at the headquarters of each Taluk in which any portion of the land included in such notification is situate, and in every town, village and headquarters of Panchayats in the neighbourhood of such land a proclamation -

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(a) specifying, as nearly as possible, the situation and limits of the land proposed to be included within the Reserved Forest,

(b) setting forth the substance of the provisions of s.7,

(c) explaining the consequences which as hereinafter provided will ensure on the reservation of such forest, and

(d) fixing a period not less than three and not exceeding six months from the date of publishing such proclamation in the gazette, and requiring every person claiming any right referred to in s.4 either to present to such Officer, within such period, a written statement specifying or to appear before him within such period and state, the nature of such right and in either case, to produce, all documents and other evidence in support thereof.

2. The Forest Settlement Officer shall also serve a notice to the same effect on every known or reputed owner or occupier of any land included in or adjoining the land proposed to be constituted a Reserved Forest, or on his recognized agent or manager. Such notice may be sent by registered post.

S.7 – Bar of accrual of forest right, prohibition of clearings, etc., during the interval between the publication of notification u/s.4 and notification u/s.19.

S.8 - Inquiry of claims made u/s.6 by Forest Settlement Officer -

S.9 – Powers of Forest Settlement Officer in conducting the inquiry-

S.10 – order on closing inquiry – admitting or rejecting the claims...

S.11 – Appeal to the District Court -

S.12 – S.5 of Limitation Act is applicable to appeals -

S.12A – Appeal to the High Court -

S.13 – Forest Settlement Officer to carry out the appellate court's order

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S.14 – Forest Settlement Officer to report to Government result of inquiry -

Ss.15 to 18 – procedure to be followed by Government in cases of admitted claims -

S.19 – Notification declaring forests reserved – When the proceedings prescribed in the preceding sections have been taken, the Government may publish a notification in the Gazette specifying the limits of the forests which it is intended to reserve and declaring the same to be reserved from a date to be fixed by such notification.

Copies of the notification shall also be published at the headquarters of each taluk in which any portion of the land included in such notification is situate, and in every town, village and headquarters of Panchayats in the neighbourhood of such land.

From the date so fixed, the forest shall be deemed to be a “Reserved Forest”.

Once a notification under s.20 of the Act declaring a

land as reserve forest is published, then all rights in the said

land claimed by any person come to an end and are no longer

available. The notification is binding on the consolidation

authorities in the same way as a decree of civil court - 1996

SC 2432 (State of UP v. Deputy Director of Consolidation

& Ors.)

For proof of notification issued by Government under the

section, production of certified copy of the gazette is sufficient

– on production of certified copy, the court shall presume its

genuineness, the truth of its contents and the competency of

the officer who certified it. - 1983 KLN 107 (Alipilla & ors. v.

State of Kerala)

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In the light of the deeming provision in s.4 of Act 26 of

1971 there is no necessity for the issue of a notification under

s.19 of the Kerala Forest Act in respect of a private forest

vested in the Government under sub-section (1) of s.3 of Act

26 of 1971 to constitute the same as a reserved forest, so

long as it remains in Government 1978 KLT 646 (Range

Officer v. Aishumma)

S.19,S.27 -- It has to be proved that the act complained of

was done in a reserved forest -- Notification in question does

not come under S.57 of the Evidence Act - No notification

under S.19 of the Kerala Forest Act has so far been issued.

But by virtue of S.85(3) of the Kerala Forest Act any

notification issued under the enactments repealed under sub-

s.(1) of the said section shall be deemed to have been

respectively prescribed, made, conferred and issued

thereunder till new rules and enactments are made under the

various sections of the Kerala Forest Act. -----There are

certain notifications which a court is entitled to take judicial

notice of the notification in question is not one coming under

this category. This Court in Pyli v. State of Kerala (1966 KLT

102) has held that it was the duty of the prosecution to have

established one of the ingredients of the offence, viz , that the

act complained of was done in a forest constituted as a

reserved forest by the issue of a notification under S.19 of the

Act and by the publication of the same in the Gazette, either

by the production of the Gazette or by a certified copy of the

notification and adduce evidence of the publication of the

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same in the Gazette and that no other evidence is admissible

in the case. In Executive Officer v. Bharathan (1967 KLT 161)

a Division Bench of this Court, while dealing with notification

coming under S.91 of the Madras Village Panchayats Act,

1950 and S.96 of the Kerala Panchayats Act, 1960, following

the decisions in Pyli v. State of Kerala (1966 KLT 102) and

Chandrasekharan v. State (1966 KLT 638) held that a court is

not entitled to take judicial notice of notifications of this nature

issued by the Government. It is clear from these decisions that

notifications of this nature are not matters for judicial notice,

but for proof. Although the correctness of these decisions was

canvassed before a Full Bench (Executive Officer v.

Devassy 1970 KLT 991), the Full Bench, after referring to

these decisions, viz , Pyli v. State of Kerala (1966 KLT 102),

Chandrasekharan v. State (1966 KLT 638) and Executive

Officers. Bharathan (1967 KLT 161), observed that the first of

these deals with a notification under S.19 of the Kerala

Forests Act, 1961, declaring a particular area to be a reserved

forest; the second deals with a notification fixing a maximum

price under the Essential Commodities Act; and the third with

a notification including a trade within the schedule of

dangerous trades in the Madras Village Panchayats Act. The

notification that came up directly for consideration before the

Full Bench was one bringing a law into force. The Full Bench

held that the provision concerned in the case being in fact a

law in force, it was not for the lower court to hold the contrary

on the ground that the notification had not been tendered and

proved in evidence. It was also observed by the Full Bench in

this case that bringing a law into force seems to be a

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legislative rather than an executive function, and that being

so, a court is bound to take judicial notice of a notification

bringing a law into force just as much as it is bound to take

judicial notice of a statute or a rule made thereunder. While

referring to the three decisions mentioned above, the Full

Bench observed as follows:

"Whether notifications like these are legislative, or albeit

statutory, essentially executive in character is a matter on

which two views seem possible and on which we do not feel

called upon to pronounce, although it would appear that there

is much to be said for the view that the second and third are

legislative in character."

This indicates that a notification of the nature in question dealt

with in Pyli v. State of Kerala (1966 KLT 102) was executive in

character and was one which courts cannot take judicial

notice of under S.57 of the Evidence Act. (S. K. Kader, J.) (A.

M. ANTONY v. FRO) : 1977 KLT 691 : 1977 KLN SN 161.

S.27,S.19 -- Damage or trespass to reserved forest -- It is a

pre requisite condition that there ought to be a notification

under S.19 duly published in the Gazette -- Mode of proof --

Evidence Act, 1872, S.57, S.74, S.81 -- the Court is not bound

to take judicial notice of notification by Government -

(P.Govinda Menon; T.S. Krishnamoorthy Iyer, JJ. ) (1966 KLT

102 : 1966 KLJ 76)

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S.61A,S.52,S.19,S.2(f),S.2(k),S.2(l),S.2(e)-Confiscation of

property -- Jurisdiction of authorised Officer -- S.61A, whether

applicable, if offences were committed outside notified

reserved forest -- Held, ‘forest offence’ which confers

jurisdiction for confiscation need not be committed in a forest

notified under S.19 of the Act, but need be only in respect of a

‘timber, charcoal, firewood or ivory’, which is the property of

the Government - The Kerala Forest Act has not defined

‘forest’ is not the crucial aspect to be looked into in examining

the scope and ambit of confiscation proceedings

contemplated under S.61A to 61D of the Act. (S.S.S. J. )

(Conservator of Forests, Kollam v. T. M. Sukumaran) (2010

(3) KLT 629 : ILR 2010 (4) Ker. 146)

S.19 -- Proof of notification issued by the Government under

the Section -- Production of certified copy of the gazette

whether sufficient - Absence of evidence to show copies of the

notification were published as required whether invalidates the

prosecution -- Indian Evidence Act – S.114. - A notification

issued by the Government under S.19 of the Act can be

proved by production of the original notification or a copy

thereof certified by the Head of the Department. On

production of certified copy, the court shall presume its'

genuineness, the truth of its contents and the competency of

the officer who certified it. Publication in the gazette can be

proved by producing copy of the gazette publication or in other

appropriate way. (U. L. Bhat, J.) (Alipilla and Others v. State)

(1983 KHC 346 : 1983 KLN 107)

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S.19 -- Private forest vested in Government under sub-s.(1) of

S.3 to be deemed as reserved forest constituted under the

Kerala Forest Act, 1961 -- No necessity for the issue of

notification under S.19 of the Kerala Forest Act in respect of

Private forest vested in Government -- Private Forests

(Vesting and Assignment) Act, 1971 (Kerala), S.3, S.4 (S. K.

Kader,J.) (Range Officer v. Aishumma) (1978 KLT 646 : 1978

KLT SN 78)

S.19,S.85(3) -- Notification regarding reserved forest issued

under Travancore Forest Act, 1068, is deemed to be a

notification under S.19 of Kerala Act -- Interpretation and

General Clauses Act, 1125 (T.C.), S.23 - A notification issued

under the Travancore Forest Act is a public document and

under S.77 of the Evidence Act, a certified copy may be

produced in proof of it. The Chief Conservator of Forests as

the Head of the Department is an officer competent to certify

to the correctness of the copy in view of S.78 and 79 of the

Evidence Act. (P. Janaki Amma, J.) (STATE OF KERALA v.

ADICHAN SASI) 1975 KLT 839

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S.27. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests –

(1) Any person who-

(a) does any act prohibited by Section 7; or

(b) sets fire to a Reserved Forest or kindless leaves burning any fire in such manner as to endanger the same; or

(c) sets fire to jungles or forests other than Reserved Forest and a land proposed to be constituted a Reserved Forest without tak-ing precautionary measures to prevent the spread of fire into Reserved Forest and land proposed to be constituted a Re-served Forest; or

(d) knowingly receives or has in possession of any forest produce illicitly removed from a Reserved Forest or a land proposed to be constituted a Reserved Forest; or

(e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest-

(i) cultivates or clears or breaks up any land for cultivation or for any other purpose or puts up any shed or other structures or plants trees; or

(ii) damages, alters or removes any wall, ditch, embankment, fence, hedge or railing; or

(iii) cuts or fells any trees or girdles (kill a tree or branch by cutting through the bark all

the way round), marks, lops (cut off a branch from a tree), taps, uproots, burns, saws, con-verts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;

(iv) trespasses or pastures cattle or permits or causes cattle to tres-pass; or

(v) quarries stones, burns lime or charcoal or collects or subjects to any manufacturing process or removes any forest produce; or

(vi) causes any damage by negligence in felling any tree, reed or cutting or dragging any timber;

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shall be punished with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than one thousand rupees but may extend to five thousand rupees in addi-tion to such compensation for damage done to the forest as the convicting Court may direct to be paid].

(2) 6[ x x x x]

(3) If any agricultural or other crop is grown or any shed or other structure is put up in contravention of clause (e) of sub-section (1) and any person is convicted for that offence, such crops, sheds or other structures shall be liable to confiscation by order of the convicting Magistrate.

(4) Nothing in this section shall be deemed to prohibit-

(a) any act done in accordance with any rule made by the Govern-ment or with the permission in writing of the Chief Conservator of Forests, Conservator of Forests or the Divisional Forest Officer or of an officer au-thorised by any of them to grant such permission; or

(b) the exercise of any right continued under Section 17 or created by grant or contract in the manner described in Section 22:

Provided that this section shall not be held to interfere with such working of the forest as may be ordered by the Chief Conservator of Forests, Conser-vator of Forests or the Divisional Forest Officer.

S.27 -- In forest offence, approximate market value of the

forest produce should be shown in the mahazar and in the

relevant records produced before Court -- Directions issued (j.

K.T.S.) 2009 (4) KLT 58.

S.27(1)(e)(iii) -- Cutting and transporting Anjili tree from

reserved forest -- Whether any offence made out -- Contention

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that accused is a Hillman and trees were cut from Hillman

settlement area -- Held, trees cut from Hillmen settlement

area, comes under reserved forest and accused is not a

member of a tribe or tribal community specified as Scheduled

Tribes, hence not a Hillman -- Offence made out -- Hillmen

Rules, 1964 (Kerala), R.2(e), R.13 -- Criminal Procedure

Code, 1973, S.482 - Though under the Kerala Hillmen Rules,

1964 a Hillman is provided the right to cultivate the specified

property as a licensee, the land is not alienable and under

R.13 Hillman has no right to get patta or is entitled to claim

any right except cultivation of the lands, in spite of the long

period of his occupation. (M. Sasidharan Nambiar, J.) (Ismail

v. Deputy Range Officer, Plachery and Another) (2010 (1)

KHC 93).

