Abdul Gafoor and others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 BAIL APPL. NO. 10660 OF 2023 ``` ``` CRIME NO.9/2023 OF Mupliyam Forest Station, Thrissur PETITIONER/S: ``` - **`1 ABDUL GAFOOR,AGED 45 YEARS,S/O.HAMZA, NAMBIATH HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582`** - **`2 NISAR,AGED 32 YEARS,S/O.HAMZA, NAMBIATH HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582`** - **`3 MUHAMMED SHAREEF,AGED 43 YEARS S/O.SAIDALAVI, ACHIPRA HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582`** - **`4 AKBAR ALI,AGED 46 YEARS,S/O.HAMZA, NELLIKKOTTAYIL HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582 BY ADV BABU S. NAIR`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031`** - **`2 THE DEPUTY RANGE OFFICER, MUPLIYAM FOREST STATION, VELLIKULANGARA FOREST RANGE, THRISSUR DISTRICT, PIN - 680312`** - **`SPECIAL PP Sri Nagraj Narayanan,Sr PP Sri Aravind Mathew ,Sr PP Smt Neema T.V ,PP Smt Nima Jacob`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 10660 of 2023 ## **C.S.DIAS,J** ## **======================** **Bail Application No. 10660 of 2023 -----------------------------------** ## Dated this the 23[rd] day of February, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 6 to 9 in OR No.9/2023 of the Mupliyam Forest Station in Vellikulangara Forest Range in Chalakkudy Division, Thrissur District, registered against the accused (nine in number) for allegedly committing the offences punishable under Sections 27 (1) e (iii) (iv) and 47A, B, C, D, G, H of the Kerala Forest Act, 1961 (in short, ‘Act’). 3. The crux of the prosecution case is that: some of the accused had trespassed into the Areswaram area of the Kodassery notified Reserve Forest and by using tools had illegally felled, converted and removed three sandal 3 Bail Application No. 10660 of 2023 trees with vehicles, and caused a loss of Rs.6000/- to the exchequer. The Mupliyam Forest Station filed Form I report before the jurisdictional Magistrate on 14.8.2023. The investigation has revealed that it was the 3[rd] accused and other persons who committed the crime. The 4[th] accused had transported the sandalwood and gave it to the accused 6 to 9. The confession statements of the 4[th] accused reveals that the accused 6 to 9 had pre-planned the crime. Thus, the accused have committed the above offences. 4. Heard; Sri. Babu S. Nair, the learned counsel appearing for the petitioners, Sri, Nagaraj Narayanan, the learned Special Public Prosecutor. 5. Sri. Babu S Nair strenuously argued that the petitioners have been falsely implicated in the crime. Other than for the alleged confession statement of the 4[th] accused there is nothing on record to connect the petitioners with the crime. The so called confession statements are inadmissible in evidence, in view of the 4 Bail Application No. 10660 of 2023 law laid down by this Court in **Luca Beltrami and Others v. State of Kerala** , [2020 (4) KHC 603], **Prakashan v. State of Kerala** [2023 (1) KHC 536] and **Gopi v. State of Kerala** [2024 KHC 18]. He also relied on the provisions under Section 72 of the Act, Article 20(3) of the Constitution of India and Section 25(3) of the Evidence Act, to fortify his contention that a confession recorded by a Forest Officer cannot be used in evidence. According to him, the whole case set up by the prosecution, against the petitioners, based on the alleged confession of the 4[th] accused is a nullity as held by this Court in **Prakasan’s case** . He further contended that the petitioners are the law abiding citizens and have no criminal antecedents. The petitioners are ready to abide by any stringent conditions that may be imposed by this Court. They are also willing to co-operate with the investigation. 6. The learned Special Public Prosecutor seriously opposed the application. The Investigating Officer has also filed a bail objection report. The learned Special Public 5 Bail Application No. 10660 of 2023 Prosecutor placed reliance on the decisions of the Honourable Supreme Court in **Badku Joti Savant v State of Mysore** [ AIR 1966 SC 1746] **Moti Lal v. Central Bureau of Investigation** [2001 KHC 2250] and the decisions of this Court in **Forest Range Officer v. Aboobacker** [1989 KHC 201] and **Kunhali and others v. Forest Range Officer and another** [2012 KHC 231], to canvass the position that the confession recorded by the forest officer is admissible in evidence. He contended that the arguments of the learned counsel for the petitioners is untenable. In addition to the above contention, he also submitted that there are other incriminating materials, including the pictures recovered from the mobile phone of the 4[th] accused, with the pictures of the farm house of the 6[th] accused. The investigation has also revealed that the accused have jointly travelled in a car and passed through the Paliyekkara Toll Plaza in Thrissur District. He submitted that the accused 6 and 7 have criminal antecedents. The petitioners custodial interrogation is 6 Bail Application No. 10660 of 2023 necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. From the materials placed on record, the gist of the prosecution allegation is that, the accused 1 to 3 cut and removed six sandal trees from the Kodassery notified Reserve Forest, which was transported by the 4[th] accused and given to the petitioners. 