Bail Applications Nos. 3903 of 2024 & 3965 of 2024 (Abdurahman; Jamsheer Babu; Namshad P. v. State of Kerala)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3903 OF 2024 ``` ``` CRIME NO.10/2024 OF KARUVARAKUNDU FOREST STATION OFFICE, MALAPPURAM ``` ## `PETITIONERS/ACCUSED:` ``` 1ABDURAHMAN, AGED 36 YEARS S/O. MUHAMMED, MULLAPALLI HOUSE, PANTHRA, KERALA ESTATE POST, MALAPPURAM, PIN – 676525 2JAMSHEER BABU, AGED 38 YEARS S/O. ALAVI, KUNNUMAMAL HOUSE, KERALA ESTATE POST, MALAPPURAM, PIN – 676525 ``` ``` BY ADV VINOD VALLIKAPPAN ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR (FORESTS), HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ``` BY ADV. SMT SEETHA S, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.05.2024, ALONG WITH BAIL APPL.NO.3965/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.Nos.3903 & 3965/2024_ _-:2:-_ ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3965 OF 2024 ``` ``` CRIME NO.10/2024 OF KARUVARAKUNDU FOREST STATION OFFICE, MALAPPURAM ``` ## `PETITIONER/ACCUSED:` ``` NAMSHAD P., AGED 30 YEARS S/O. ISMAYIL, PALLIYIL THODIKA HOUSE, KANNATH, KERALA ESTATE MALAPPURAM, PIN – 676523 ``` ``` BY ADV VINOD VALLIKAPPAN ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA, REPRESENTED BY THE SPECIAL PROSECUTOR, (FORESTS ) HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ``` BY ADV. NEEMA.T.V,PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.05.2024, ALONG WITH BAIL APPL.NO.3903/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.Nos.3903 & 3965/2024_ _-:3:-_ _Dated this the 27[th] day of May, 2024_ ## **C O M M O N O R D E R** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973, for orders of pre-arrest bail. 2. The petitioners are accused Nos.5 to 7 in O.R.No.10/2024 of the Karuvarakkunnu Forest Station Office, Malappuram, which is registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 2(16), 2(20), 9, 39, 50, 51 & 57 of the Wild Life (Protection) Act 1972 Amendment 2022 ( in short, ‘Act’) 2. The crux of the prosecution case is that: on 20.04.2024, the accused Nos.1, 2 & 6 with other persons had shot a Gaur with a country gun in a private plantation under the Nilambur South Forest Division, under the jurisdiction of the Karuvarakkundu _B.A.Nos.3903 & 3965/2024_ _-:4:-_ Forest Station, in Kalikavu Range, belonging to the Kerala Estate Village and adjacent to the Silent Valley Wildlife Sanctuary. The accused cooked the meat and ate it, and the remaining meat was kept in a refrigerator for marketing. In a search conducted by the investigating team, the remaining meat was recovered on 20.04.2024 from the house of ‘Subair’, who is absconding. The accused Nos.1 to 4 were arrested. During their interrogation, they confessed that the accused Nos.5 to 7 were also present to hunt the animal, eat the meat, and attempted to market the meat. Thus, the accused have committed the above offences. 4. Heard; Sri. Vinod Vallikappan, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners vehemently argued that the petitioners have been _B.A.Nos.3903 & 3965/2024_ _-:5:-_ falsely implicated in the crime on the alleged confession statements given by the accused Nos.1 to 4. There is no other material to substantiate the petitioners’ involvement in the crime. The so called confession made the accused Nos.1 to 4 is inadmissible in evidence, in view of the law laid down by this Court **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 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, 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 _B.A.Nos.3903 & 3965/2024_ _-:6:-_ 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 Public Prosecutor seriously opposed the application. The Investigating Officer has also filed a bail objection report. The learned Public 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 _B.A.Nos.3903 & 3965/2024_ _-:7:-_ addition to the above contention, he also submitted that there are other incriminating materials. The petitioners’ custodial interrogation is 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, it is evident that prima-facie the only material available on record to show the involvement of the petitioners in the crime is the alleged confession statement made by the accused Nos.1 to 4. On the basis of the said confession that the petitioners have been arraigned as accused in the crime. 8. 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 _B.A.Nos.3903 & 3965/2024_ _-:8:-_ Conservation of 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.” 9. 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** _B.A.Nos.3903 & 3965/2024_ _-:9:-_ **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 collected by officers not empowered to do so, the prosecution undoubtedly is devoid of basis and is only to fail.** Xxxxxxx” (emphasis supplied) 10. Admittedly, in the instant case, it is solely on the basis of the confession made by the accused Nos.1 to 4 that the petitioners 5 to 7 have been made accused in the case. 11. 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 by the accused Nos.1 to 4, I am prima-facie of view that the petitioners have made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code and have fulfilled the parameters laid down by the _B.A.Nos.3903 & 3965/2024_ _-:10:-_ 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:- - (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; _B.A.Nos.3903 & 3965/2024_ ## _-:11:-_ - (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 _B.A.Nos.3903 & 3965/2024_ _-:12:-_ 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 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** DST/27.05.24 //True copy// P.A. To Judge