S.27(1)(g) -- It is not the value of the article involved, but the

nature of the offence that should be considered. The offence,

is a serious one, indeed.

Thomas Wolfe said:

"Some things will never change. The voice of forest water in

the night, a woman's laughter in the dark, the clean bard rattle

of ravel, delicate web of children's voices in bright air, the

glitter of sunlight on roughened water, the glory of the stars.

All things belonging to the earth will never change the leaf, the

blade, the flower, the wind that cries and sleeps and wakes

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again, the trees whose arms clash & tremble in the dark".

But, many things have changed. The glitter of sunlight is

shrouded in industrial smogs, the leaves, the blades and

grass and their ethereal fragrance gone into memories of

yester-years. The forests are wantonly destroyed. The sweet

air of dawn has been conquered by industrial fumes. The

streams die hushing their ripples of laughter for ever and

thinning into a trickle.

The Forest Act, is a piece of legislation in this direction and it

makes destruction of forests a serious offence. The legislative

perception must be enforced, with seriousness of purpose. So

viewed, sentence is not harsh at all. (Sankaran Nair, J.)

(MAJEED v. STATE OF KERALA) (1988 KHC 227 : 1988 (1)

KLT 529)

Evidence Act 1872, S.25 - Embargo in S.25 if can be

applied to the statements made to a Forest Officer or

Range Officer exercising powers under the Wild Life

(Protection) Act 1972. - Neither the Kerala Forest Act nor

the Wild Life Protection Act conferred all the powers of police

officers on the forest officers or wild life protection force even

though some of the powers have been conferred on them to

be exercised in specified contexts. It is therefore clear that the

embargo contained in S.25 of the Evidence Act cannot be

applied to the statements made to a Forest Officer or Range

Officer etc. (AIR 1970 SC 940 Relied on) 1989 (1) KLT 871

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(K.T. Thomas, J.) (Forest Range Officer v. Aboobacker

Offences under the Wild Life (Protection) Act 1972 -

Evidence of Forest Officers if can be made the basis of

conviction without corroboration by independent

witnesses- The rule of corroboration is a principle of

prudence which should not be applied rigidly or punctiliously.

If a crime is committed in such a manner that no other person

could normally have been present in the vicinity, insistence on

the rule of corroboration in such case would maul the cause of

justice because such insistence would only help the

perpetrator to go scot free. - Forest is an area where human

activities are scanty except the clandestine adventures of

poachers. The invaders of forest and wild life usually take

care that their poaching techniques go unnoticed by others

including wild animals. They adopt devices to keep their

movements undetected. Hence it would be pedantic to insist

on the rule of corroboration by independent evidence in proof

of offence relating to forests and wild life. - 1989 (1) KLT 871

(K.T. Thomas, J.) (Forest Range Officer v. Aboobacker)

S.28 – suspension of rights in reserved forests when there is fire caused by willful or negligent act -

S.29 – Persons bound to assist Forest Range Officer – (1) Every person who exercise any right in a Reserved Forest or who is permitted to take any forest produce from, or to cut and remove timber, or to pasture cattle in such forest, and every person who is employed by any such person in such forest, and every village officer or person in any village contiguous to such forest who is employed by the Government shall be bound to furnish without

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unnecessary delay to the nearest Forest Officer or Police Officer, any information he may possess respecting the occurrence of a fire in or near such forest or the commission of, or intention to commit any forest offence, and shall forthwith take steps, whether required by any Forest Officer or Police officer or not -

(a) to extinguishing fire in such forest........

2. Any person who being bound so to do without lawful excuse, the burden of proving which shall be upon such person, fails -

(a) to furnish without unnecessary delay to the nearest Forest Officer or police officer any information required by sub-section (1)

(b).............

Shall be punished with fine which may extend to two hundred rupees.

S.31 – Power to close land against pasture - whenever fire is caused willfully or negligently in any land to which all or any of the rules made under s.30 have been extended the Government may notwithstanding that a penalty has been inflicted under that section, direct that such land be closed against pasture for such period as they think fit:

Provided that an area, sufficient in extent and in a locality reasonably convenient, is left open for the use of persons having rights of pasture in such land.

32 – Penalties – whoever pastures cattle or permits or causes cattle to trespass in land closed under s.31 shall be punished with imprisonment for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both.

S.39 – Power to make rules to regulate trade and transit of timber and other forest produce -..................................

S.40 -Penalty for breach of rules made under s.39 – (1) The Government may by such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to six months, or fine which may

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extend to five hundred rupees or both.

(2) Such rules may provide that, in cases where the offence is committed after making preparation for resistance to the execution or any law or any legal process, or where the offender has been previously convicted of a like offence, the convicting Magistrate may inflict double the penalty prescribed for such offence.

S.41 – Holders of passes to produce the same for inspection - (1) The holder of every pass issued under rules framed under s.39 shall, while such timber or forest produce is in transit, be bound o produce the same for inspection on being required to do so by any Magistrate or Forest or Police Officer.

(2) Whoever infringes the provisions in sub-section (1) shall be liable to imprisonment which may extend to one month or fine which may extend to one hundred rupees or both.

S.42 – Certain kinds of timber to be deemed property of Government until title thereto proved, and may be collected accordingly – All timber, found adrift, beached, stranded or sunk, all timber bearing marks which have not been registered under s.39 or on which the marks have been obliterated, altered or defaced by fire or otherwise, and in such areas as the government direct, all unmarked timber shall be deemed to be the property of government unless and until any person establishes his right and title thereto as provided in this chapter.(Ch.VI)

Such timber may be collected by any Forest Officer or other persons entitled to collect the same by virtue of any rule made under s.47 of this Act and may be brought to such station as the Forest Officer may from time to time, notify as stations for the reception of drift timber.

The Government may, by notification in the Gazette, exempt any class of timber from the provisions of this section, and may in a like manner withdraw such exemption.

S.47 – Power to make rules and prescribe penalties - (1) The

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Government may, from time to time make rules to regulate the following matters, namely : -

(a) the salving, collection and disposal of all timber mentioned in s.42;

(b) the use and registration of boats used in salving and collecting timber;

(c) the amounts to be paid for salving, collecting, moving, storing and disposing of such timer;

(d) the use and registration of hammers and other instruments to be used for making such timber.

(2) The Government may prescribe, as penalties for the contravention of any rules made under this section, imprisonment for a term which may extend to six months, or fine which may extend to five hundred rupees, or both.

S.52 – Seizure of property liable to confiscation - (1) When there is reason to believe that a forest offence has been committed in respect of any timber or other forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any Forest officer or Police Officer.

Explanation – the terms 'boats' and 'vehicles' in this section, s.53, s.55, s.61A and s.61B shall include all the articles and machinery kept in it whether fixed to the same or not.

(2) Every officer seizing any property under sun-section (1) shall place on such property or receptacle, if any, in which, it is contained a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has bee made:

Provided that, when the timber or forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the forest Officer makes, as soon as may be, a report of the circumstances to his official superior.

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Ss.52, 61A & 68 -- The vehicle liable for confiscation may

be released on payment of value of vehicle and not

otherwise -- Value of forest produce confiscated is

irrelevant and accused has no legal right to insist that the

vehicle be released on payment of fine in lieu of

confiscation - 2005 (2) KLT 456 (j. K.S.R) (Joy Joseph v.

D.F.O., Kottayam)

S.52(3) - A vehicle seized for alleged involvement in

commission of forest offence cannot be released on

payment of fine alone in lieu of confiscation - Foundation

for action in terms of S.52(3) is the value of the article

liable for confiscation and not the value of the forest

produce. - 2005 (1) KLT 34 (SC) (Jj.Arijit Pasayat & S.H.

Kapadia) (State of Jharkhand v. Govind Singh)

S. 52 - There need not be simultaneous seizure of the

timber or forest produce and vehicles etc. - 2002 (3) KLT

641 (Jj.S. Sankarasubban & R. Bhaskaran ) (D.F.O.,

Kothamangalam v. Sunny Joseph)

S.53 – Power to release property seized under s.52 - Any Forest Officer of a rank not inferior to that of a Ranger, who or whose subordinate has seize any tools, boats, vehicles or cattle under the provisions of s.52, may release the same on the execution by the owner thereof a bond for the production of the property so released, if and when so required before the

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Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

S.54 -Procedure thereupon - Upon receipt of any such report, the Magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the property according to law.

S.55 – Timber, forest produce, tools, etc., when liable to confiscate – (1) When any person is convicted of a forest offence, all timber or other forest produce in respect of which such offence has been committed and all tools, ropes, chains, boats, vehicles, cattle or any other article used in committing such offence shall be liable, by order of the convicting magistrate to confiscation.

(2) Such confiscation may be in addition to any other punishment prescribed for such offence.

S.56 – Disposal on conclusion of trial for forest offence, of produce in respect of which it was committed - When the trial of any forest offence is concluded any timber or other forest produce in respect of which such offence has been committed shall, if it is the property of the Central or State Government or has been confiscated, be taken possession of by or under the authority of the Divisional Forest Officer; and in any other case it may be disposed of in such manner as the Court may order.

S.57 – Procedure when offender is not known – When the offender is not known or cannot be found, the Magistrate, if he is of opinion that offence has been committed, may, on application in this behalf order the property in respect of which the offence has been committed to be confiscated and taken possession of by or under the authority of the Divisional Forest Officer, or to be made over to any person whom the Magistrate considers to be entitled to the same.

Provided that no such order shall be made until the expiration of one month from the date of seizing such property or without hearing the person, if any, claiming any right thereto, and the evidence, if any, which he may produce in support of his claim.

22

The Magistrate shall cause a notice of any application under this section to be served upon any person who, he has reason to believe, is interested in the property seized, or shall publish such notice in the manner he deems fit.

S.58 – Procedure as to perishable property seized under s.52 - (1) Notwithstanding anything hereinbefore contained -

(a) The Magistrate may direct the sale of any property seized under s.52, which is subject to speedy and natural decay; and

(b) If in the opinion of the officer seizing such property, it is not possible to obtain the orders of the Magistrate under clause (a) in time, such officer may sell the property himself, remit the sale proceeds into the nearest Government treasury, and make a report of such seizure, sale and remittance to the Magistrate and thereupon the Magistrate shall take such measures as may be necessary for the trial of the accused.

(2) The Magistrate may deal with the proceeds of the sale of any property held under clause (a) or clause (b) of sub-section (1) in the same manner as he might have dealt with the property if it had not been sold.

S.59 – Appeal from orders under ss.55, 56 & 57 – The officer who made the seizure under s.52 or any of his official superiors or any person claiming to be interested in the property so seized, may, within two months from the date of any order passed under s.55, s.56 or s.57, present an appeal therefrom, which may be disposed of in the manner provided by s.520 of Cr.P.C. 1898.

S.60 – Property when to vest in Government - When an order for the confiscation of any property has been passed under s.55, s.56 or s.57 and the period limited by s.59 for presenting an appeal from such order has elapsed, and no such appeal has been presented, or when on such an appeal being presented the Appellate Court confirms such order in respect of the whole or a portion of such property, such property or portions, as the case may be, shall vest in the Government free from all encumbrances.

23

S.61 – Saving of power to release property seized - Nothing hereinbefore containing shall be deemed to prevent a Forest Officer not below the rank of an Assistant Conservator of Forest holding charge of a Forest Division from directing at any time the immediate release of any property seized under s.52 and the withdrawal of any charge made in respect of such property.

S.61A – Notwithstanding anything contained in the foregoing provisions of this chapter, 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 s.52, shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officers authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer).

(2) When an authorised officer seized under sub-section (1) of s.52 any timber, charcoal, firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under sub-section (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised 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.

S.61A(2),S.61B(2) -- In order to protect such public property

and to ensure that offences against such property are not

committed, very wide powers are given to authorised officers,

under S.61A of the Act -- Strict and absolute liability is called

for in respect of violation of provisions of the Act, if the forest

wealth of the country is to survive, which only has been

implemented by S.61A, S.61B of the Act -- Impugned

provisions is not arbitrary but constitutionally valid - The

preservation of forests and its wealth is most essential for the

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welfare of humanity. It should be preserved in public interest.

In Part IVA - 'Fundamental Duties', in the Constitution of

India, Art.51A(g) enjoins, that it shall be the duty of every

citizen of India, to protect and improve the natural

environment including forests, lakes, rivers etc. (S. Siri Jagan,

J.) (Salomy Ithapiri v. State of Kerala) 2010 (4) KLT 725

Forest Act 1961 (Kerala), S. 61A( 2) - The power of

confiscation u/S.61A(2) is available only when the

authorized officer is satisfied that the alleged offence

committed is one in respect of the property of the

Government of Kerala. (J. Thomas P. Joseph) (Moideen v.

