PRAKASH and ASHOK KUMAR v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 15TH DAY OF OCTOBER 2020/23RD ASWINA, 1942** **Crl.Rev.Pet.No.540 OF 2014** **AGAINST THE JUDGMENT IN CRA 30/2010 DATED 23-12-2013 OF ADDITIONAL SESSIONS COURT-V, KOLLAM CC 120/2006 DATED 12-01-2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES), PUNALUR** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED 1 AND 2:** **1 PRAKASH, AGED 41 YEARS, S/O.RAJAN, SURESH BHAVANIL, THACHANKONAM, II MILE, THINKALKARIKKOM VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. 2 ASHOK KUMAR, AGED 42 YEARS, S/O.SADANANDAN, KRISHNAVILASOM VEEDU, MARTHANDENKARA, THINKALKARIKKOM VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADVS. SRI.K.SIJU SRI.S.ABHILASH - RESPONDENT/RESPONDENT/COMPLAINANT STATE: STATE OF KERALA, THROUGH THE FOREST RANGE OFFICER, ANCHAL RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2020, THE COURT ON 15-10-2020 PASSED THE FOLLOWING:** Crl.R.P.No.540 of 2014 ..2.. ## **ORDER** Dated this the 15[th] day of October, 2020 The revision petitioners are the appellants 1 and 2 in Crl.A.No.30/2010 on the file of the Additional Sessions Court-V, Kollam and the accused 1 and 2 in C.C.No.120/2006 on the file of the Judicial First Class Magistrate Court-II (Forest Offences), Punalur. The offences alleged against the revision petitioners/accused 1 and 2 are under Sections 27(1)(d), 27(1)(e)(iv) and (v) of the Kerala Forest Act (hereinafter referred to as 'the Act'). 2. The prosecution case in brief is that on 09.08.2006 at 11 am the accused trespassed into the reserved forest area and illegally collected sand from Mocka Thodu Sivapuram Forest area, Kulathupuzha Forest Station, Yeroor Reserve, Anchal Range and attempted to remove the same in a lorry bearing registration No.KL 5H/3657 driven by the 1[st] accused and thereby the Crl.R.P.No.540 of 2014 **==> picture [22 x 8] intentionally omitted <==** Government has sustained a loss of Rs.1,500/-. On completion of the investigation, PW6 filed Form-II report before the court. 3. On the appearance of the accused 1 and 2, after taking preliminary evidence, the trial court framed charges under Section 27(1)(d), 27(1)(e)(iv) and (v) of the Kerala Forest Act to which the accused 1 and 2 pleaded not guilty. 4. During the trial, PWs.1 to 6 were examined and marked Exts.P1 to P10. MOs.1 and 2 were also identified. 5. The trial court by its judgment dated 12.1.2010, convicted and sentenced the accused 1 and 2 under Section 27(1)(d) to undergo simple imprisonment for one year each and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo simple imprisonment for three months each more. For the offence under Section 27(1)(e)(iv) of the Act, the accused Crl.R.P.No.540 of 2014 **==> picture [22 x 8] intentionally omitted <==** 1 and 2 were sentenced to undergo simple imprisonment for one year each and also to pay a fine of Rs.1,000/each and in default of payment of fine to undergo simple imprisonment for three months each more. For the offence under Section 27(1)(e)(v) of the Act the accused 1 and 2 were sentenced to undergo simple imprisonment for one year each and also to pay a fine of Rs.1,000/each in default of payment of fine to undergo simple imprisonment for three months each more. Challenging the conviction and sentence, the accused 1 and 2 preferred Crl.A.No.30/2010 before the Sessions Court, Kollam. By the judgment dated 23.12.2013, the learned Additional Sessions Judge-V, Kollam confirmed the conviction and sentence imposed by the trial court under Section 27(1)(e)(iv) and (v) of the Act. However, the conviction and sentence imposed under Section 27(1)(d) of the Act was set aside. Feeling aggrieved, the accused 1 Crl.R.P.No.540 of 2014 **==> picture [22 x 8] intentionally omitted <==** and 2 are before this Court in revision. 6. When PWs.1 to 3 were conducting patrol duty on 09.08.2006, they saw a mini lorry passing through the reserved forest area. According to PWs.1 to 3, the 1[st] accused was the driver of the lorry and the 2[nd] accused was the cleaner cum owner of the vehicle. On being questioned it was disclosed that the accused was transporting sand through the reserved forest. It was disclosed that the sand was collected from Sivapuram thodu, which is situated in the reserved forest area of Anchal Range. Since the accused 1 and 2 prima facie committed the offence, PW1 prepared Ext.P1 mahazar and thereafter prepared Form-I Report. PW6 recorded his confession statement as per Ext.P3. PW6 also recorded the confession statement of the 2[nd] accused as per Ext.P4. 7. The learned counsel for the revision petitioners/accused 1 and 2 contended that Ext.P5 Crl.R.P.No.540 of 2014 **==> picture [22 x 8] intentionally omitted <==** notification issued under Section 19 of the Act had not been proved in accordance with law and as such the conviction and sentence imposed against the revision petitioners/accused 1 and 2 are _prima facie_ unsustainable. The learned counsel for the revision petitioners/accused 1 and 2 further contended that Ext.P5 is only a copy of the notification signed by the Chief Conservator of Forests (General), Thiruvananthapuram. According to the learned counsel, the notification issued by the Government under Section 19 of the Act has to be proved in accordance with law under Sections 78, 74 and 65 of the Evidence Act. Relying on the decision reported in _**Chacko Pyli and others v. State of Kerala**_ [1966 KLT 102], it is contended that in case when the original is a public document within the meaning of Section 74 of the Evidence Act or in case when the original is a document of which a certified copy is permitted by the Evidence Act or Crl.R.P.No.540 of 2014 ..7.. by any other law in force in India to be given in evidence, it is mandatory under Section 65 of the Evidence Act to prove the document in accordance with law and no other kind of secondary evidence is admissible. 