Basheer and Kunhimohammed v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 CRL.REV.PET NO. 324 OF 2005 ``` ``` AGAINST THE JUDGMENT IN CRL.A NO.299/2003 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.I(ADHOC), MANJERI, MALAPPURAM CC 21/2001 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, (FOREST OFFENCES), MANJERI ``` ## **`REVISION PETITIONERS/APPELLANTS/ACCUSED:`** ``` 1BASHEER, S/O.VEERAN, THEKKUMPURATH HOUSE, TANA, MAMPAD, MALAPPURAM DISTRICT. ``` ``` 2KUNHIMOHAMMED, S/O. ABDULLAKUTTY PUTHANPEEDIKA, TANA, MAMPAD, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.BABU S. NAIR ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` THE STATE OF KERALA ``` ``` THE RANGE OFFICER, FOREST STATION, KALIKAVU - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ``` BY SRI.SANAL P.RAJ – PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.R.P NO.324/2005 ``` ``` 2 ``` ## **`O R D E R`** Dated this the 1[st] day of November, 2021. This revision petition is directed against the judgment in Crl.A No.299/2003 dated 23.12.2004 on the file of the Additional Sessions Court, Fast Track Court No.I, (Ad hoc), Manjeri (for short 'the appellate court), confirming the judgment in C.C.No.21/2001 dated 8.8.2003 on the file of the Judicial First Class Magistrate Court II (Forest Offences), Manjeri (for short 'the trial court'). 2. The appellants/accused faced trial for an offence punishable under Sections 27(1)(e)(IV) and (iii) and Section (1)(d) of the Kerala Forest Amendment Act (for short ‘the Act.’) 3. The prosecution case in short is that the accused were found unauthorisedly keeping the forest produce (timber), which was the subject matter of O.R.No.7/1998 and O.R.No.8/1998 of Karuvarakundu Forest Station, consisting 162 pieces of teak in a room occupied by them and thereby committed the offence. 4. Both the accused appeared at the trial court. They were furnished with the copies of all relevant records. On the side of the ``` CRL.R.P NO.324/2005 ``` ``` 3 ``` prosecution, PWs 1 to 4 were examined and Exts.P1 to P9 were marked. After hearing both sides, charge was framed against the accused under Sections 27(1)(e)(IV) and (iii) and Section 27(1)(d) of the Act. The charge was read over and explained to the accused who pleaded not guilty. 5. Thereafter PWs1 to 4 were recalled and they were cross examined and Exts.P1 to P9 were marked. After closing the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought against them during evidence. On the side of the defence, one witness was examined as DW1 and Exts.D1 and D2 were marked. 6. On an appreciation of the evidence, the courts below found the accused guilty under Sections 27(1)(e)(IV) and (iii) and Section 27(1)(d) of the Act and convicted them for the aforesaid offence. The accused were sentenced to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for one month each under Section 27(1)(e)(iv) of the Act, to undergo rigorous imprisonment for a period of six months each and to pay a ``` CRL.R.P NO.324/2005 ``` ``` 4 ``` fine of Rs.1,000/- each, in default to suffer simple imprisonment for a period of one month each under Sections 27(1)(e)(iii) of the Act and to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for a period of one month each under Section 27(1) (d) of the Act. The judgments of conviction and sentence passed by both the courts below are under challenge in this revision petition. 7. I have heard the learned counsel for the revision petitioners and the learned Public Prosecutor. 8. The learned counsel for the revision petitioners impeached the findings of the courts below and the resultant finding as to the guilt mainly on three grounds-(i) The prosecution failed to prove the ownership or possession of the room from where the timber were seized. (ii) The prosecution did not succeed in proving that the timber seized were one involved in O.R.Nos.7/2008 and 8/2008. (iii) At any rate, there is nothing on record to show the conscious knowledge on the part of the accused. 