Babu v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 ``` ``` CRL.REV.PET NO. 175 OF 2018 ``` ``` AGAINST THE JUDGMENT IN CC 575/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,PALAKKAD ``` ``` CRA 249/2015 OF ADDITIONAL SESSIONS JUDGE- IV, PALAKKAD REVISION PETITIONER/APPELLANT/2ND ACCUSED ``` ``` BABU AGED 33 YEARS, S/O.RAKKAN, MANNAMKUNDU VEEDU, PATHIRIPALA,PERUR, LAKKIDI, OTTAPALAM. ``` ``` BY ADV SRI.T.K.SANDEEP ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI. ARAVIND V. MATHEW-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 2 ``` **ORDER** Dated this the 3[rd] day of October, 2023 The revision petitioner, who is the 2[nd] accused in O.R No.2 of 2007 registered by the Forest Range Officer, Olavakkode Range for offences punishable under Section 27(1) (e)(iii)(iv) read with Sections 52(1) and 61A of the Kerala Forest Act, 1961, is before this Court aggrieved by judgment dated 31.08.2015 in C.C.No.575 of 2010 of the Court of the Judicial First Class Magistrate-III, Palakkad and by the judgment dated 30.11.2017 in Criminal Appeal No.249 of 2015 of the Court of the Sessions Division, Palakkad. 2. The prosecution allegation is that on 09.05.2007, the accused persons were found transporting three logs of rosewood and firewood in Goods Autoriskshaw bearing registration No.KL-09M-4294. On enquiry, it was found that the logs were cut and removed from Chenoth Nair Reserve Forest. ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 3 ``` On the afore premises, the accused are alleged to have committed the offences. 3. The Court of the Judicial First Class Magistrate-III, Palakkad examined PW1 to PW4 on behalf of the prosecution. Exts.P1 to P6 were marked for the prosecution. After evidence and hearing, the Magistrate Court found that the prosecution has proved that the 2[nd] accused has trespassed into Reserve Forest to cut and remove rosewoods. Regarding the offences alleged to have been committed by the revision petitioner, the Magistrate Court found that prosecution is successful in proving that the 2[nd] accused had committed an offence punishable under Section 27(1)(e)(iii) of the Kerala Forest Act, 1961 (hereinafter referred to as the Act, 1961). Consequently, the revision petitioner was convicted for the offence under Section 27(1)(e)(iii) and was acquitted of the offence under Section 27(1)(e)(iv) of the Act, 1961. The revision petitioner was sentenced to undergo simple imprisonment for one year and to ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 4 ``` pay fine of `1,000/-. In case of default, the petitioner was directed to undergo further Imprisonment for one month. 4. The revision petitioner filed Criminal Appeal No.249 of 2015 before the Court of the Sessions Division, Palakkad. The Court of the Sessions Division found that the evidence of PW1 and PW2 regarding the seizure of logs is consistent and coherent. Ext.P1 Mahazar was prepared from the place of occurrence itself. The confession made to a Forest Officer is not hit by Sections 25 and 26 of the Indian Evidence Act. The appellate court held that the lower court has found accused No.2 guilty on tenable grounds. The Sessions Court found no reason to interfere with the finding of the court below. Accordingly, the Appeal was dismissed. 5. Counsel for the revision petitioner submitted that the courts below went wrong in convicting the revision petitioner solely based on the evidence of the prosecution witnesses. The court below ought not have relied on the confession statement ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 5 ``` given to the Forest Range Officer. The revision petitioner had retracted from the said confession. The revision petitioner relied on the judgment of this Court in **Lucca Beltrami and others v. State of Kerala** [2020 (5) KLT 24] and contended that Assistant Conservator of Forests, Deputy Conservator of Forests and Conservator of Forests within their respective jurisdiction and the Chief Conservator of Forests for the whole State are empowered to hold enquiries into forest offences and in the course of such enquiries, to receive and record evidence and to issue search warrants. Confession statements recorded by the Forest Range Officers are not sustainable. 6. Counsel for the revision petitioner further submitted that both the courts below went wrong in relying on the evidence of Forest Officers alone without any corroborative evidence to sustain conviction. The material objects were not produced before the court below. The court below ought to have found that the detecting officer had failed to comply with ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 6 ``` necessary procedures that are to be adopted while seizing of forest produce. 7. Public Prosecutor entered appearance and resisted the revision petition. On behalf of the State, the Public Prosecutor submitted that the petitioner stands convicted for the offence punishable under Section 27(1)(e)(iii) of the Act, 1961 on legal and tenable grounds. PW1 to PW4 were examined. PW1 to PW4 were subjected to cross examination. However, the revision petitioner failed to bring out any anomaly in the testimony of PWs 1 and 2. The offence was of cutting and removing forest wood. The stumps of the forest wood were found in the forest. Therefore, it cannot be stated that the revision petitioner has not committed the offence. The Public Prosecutor relied on the judgment of this Court in **Mundamdra Kareem and another v. Deputy Ranger, Forest Station, Pothukal and another** [2014 (4) KLT 597] to contend that without trespassing into the forest, accused persons cannot cut ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 7 ``` and remove timber and therefore offence under Section 27(1) (e)(iii) will be attracted. The fact that the logs were found in possession of the revision petitioner is not in dispute. Therefore, in view of the judgment of this Court in **Mundamdra Kareem** (supra), the revision petition is liable to be dismissed. 8. I have heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the respondent. 