K. T. Abu and A. K. Rajan v. Forest Range Officer, Meppadi & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940** **Crl.Rev.Pet.No. 2873 of 2006** **-----------------------------JUDGMENT IN CRA 19/2004 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA DATED 22-06-2006 JUDGMENT IN CC 585/1996 of C.J.M., KALPETTA DATED 09-01-2004** **-----------** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED NOS.1 & 2 :-** **----------------------------------------------------** **1. K.T. ABU, AGED 28 YEARS, S/O.KUNHALAN, KADANTHODY VEEDU, KADASSERY, MUPPAINAD AMSOM, VYTHIRI TALUK, WAYANAD DISTRICT..** **2. A.K.RAJAN, AGED 38 YEARS, S/O.KUTTAN, ANOORPALLY VEEDU, KADASSERY, MUPPAINAD AMSOM, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADV.SRI.N.J.ANTONY** ## **RESPONDENT(S)/COMPLAINANT/STATE :-** **---------------------------------** **1. FOREST RANGE OFFICER, MEPPADI, VYTHIRI TALUK, WAYANAD DISTRICT.** **2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.K.PRASAD** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.UBAID, J. -----------------------------------------Crl.R.P. No.2873 of 2006 --------------------------------------------------Dated this the 11[th] day of June 2018** ## **O R D E R** The revision petitioners herein are the accused Nos.1 and 2 in C.C. No.585/1996 of the Chief Judicial Magistrate Court, Kalpetta. They challenge the conviction and sentence against them under Sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act (for short, 'the Act'). They along with four others faced prosecution in the court below on the allegation that on 9.2.1994, they trespassed into the Government Reserved Forest within the Meppady Forest Range, and cut and removed some rosewood trees. The offence was detected by a team of forest guards, and two of the accused were arrested on the spot. The others were later arraigned on the basis of the statements given by the co-accused during investigation. Though the detection was made on 9.2.1994, the Form-I report was sent to court by the Forest Range Officer only on 15.2.1994. The Form-I report does not mention the name of any of the accused in Column No.3. Any Crl.R.P. No.2873 of 2006 -: 2 :- way, after investigation, the Forest Range Officer submitted final report against six accused. All the six accused appeared before the learned Magistrate and pleaded not guilty to the charge framed against them. 2. The prosecution examined seven witnesses and proved Exts.P1 to P5 documents in the trial court. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances. They did not adduce any evidence in defence. 3. On an appreciation of the evidence, the trial court found all the accused guilty. On conviction, they were sentenced to undergo simple imprisonment for one year each, and to pay a fine of `5,000/- each. Aggrieved by the judgment of conviction dated 9.1.2004, the accused approached the Court of Session, Wayanad with Crl.A. No.19/2004. In appeal, the learned Additional Sessions Judge (Adhoc)-II, Kalpetta found the accused Nos.3 to 6 not guilty of any of the offences, and accordingly, they were acquitted in appeal. But, the conviction against the accused Nos.1 and 2 was confirmed in Crl.R.P. No.2873 of 2006 -: 3 :- appeal. The sentence was also maintained in appeal by the appellate court. 4. Pending the revision, the 2[nd] revision petitioner (2[nd] accused) died, and the fact of his death was recorded in the proceedings. Now, the revision is being prosecuted by the 1[st] accused. 5. When this revision came up for hearing, the learned counsel for the revision petitioner submitted that the accused is entitled for acquittal on the legal ground that there is no proper and legal notification in this case under Section 19 of the Act, and even the copy of the notification produced by the prosecution stands not properly proved by the competent person. The learned counsel also submitted that there is no satisfactory evidence to prove the case beyond reasonable doubt. 6. The main witnesses in this case are the forest guards. Their evidence is regarding the arrest of two accused, but, as regards the others, they did not convincingly say how the others were identified, or how they obtained the details of Crl.R.P. No.2873 of 2006 -: 4 :- the others. In the absence of any material, the accused Nos.3 to 6 were acquitted in appeal by the appellate court. 7. Ext.P4 is the Form-I report in this case. The detection was made on 9.2.1994, and admittedly, the accused Nos.1 and 2 were arrested on the spot. But, curiously enough, the Ext.P4 Form-I report does not contain the name of any of the accused. There is also no explanation for the delay in sending this report to court. This was prepared only on 15.2.1994, and on the same day, it was sent to court. The Form-I report, which does not contain the name of any of the accused creates some doubt regarding the prosecution case as regards the identity and details of the accused. 8. Now, let me examine the legal issue in this case. In **Chacko Pyli and Others** v. **State of Kerala** [1966 KLT 102], a Division Bench of this Court held that the notification issued under Section 19 of the Act is a prerequisite in a prosecution relating to Reserved Forest under Section 27 of the Act. In **State of Kerala** v. **Adichan Sasi** [1975 KHC 136 = 1975 KLT 839], this Court held that Crl.R.P. No.2873 of 2006 -: 5 :- production of a certified copy of the notification certified by the Chief Conservator of Forest is admissible in evidence, and that will serve the purpose under Section 19 of the Act. In **A.M.Antony** v. **Forest Range Officer** [1977 KLT 691], another Single Bench of this Court held, following the earlier decisions, that in a case where, the notification required under Section 19 of the Act is not properly proved by the prosecution, the conviction under Section 27 of the Act cannot be sustained. Thus, the view consistently taken by this Court is that, in a prosecution under Section 27 of the Act relating to Reserved Forest, the prosecution must produce the notification issued by the Government under Section 19 of the Act, and if what is produced is a copy of the notification, the copy must be properly proved in evidence by the person, who certified it as true copy. 9. Ext.P5 is said to be the copy of the notification in this case. On an examination, I find that this is the true copy of another true copy of the notification certified by the Divisional Forest Officer, South Wayanad Division. First of all Crl.R.P. No.2873 of 2006 -: 6 :- it is inadmissible for the reason that it is the copy of a copy, and the copy also stands not properly proved by the person, who certified it as true copy. The prosecution has no explanation why a proper copy of the notification is not produced in court, and why nobody was examined to prove the notification. In the absence of a proper notification proved by the competent person, the accused is entitled for acquittal, whatever be the factual aspects. Even otherwise, I find that the prosecution case is suspicious because, the Form-I report in this case was delayed by six days, and it does not contain the name of any of the accused despite the fact that two persons were arrested on the spot. In the result, the revision in the name of the 2[nd] revision petitioner (2[nd] accused) is closed as charge abated, and the revision in the name of the 1[st] revision petitioner (1[st] accused) is allowed. The 1[st] revision petitioner is found not guilty of the offences under Sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act, and he is acquitted of those offences in revision. Accordingly, the conviction and sentence against the Crl.R.P. No.2873 of 2006 -: 7 :- 1[st] revision petitioner in C.C. No.585/1996 of the Chief Judicial Magistrate Court, Kalpetta will stand set aside. The amount, if any, deposited by the 1[st] revision petitioner in the court below, as a condition for suspension of sentence, will be released to him **.** Sd/- **P.UBAID JUDGE** //True copy// P.A. To Judge Jvt/12.6.2018