Whether or not elephant ivory is forest produce, it is government property. In a step taken to embolden the initiative undertaken for preservation of elephants under the Wildlife (Protection) Act, 1972, the Hon’ble Supreme Court concluded that it is immaterial if elephant ivory is a forest produce or not, it will be considered as a government property and presumption established under section 69 of Kerala Forest Act, 1961 will come into action.

A bench comprising of Hon’ble Chief Justice Dipak Misra, Justice A. M. Khanwilkar and Justice D. Y. Chandrachud observed that presumption under section 69 of the Kerala Forest Act, 1961 will be attracted as it has to be read in light of section 39(1)(c) of the Wildlife (Protection) Act, 1972 which is a central Act. In the matter of Wild Life Warden v. Komarrikkal Elias where elephant tusk, unlicensed gun and other accessories were ordered to be confiscated by the Assistant Wild Life Warden from the respondent who was alleged to have unauthorized possession of the abovementioned articles. This order was challenged before the Hon’ble District Judge, Wayanad, who remanded the said matter back to the authority concluding that the presumption under section 69 cannot be attracted as the definition of ‘forest produce’ under section 2(f) of Kerala Forest Act ,1961 does not have a mention of elephant ivory, and the same view was taken by Single Judge bench of the Hon’ble High Court when a civil revision was preferred.

Section 39(1)(c) of Wildlife (Protection) Act 1972 provides as follows:

“(c) 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 State Government and, where such animal is hunted in a sanctuary or National Park declared by the Central Government such animal or any article, trophy, uncured trophy, or meat derived from such animal or any vehicle, vessel, weapon, trap, or tool used in such hunting shall be the property of Central Government.”

Consequently, it is opined by the three-judge bench of the Apex Court that even if the definition of forest produce under section 2(f) of Kerala Forest Act, 1961 does not have an explicit mention of elephant ivory but an observation of section 39(1)(c) which was inserted in the Wildlife (Protection) Act, 1972 via Act 44 of 1991 with an objective to preserve wild elephants makes it crystal clear that elephant ivory is a government property, hence attracting section 69 of the Kerala Forest Act, 1961.

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