Eliyamma and Varghese v. Forest Range Officer, Palakkayam Forest Station, Palakkad District and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 9TH DAY OF JUNE 2014/19TH JYAISHTA, 1936** ## **Crl.MC.No. 1962 of 2014 ()** **--------------------------CMP 242/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MANNARKKAD ---------** ## **PETITIONER/ACCUSED 1 & 2:** **-----------------------------------------** **1. ELIYAMMA, AGED 52 YEARS, W/O.VARGHESE, KOOVAKKATTUMMATTATHIL, IRUMBANCHOLA, MANNARKKAD, PALAKKAD DISTRICT.** **2. VARGHESE, AGED 58 YEARS, S/O.JOSEPH, KOOVAKKATTUMATTATHIL, IRUMBANCHOLA MANNARKKAD, PALAKKAD DISTRICT.** **BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.** ## **RESPONDENTS/RESPONDENTS/STATE:** **---------------------------------------------------------** **1. THE FOREST RANGE OFFICER, PALAKKAYAM FOREST STATION, PALAKKAYAM, PALAKKAD DISTRICT - 678 591.** ## **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.** ## **R1 BY SPL. GOVT. PLEADER SRI.M.P.MADHAVANKUTTY, R2 BY PUBLIC PROSECUTOR SMT.S. HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 1962 of 2014 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **ANNEXURE-I: TRUE COPY OF THE ORDER MADE IN O.R.NO.8/2013 OF PALAKKAYAM FOREST STATION BY THE JFCM COURT, MANNARKKAD PERMITTING SALE OF THONDI ARTICLES INVOLVED IN THE SAID CASE. ANNEXURE-II: TRUE COPY OF THE COMPLAINT FILED AGAINST THE PETITIONERS HEREIN BY THE IST RESPONDENT ALLEGING COMMISSION OF OFFENCES PUNISHABLE UNDER SECTIONS 27 (1) (E) (III) & (IV), 62, 69 AND 84 OF THE KERALA FOREST ACT, 1961. ANNEXURE-III: TRUE COPY OF THE ORDER DATED 3.10.1979 IN OA NO.33/1979 PASSED BY THE FOREST TRIBUNAL, MANJERI. ANNEXURE-IV: TRUE COPY OF THE PURCHASE CERTIFICATE NO.46/1979 ASSIGNING LANDS IN FAVOUR OF CHACKO BY THE LAND TRIBUNAL, AGALI. ANNEXURE-V: TRUE COPY OF THE SALE DEED NO.2164/1985 OF SRO MANNARKKAD. ANNEXURE-VI: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 10.10.2013 ISSUED BY THE VILLAGE OFFICER, PALAKKAYAM. ANNEXURE-VII: TRUE COPY OF THE BASIC TAX RECEIPT EVIDENCING PAYMENT OF LAND TAX FOR THE PROPERTY IN QUESTION BY THE IST APPLICANT. ANNEXURE-VIII: TRUE COPY OF THE JUDGMENT DATED 16.12.1985 PASSED BY THIS HON'BLE COURT IN MFA NO.44/1980 ANNEXURE-IX: TRUE COPY OF THE ORDER MADE IN R.P NO.127/87 IN MFA NO.44/80 DATED 29.6.1992. ANNEXURE-X: TRUE COPY OF THE INTIMATION ISSUED BY THE JFCM COURT, MANNARKKAD ON 10.1.2014 IN CONNECTION WITH OR NO.8/2013 OF PALAKKAYAM FOREST RANGE. ANNEXURE-XI: TRUE COPY OF THE COUNTERFOIL DATED 16.1.2014 ISSUED BY THE FEDERAL BANK EVIDENCING RECEIPT OF RS.1,60,500/ANNEXURE-XII: TRUE COPY OF THE MAHAZAR PREPARED ON 7.12.2013 IN CONNECTION WITH OR NO.8/2013 PREPARED BY THE RANGE FOREST OFFICER, PALAKKAYAM FOREST RANGE. ANNEXURE-XIII: TRUE COPY OF THE APPLICATION FILED UNDER SECTION 451 OF CR.PC IN CONNECTION WITH OR NO.8/2013 OF PALAKKAYAM FOREST RANGE BEFORE THE JFCM COURT, MANNARKKAD. ANNEXURE-XIV: TRUE COPY OF THE ORDER DATED 24.2.2014 MADE IN CRL.M.C.NO.1287/2014 PASSED BY THE HIGH COURT OF KERALA.** ## **CRL.MC.NO. 1962 OF 2014 ()** **ANNEXURE-XV: TRUE COPY OF THE ORDER DATED 13.2.2014 PASSED BY THE JFCM COURT, MANNARKKAD IN CMP NO.242/2014 IN OR NO.8/2013 OF PALAKKAYAM FOREST RANGE.** **ANNEXURE-XVI: TRUE COPY OF THE APPLICATION DATED 20.12.2013 FILED IN CONNECTION WITH OR 8/2013 OF PALAKKAYAM FOREST RANGE BY THE IST RESPONDENT** **RESPONDENT(S)' EXHIBITS : NIL.** **---------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.1962 of 2014 .................................................. Dated this the 9[th] day of June, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioners, who are accused 1 and 2 in O.R.No.8/2013 of Palakkayam forest station challenging the order in C.M.P.No.242/2014 of Judicial First Class Magistrate Court, Mannarkkad under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioners are arrayed as accused 1 and 2 in O.R.No.8/2013 of Palakkayam forest station alleging that the petitioners and others have trespassed into the reserve forest area and cut and removed certain valuable trees and thereby they have committed the offence punishable under Sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act. The petitioners have filed CMP.No.242/2014 before the Magistrate Court for interim custody