Assistant Wild Life Warden) - (2010 (4) KLT 41)

Forest Act 1961 (Kerala), Ss.54 & 61A - Disposal of

property in forest offence - Disposal need not be after

physical production of timber before Magistrate - Can be

done after obtaining necessary orders from Magistrate

under S.54. - 2006 (1) KLT 699 reversed. - (State of Kerala

v. Ancy Phillip) - 2008 (3) KLT 477 (SC)

S.61A - Power of confiscation of vehicle - Nature and

ambit of - Value of contraband goods compared to the

value of the vehicle is not a relevant factor. (State of

Kerala v. Sukumara Panicker) - 1987 (2) KLT 341 (F.B.)

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Ss.61B, 61C, D, E, F – notice, revision, appeal, etc.

S.62 – Penalty for counterfeiting of defacing marks on trees and for altering boundary marks - Whoever with intent to cause damage or injury to the public or any person or to cause wrongful gain as defined in the Indian Penal Code, -

(a) knowingly by counterfeits upon any timber or standing tree a mark used by Forest Officer to indicate that such timber or tree is the property of the Government or some person, or that it may lawfully be cut or removed by some person, or

(b) unlawfully affixes to any timber or standing tree a mark used by Forest Officers; or

(c) alters, defaces or obliterates any mark placed on any timber or standing tree by or under the authority of a Forest Officer, or

(d) alters, moves, destroys or defaces any boundary mark of any forest or any land to which any provisions of this Act apply,

shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

S.63 - Power to arrest without warrant – (1) Any Forest Officer or Police Officer may, without orders from a Magistrate and without a warrant, arrest any person reasonably suspected of having been concerned in any forest offence, if such person refuses to give his name and residence, or gives his name or residence which there is reason to believe to be false, or if there is reason to believe he will abscond.

(2) Any person arrested under this section shall be informed, as soon as may be, of the grounds of arrest and shall forthwith be taken or sent to the nearest police station and the officer-in-charge of such station shall

26

thereupon act according to law.

S.64 – Power to release on bonds persons arrested under s.63 – Any Forest Officer of a rank not inferior to that of a Ranger who or whose subordinates have arrested any person under the provisions of s.63 may release such person on bail on his executing a bond to appear, if and when so required, before the Magistrate have jurisdiction in the case, or before the officer-in-charge of the nearest police station.

S.65 – Punishment for wrongful seizure or arrest - Any Forest Officer or police officer who vexatiously and maliciously arrests any person, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

S.66 – Power to prevent commission of offence - Every Forest Officer and police officer shall prevent and may interfere for the purpose of preventing the commission of any forest offence and shall have power to evict all encroachers and squatters from Reserved Forests or other lands under the control of the Forest Department and to confiscate or demolish any sheds or other structures put-up in such lands. Forest Officers shall have the power of the police officers for the purposes of investigation or prevention of forest offences and the collection of evidence.

S.67 – Operation of other laws not barred - Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes a forest offence or from being liable under such other law to any higher punishment or penalty than that provided by this Act or the rules made thereunder.

Provided that no person shall be prosecuted and punished twice for the same offence.

S.68 – Power to Compound offences - (1) Any forest officer not below the rank of an Assistant Conservator of Forests may accept from any person reasonably suspected of having committed any forest offence other than an offence under s.62 or s.65, a sum of money by way of compensation for the offence which may have been committed and where any property has been

27

seized as liable to confiscation, may release the same on payment of the value thereof as estimated by such offence or confiscate such property to the Government.

(2) On the payment of such sum of money or such value or both, as the case may be, to such officer, the accused person, if in custody, shall be discharged, the property seized shall be released and no further proceedings, shall be taken against such person or property.

S.68 -- Compounding of offence - there is nothing in S.68 of

the Act which takes away the power of the Officer to

compound the offence even when the case is pending before

a Court -- In case the offence is compounded, the Officer

compounding the offence has to give a report to the Court

where the case is pending, upon which the case is to be

closed and the accused if he is in custody is to be discharged -

(Thomas P. Joseph, J.) (Mathew N. J. v. State of Kerala and

Others) (2011 (3) KLT 1 : ILR 2011 (3) Ker. 45)

S.69 – Presumption that timber or forest produce belongs to Government – When, in any proceedings taken under this Act, or in consequence of anything done under this Act, a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State Government, as the case may be, until the contrary is proved.

S. 69 - S.69 requires to draw a presumption that the forest

produce is belonging to the Government and thus casts the

burden on the person, against whom proceedings initiated

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including prosecution, to establish the contrary. The very

purpose of S.69 itself is the protection of the forest produce. -

2009 (1) KLT SN 29 (C.No. 31) (J.V.K. Mohanan) (State of

Kerala v. Bharath Booshan)

S.73 – Forest Officers deemed to be public servants-

S.74 – Indemnity for acts done in good faith - No suit or criminal

prosecution or other proceedings shall lie against any public servant for any

act done, or omitted or ordered to be done, in good faith, in pursuance of

this Act.

S.74 -- Without establishing the requirements under S.74,

accused cannot avail of benefit under S.74. - As per S.74 of

the Act, no criminal prosecution will lie against any public

servant for any act done by him in good faith, in pursuance of

the Act. A reading of S.73 of the Act would show that all forest

officials are public servants within the meaning of Indian Penal

Code. Hence petitioner being a ‘Ranger’, working in the Forest

Department is a public servant covered by S.74 of the Act.

Without establishing the requirements under S.74 of the Act,

accused cannot avail of benefit under the provision. -

Criminal P.C. 1973, S.197 -- A ranger of the forest

department does not fall under the category of public

servants and cannot claim protection under S.197 since

his appointing authority is Chief Conservator of Forests

and can be removed from his office by him. - appointing

authority of Rangers and Deputy Rangers is the Chief

Conservator of Forest. Petitioner can therefore be removed

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from his office by the Chief Forest Conservator and no

sanction from Government is necessary to do so - 2005 (4)

KLT 339 (j. Hema) ( Pradeepkumar v. State of Kerala )

Kerala Private Forests (Vesting and Assignment) Act 1971(An Act to provide for the vesting in the Government of private forests in the State of Kerala

and for the assignment thereof to agriculturists and agricultural labourers for cultivation.

S.2(f) - “private forest” means -

(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Reorganisation Act, 1956 -

(i) any land to which the Madras Preservation of Private Forests Act, 1949, applied immediately before the appointed day excluding –

(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act 1963

(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

Explanation - Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospital, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;

(C) Lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and

(D) sites of buildings and lands appurtenant to and necessary for the

30

convenient enjoyment or use of, such buildings;

(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas,

(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government including waste lands which are enclaves within wooded areas.

Explanation – For the purpose of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shurbs.

S. 3 – Private forests to vest in Government – (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other documents, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.

(2) Nothing contained in sub-section (1) shall apply in respect of so much extend of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act 1963 or any building or structure standing thereon or appurtenant thereto.

Explanation - For the purpose of this sub-section, “cultivation” includes cultivation of trees or plants of any species.

(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under s.82 of the said Act.

(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or sub-

31

section (3), be deemed to be lands to which chapter III of the said Act is applicable and for the purpose of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act.

S.4 – Private forest to be deemed to be reserved forests – All private forests vested in the Government under sub-section (1) of S. 3 shall, so long as they remain vested in the Government, be deemed to be reserved forest constituted under the Kerala Forest Act 1961, and the provisions of that Act shall, so far as may be, apply to such private forests.

Madras Prevention of Private Forests Act 1949

S. 1. (2) – It applies -

(i) to private forests in the districts of Malabar and South Canara having a contiguous area exceeding 100 acres.

Explanation – Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14 th

December, 1949 by an owner or any person claiming under him.

(ii) to forests situated in estates as defined in the Madras Estates Land Act 1908 in the Malabar District.

(iii) to private forests situated in other areas in the Malabar District and having a contiguous area exceeding 100 acres which may be declared by the State Government to be forests for the purposes of this Act by notification in the Kerala Government Gazette.

but does not apply to reserved forests constituted under the Madras Forest Act 1882 and lands at the disposal of the Government as defined in that Act.

Explanation – A private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof, trees or shrubs are felled with or without the permission of the District Collector, or

32

lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances.

S.2. (a) – 'forest' includes waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be a forest by notification in the Kerala Government Gazette.

Explanation – For the purpose of this clause, 'communal land' means any land of the description mentioned in sub-clause (a) of clause 16 of s.3 of the Madras Estate Land Act, 1908.

Forests (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Kerala)

An Act to provide for the vesting in the Government of ecologically fragile lands in the State of Kerala and for the management of such lands with a view to maintaining ecolo-

gical balance and conserving the bio-diversity.

S.2 (b) "ecologically fragile lands" means,-

(i) any forest land or any portion thereof held by any person and lying con-tiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation, and

(ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under section 4;

(c) "forest" means any land principally covered with naturally grown trees and under growth and includes any forest statutorily recognized and de-clared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, areacanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings;

33

S.3 - Ecologically fragile land to vest in Government - (1) Notwithstand-ing anything contained in any other law for the time being in force, or in any judgement, decree or order of any court or tribunal or in any custom, con-tract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extin-guished form the said date.

(2) The lands vested in the Government under sub-section (1) shall be noti-fied in the Gazette and the owner shall be informed in writing by the cus-todian and the notification shall be placed before the Advisory committee constituted under section 15 for perusal.

S.4 - Power to declare ecologically fragile land - (1) The Government shall have power to declare, by notification in the Gazette, any land to be ecologically fragile land on the recommendation of the Advisory Committee appointed for the purpose under section 15 of this Act.

(2) No declaration under sub-section (1) shall be made without giving the owner a notice of thirty days for being heard.

(3) No person shall change the legal or physical status or ownership of the land proposed to be declared as an ecologically fragile land after the notice issued under sub-section (2).

(4) With effect from the date of declaration of any land as ecologically fragile land under sub-section (1), the ownership and possession of the land or any other form of right over it, shall subject to the provisions of this Act, stand transferred to and vested in the Government free form all encumbrance and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date.

34

S.5 - Ecologically fragile land to be deemed to be reserved forests - Subject to the provisions of section 16, all ecologically, fragile lands vested in Government under section 3 and section 4 shall be deemed to be re-served forests constituted under the Kerala Forest Act, 1961 (4 of 1962), and the provisions of that Act shall, so far as may be, apply to such lands.

S.2(b)(1)(2),S.3,S.4 -- No specific notification is required to de-

clare a land as ecologically fragile land, if such land automati-

cally vests with Government as per the provisions of the Act -

By reason of S.(i) any portion of forest land lying contiguous to

the reserved forest or vested forest, is also statutorily treated as

ecologically fragile land. - Over and above the ecologically

fragile land, which is as such, because of its lie, Clause (2) of

S.2(b) enables the Government to declare any other land also

as ecologically fragile land. Only in respect of such land, the

declaration and notification as provided for in S.4 is required be-

fore it being vested. In other words, the land which is statutorily

meant as ecologically fragile land does not need a further dec-

laration by way of notification. The contention to the contra from

the counsel cannot, therefore, be accepted. (K. A. Abdul

Gafoor, J.) (Murukankutty v. Amarnath Shetty) .. 2007 (1)

KHC 29 : 2006 (3) KLJ 891

S.2(c),S.2(d),S.3 -- There can be two categories or classes of

lands which can be called ecologically fragile lands within the

meaning of the Act – Enumerated - It can be seen from the

above that under S.2(b) (i) lands falling within the description

contained thereunder become ecologically fragile lands by

virtue of the operation of the law, though such an operation of

law itself depends upon the existence of certain facts. On the

other hand, sub-section (ii) of S.2(b) envisages that any land

35

can be declared to be as an ecologically fragile land by the

Government by notification in the Gazette under S.4. (Jj.

Chelameswar, & P. R. Ramachandra Menon) (State of Kerala v.

Kumari Varma) - 2011 (1) KHC 502 : 2011 (1) KLT 1008

Notwithstanding anything contained in any other law for the

time being in force, or in any judgment, decree or order of any

court or tribunal or in any custom, contract or other documents

with effect from the date of commencement of the Act, the

ownership and possession of all ecologically fragile lands held

by any person or any other form or right over them shall stand

transferred to and vested in the Government free from all

encumbrances and the right, title and interest of the owner or

any other person thereon shall stand extinguished from the

said date, therefore by virtue of sub-s.(1) of S.3 of the Act,

vesting takes place, by operation of law on 2nd June, 2000 --

S.3 of Act 21 of 2005 (Amendment) Act (K.S.R. J.) (A. K.