8. The 4[th] accused was implicated on the basis of the confession made by the accused 1 to 3 and consequently he was arrested. Then, the 4[th] accused in his interrogation allegedly confessed that he had given the sandalwood to the petitioners – accused 6 to 9. Therefore, the petitioners have been implicated, on the alleged confession made by the 4[th] accused. 9. Section 72 of the Kerala Forest Act, 1961 reads as follows:- - “ 72. Investing Forest Officers with powers. - The Government may - invest any Forest Officer not below the rank of an Assistant Conservation of 7 Bail Application No. 10660 of 2023 Forests with all or any of the following powers, and may withdraw the same:- - (a) power to enter upon any land and to survey, demarcate and make a map of the same , - (b) powers of a Forest Settlement Officer; - (c) powers of a Civil Court to compel the attendance of witnesses and the production of documents ; - (d) power to hold inquiries into forest offences and, in the course of such inquiries, to receive and record evidence and to issue search warrants which may be executed in the manner provided by the Code of Criminal Procedure, 1898; - (e) power to accept compensation for forest offences under section 68 of this Act Any Evidence Recorded Under Clause (D) Of This Section Shall Be Admissible In Any Subsequent Trial Of The Alleged Offender Before A Magistrate ; Provided That it Has Been Taken In The Presence Of The Accused Person And recorded In The Manner Provided By The Code Of Criminal Procedure, 1898.” ## 10. While interpreting Section 72 of Forest Act, ## 1961, this Court in **Luca Beltrami’s case** has held thus:- - “8. **Therefore, the Forest Range Officer and the Deputy Forest Range Officer by whom the enquiries into the alleged offence have been made and confession statements of the petitioners have been recorded, are not empowered by the Act to do so. In the said circumstances, the proceedings conducted by them are without authority invested by the Act and therefore illegal. The evidence in the case on hand, having been** 8 Bail Application No. 10660 of 2023 ## **collected by officers not empowered to do so, the prosecution undoubtedly is devoid of basis and is only to fail.** Xxxxxxx” (emphasis supplied) 11. This Court in dealing with an analogous provision to Section 72 of the Act, namely Section 50 of the Wild Life Protection Act, 1972, in **Prakashan’s case,** while considering an application filed under Section 438 of the Code, has succinctly observed thus:- “5. The learned Counsel for the petitioners pointed out a very serious anomaly insofar as the investigation and recording of the confession by the Investigating Officer herein, who is none other than the Forest Ranger who is not authorised under S.50(8) of the Wild Life (Protection) Act, 1972 neither to investigate nor to record confession. The learned Counsel for the petitioner placed two decisions on this point. _Luca Beltrami and Others v. State of Kerala_ reported in 2020 (4) KHC 603 is the final decision placed to substantiate the said point. Apart from that, he has placed decision of the Bombay High Court in Criminal Revision Application No.1 of 2015 rendered on 22/06/2015. 6. The learned Public Prosecutor though opposed this contention, she failed to go out of the orbit of S.50(8) of the Wild Life (Protection) Act, 1972. S.50 deals with the power of entry, search, arrest and detention of persons involved in offences under the Wild Life (Protection) Act, 1972. Sub-Sections (8) and (9) of S.50 of the Wild Life (Protection) Act provides as under: (8) Notwithstanding anything contained in any other law for the time 9 Bail Application No. 10660 of 2023 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; (c) to compel the discovery and production of documents and material 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. Even on a cursory reading of the above legal provisions, it is clear that at the time of passing the Wild Life (Protection) Act, sub-section (8) was not there. However, by way of amendment introduced with effect from Act 16 of 2003, the Assistant Director of Wild Life Preservation was authorised to issue a search warrant; to enforce the attendance of witnesses; to compel the discovery and production of documents and material objects; and to receive and record evidence. Thereafter, by way of amendment introduced by amendment Act 44 of 1991, Assistant Conservator of Forest was authorised by the State Government in this behalf also was given the power to do the said exercise since S.50(8) authorises an officer not below the rank of Assistant Director of Wild Life Preservation or Assistant Conservator of Forests to receive and record evidence. Any officer not below their rank cannot have the power to do any acts provided as (a) to (d) and if anything done by the officer below the rank is a nullity and has no legal effect. **Be it as may, the confession recorded by the Forest Ranger is a nullity and the same has no legal effect. So the legal question is emphatically clear that the competent persons to record confession statement,** _**i.e**_ **., to record and receive evidence** 10 Bail Application No. 10660 of 2023 **are (1) Assistant Director, Wild Life Preservation or (2) Assistant Conservator of Forests authorised by the State Government in this behalf and no other officer / officers below their rank. Therefore, the confession statement relied on by the prosecution to array accused Nos.2 to 4 in the crime, only be found as a statement recorded by an incompetent officer and the same has no legal sanctity.”