of the timber logs which have been seized by the forest officials. According to the petitioners, there were litigations between the Forest Department and the petitioners in respect of the property from where the alleged trespass was committed and in fact, there Crl.M.C.No.1962 of 2014 2 is no offence committed by them. While the petition was pending, the learned Magistrate on the request of the forest officials, permitted them to auction the timber on the ground that it is likely to be decayed and the value will be reduced. That was challenged by the petitioners before this Court and as directed by this Court, the learned Magistrate passed impugned order dismissing the application on the ground that permission has already been granted to the forest department for public auction and the proceedings are in progress. This is being challenged by the petitioners by filing this petition. 3. Heard the counsel for the petitioners and Special Government Pleader for forest cases, Sri. Madhavan Kutty. 4. The counsel for the petitioners submitted that there is no necessity to conduct auction because at the time when bail was granted to the accused persons including the petitioners, a condition was imposed to deposit the value of the timber as a condition for granting bail and accordingly, the petitioners have deposited Rs.1,60,000/- jointly and accused 3 and 4 deposited Rs.1,60,000/- each thereby Rs.4,80,000/- was deposited before the Divisional Forest Officer as directed by the court and ultimately if it is found that it is a forest produce, even on Crl.M.C.No.1962 of 2014 3 confiscation, they are entitled to get the value of the articles and the amount can be adjusted for the same and for that purpose, no auction is required and since they have already deposited the amount, the articles can be entrusted to them. 5. But this was opposed by the Special Government Pleader for forest cases and argued that when a forest offence is committed, unlike in the case of vehicles etc, where ownership is not in dispute, the interim custody of the articles cannot be given to the accused persons. Further, ultimately if it is found that it is a forest produce, then they are entitled to confiscate the articles and the amount must go to the government. So the court below was perfectly justified in dismissing the application and permitting the Forest Department to conduct public auction. 6. It is an admitted fact that the Forest Officials have seized some timber from the disputed area which, according to the petitioners, is a private land belonging to them and, according to the Forest Officials, it is a reserved forest and on that basis, a case was registered as OR.No.8/2013 of Palakkayam forest station and the articles were seized and kept in the property of the petitioners and a report has been sent to Crl.M.C.No.1962 of 2014 4 the court in this regard. It is also an admitted fact that at the time when bail was granted to the four accused persons involved in the crime including the petitioners, a condition was imposed to deposit the value of the timber also as one of the conditions to grant bail and, accordingly, the present petitioners, who are husband and wife, have deposited Rs.1,60,000/- jointly and accused 3 and 4 have deposited Rs.1,60,000/- each totaling an amount of Rs.4,80,000/- before the Divisional Forest Officer of Mannarkkad. It is also an admitted fact that, normally in forest offence cases, accused are not entitled to get interim custody of the articles as of right. But in this case, there are disputes between the parties in respect of the same and in fact there is no dispute regarding the identity of the place from where the trees were cut and also regarding the identity of the timber logs seized as well. It is also in a way admitted that, if the trial of the case is prolonged, the article is likely to decay and the value of the articles will be reduced. So, the Forest Department wanted to sell the articles in public auction for which they sought permission of the court below and that was granted. It is also in a way admitted that the petitioners moved an application for interim Crl.M.C.No.1962 of 2014 5 custody and without disposing the application, the Magistrate has granted permission to the Forest Department which was set aside by this Court and directed the Magistrate to pass appropriate orders in this application. Till then the public auction sought to be conducted was directed to be kept in abeyance. After remand, the learned Magistrate dismissed the application for interim custody by the impugned order which is being challenged before this Court by filing this petition. 