Balan v. P. K. Kesavan and Another) - ILR 2006 (3) Ker.

629 : 2006 (4) KLT 100

S.6 - Demarcation of boundaries - (1) Within such time as may be pre-scribed, after the coming into force of this Act or the notification under sub-section (1) of section 4, as the case may be the custodian shall cause to de-marcate the boundaries of ecologically fragile lands vested in the Govern-ment under section 3 or section 4.

(2) Notwithstanding the pendency of an application under section 10 before the Tribunal, the custodian may, if he is satisfied that any land is vested in the Government under section 3 or section 4, demarcate or cause to de-marcate the boundaries thereof.

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Kerala Forest (Regulation of Timber Transit by Waterways) Rules, 1965

(General Rules applicable to all water ways, natural or artificial in state)

R.4 – removal of trees fell, sank or lies floating in any waterway so as to cause obstruction the passage of any boat, etc. within 24 hours.

R.6 Magistrate to issue orders for removal of obstruction on information from Forest, Police, Revenue, PW officers... prosecution, removal, detention, sale, etc. of such tree....

R.20 – infringement of provisions of Rr.4, 8, 10, 11, 12, 13, 14 and 15 – imprisonment upto six months or fine upto Rs.500/- or both for first offence if the offence is committed after making preparation for resistance of the execution of any law or any legal process. Double the punishment for subsequent offences.

Kerala Forest (Salving, Collection and Disposal of Drift and Stranded Timber) Rules – 1995

R.2 All Officers of the Forest, Police, Public Works and Revenue Departments shall collect any timber which is deemed to be the property of Government under s.42 of Forest Act.......

R.3. All boats used in salving and collecting drift and stranded timber shall be boats registered as required under Canals and Public Ferries Act.....

R.5 – Registration of hammers used for marking timber with the DFO....

R.6 – Report to DFO regarding collection...

R.7 – Notice to claimants

R.10 – Whoever contravenes any of the provisions of these rules shall be punished with Imprisonment for a term which may extend to six months or with fine which may extend to Rs.500/- or both.

37

Forest Produce Transit Rules 1975

R.3 – Import, export and transport of timber and other forest produce – (1) No person shall;

(I) import timber or other forest produce into the State; or

(II)export timber or other forest produce from the State; or

(III) transport timber or other forest produce by land, by rail, or by water in any part of the State, unless such timber or other forest produce is accompanied by a pass required by these rules, and unless the timber is stamped by a Government stamp or a stamp registered as laid down in r.11.

2. Government may by notification in the Gazette exempt any species of trees or any area within the State from the operation of sub-rule 1 for the purpose of giving incentive to grow trees on private lands...............

R.23 – Penalties – (1) Whoever commits any contravention of any of the provisions of these rules shall on conviction by a Magistrate be punished with imprisonment for a term which may extend to six months or fine which may extend to Rs.500/- or both.

Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules – 1995.

R.3 – Trees to be absolute property of Government – All Trees standing on lands temporarily or permanently assigned, the right of the Government over which has been expressly reserved in the deed of grant or order of assignment of such land, shall be absolute property of Government.

38

R.4 – Sanction of the DFO to fell, lop, etc. of trees – No person shall fell, lop, cut or maim or otherwise maltreat any tree which is the property of the Government without prior sanction in writing granted by the DFO having jurisdiction over the area........

R. 7 – Penalties - Whoever commits an infringement of the provisions in Rule 4 shall, on conviction before a Magistrate, be liable to imprisonment for a term which may extend to six months or fine which may extend to Rs.100/- or both.

Kannan Devan Hills (Resumption of Lands) Act, 1971 (Kerala)

S.11 - Trespass after appointed day - (1) It shall not be lawful for any per-son to enter upon any land, the possession of which has vested in the Gov-ernment under sub-sect ion (1) of section 3, so long as it is in the posses-sion of the Government, with intent, to occupy such land or to cut or remove any trees standing thereon, without the permission of the Collector or any of-ficer authorised by the Collector in that behalf.

(2) Without prejudice to any penalty under sub section (4), the Collector or any officer authorised by him in that behalf may summarily evict any person who contravenes the provisions of sub-section (1) and may confiscate or de-molish any building, shed or other structures put up on such land.

(3) Notwithstanding anything contained in any other- law for the time being in force, the Collector or the officer authorised under sub-section (2) may, for the purposes of that sub-section, use such force as he deems necessary.

(4) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

S.16 - Cognisance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), all offences pun-ishable under this Act shall be cognisable.

39

Kerala Preservation of Trees Act 1986

S.2 (e) - “tree” means any of the following species of trees, namely: -

Sandalwood (Santalum Album), Teak (tectona grandis), Rosewood (dalbergia latifolia), Irul (xylia xylocarpa), Thempavu (Terminalia tomantosa), Kampakam (Hopea parviflora), Chempakam (Michelia chempaca), Chadachi (Grewia tiliaefolia), Chandana vempu (Cedrela toona), Cheeni (Tetrameles nudiflora)

S.3. Authorised officers and appellate authorities - (1) The Government may, by notification in the Gazette, appoint such officers not below the rank of a Ranger as they think fit to be authorised officers for the purposes of this Act and may assign to them such local limits as the Government thinks fit.

(2) The Government may, by notification in the Gazette, appoint such officers as they think fit to be appellate authorities for the purposes of this Act and may assign to them such local limits as the Government think fit.

S.4 – Restriction regarding cutting, etc. of trees - (1) No person shall, without the previous permission in writing of the authorised officer, cut, uproot or burn, or cause to be cut, uprooted or burnt, any tree.

2. Permission under sub-section (1) shall not be refused if -

(a) the tree constitutes a danger to life or property; or

(b) the tree is dead, diseased or windfallen:

Provided that where permission to cut a tree is granted on the ground specified in clause (a) or clause (b), the authorised officer shall impose as a condition for the grant of such permission the effective regeneration of an equal number of the same or other suitable species of trees; or

(c) such cutting is to enable the owner of the land in which the tree stands to use the area cleared or the timber cut for the construction of a building for his own use.

40

(3) No person shall cut or otherwise damage, or cause to be cut or otherwise damaged, the branch of any trees:

Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices.

(4) No person shall, without the previous permission in writing of the authorised officer, destroy any tree or do any act which diminishes the value of any such plant.

(5) Nothing contained in sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) shall apply in respect of any tree or plant in the compound of any residential building.

(6) Notwithstanding anything contained in this section or in any judgment, decree or order of any Court, the owner of any land shall have the right to cut or cause to be cut any tree, other than a tree as defined in clause (3) of section 2, standing on such land, without obtaining a permission under this section.

Provided that where such compound exceeds one hectre in extent, the provisions of this sub-section shall apply only in respect of one hectre immediately surrounding the residential building.

“Dead Tree” defined and criteria fixed by the government in the light of the directions contained in the High Court order in CCC 318/98 as:

Definition – a tree which has no sign of life.

Criteria for determination of a dead tree – a. Natural absence of bank, or (b) absence of : green (live) leaves, buds, live tissues.

“Diseased trees”: Definition – a tree which is disturbed or abnormal in

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structure or physiological action in the living organisms as a whole or in any of its parts and no chance to recover or survive in the ordinary course of nature.

Criteria – a tree having any of the following conditions – top drying of main trunk at least, down to half the hight of the tree, (b) multiple borer boles throughout the trees, (c) sever decay of bole and roots indicated by extensive cavities, abnormally swollen bole and presence of bracket fungi.

S.5 – Prohibition of cutting of tree in notified areas – (1) Notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, tribunal or other authority, or in any agreement or other arrangement, the Government may, with a view to preserving the tree growth in private forests or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, by notification in the Gazette, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that -

(a) the tree constitute a danger to life or property; or

(b) the tree is dead, diseased or windfallen;

Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any trees as required by the ordinary agricultural or horticultural practices.

(2) No person shall, without the previous permission in writing of the auhorised officer, cut, uproot, burn or otherwise destroy or cause to be cut, uprooted, burnt or otherwise destroyed any tree in the area specified therein.

Explanation I – For the purpose of this section, the term “tree” shall include any species of tree.

Explanation II – for the purpose of sub-section (1), the expression “private forest” means any land which immediately before the 10th day of May 1971, was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act.

42

S.9 – Penalties – Whoever contravenes any of the provisions of s.4 or sub-section (2) of section 5 or a direction contained in a notification under sub-section (1) of section 5 or any of the terms and conditions subject to which a permission has been granted under this Act shall be punishable, -

(a) in the case first offence, with imprisonment for a term which shall not be less than six months but which may extend to two years and fine which shall not be less than five hundred rupees but which may extend to two thousand rupees; and

(b) in the case of a second or subsequent offence, with imprisonment for a term which may extend to three years and with fine which shall not be less than one thousand rupees but which may extend to five thousand rupees.

S.10 – offences by companies - if an offence is committed by the company, every person who at the time of the offence was committed, was in charge of and was responsible to, the company for the conduct of its business shall be deemed to be guilty.....

S.13. Power to seize timber and other articles involved in commission of offence - (1) Where any officer of the Forest Department not below the rank of Forester or any Police Officer not below the rank of Sub-Inspector has reason to believe that any tree has been cut in contravention of Section 4 or sub-section (2) of Section 5 or a direction contained in a notification under sub-section (1) of Section 5, he may seize the timber of such tree together with all tools, ropes, chains and other articles used in the commission of such offence and all boats, vehicles and animals used for carrying such timber.

Explanation.- The terms "boat" and "vehicle" in this section, Section 14 and Section 15 shall include all the articles and machinery kept in the boat or vehicle, as the case may be, whether fixed to the same or not.

(2) Every officer seizing any timber under sub-section (1) shall place on such timber a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the authorised officer.

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(3) On receipt of a report under sub-section (2), the authorised officer shall,-

(a) if he is satisfied that the timber mentioned in such report is of any tree cut in contravention of Section 4 or sub-section (2) of Section 5 or a dir-ection contained in a notification under sub-section (1) of Section 5, make a report of such seizure to the Judicial Magistrate of the First Class having jur-isdiction over the area in which such seizure has been made;

(b) if he is not so satisfied, make a report of such seizure to such au-thority as may be prescribed.

(4) The authority to which a report is made under clause (b) of sub-section (3) shall,-

(a) if it is satisfied that the timber mentioned in such report is of any tree cut in contravention of Section 4, or sub-section (2) of Section 5 or a dir-ection contained in a notification under sub-section (1) of Section 5, make a report of the seizure of such timber to the Judicial Magistrate of the First Class having jurisdiction over the area in which such seizure has been made;

(b) if it is not so satisfied, order that such timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it shall be returned to the person from whom they were seized.

S.14. Power to release property seized under Section 13 - The au-thorised officer may release any tool, rope, chain or other article or any boat, vehicle or animal seized under Section 13 and in respect of which a report has been made to the Judicial Magistrate of the First Class under clause (a) of sub-section (3) or clause (a) of sub-section (4) of that section, on the exe-cution by the owner thereof of a bond for the production of the property so released, if and when so required, before such Magistrate.

S.15 - Procedure by Magistrate - Upon the receipt of a report under clause (a) of sub-section (3) or clause (a) of sub-section (4) of Section 13, the Magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it, according to law.

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S.16 - Procedure as to perishable property seized under Section 13 - (1) Notwithstanding anything herein before contained,-

(a) the Magistrate to whom a report is made under Section 13 may dir-ect the sale of any property seized under that section, which is subject to speedy and natural decay; and

(b) If, in the opinion of the authorised Officer, it is necessary to dis-pose of the property, which is subject to speedy and natural decay, such of-ficer shall immediately after, and in any case not later than one month from, the date of report under Section 13 make an application to the Magistrate re-ferred to in clause (a) for permission to sell the property by such officer him-self and on getting such permission, may sell the property himself, remit the sale proceeds into the nearest Government Treasury and make a report of such sale and remittance to that Magistrate and thereupon such Magistrate shall take such measures as may be necessary for the trial of the accused.

(2) The Magistrate may deal with the proceeds of the sale of any prop-erty sold under clause (a) or clause (b) or sub-section (1) in the same man-ner as he might have dealt with the property if it had not been sold.

S.17 - Saving of power to release property seized - Nothing hereinbefore contained shall be deemed to prevent the authorised officer from directing at any time the immediate release of any property seized under Section 13 and the withdrawal of any charge made in respect of such property:

Provided that the powers under this section shall be exercised by the au-thorised officer only for good and sufficient reasons to be recorded in writing and with the previous approval in writing of the Divisional Forest Officer con-cerned.