9. The allegation of the prosecution is that on 09.05.2007, the accused persons were found transporting three logs of rosewood and firewood of rosewood on Goods Autorikshaw bearing registration No.KL-09M-4294. It is alleged that on enquiry it was found that wood logs were cut and removed from Chenoth Nair Reserve Forest. On these premises, the revision petitioner is alleged to have committed offence under Section 27(1)(e)(iii) of the Act, 1961. ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 8 ``` 10. Section 27(1)(e)(iii) of the Act, 1961 states that any person who, in a Reserved Forest or in a land proposed to be constituted a Reserve Forest, cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages, the same 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 addition to such compensation for damage done to the forest as the convicting court may direct to be paid. 11. In **Antony v. Forest Range Officer** [1977 KLT (6) 691], this Court held that before a person can be held guilty under Section 27 of the Kerala Forest Act, it has to be proved that the act complained off was done in a Reserved Forest. It is to be noted that in the present case, there is no allegation that the Autorickshaw containing the logs were seized from within ``` CRL.REV.PET NO.175 OF 2018 9 ``` the limits of any Reserved Forest. 12. In **Basheer, S/o. Veeran and another v. State of Kerala** [2022 KHC 2938], this Court considered a similar aspect where there was no direct evidence to show that accused themselves trespassed into Reserved Forest and cut and removed trees. This Court in such circumstances held that the ingredients of Section 27(1)(e)(iii) and (iv) are not attracted. 13. The Public Prosecutor relied on the judgment of this Court in **Kunhali and others v. Forest Range Officer and another** [2012 (2) KLJ 124]. In the said judgment, this Court, taking into consideration the facts of the case, held as follows: “31. As the timber logs were of rosewood, it is not even necessary for the prosecution to prove whether those timber logs were brought from a forest; because the word ‘or not’ succeeding the word ‘forest’ would make it clear that even if the timber logs of rosewood were found outside the forest, still the presumption under S.69 of the Act would apply that it is the property of the Central or State Government, as the case may be, until the contrary is proved. S.69 provides for a statutory presumption that the forest produce belongs to Government and casts the burden on the person proceeding to establish the contrary. Presumption under S.69 of the Act could not be rebutted by the defence. In fact, there was no case for the accused that it was cut and removed from any other property or that they ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 10 ``` possessed those timber logs under any lawful authority.” 14. The finding of this Court in **Kunhali and others** (supra) is that as the timber logs were of rosewood, it is not necessary for the prosecution to prove whether those timber logs were brought from a forest and the presumption under Section 69 of the Act would apply that it is the property of the Central or State Government. 15. I find that the offence alleged against the petitioner is of cutting or felling of trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled or strips off the bark or leaves from or otherwise damages the same. Even if there is a presumption that the timber logs of rosewood found outside the forest are property of the Central or State Government, even that may not be sufficient to attract a penalty under Section 27(1)(e)(iii) of the Act, 1961. ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 11 ``` 16. The Public Prosecutor then argued that the offence of Section 27(1)(d) will be attracted in the facts of the case and the petitioner is liable to be convicted for the same. Section 27(1)(d) would provide that any person who 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 shall be punished with imprisonment for a term which shall not be less than one year and with a fine which shall not be less than one thousand. To sustain a penalty under Section 27(1)(d), the petitioner should knowingly receive or has in possession of any forest produce illicitly removed from a Reserved Forest or a land proposed to be constituted a Reserved Forest. After perusing the materials available on record, I do not find there is anything to show that the logs found in possession of the revision petitioner are logs cut and removed from the Reserved Forest. ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 12 ``` 17. The Public Prosecutor would submit that the stumps of the logs were found in the forest and it is part of the evidence and therefore the petitioner is liable to be convicted. The Public Prosecutor further submitted that there is a confession statement of the petitioner, which would render him culpable. 18. I find that a learned Singe Judge of this Court in the judgment in **Lucca Beltrami and others** (supra) has held that the confession statement recorded by Forest Range Officers and not sustainable and only Assistant Conservator of Forests, Deputy conservator of Forests and the Chief Conservator of Forests within their respective jurisdiction are empowered to hold enquiries in the forest offences and in the course of such enquiries, to receive and record evidence and to issue search warrants. Therefore, the said argument of the Public Prosecutor is also unsustainable. 19. For all above reasons, I find that the conviction and sentence imposed on the revision petitioner as per the orders ``` CRL.REV.PET NO.175 OF 2018 ``` ``` 13 ``` impugned in this revision petition cannot stand the scrutiny of law. The judgment dated 31.08.2015 in C.C.No.575 of 2010 of the Court of the Judicial First Class Magistrate-III, Palakkad and the judgment dated 30.11.2017 in Criminal Appeal No.249 of 2015 of the Court of the Sessions Division, Palakkad, are therefore set aside. The Criminal Revision Petition is allowed as above. Sd/- **N.NAGARESH JUDGE** hmh