7. Identity of the article cut and removed is not in dispute. Further, the Forest Department also did not want to keep the articles as such and they only wanted to sell the same and keep the sale proceeds for the purpose of ultimately if confiscation is ordered to adjust the amount to the government. So the very purpose of conducting auction is to get maximum price for the article. Now the learned Special Government Pleader submitted that they are anticipating an amount of Rs.6,31,675/- as the approximate price that may be fetched, if it is sold in public auction. It is also need not be necessary that they must get that much amount. There is a possibility of reduction also. So considering this aspect as in mind, this Court feels that since the petitioners and other accused persons have Crl.M.C.No.1962 of 2014 6 already deposited major portion of the value of the article seized as a condition for granting bail, ultimately if it is found that it is a forest produce and the Forest Department will get the amount from the court, there is no need to sell the articles in public auction. So under the circumstances, this Court feels that it will be better in the interest of justice of both the parties that in stead of going for speculation of getting more amount in public auction and also taking into consideration the submission made by the Special Government Pleader regarding the anticipated amount even if it is sold in auction, an amount can be fixed by this Court and directing the petitioners to deposit the balance amount over and above the amount already deposited by them will be sufficient and that will meet the ends of justice. 8. Since in this petition accused 3 and 4 were not parties, this Court has directed the petitioners to get the affidavits of these parties to be produced before this Court expressing their willingness to take the amount deposited by them also part of the sale proceeds to be directed to be deposited by this Court and ultimately if confiscation is ordered, adjust that amount in favour of the government and accordingly, they have filed Crl.M.C.No.1962 of 2014 7 affidavits along with Crl.M.A.No.4261/2014 and that application was allowed and the affidavits filed by accused 3 and 4 in the above crime were accepted. So this Court feels that considering the circumstances, the amount that will have to be deposited for releasing the article can be fixed as Rs.6,50,000/- and if the petitioners deposit the balance amount of Rs.1,70,000/-, then the lower court can be directed to release the articles to the petitioners on getting bond of the present petitioners for the amount of Rs.6,50,000/- with two solvent sureties for this amount and also an undertaking affidavits of the petitioners and also accused 3 and 4 that ultimately, if the articles are liable to be confiscated, the amount deposited can be adjusted towards the value of the articles to be confiscated and paid to the government. Further, in order to keep in evidence regarding the identity of the articles, before releasing the articles, the forest authorities are directed to take photographs of the timber that has been stocked in the property of the petitioners in the presence of the Assistant Public Prosecutor of that court and in the presence the accused persons and the investigating officer is directed to prepare an inventory regarding the same in the presence of the accused Crl.M.C.No.1962 of 2014 8 persons, their counsel and the Assistant Public Prosecutor and produce the inventory along with the photographs attested by the accused and the counsel for the accused and the Assistant Public Prosecutor of that court and produce the same before the court and after receiving the same, the court shall order release of the articles as interim custody to the petitioners. Since the amount has been deposited as the value that is likely to be fetched, the petitioners are at liberty to use the same