S.18 - Institution of prosecution - No prosecution shall be instituted against any person without the sanction of the authorised officer.

S.19. Cognizance of offences - No Court inferior to that of a Judicial Ma-gistrate of the First Class shall try any offence under this Act.

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Preservation of Trees Act 1986 (Kerala), Ss. 15 & 13( 1) - If

the officer seizing the timber is not the authorized officer,

report can be filed only by the authorized officer. - Under

S.15 of the Act, on receipt of a report under cl.(a) of sub-s.(3)

by the authorised officer or under cl.(a) of sub-s.(4) of S.13 by

the authority, the Magistrate shall take such measures as may

be necessary for the trial of the accused and the disposal of

the timber and any tool, rope, chain or other article or any

boat, vehicle or animal seized along with it, according to law.

Therefore, the Magistrate can take cognizance of the offences

under the Act only on a report submitted by the authorised of-

ficer, as provided under cl.(a) of sub-s.(3) of S.13 or by the

prescribed authority under cl.(a) of sub-s.(4) of S.13. There-

fore, the reports, if cognizance is to be taken on it, are to be

submitted not by the officer seizing the timber as provided un-

der sub-s.(1) of S.13. If he is not an authorised officer, it could

be filed only by the authorised officer. - 2010 (1) KLT 655

(J.M. Sasidharan Nambiar) (James Joseph v. Deputy Range

Officer)

Restriction on Cutting and Destruction of Valuable Trees Act, 1974 (Kerala)

An Act to restrict the cutting and destruction of certain valuable trees in private lands in the State of Kerala.

S.2 .(c) "plantation" means any land used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and includes lands in-terspersed within the boundaries of the area principally cultivated with such crops;

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(e) "valuable tree" means sandalwood tree, rosewood tree or teak tree.

S.4 - Restriction regarding cutting of valuable trees - (1) No owner of any land (including a plantation), and no person claiming under him or any other person, shall, without the previous permission of the authorised of-ficer, cut any sandalwood tree or rosewood tree from that land.

(2) No owner of any plantation, and no person claiming under him, or any other person, shall, without the previous permission of the authorised officer, cut any teak tree from that plantation.

S.5 - Restriction regarding destruction of valuable trees - (1) No person shall, without the previous permission of the authorised officer, des-troy any sandalwood tree or rosewood tree or plant of any such tree or do any act which diminishes the value of any such tree or plant.

(2) No person shall, without the previous permission of the authorised of-ficer, destroy any teak tree or plant of such tree standing in a plantation or do any act which diminishes the value of any such tree or plant.

S.7 – Penalties - Whoever contravenes the provisions of sub-section (1) or sub-section (2) of Section 4 or sub-section (1) or sub-section (2) of Sec-tion 5 or any of the terms and conditions subject to which a permission has been granted under any of the said provisions, shall be punishable -

(a) in the case of a first offence, with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred ru-pees, or with both; and

(b) in the case of a second or subsequent offence, with imprison-ment for a term which shall not be less than one month but which may ex-tend to six months and with fine which shall not be less than one thousand rupees but which may extend to five thousand rupees.

S.11 - Institution of prosecutions - No prosecution shall be instituted against any person without the sanction of the authorised officer.

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Promotion of Tree Growth in Non-forest Areas Act, 2005 (Kerala)

2. (e) "specified tree" means "Sandal wood (Santalum album)", Teak (Tec-tona grandis), Rosewood (Dalbergia latifolia), Irul (Xylia xylocarpa), Thempavu (Terminalia tomantosa), Kampakam (Hopea Parviflora), Chada-chi (Grewia tiliaefolia), Chandana vempu (Cedrela toona), Vellakil (Dyso-xylum malabaricum) or Ebony (Diospyrus sp.)]

(g) "tree" means any woody plant, whether fruit bearing or not, and includes bamboos.

S.3 - Rights of owner of non-forest lands - (1) Every owner of non-forest land shall be free to plant trees in his land, as may be appropriate and generally contribute to the increase of tree cover in his land, in addition to any crop he may have grown over such land.

(2) Every Department of the Government, every public sector undertaking and every Non-Governmental Organisation shall be free to plant trees in the non-forest lands owned, transferred or vested in them.

S.4 - Right of owners to cut and remove trees in non-notified areas in non-forest land - (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:

Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under section 5 of the Kerala Preser-vation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian

48

under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005).

(2) For the purpose of this Act the Government may, by notification in the Gazette, appoint such officers not below the rank of a Forest Range Officer as they think fit to be Authorised Officers (referred to as 'Authorised Officer' in this Act) and may assign to them such local limits as the Government think fit.

(3) The Government may, with a view to preserving tree growth in the in-terest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen:

Provided that the small holders in the area notified under this sub-sec-tion are free to cut and remove any tree except the specified trees:

Provided further that the small holders in the area notified under this sub-section may cut and remove any specified tree other than sandalwood only with the prior permission in writing of the Authorised Officer and such prior permission shall not be required for the cutting and removal of trees ex-cept specified trees:

Provided also that the owners other than small holders in an area noti-fied under this sub-section may cut and remove any tree other than sandal-wood tree only with the prior permission in writing of the Authorised Officer and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule:

Provided also that such permission mentioned in the second and third provisos shall not be refused by the Authorised Officer if the tree constitutes a danger to life or property or is wind-fallen:

Note.-- For the purpose of this sub-section all the mangrove areas or car-damom or coffee plantations shall be deemed to be notified areas.

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(4) No owner including a small holder shall cut or remove any sandalwood tree in any non-forest area. Such cutting or removal may be done only by the Forest Department in the manner as may be prescribed.

(5) Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of tim-ber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due.

(6) Every declaration filed under sub-section (5) shall be acknowledged by the authorised officer forthwith and a copy of the declaration so acknow-ledged shall accompany the timber during its transport:

Provided that if acknowledgement from the Authorised Officer is not received within twenty days on receipt of the declaration, the same shall be deemed to have been received, if the trees are to be cut and removed from a non-notified area:

Provided further that if timber of a specified tree cut as per sub-section (3) is to be transported from a non-forest land within the notified area, ne-cessary inspection shall be conducted by the Authorised Officer and if it is found permissible, he may issue a transport permit in such form as may be prescribed, which shall accompany the timber during its transportation.

(7) The cutting and removal of trees standing on non-forest areas, owned, controlled or vested in a Local Self Government Institution and its disposal shall be governed by such rules, as may be prescribed.

(8) An appeal against the order of refusal of permission by the Authorised Officer may be preferred before the concerned Divisional Forest Officer/Wildlife Warden within such time and in such manner as may be prescribed.

50

Explanation:- For the purpose of this Act, the term 'timber' wherever used shall include firewood also.

S.7 – Penalties - (1) Whoever cuts, uproots, burns or otherwise destroys any tree other than sandalwood in violation of the provisions of this Act or transports any timber contravening the provisions of the section 6 or files a false declaration shall, on conviction be punishable with imprisonment for a term which may extend to six months or with fine which may extend to twenty five thousand rupees:

(2) Whoever cuts, uproots, burns or otherwise destroys or transports any sandalwood tree in violation of the provisions of this Act shall, on conviction be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with a fine which shall not be less than fifty thousand rupees, but which may extend to One lakh ru-pees.

(3) All offences under this Act shall be cognizable.]

S.8 – offences by companies –

S.9 - Power to seize timber and other articles involved in the commis-sion of the offence - (1) Where any Officer of the Forest Department, not

below the rank of a Forester, has reason to believe that 5[any tree has been cut or any timber has been transported] in contravention of Section 6, he may seize the timber together with all tools, ropes, chains and other articles used in the commission of such offence and all vehicles, boats or animals used for carrying such timber.

Explanation.-The term "vehicle" and "boat" in this section, Sections 10 and 11 shall include all the articles and machinery kept in the vehicle or boat, as the case may be, whether fixed to the same or not.

(2) Every Officer seizing any timber under sub-section (1) shall, place on such timber a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Divisional Forest Officer having jurisdiction over the area.

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(3) The Divisional Forest Officer to whom a report is made under sub-sec-tion (2) shall,-

(a) if he is satisfied that the timber mentioned in such report is of any tree transported in contravention of Section 6, make a report of the seizure of such timber to the Judicial Magistrate of the First Class, having jurisdiction over the area in which such seizure has been made;

(b) if he is not so satisfied, order that such timber and any tool, rope, chain or other article; or any boat, vehicle or animal, seized along with it, shall be returned to the person from whom they were seized.

S.10 - Power to release property seized under Section 9 - The Divisional Forest Officer, may release any tool, rope, chain or other article or any boat, vehicle or animal seized under Section 9 and in respect of which a report has been made to the Judicial Magistrate of the First Class under sub-sec-tion (3) of that section, on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before such Magistrate

S.11 - Procedure by Magistrate - Upon the receipt of report under clause (a) of sub-section (3) of Section 9, the Magistrate shall take such measures as may be necessary, for the trial of the accused and the disposal of the tim-ber, and tool, rope, chain or other article or any boat; vehicle or animal seized along with it, according to law.

S.12 - Institution of prosecution - No prosecution shall be instituted against any person without the sanction of the Divisional Forest Officer

1[SCHEDULE[See Section 6(3)]

Cutting and removal of trees for which no permission is necessary1. Coconut 15. Jathi2. Rubber 16. Albezia3. Cashew 17. Silk cotton4. Tamarind 18. Acacia auraculiformis5. Mango 19. Mangium6. Jack Fruit Tree 20. Anhili7. Kodampuli 21. Kilimaram

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8. Matti 22. Manchadimaram9. Arecanut 23. Vatta10. Konna 24. Palm tree11. Seema Konna 25. Aranamaram12. Nelli 26. Eucalyptus13. Neem 27. Seemaplavu14. Murukku 28. Paala.

Promotion of Tree Growth in Non Forest Areas Act 2005

(Kerala), Ss. 9( 1), 9( 2), 9( 3)(a) & 6 - The Officer

mentioned in S. 9( 1) of the Act has the power to seize, not

only the trees cut or timber removed in contravention of S.6,

but also trees uprooted, burnt or otherwise destroyed in

contravention of the said provision. 2011 (2) KLT 899

(Parvathy v. State of Kerala) (J. Thomas P. Joseph)

Promotion of Tree Growth in Non Forest Areas Act 2005

(Kerala), S. 7 - Unauthorised cutting and removal of any

specified tree from a private property by its owner, would

amount to an offence, if such property is situated within the

area notified under the Act - No prosecution under the

provisions of Forest Act is possible - Forest Act 1961 (Kerala),

Ss. 69, 61A, 63 & 52. If a tree is to be cut from a notified

area, even if it is from a non forest land by its owner,

permission is to be obtained as provided under S.6(3) of the

Act. If it is cut in violation of S.6(3) he is liable to be

prosecuted for the offence under S.7 of the Act. If a tree is to

be cut from a notified area, permission as provided under sub-

s.(3) of S.6 of the Act, which is to be granted as provided

53

under R.4 of the Kerala Promotion of Tree Growth in Non-

Forest Land Rules 2006, is to be taken. - The Act does not

provide for any confiscation. - 2010 (1) KLT 546 - (J.M.

Sasidharan Nambiar) (Sukumaran v. State of Kerala )

Essential Articles Control Act, 1986 (Kerala) An Act to provide, in the interest of the general public, for the control of the production,

supply and distribution of, and trade and commerce in, certain articles.

S.2. (a) "essential article" means Many article, not being an essential commodity as defined in the Essential Commodities Act, 1955 (Central Act 10 of 1955), which may be declared by the Government by notified order to be an essential article.,

S.3 - Power to control production, supply, distribution, etc., of essen-tial articles.- (1) If the Government are of opinion that it is necessary or ex-pedient so to do for maintaining or increasing the supplies of any essential article or for securing their equitable distribution and availability at fair prices, they may, by notified order, provide for regulating or prohibiting the produc-tion, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide-

(a) for regulating by licences, permits or otherwise the production or manufacture of any essential article;

(b) for controlling the price at which any essential article may be bought or sold; …………………..

S.5 – Notified orders to be laid before the Legislative Assembly…..

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S.7 - Penalties.- If any person contravenes any order made under S.3,-

(a) he shall be punishable-

(i) in the case of an order made with reference to clause (g) or clause (h) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term which may extend to three years and shall also be liable to fine:

Provided that if the court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded, refrain from im-posing a sentence of imprisonment; and

(b) any property in respect of which the order has been contravened or such part thereof as the court may deem fit shall be forfeited to the Govern-ment:

Provided that, if the court is of opinion that It is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property, it may, for reasons to be recorded, refrain from doing so.