** (emphasis given) 12. Almost on the same lines in the afore-cited two precedents this Court again while construing Section 50 of the Wild Life Protection Act, in **Gopi’ s case** has held in the following lines:- “5. xxxxxx The issue involved in the present case is pertaining to the validity or the evidentiary value of the confession statement alleged to have been recorded by the forest official and whether it would come under the purview of clause (d) of sub-section (8) of Section 50 of the Act. Hence, the crucial question that requires initial consideration are (1) whether the officers empowered under sub-section (8) will have the authority to record a confession statement, if so, what is the procedure to be followed (2) if not, what would be the evidentiary value of the confession statement, if any recorded by such officers and (3) whether a conviction can be based on such confession statement. 6. Sub-section (9) says that the statement or the evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, but provided that it has been taken in the presence of the 11 Bail Application No. 10660 of 2023 accused person. The statement or the evidence recorded under clause (d) of sub-section (8) would be admissible in any subsequent trial only when it is recorded or taken down “in the presence of accused person”. The mandate that it should be recorded or taken down in the presence of accused would convey largely what is intended by the legislature by the abovesaid clause (d) to Section 50(8) and 50(9) of the Act. A confession statement taken or recorded from the accused will not come under the purview of a statement recorded “in the presence of accused”. The user of the term “in the presence of accused” indicates and stands for any evidence or statement either recorded or taken down from a person other than an accused. The said legal position can also be gathered when there are more than one accused in the crime. **The upshot of the discussion is that the area specified, the power assigned and the jurisdiction vested under clause (d) of Section 50(8) of the Act is only pertaining to record any evidence or statement in the presence of an accused person by a competent officer and does not include a confession statement by the accused. A confession statement recorded by any such officer will not fall under the purview of clause (d) of Section 50(8) of the Act and hence not admissible in evidence under that provision. Necessarily, the competent officer empowered under Section 50(8) of the Act cannot exercise the jurisdiction of the Magistrate to record a confession under the provisions of the Code of Criminal Procedure viz., Section 164 Cr.P.C. during the course of investigation.”** (again emphasised) 12 Bail Application No. 10660 of 2023 13. The ratio decidendi in the above three precedents of this Court leaves no room for any doubt that any officer below the rank of Assistant Conservator of Forests does not have the power to do any act prescribed under Section 72 of the Forest Act. Therefore, as rightly observed in **Prakashan’s case,** any confession recorded by any other officer, other than the above Officer is a nullity and have no sanctity in the eyes of law. 14. Admittedly, in the instant case, the confession of the 4[th] accused has not been recorded by the above stated Officer. There is also no other incriminating materials placed before this Court to establish the involvement of the petitioners in the crime. 15. Viewed in the above background and taking into account the initial statement filed by the Investigating Officer that the petitioners have been implicated on the strength of the confession statement made by the 4[th] accused, I am prima facie of the view that the petitioners have made out exceptional grounds to invoke the extra 13 Bail Application No. 10660 of 2023 ordinary jurisdiction of this Court under Section 438 of the Code and have fulfilled the parameters laid down by the Honourable Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] and a plethora of judgments warranting this Court to exercise its discretionary powers. Hence, I am inclined to allow the bail application, but subject to stringent conditions:- In the result, the application is allowed subject to the following conditions: i) The petitioners are directed to surrender before the Investigating Officer within one week from today. ii) In the event of the petitioners’ arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; 14 Bail Application No. 10660 of 2023 iv) The petitioners shall co-operate with the investigation and make themselves available for interrogation as and when directed by the Investigating Officer ; v). The petitioners shall not intimidate witnesses or interfere with the investigation in any manner; vi). The petitioners shall not get involved in any other offence while on bail. vii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the 15 Bail Application No. 10660 of 2023 petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** (x) Needless to say, any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. **SD/-** **C.S.DIAS, JUDGE** ``` sks/26.2.2024 ```