Whether it is a forest produce or not under Section 2(f) of the 1961 Act, is immaterial, the bench said.
The Supreme Court, in Wild Life Warden v Komarrikkal Elias, has held that elephant tusk is a property of the Government and presumption under Section 69 of the Kerala Forest Act is attracted, whether or not it is a forest property.
In this case, the Assistant Wild Life Warden’s order for confiscation of the items seized and the Jeep belonging to the Komarrikkal Elias was challenged before the district judge who held that the elephant tusk was not a forest produce. The appellate authority, remanding the matter, opined that there was no clinching evidence on record to arrive at the finding that it was a government property and further the presumption as contemplated under Section 69 of the 1961 Kerala Forest Act could not be attracted. The high court held the presumption was not attracted and further, the elephant tusk was not a forest produce, for it was not mentioned in the definition as a forest produce or under Section 61A of the Kerala Forest Act 1961 Act.
Section 69 states that when, in any proceedings taken under the Kerala Forest Act, or in consequence of anything done under the Act, a question arises as to whether any forest produce is the property of the Central or state governments, 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.
A three-judge bench headed by the CJI Dipak Misra, referring to Section 39(1) (c) of the Wildlife Protection Act 1972, observed that, as per the said provision an ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed, shall be deemed to be the property of the state government, and where such animal is hunted in a sanctuary or national park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal shall be the property of the Central Government.
“In view of the aforesaid, there cannot be an iota of doubt that elephant tusk is a property of the Government and there is a declaration to that effect under Section 39(1) of the 1972 Act. In view of the aforesaid, the conclusion arrived at by the High Court that the presumption does not arise under Section 69 of the 1961 Act, is incorrect. Whether it is a forest produce or not under Section 2(f) of the 1961 Act, is immaterial,” the bench said.
However, the bench, which partly allowed the appeal, said as the offence is almost 20 years old, it is not directing recovery of the Jeep involved in this case.