S.8 - Attempt and abetment.- Any person who attempts to contravene or abets a contravention, of any order made under S.3, shall be deemed to have contravened that order.

S.9 - False statements.- If any person,-

(i) when required by any order made under S.3 to make any statement or furnish any information, makes any statement or furnish any information which is false in any material particular and which he knows or has reason-able cause to believe to be false, or does not believe to be true; or

(ii) makes any such statement as aforesaid in any book, accounts, re-cord, declaration, return or other document which he is required by any such order to maintain or furnish,

55

he shall be punishable with Imprisonment for a term which may extend to three years, or with fine or with both.

S.11 - Cognizance of offences.- No court shall take cognizance of any of-fence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in S.21 of the Indian Penal Code (Central Act 45 of 1860).

S.12 - Presumption as to orders.- Where an order purports to have been made and signed by an authority in exercise of any power conferred by or under this Act, a court shall presume that such order was so made by that authority within the meaning of the Indian Evidence Act. 1872 (Central Act 1 of 1872).

Murikku (Erythrina species) and Firewood (Movement Control) Or-der, 1985 (Kerala)

In exercise of the powers conferred by Section 3 of the Kerala Essential Articles Control Ordinance, 1984

Cl. 3 - Restriction on transport of Murikku (Erythrina Species) and fire-wood - No person shall transport, move or otherwise carry or prepare or at-tempt to transport, or aid or abet in the transport, movement or carrying of Murikku (Erythrina species) and firewood from any place within the State to any place outside the State except under and in accordance with the terms and conditions of a permit issued in that behalf by the competent authority:

Provided that nothing in this clause shall apply to the transport or movement of these wood from one place within the State to another place within the State passing through regions outside the State or to permits issued in re-spect of timber under the Kerala Forest Produce Transit Rules, 1975:

Provided further that nothing in this clause shall apply to finished wood products and veneers.

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Biological Diversity Act, 2002

An Act to provide for conservation of biological diversity, sustainable use of its components and fair

and equitable sharing of the benefits arising out of the use of biological resources, knowledge and

for matters connected therewith or incidental thereto.

S.3 - Certain persons not to undertake Biodiversity related activities without approval of National Biodiversity Authority - (1) No person re-ferred to in sub-section (2) shall without previous approval of the National Biodiversity Authority, obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilisation or for bio-survey and bio-utilisation.

(2) The persons who shall be required to take the approval of the National Biodiversity Authority under sub-section (1) are the following, namely:--

(a) a person who is not a citizen of India;

(b) a citizen of India, who is a non-resident as defined in clause (30) of sec-tion 2 of the Income-tax Act, 1961 (43 of 1961);

(c) a body corporate, association or organisation--

(i) not incorporated or registered in India; or

(ii) incorporated or registered in India under any law for the time being in force which has any non-Indian participation in its share capital or manage-ment.

S.4 - Results of research not to be transferred to certain persons without approval of National Biodiversity Authority - No person shall, without the previous approval of the National Biodiversity Authority, transfer the results of any research relating to any biological resources occurring in, or obtained from India for monetary consideration or otherwise to any per-son who is not a citizen of India or citizen of India who is non-resident as defined in clause (30) of section 2 of the Income-tax Act, 1961 (43 of 1961) or a body corporate or organisation which is not registered or incorporated in India or which has any non-Indian participation in its share capital or man-agement.

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Explanation.-- For the purposes of this section, "transfer" does not include publication of research papers or dissemination of knowledge in any sem-inar or workshop, if such publication is as per the guidelines issued by the Central Government.

S.6 - Application for intellectual property rights not to be made without approval of National Biodiversity Authority - (1) No person shall apply for any intellectual property right, by whatever name called, in or outside India for any invention based on any research or information on a biological re-source obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application:

Provided that if a person applies for a patent, permission of the National Biodiversity Authority may be obtained after the acceptance of the patent but before the sealing of the patent by the patent authority concerned:

Provided further that the National Biodiversity Authority shall dispose of the application for permission made to it within a period of ninety days from the date of receipt thereof.

(2) The National Biodiversity Authority may, while granting the approval un-der this section, impose benefit sharing fee or royalty or both or impose con-ditions including the sharing of financial benefits arising out of the commer-cial utilisation of such rights.

(3) The provisions of this section shall not apply to any person making an application for any right under any law relating to protection of plant varieties enacted by Parliament.

(4) Where any right is granted under law referred to in sub-section (3), the concerned authority granting such right shall endorse a copy of such docu-ment granting the right to the National Biodiversity Authority.

S.7 - Prior intimation to State Biodiversity Board for obtaining biolo-gical resource for certain purposes - No person, who is a citizen of India

58

or a body corporate, association or organisation which is registered in India, shall obtain any biological resource for commercial utilisation, or bio-survey and bio-utilisation for commercial utilisation except after giving prior intima-tion to the State Biodiversity Board concerned:

Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biod-iversity, and vaids and hakims, who have been practising indigenous medi-cine.

S. 24 - Power of State Biodiversity Board to restrict certain activities vi-olating the objectives of conservation etc. - (1) Any citizen of India or a body corporate, organisation or association registered in India intending to undertake any activity referred to in section 7 shall give prior intimation in such form as may be prescribed by the State Government to the State Biod-iversity Board.

(2) On receipt of an intimation under sub-section (1), the State Biodiversity Board may, in consultation with the local bodies concerned and after making such enquiries as it may deem fit, by order, prohibit or restrict any such activity if it is of opinion that such activity is detrimental or contrary to the ob-jectives of conservation and sustainable use of biodiversity or equitable sharing of benefits arising out of such activity:

Provided that no such order shall be made without giving an opportunity of being heard to the person affected.

(3) Any information given in the form referred to in sub-section (1) for prior intimation shall be kept confidential and shall not be disclosed, either inten-tionally or unintentionally, to any person not concerned thereto.

S.55 – Penalties - (1) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 3 or section 4 or section 6 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the dam-age caused exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both.

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(2) Whoever contravenes or attempts to contravene or abets the contraven-tion of the provisions of section 7 or any order made under sub-section (2) of section 24 shall be punishable with imprisonment for a term which may ex-tend to three years, or with fine which may extend to five lakh rupees, or with both.

S.56 – Penalty for contravention of directions or orders of Central Gov-ernment, State Government, National Biodiversity Authority and State Biodiversity Boards - If any person contravenes any direction given or or-der made by the Central Government, the State Government, the National Biodiversity Authority or the State Biodiversity Board for which no punish-ment has been separately provided under this Act, he shall be punished with a fine which may extend to one lakh rupees and in case of a second or sub-sequent offence, with fine which may extend to two lakh rupees and in the case of continuous contravention with additional fine which may extend to two lakh rupees everyday during which the default continues.

S.58 - Offences to be cognizable and non-bailable - The offences under this Act shall be cognizable and non-bailable.

61 - Cognizance of offences - No Court shall take cognizance of any of-fence under this Act except on a complaint made by,--

(a) the Central Government or any authority or officer authorised in this be-half by that Government; or

(b) any benefit claimer who has given notice of not less than thirty days in the prescribed manner, of such offence and of his intention to make a com-plaint, to the Central Government or the authority or officer authorised as aforesaid.

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WILD LIFE (PROTECTION) ACT, 1972

(15) "habitat" includes land, water or vegetation which is the natural home of any wild animal;

(16) "hunting", with its grammatical variations and cognate expressions, in-cludes,-

(a) killing or poisoning of any wild animal or captive animal and every attempt to do so;

(b) capturing, coursing, snaring, trapping, driving or baiting (Food or other lure placed on a hook or in a trap and used in the taking of fish, birds, or other ani -mals) any wild or captive animal and every attempt to do so;

(c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles;

20. “meat” include blood, bones, sinew, eggs, shell or carapace(A hard bony or chitinous outer covering, such as the fused dorsal plates of a turtle or the portion of the exoskeleton covering the head and thorax of a crustacean.), fat and flesh with or without skin, whether raw or cooked, or any wild animal or captive animal, other than a vermin (Various small animals or insects, such as rats or cockroaches, that are

destructive, annoying, or injurious to health);

24A - “protected area” means a National Park, a sanctuary, a conservation reserve or a community reserve notified under Ss.18, 35, 36A and 36C of the Act.

25B - “reserve forest” means the forest declared to be reserved by the State Government under section 20 of the Indian Forest Act 1927, or declared as such under any other State Act;

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26 - “sanctuary” means an area declared as a sanctuary by notification un-der the provisions of Chapter IV of this Act and shall also include a deemed sanctuary under sub-section (4) of S.66;

27 - “Specified plant” means any plant specified in Schedule VI.

30 - “taxidermy” with its grammatical variations and cognate expressions, means the curing, preparation or preservation or mounting of trphies;

31 - “trophy” means the whole or any part of any captive animal or wild an-imal, other than vermin, which has been kept or preserved by any means, whether artificial or natural, and includes -

(a) rugs (An animal skin used as a floor covering), skins and specimens and such animal mounted in whole or in part through a process of taxidermy, and

(b) antler, bone, carapace, shell, horn, rhinoceros horn, hair, feather, nail, tooth, tusk, musk, eggs, nests and honeycomb;

36 - “wild animal” means any animal specified in Schedules I to IV and found wild in nature;

37 - “Wild life” includes any animal, aquatic or land vegetation which forms part of any habitat;

Chapter III - Hunting of wild animals

S.9 – Prohibition of hunting - No person shall hunt any wild animal spe-cified in Schedules I, II, III and IV except as provided under s.11 and s.12.

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S.11 – Hunting of wild animals to be permitted in certain cases – (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of Chapter IV -

(a) the Chief Wildlife Warden may, if he is satisfied that any wild an-imal specified in Schedule I has become dangerous to human life or is so disabled or diseased as to be beyond recovery, by order in writing and stat-ing the reasons therefor, permit any person to hunt such animal or cause such animal to be hunted:

Provided that no wild animal shall be ordered to be killed unless the Chief Wildlife Warden is satisfied that such animal cannot be captured, transquilised or translocated:

Provided further that no such captured animal shall be kept in captivity unless the Chief Wildlife Warden is satisfied that such animal cannot be re-habilitated in the wild and the reasons for the same are recorded in writing.

Explanation- For the purpose of clause (a), the process of capture or translocation, as the case may be, of such animal shall be made in such manner as to cause minimum trauma to the said animal.

(b) the Chief Wildlife Warden or the authorised officer may, if he is sat-isfied that any wild animal specified in Schedule II, Schedule III or Schedule IV has become dangerous to human life or to property (including standing crops on any land) or is so disabled or diseased as to be beyond recovery, by order in writing and stating the reasons therefor, permit any person to hunt such animal or group of animals in a specified area or cause such an-imal or group of animals in that specified area to be hunted.

2. Killing or wounding in good faith of any wild animal in defence of oneself or of any other person shall not be an offence.

Provided that nothing in this sub-section shall exonorate any person who, when such defence become necessary, was committing any act in contravention of any provisions of this Act or any rule or order made there-under.

3. Wild animal killed or wounded in defence of any person shall be Government property.

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S. 12 – Grant of permit for special purposes – Notwithstanding anything contained elsewhere in this Act, it shall be lawful for the Chief Wildlife Warden, to grant permit, by an order in writing stating the reasons thereof, to any person, on payment of such fee as may be prescribed, which shall en-title the holder of such permit to hunt, subject to such conditions as may be specified therein, any wild animal specified in such permit, for the purpose of, -

(a) education;

(b) scientific research;

(bb) scientific management,

....................................

Chapter IIIA – Protection of Speficied Plants

S.17A - Prohibition of picking, uprooting, etc., of speficied plants - Save as otherwise provided in this Chapter, no person shall -

(a) wilfully pick, uproot, damage, destroy, aquire or collect any speci-feid plant from any forest land and any area specified, by notification, by the Central Government;

(b) possess, sell, offer for sale, or transfer by way of gift or otherwise, or transport any specified plant, whether alive or dead, or part or derivative thereof;

Provided that nothing in this section shall prevent a member of a scheduled tribe, subject to the provisions of Chapter IV, from picking, col-lecting or possessing in the district he resides any specified plant or part or derivative thereof for his bonafide personal use.

S.17B – grant of permit for special purposes – like education, scientific research, etc...............