9. The learned Public Prosecutor on the other hand supported the findings and pleadings handed down by the courts below and argued that necessary ingredients of Section 27(1)(e)(IV) ``` CRL.R.P NO.324/2005 ``` ``` 5 ``` and (iii) and Section (1)(d) of the Act had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 10. The prosecution mainly relied on the evidence of PWs 1 to 3 and Exts.P1 to P9 to prove its case and to fix the culpability on the accused. PW1 is the Forest Guard who detected the offence and PWs 2 and 3 are the Deputy Ranger and Range Officer respectively, who accompanied PW1 and were present at the time of detection of the offence. PW1 gave evidence that, on receiving the secret information, he along with PWs 2 and 3 inspected the furniture shop possessed by the accused situated at the Edayur Panchayath and they found seven swarm items of teak, 162 in numbers kept in the said shop. After interrogation, those timbers were seized as per Ext.P1 mahazar. The 1[st] accused was in possession of the room and seizure was effected. PW1 further gave evidence that on 28.8.1998, on verification, it was found that the seized timber items were involved in O.R.Nos.7/1998 and 8/1998. PWs 2 and 3 gave evidence in tune with the evidence given by PW1 regarding search and seizure. Even though PWs 1 to 3 were cross examined in length, nothing tangible was extracted in the cross ``` 6 ``` ``` CRL.R.P NO.324/2005 ``` examination to discredit their testimony. They have given a clear, cogent and consistent version of the crime. The search and seizure of the forest produce from the furniture shop bearing No.45/IV of Edayur Panchayath stands proved from the evidence of PWs 1 to 3. 11. The definite case of the prosecution is that the seized timber items were the subject matter of O.R.Nos.7/1998 and 8/1998 of Karuvarakundu Forest Station. Exts.P5 to P9 are the documents relating to O.R.Nos.7/1998 and 8/1998 of Karuvarakundu Forest Station. The evidence of PWs 1 to 3 coupled with Exts.P2, P3 and P5 to P9 would clearly prove that out of the seized timber, 100 items were related to O.R.Nos.7/1998 and 8/1998. At the time of search and seizure, 1[st] accused alone was present in the shop room mentioned above. His confession statement was also recorded. PWs 1 to 3 clearly gave evidence that the shop room from where the timber were seized belonged to one Safiya and the said shop was occupied by the accused as a tenant and the timber seized from the shop belonged to them. There is no challenge to the said positive evidence. When PWs1 to 3 were cross examined, there was not even a suggestion that the above said shop room was not in the ``` CRL.R.P NO.324/2005 ``` ``` 7 ``` possession of the accused. That apart, the defence made an attempt through DW1 and Exts.D1 and D2 to project a defence plea that some of the timber items seized were in fact procured by them as per valid purchase bills. Thus, the defence themselves admit the possession of the room and ownership of the timber logs seized. 12. It is well settled that the revisional jurisdiction under Sections 397 and 401 of Cr.P.C was to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The Hon'ble Supreme Court in State of **Maharashtra vs Jagmohan Singh Kuldip Singh Anand and others** (2004(7) SCC 659) has held that while exercising the revisional powers under Section 397 r/w 401 of the Code of Criminal Procedure, the court is required to find out, if there is any illegality or impropriety in the findings of the trial court and the appellate court warranting ``` CRL.R.P NO.324/2005 ``` ``` 8 ``` interference and it is not open to the High Court to exercise the revisional power as the second appellate forum. In **Shlok Bhardwaj v. Runika Bhardwarj and others** (2015(2) SCC 721) it was held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. 13. I have carefully gone through the records and proceedings and the judgments of the two courts below. Both the courts below concurrently found that 160 pieces of timber seized from the furniture shop bearing No.45/IV of Edayur Panchayath were forest produce and were found to be in possession of the accused. The courts below further found that those forest produces were illicitly removed from a reserved forest and it related to O.R.Nos.7/1998 and 8/1998. I see no illegality or impropriety in the said findings warranting to invoke the extraordinary jurisdiction vested with this Court under Section 397 r/w 401 IPC. 14. The next question arises for consideration is what is the offence committed by the accused. The courts below found that the accused