for their purpose and if ultimately the court found that articles are forest produce, then the amount deposited shall be directed to be confiscated to the government. Both the counsel submitted that since it will take some time for disposal of the case, for the best interest of both the parties, the total amount of Rs.6,50,000/- can be deposited in a Nationalized Bank in the name of the court for a period of two years, so that ultimately, if the case ended in favour of either party, they will get the benefit of interest also. If the case is not disposed of within two years, the court is directed to renew the same from time to time till the disposal of the case. So, the lower court is directed to call for the amount of Rs.4,80,000/- with the District Forest Officer and Rs.1,70,000/- now to be deposited by the petitioners Crl.M.C.No.1962 of 2014 9 and deposit the total in a Nationalized Bank for a period of two years in the name of the court and keep the fixed deposit receipt in safe custody and the case is not disposed of within the time, the court below is directed to renew the same from now to time till the disposal of the case. So, the petition is disposed of as follows: i. The value of the timber to be sold is fixed as Rs.6,50,000/- and the petitioners are directed to deposit Rs.6,50,000/- being the amount likely to be fetched for the timber to be released on public auction. The amount of Rs.4,80,000/- already deposited by the accused persons shall be treated as part of the deposit towards this amount and the petitioners are directed to deposit the balance amount of Rs.1,70,000/- before the court below. ii. The court below shall direct the investigating officer (concerned Forest Official) to take photographs of the timber alleged to have been cut and removed from the forest area and now stocked in the property of the petitioners in such a way as to expose the identity of the same to be used as evidence at a later stage at the time of trial in the presence of Assistant Public Prosecutor, defence counsel and if possible in the Crl.M.C.No.1962 of 2014 10 presence of the accused and prepare an inventory of the articles to be released in their presence and get their signature as well and send the inventory along with the photographs to the court within one week from the date of receipt of this order. iii. On receipt of the deposit and the inventory as directed above, then court below is directed to release the articles to the petitioners on executing a bond for Rs.6,50,000/with two solvent sureties for the like sum each to the satisfaction of the lower court along with an undertaking of the petitioners and accused 3 and 4 that in case if it is found later that it is a forest produce and it is liable to be confiscated, then they have no objection in adjusting the amount deposited towards the value of the timber to be confiscated later. iv. The District Forest Officer is directed to forward the amount of Rs.4,80,000/- deposited with him to the Judicial First Class Magistrate Court within one week from the date of receipt of this order and on receipt of that amount, the lower court is directed to deposit the entire amount of Rs.6,50,000/in a Nationalized Bank in the name of the court for a period of two years and if the case is not disposed of within that time or Crl.M.C.No.1962 of 2014 11 confiscation proceedings is not over, then renew the same from time to time till the above proceedings are completed. v. If ultimately it is found that the articles are not liable for confiscation, then the amount in deposit with interest accrued shall be returned to the petitioners and if it is found that it is a forest produce, then it is liable to be confiscated to the Government. vi. The petitioners as well as accused 3 and 4 are directed to file an affidavit that they will not dispute the identity of the timber seized and the photographs that has been taken can be admitted in evidence at the time of trial to prove the identity of the article. With the above directions and observations, the petition is disposed of. Office is directed to hand over a copy of the order to the Special Government Pleader as well as to the counsel for the petitioners immediately. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.1962 of 2014 12