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S.17C – Cultivation of specified plants without licence prohibited – (1) No person shall cultivate a specified plant except under and in accordance with a licence granted by the Chief Wildlife Warden or any other officer au-thorised by the State Government in this behalf:

Provided that nothing in this section shall prevent a person, who, im-mediately before the commencement of the Wild Life (Protection) Amend-ment Act, 1991, was cultivating a specified plant, from carrying on such cul-tivation for a period of six moths from such commencement, or whether he has made an application within that period for the grant of a licence to him, until the licence is granted to him or he is informed in writing that a licence cannot be granted to him.

2. Every licence granted under this section shall specify the area in which and the conditions, if any, subject to which the licensee shall cultivate a specified plant.

S.17D – Dealing in specified plants without licence prohibited – (1) No person shall, except under and in accordance with a licence granted by the Chief Wildlife Warden or any other officer authorised by the State Govern-ment in this behalf, commence or carry on business or occupation as a dealer in specified plant or part or derivate thereof:

Provided that nothing in this section shall prevent a person, who, im-mediately before the commencement of the Wild Life (Protection) (Amend-ment) Act 1991, was carrying on such business or occupation, for a period of sixty days from such commencement, or whether he has made an applic-ation within that period for the grant of a licence to him, until the licence is granted to him or he is informed in writing that a licence cannot be granted to him.

2. Every licence granted under this sectin shall specify the premises in which and the conditions, if any, subject to which the licensee shall carry on his business.

S.17 E – declaration of stock

S.17 F – Possession, etc. of plants by licencess ...

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S.17 G – purchase – no person shall purchase, receive, etc., without li-cence.....

Chapter IV – Protected Areas – Sanctuaries -

S.18 – Declaration of Sanctuary – (1) The Government may, by notifica-tion, declare its intention to constitute any area other than an area com-prised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomor-phological, natural or zoological significance, for the purpose of protecting, propagating or developing wildlife or its environment.

(2) The notification referred to in sub-section (1) shall specify, as nearly as possible, the situation and limits of such area.

Explanation – For the purpose of this section it shall be sufficient to describe the area by roads, rivers, ridges or other well-known or readly intel-ligible boundaries.

S.26A – Declaration of area as sanctuary - (1) When-

(a) a notification has been issued under Section 18 and the period for preferring Claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a sanctuary, have been dis-posed of by the State Government; or

(b) any area comprised within any reserve forest or any part of the territorial waters, which is considered by the State Government to be of ad-equate ecological, faunal, floral, geomorphological, natural or zoological sig-nificance for the purpose of protecting, propagating or developing wild life or its environment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which shall be com-prised within the sanctuary and declare that the said area shall be a sanctu-ary on and from such date as may be specified in the notification:

Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central Government shall be obtained by the State Government:

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Provided further that the limits of the area of the territorial waters to be in-cluded in the sanctuary shall be determined in consultation with the Chief Naval Hydrographer of the Central Government and after taking adequate measures to protect the occupational interests of the local fishermen.

(2) Notwithstanding anything contained in sub-section (1), the right of innocent passage of any vessel or boat through the territorial waters shall not be affected by the notification issued under sub-section (1).

(3) No alteration of the boundaries of a sanctuary shall be made by the State Government except on a recommendation of the National Board.]

S.27 – Restriction on entry in sanctuary - (1) No person other than,-

(a) a public servant on duty,

(b) a person who has been permitted by the Chief Wild Life Warden or the authorised officer to reside within the limits of the sanctuary,

(c) a person who has any right over immovable property within the limits of the sanctuary,

(d) a person passing through the sanctuary along a public highway, and

(e) the dependants of the person referred to in clause (a), clause (b) or clause (c),

shall enter or reside in the sanctuary, except under and in accordance with the conditions of a permit granted under Section 28.

(2) Every person shall, so long as he resides in the sanctuary, be bound-

(a) to prevent the commission, in the sanctuary, of an offence against this Act;

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(b) where there is reason to believe that any such offence against this Act has been committed in such sanctuary, to help in discovering and arresting the offender;

(c) to report the death of any wild animal and to safeguard its re-mains until the Chief Wild Life Warden or the authorised officer takes charge thereof;

(d) to extinguish any fire in such sanctuary of which he has know-ledge or information and to prevent from spreading by any lawful means in his power, any fire within the vicinity of such sanctuary of which he has knowledge or information; and

(e) to assist any Forest Officer, Chief Wild Life Warden or Police Officer demanding his aid for preventing the commission of any offence against this Act or in the investigation of any such offence.

(3) No person shall, with intent to cause damage to any boundary-mark of a sanctuary or to cause wrongful gain as defined in the Indian Penal Code, 1860 (45 of 1860), alter, destroy, move or deface such boundary-mark.

(4) No person shall tease or molest any wild animal or litter the grounds of sanctuary.

28 – Grant of permit - (1) The Chief Wild Life Warden may, on application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely:-

(a) investigation or study of wild life and purpose ancillary or incid-ental thereto;

(b) photography;

(c) scientific research;

(d) tourism;

(e) transaction of lawful business with any person residing in the sanctuary.

(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such fee as may be prescribed.

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29 – Destruction, etc., in a sanctuary prohibited without a permit - No

person shall destroy, exploit or remove any wild life including forest produce

from a sanctuary or destroy or damage or divert the habitat of any wild

animal by any act whatsoever or divert, stop or enhance the flow of water

into or outside the sanctuary, except under and in accordance with a permit

granted by the Chief Wild Life Warden, and no such permit shall be granted

unless the State Government being satisfied in consultation with the Board

that such removal of wild life from the sanctuary or the change in the flow of

water into or outside the sanctuary is necessary for the improvement and

better management of wild life therein, authorises the issue of such permit:

Provided that where the forest produce is removed from a sanctuary the

same may be used for meeting the personal bona fide needs of the people

living in and around the sanctuary and shall not be used for any commercial

purpose.

Explanation.- For the purposes of this section, grazing or movement of

livestock permitted under clause (d) of Section 33 shall not be deemed to be

an act prohibited under this section.]

S.30 – Causing fire prohibited – No person shall set fire to a sanctuary, or kindle any fire, or leave any fire burning, in a sanctuary, in such manner as to endanger such sanctuary.

S.31 – Prohibition of entry into sanctuary with weapon - No person shall enter a sanctuary with any weapon except with the previous permis-sion in writing of the Chief Wildlife Warden or the authorised officer.

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S.32 – Ban on use of injurious substances – No person shall use in a sanctuary, chemicals, explosives or any other substances which may cause injury to, or endanger, any wildlife in such sanctuary.

S.44 – Dealing in trophy and animal articles without licence prohibited - (1) Subject to the provisions of Chapter VA, no person shall, except under, and in accordance with, a licence granted under sub-section (4) -

(a) commence or carry on the business as -

(i) a manufacturer of or dealer in, any animal article; or

(ii) a taxidermist; or

(iii) a dealer in trophy or uncured trophy; or

(iv) a dealier in captive animals; or

(v) a dealer in meat;

(b) cook or serve meat in any eating-house

(c) derive, collect or prepare, or deal in, snake venom

Provided .....................

S.48 – purchase, capture, etc. of animal, by licencee – in accordance with the rules under the Act.

S.48A – Restriction on transportation of wildlife – No person shall accept any wild animal (other than vermin) or any animal article, or any specified plant or part or derivative thereof, for transportation except after exercising due care to ascertain that permission from the Chief Wildlife Warden or an other officer authorised by the State Government in this behalf has been ob-tained for such transportation.

S.49 – purchase of captive animal, etc., by a person other than a li-cencee – No person shall purchase, receive or acquire any captive animal,

70

wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person au-thorised to sell or otherwise transfer the same under this Act.

Provided that nothing in this section shall apply to a recognized zoo subject to the provisions of s.38-I or to a public museum.

Chapter VA – Prohibition of Trade or commerce in trophies, animal art-icles, etc. Derived from certain animals

S.49A - Definition - In this Chapter,-

(a) "scheduled animal" means an animal specified for the time be-ing in Schedule I or Part II of Schedule II;

(b) "scheduled animal article" means an article made from any scheduled animal and includes an article or object in which the whole or any part of such animal has been used but does not include tail feather of pea-cock, an article or trophy made therefrom and snake venom or its derivative;

(c) "specified date" means-

(i) in relation to a scheduled animal on the commencement of the Wild Life (Protection) (Amendment) Act, 1986, the date of expiry of two months from such commencement;

(ii) in relation to any animal added or transferred to Schedule I or Part II of Schedule II at any time after such commencement, the date of ex-piry of two months from such addition or transfer;

(iii) in relation to ivory imported into India or an article made from such ivory, the date of expiry of six months from the commencement of the Wild Life (Protection) Amendment Act, 1991.

S.49B – Prohibition of dealings in trophies, animal articles, etc., de-rived from scheduled animals - (1) Subject to the other provisions of this section, on and after the specified date, no person shall,-

(a) commence or carry on the business as-

(i) a manufacturer of, or dealer in scheduled animal articles; or

71

(ia) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or

(ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or

(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or

(iv) a dealer in any captive animals being scheduled animals; or

(v) a dealer in meat derived from any scheduled animal; or

(b) cook or serve meat derived from any scheduled animal in eat-ing-house.

(2) Subject to the other provisions of this section, no licence gran-ted or renewed under Section 44 before the specified date shall entitle the holder thereof or any other person to commence or carry on the business re-ferred to in clause (a) of sub-section (1) of this section or the occupation re-ferred to in clause (b) of that sub-section after such date.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2) where the Central Government is satisfied that it is necessary or expedient so to do in the public interest, it may, by general or special order published in the Official Gazette, exempt, for purposes of export, any corpor-ation owned or controlled by the Central Government (including a Govern-ment company within the meaning of Section 617 of the Companies Act, 1956 (1 of 1956)) or any society registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force, wholly or substantially financed by the Central Government from the provisions of sub-sections (1) and (2).

(4) Notwithstanding anything contained in sub-section (1) or sub-section (2), but subject to any rules which may be made in this behalf, a per-son holding a licence under Section 44 to carry on the business as a taxi-dermist may put under a process of taxidermy any scheduled animal or any part thereof,-

(a) for or on behalf of the Government or any corporation or society exempted under sub-section (3), or

72

(b) with the previous authorisation in writing of the Chief Wild Life Warden, for and on behalf of any person for educational or scientific pur-poses.

Chapter VI – Prevention and Detection of Offences

S.50 – Power of entry, search, arrest and detention - (1) Notwithstanding

anything contained in any other law for the time being in force, the Director

or any other officer authorised by him in this behalf or the Chief Wild Life

Warden or the authorised officer or any forest officer or any police officer not

below the rank of a sub-inspector, may, if he has reasonable grounds for be-

lieving that any person has committed an offence against this Act,-

(a) require any such person to produce for inspection any captive

animal, wild animal, animal article, meat, trophy, uncured trophy, specified

plant or part or derivative thereof in his control, custody or possession, or

any licence, permit or other document granted to him or required to be kept

by him under the provisions of this Act;

(b) stop any vehicle or vessel in order to conduct search or inquiry

or enter upon and search any premises, land, vehicle or vessel, in the occu-

pation of such person, and open and search any baggage or other things in

his possession;

(c) seize any captive animal, wild animal, animal article, meat,

trophy or uncured trophy, or any specified plant or part or derivative thereof,

in respect of which an offence against this Act appears to have been com-

mitted, in the possession of any person together with any trap, tool, vehicle,

vessel or weapon used for committing any such offence and, unless he is

73

satisfied that such person will appear and answer any charge which may be

preferred against him, arrest him without warrant, and detain him:

Provided that where a fisherman, residing within ten kilometres of a sanctu-

ary or National Park, inadvertently enters on a boat, not used for commercial

fishing, in the territorial waters in that sanctuary or National Park, a fishing

tackle or net on such boat shall not be seized.

2. [x x x x]

(3) It shall be lawful for any of the officers referred to in sub-section

(1) to stop and detain any person, whom he sees doing any act for which a

licence or permit is required under the provisions of this Act, for the pur-

poses of requiring such person to produce the licence or permit and if such

person fails to produce the licence or permit, as the case may be, he maybe

arrested without warrant, unless he furnishes his name and address, and

otherwise satisfies the officer arresting him that he will duly answer any

summons or other proceedings which may be taken against him.

(3A) Any officer of a rank not inferior to that of an Assistant Director

of Wild Life Preservation or an Assistant Conservator of Forests, who, or

whose subordinate, has seized any captive animal or wild animal under

clause (c) of sub-section (1) may give the same for custody on the execution

by any person of a bond for the production of such animal if and when so re-

quired, before the Magistrate having jurisdiction to try the offence on ac-

count of which the seizure has been made.

(4) Any person detained, or things seized under the foregoing

power, shall forthwith be taken before a Magistrate to be dealt with accord-

74

ing to law under intimation to the Chief Wild Life Warden or the officer au-

thorised by him in this regard.