have committed the offence punishable under Sections 27(1)(d), 27(1)(e)(III) and 27(1)(e)(IV) of the Act. Section 27(1)(d) ``` CRL.R.P NO.324/2005 ``` ``` 9 ``` of the Act gets attracted when any person 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. I have already found that the accused are found to be in possession of 162 pieces of teak and those teaks were involved in O.R Nos.7/1998 and 8/1998. The prosecution case in O.R.Nos.7/1998 and 8/1998 was that the teak timber were illegally cut and removed from the teak plantation at Amarambalam. No doubt, the teak timber is a forest produce. Thus, the prosecution has succeeded in proving that the accused were in possession of forest trees, illicitly removed from reserved forest. Then the only question is whether the accused had requisite knowledge. The learned counsel for the revision petitioners invited my attention to a latest decision of the Supreme Court in **Bharath Booshan Aggarwal v. State of Kerala** (2021(5) KLT 611 (SC). It was held that the seizure of forest produce belonging to the State, will not automatically result in a presumption of culpable mental state of the accused. It was further held that Section 27(1)(d) of the Act requires conscious knowledge of the nature of the goods. It is true that in order to make possession illegally, there must be a conscious ``` CRL.R.P NO.324/2005 ``` ``` 10 ``` possession. The word 'conscious' means awareness about a particular fact. Indisputably, where possession of forbidden article constitutes an offence, prosecution is heavily duty bound to prove ingredients thereof. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. [See: **Megh Singh v. State of Punjab** (AIR 2003 SC 3184; **Nellikunnel Jose v. State of Kerala** (AIR 2000 SC 3577)]. Coming to the facts of the case, the evidence on record would show that the teak items in possession of the accused were involved in another forest crime. That itself is sufficient to prove the knowledge and conscious possession on the part of the accused. That apart, the accused have made an attempt to prove that they procured the seized teak items and possessed the same with valid documents by examining DW1 and marking Exts.D1 and D2. Both the courts below concurrently found on evaluating the evidence that the defence could not substantiate the said plea. This Court cannot interfere with the said finding of facts in this revision. From all these circumstances, it is abundantly clear that the accused had the requisite knowledge and they were in conscious possession of ``` CRL.R.P NO.324/2005 ``` ``` 11 ``` the timber logs. Therefore, all the ingredients of Section 27(1)(d) of the Act stands attracted. 15. In order to attract Section 27(e)(iii) of the Act, the prosecution must prove that any person, in a reserved 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. In order to attract Section 27(1)(e)(iv) of the Act, the prosecution must prove that any person trespasses or pastures cattle or permits or causes cattle to trespass in a reserved forest. Though there is evidence to prove that the accused were in possession of forest produce illicitly removed from the reserved forest, there is no direct evidence to show that the accused themselves trespassed into the reserved forest and cut and removed the trees. Hence, the ingredients of Section 27(1)(e)(iii) and (iv) of the Act are not attracted in this case. 16. In the light of the above findings, I hold that the prosecution has succeeded in proving beyond reasonable doubt that the accused have committed the offence punishable under Section 27(1)(d) of the Act and the prosecution has failed to prove beyond ``` CRL.R.P NO.324/2005 ``` ``` 12 ``` reasonable doubt that the accused have committed the offence punishable under Section 27(1)(e)(iii) and (iv) of the Act. Thus the conviction and sentence passed by the courts below under Section 27(1)(e)(iv) and (iii) cannot be sustained and they are liable to be set aside. In the result, the Criminal Revision Petition is allowed in part. The conviction and sentence passed by the courts below under Section 27(1)(d) of the Act is confirmed. The conviction and sentence passed by the courts below under Section 27(1)(e)(iv) and (iii) are set aside. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** ab