(5) Any person who, without reasonable cause, fails to produce

anything, which he is required to produce under this section, shall be guilty

of an offence against this Act.

(6) Where any meat, uncured trophy, specified plant or part or de-

rivative thereof is seized under the provisions of this section, the Assistant

Director of Wild Life Preservation or any other officer of a gazetted rank au-

thorised by him in this behalf or the Chief Wild Life Warden or the authorised

officer may arrange for the disposal of the same in such manner as may be

prescribed.

(7) Whenever any person is approached by any of the officers re-

ferred to in sub-section (1) for assistance in the prevention or detection of an

offence against this Act, or in apprehending persons charged with the viola-

tion of this Act, or for seizure in accordance with clause (c) of sub-section

(1), it shall be the duty of such person or persons to render such assistance.

(8) Notwithstanding anything contained in any other law for the time

being in force, any officer not below the rank of an Assistant Director of Wild

Life Preservation or an officer not below the rank of Assistant Conservator of

Forests authorised by the State Government in this behalf shall have the

powers, for purposes of making investigation into any offence against any

provision of this Act,-

(a) to issue a search warrant;

(b) to enforce the attendance of witnesses;

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(c) to compel the discovery and production of documents and ma-terial objects; and

(d) to receive and record evidence.

(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.]

S.51 – Penalties - (1) Any person who contravenes any provision of this Act

(except Chapter VA and Section 38J) or any rule or order made thereunder

or who commits a breach of any of the conditions of any licence or permit

granted under this Act, shall be guilty of an offence against this Act, and

shall, on conviction, be punishable with imprisonment for a term which may

extend to three years or with fine which may extend to twenty-five thousand

rupees or with both:

Provided that where the offence committed is in relation to any animal

specified in Schedule I or Part II of Schedule II or meat of any such animal

or animal article, trophy or uncured trophy derived from such animal or

where the offence relates to hunting in a sanctuary or a National Park or al-

tering the boundaries of a sanctuary or a National Park, such offence shall

be punishable with imprisonment for a term which shall not be less than

three years but may extend to seven years and also with fine which shall not

be less than ten thousand rupees:

Provided further that in the case of a second or subsequent offence of

the nature mentioned in this sub-section, the term of the imprisonment shall

not be less than three years but may extend to seven years and also with

fine which shall not be less than twenty-five thousand rupees.

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(1A) Any person who contravenes any provisions of Chapter VA,

shall be punishable with imprisonment for a term which shall not be less

than three year but which may extend to seven years and also with fine

which shall not be less than ten thousand rupees.

1B) Any person who contravenes the provisions of Section 38J shall

be punishable with imprisonment for a term which may extend to six months,

or with fine which may extend to two thousand rupees, or with both:

Provided that in the case of a second or subsequent offence the term

of imprisonment may extend to one year or the fine may extend to five thou-

sand rupees.

(2) When any person is convicted of an offence against this Act, the

Court trying the offence may order that any captive animal, wild animal, an-

imal article, trophy, uncured trophy, meat, ivory imported into India or an art-

icle made from such ivory, any specified plant, or part or derivative thereof in

respect of which the offence has been committed, and any trap, tool,

vehicle, vessel or weapon, used in the commission of the said offence be

forfeited to the State Government and that any licence or permit, held by

such person under the provisions of this Act, be cancelled.

(3) Such cancellation of licence or permit or such forfeiture shall be in ad-

dition to any other punishment that may be awarded for such offence.

(4) Where any person is convicted of an offence against this Act, the

court may direct that the licence, if any, granted to such person under the

Arms Act, 1959 (54 of 1959), for possession of any arm with which an of-

fence against this Act has been committed, shall be cancelled and that such

77

person shall not be eligible for a licence under the Arms Act, 1959 (54 of

1959), for a period of five years from the date of conviction.

(5) Nothing contained in Section 360 of the Code of Criminal Procedure,

1973 (2 of 1974) or in the Probation of Offenders Act, 1958 (20 of 1958)

shall apply to a person convicted of an offence with respect to hunting in a

sanctuary or a National Park or of an offence against any provision of

Chapter VA unless such person is under eighteen years of age.]

S.51A – Certain conditions to apply while granting bail When any per-

son accused of, the commission of any offence relating to Schedule I or Part

II of Schedule II or offences relating to hunting inside the boundaries of Na-

tional Park or wild life sanctuary or altering the boundaries of such parks and

sanctuaries, is arrested under the provisions of the Act, then notwithstanding

anything contained in the Code of Criminal Procedure, 1973 no such person

who had been previously convicted of an offence under this Act shall be re-

leased on bail unless

(a) the Public Prosecutor has been given an opportunity of oppos-

ing the release on bail; and

(b) where the Public Prosecutor opposes the application, the Court

is satisfied that there are reasonable grounds for believing that he is not

guilty of such offence and that he is not likely to commit any offence while on

bail.

S.52 – Attempts and abetment – Whoever attempts to contravene, or

abets the contravention of, any of the provisions of this Act or of any rule or

78

order made thereunder shall be deemed to have contravened that provi-

sions or rule or order, as the case may be.

S.53 – Punishment for wrongful seizure - If any person, exercising

powers under this Act, vexatiously and unnecessarily seizes the property of

any other person on the pretence of seizing it for the reasons mentioned in

Section 50, he shall, on conviction, be punishable with imprisonment for a

term which may extend to six months, or with fine which may extend to five

hundred rupees, or with both.

S.54 – Power to compound offences - (1) The Central Government may,

by notification, empower the Director of Wild Life Preservation or any other

officer not below the rank of Assistant Director of Wild Life Preservation and

in the case of a State Government in the similar manner, empower the Chief

Wild Life Warden or any officer of a rank not below the rank of a Deputy

Conservator of Forests, to accept from any person against whom a reason-

able suspicion exists that he has committed an offence against this Act, pay-

ment of a sum of money by way of composition of the offence which such

person is suspected to have committed.

(2) On payment of such sum of money to such officer, the suspec-

ted person, if in custody, shall be discharged and no further proceedings in

respect of the offence shall be taken against such person.

(3) The officer compounding any offence may order the cancellation of

any licence or permit granted under this Act to the offender, or if not em-

powered to do so, may approach an officer so empowered, for the cancella-

tion of such licence or permit.

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(4) The sum of money accepted or agreed to be accepted as composition

under sub-section (1) shall, in no case, exceed the sum of twenty-five thou-

sand rupees:

Provided that no offence, for which a minimum period of imprisonment has

been prescribed in Section 51, shall be compounded.]

S.55 – Cognizance of offences - No Court shall take cognizance of any of-

fence against this Act on the complaint of any person other than-

(a) the Director of Wild Life Preservation or any other officer author-

ised in this behalf by the Central Government; or

(aa) the Member-Secretary, Central Zoo Authority in matters relating

to violation of the provisions of Chapter IVA; or

(b) the Chief Wild Life Warden, or any other officer authorised in

this behalf by the State Government subject to such conditions as may be

specified by that Government; or

(bb) the officer-in-charge of the zoo in respect of violation of provi-

sions of Section 38J; or

(c) any person who has given notice of not less than sixty days, in

the manner prescribed, of the alleged offence and of his intention to make a

complaint, to the Central Government or the State Government or the officer

authorised as aforesaid.

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S.57 – Presumption to be made in certain cases – Where, in any prosec-

ution for an offence against this Act, it is established that a person is in pos-

session, custody or control of any captive animal, animal article, meat,

trophy, uncured trophy, specified plant, or part or derivative thereof it shall

be presumed, untill the contrary is proved, the burden of proving which shall

lie on the accused, that such person is in unlawful possession, custody or

control of such partive animal, animal article, meat, trophy, uncured trophy,

specified plant or part or derivative thereof.

S.58 – Offences by companies - (1) Where an offence against this Act has

been committed by a company, every person who, at the time the offence

was committed, was in charge of, and was responsible to, the company for

the conduct of the business of the company as well as the company, shall

be deemed to be guilty of the offence and shall be liable to be proceeded

against and punished accordingly :

Provided that nothing contained in this sub-section shall render any

such person liable to any punishment, if he proves that the offence was

committed without his knowledge or that he exercised all due diligence to

prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an

offence against this Act has been committed by a company and it is proved

that the offence has been committed with the consent or connivance of, or is

attributable to any neglect on the part of, any director, manager, secretary or

other officer of the company, such director, manager, secretary or other of-

ficer shall also be deemed to be guilty of that offence and shall be liable to

be proceeded against and punished accordingly.

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Explanation.- For the purposes of this section,-

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.

Wild Life (Protection) Act 1972, Ss. 49B, 50 & 51 - Regular

bail - Offences committed inside reserve forest, tiger reserve,

ecologically important spots etc. are to be viewed more

seriously. -The criminal activities leading to offences under the

Wild Life Protection Act are varied. Offences committed inside

reserve forest, tiger reserve, ecologically important spots etc.

are to be viewed more seriously. At the same time, it was

noticed, there are cases where villagers commit offences

under the Wild Life Protection Act, without knowing the legal

implications and without even knowing that it would amount to

an offence. - (2010 (1) KLT 794) (J.K.T. Sankaran) (Ramesh

v. State of Kerala)

Wild Life (Protection) Act 1972, Ss. 9( 2), 11 & 12 - Unless

permitted under the Act, hunting of giant squirrels is an

offence. - Entry 1D in Schedule II of the Wild Life (Protection)

Act, 1972 pertains to Giant Squirrels (Ratufa macroura,

Ratufa indica, ratufa bicolor). Section 9 of the Wild Life

(Protection) Act prohibits hunting of any wild animal specified

in Schedules I, II, III and IV except as provided under Sections

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11 and 12. There is no case for the defence that the accused

was permitted by the Chief Wild Life Warden to hunt Giant

Squirrel or cause the said animal to be hunted as it had

become dangerous to human life or disabled or diseased

beyond recovery within the meaning of Section 11 of the said

Act or that the Chief Wild Life Warden had permitted the

accused to hunt any wild animal for the purpose of education,

scientific research or scientific management as provided

under Section 12 of the said Act. - (J.V. Ramkumar) (Soman

v. Forest Range Officer) - 2008 (3) KLT Suppl. 30 : 2008 (2)

KLJ 544

Ss.51(5), 52(1) & 61A -- Judicial Magistrate, before whom a

vehicle seized under the Act is produced, is competent to give

interim custody of the same to the registered owner - 2004 (3)

KLT 322 (j. K. Balakrishnan Nair) (Mohammed Ismail v. State

of Kerala)

Wild Life (Protection) Act S.57 - In order to draw the

presumption under S.57, it is not necessary that the person

should be in possession of the captive animal, animal article,

meat etc. with complete dominion over the animal or article -

Conscious possession and mere custody or control is

sufficient - Burden is on the accused to offer explanation with

regard to the possession. - it is clear from the provisions of

S.57 of the Act that if it is established that a person is in

possession, custody or control of any captive animal, animal

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article, meat etc., there is a legal presumption against him that

he is in unlawful possession, custody or control of such

captive animal, meat etc., until the contrary is proved by that

person - 1999 (2) KLT 665 (K.A. Mohamed Shafi, J.) (Sakeer

Hussain v. Forest Range Officer)

S.451 -- Wild Life (Protection) Act, 1972, S.39, S.39(1)(d),

S.42, S.43, S.44, S.49 (Kha), S.50(1)(c), S.51(Kha) -- Release

of the vehicle seized under S.50(1)(c) of the Act -- Provisions

of S.50 of the Act do not in any way affect the Magistrate's

power to make an order of interim release of the vehicle under

S.451 CrPC -- Provisions of S.39(1)(d) cannot be used

against exercise of the Magisterial power to release the

vehicle during pendency of the trial - 2008 (2) KLT 105 :

2008 (14) SCC 624

S.50(1),S.50(2) S.50(3A),S.50(4),S.39 -- Release of seized

vehicle which was used in offence -- Aspects to be considered

by the Magistrate while dealing with application for release of

the vehicle -- Criminal Procedure Code, 1973 S.457, S.451 -

2007 (7) SCC 334 : 2007 (3) KLJ 374

S.51 -- Wild life -- Complaint filed by Assistant Wild Life

Warden -- Notification No. 4003/XLV-3-67-74 dated April 30,

1976 empowered all Assistant Wild Life Wardens to prosecute

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offenders -- Therefore, acquittal of accused on ground that

Assistant Wild Life Warden was not competent to file

complaint held to be improper ( Uttaranchal High Court ) -

2006 KHC 2117 : 2006 CriLJ 503