8. Per contra, the learned Senior Public Prosecutor submitted that it is not practically possible to produce the original notification invariably in all forest cases as evidence. It is further submitted that examination of Chief Conservator of Forest to prove the notification is practically not possible. It is further submitted that being a notification issued in the Gazette, the Court is empowered to take judicial notice under Section 57 of the Evidence Act. What has been produced is the copy of the Gazette notification duly signed by the Chief Conservator of Forest in exercise of his official functions, it has been submitted. Crl.R.P.No.540 of 2014 ..8.. 9. Ext.P5 is a notification issued under Section 18 of Regulation II of 1068 dated 08.11.1898 specifying Kulathupuzha Reserved Forest No.26, Pathanapuram and Kottarakkara Taluks Aijai and Kummil having an area of 100 sq. miles as reserved forest. In Ext.P5 notification the boundaries are clearly specified. The following are the boundaries of the Kulathupuzha Reserved Forest No.26:- _“North: The Punalur river from the Parappar to the Ayaranollur crossing western (Beginning at the northern most point). A line from Ayaranellur crossing on the Parappar river. (skirting the cultivation at Ayaranellur) and then along the road trace to Yerur as far as Muzhathangi vayal and thence skirting to piece of cultivation to its eastern most and turning in a southernly direction to Edakatti konam, crossing the Yerur Kulathupuzha road at the 45[th] Mile stone and from there westwards to Advimala and again in a sourthernly direction along the western sides of Advimala and Mulavanakonathu Kunnu to Vayalamala and including Vayalamala passing along the Moongettumala to Kodanur fields and skirting that field due south to Peringatu field._ Crl.R.P.No.540 of 2014 ..9.. _Then in a southeasterly direction to Madathara campshed passing along the Kunnankottumala Karara fields: and from Madathara skirting the cultivation of Kannalu vayal then following the road to Trivandrum as far as the Chittar (the northern boundary of Palode Reserve) South. The Chittar and northern boundary of Palode Reserve. East:- The boundary of the Kulathupuzha Reserve.”_ 10. According to PW1, he prepared Ext.P1 mahazar on the spot. On a perusal of Ext.P1 mahazar, there is nothing to indicate that the alleged occurrence took place within the boundaries specified in Ext.P5 notification issued by the competent authority. Since Kulathupuzha Reserved Forest No.26 is situated within specified boundaries, it is essential on the part of the officer concerned to specify the exact boundaries in Ext.P1 mahazar to prove that the occurrence took place within the reserve forest as stated in Ext.P1 mahazar. Crl.R.P.No.540 of 2014 ..10.. 11. Coming to the validity of Ext.P5 notification, separate mode of proof is provided under Sections 78, 74 and 65 of the Evidence Act to prove a certified copy of the notification. In Paragraph 5 of _**Chacko Pyli's case**_ (supra), a Division Bench of this Court held as follows:- _“5. A court is not under S.57 of the Evidence Act entitled to take judicial notice of a notification issued by the Government under S.19 of the Act. But such a notification is a public document within the meaning of S.74 of the Evidence Act. What is the mode of proof of the contents of the notification. The publication of the notification has to be in the Gazette. S.78 of the Evidence Act prescribes special modes of proving the contents of various kinds of public documents. S.61 of the Evidence Act embodies the rule that “contents of documents may be proved either by primary or secondary evidence”. 'Primary evidence' is defined in S.62 while S.63 gives an inclusive definition of 'secondary evidence'. The contents of public documents can also be proved by production of secondary evidence. S.65 allows secondary evidence being given when the original is a public document within the meaning of S.74. In_ Crl.R.P.No.540 of 2014 ..11.. _case when the original is a public document within the meaning of S.74 or in case when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence S.65 of the Evidence Act says that certified copy the document but no other kind of secondary evidence is admissible. If the official Gazette containing the notification under the Act is produced in court it has to presume its genuineness under S.81 of the Act. In view of these provisions of the Evidence Act, it was the duty of the prosecution to have established one of the ingredients of the offence viz., that the act complained of was done in a Forest constituted as a Reserved Forest by the issue of a notification under S.19 of the Act and by the publication of the same in the Gazette, either by the production of the Gazette or by a certified copy of the notification and adduce evidence of the publication of the same in the Gazette. No other evidence is admissible in the case.”_ 12. Admittedly, Ext.P5 is a signed copy of the notification issued by the competent authority. No doubt, the notification is a public document within the meaning of Crl.R.P.No.540 of 2014 **==> picture [28 x 8] intentionally omitted <==** Section 74 of the Evidence Act. The publication of the notification was done in the Gazette in accordance with Section 78 of the Evidence Act. Section 65 of the Evidence Act permits secondary evidence being given when the original is a public document within the meaning of Section 74 of the Evidence Act. The official Gazette containing the notification has not been produced before the trial court to presume the genuineness under Section 81 of the Evidence Act. What has been produced is only a copy of the original notification. Hence, it was the duty of the prosecution to prove that the act complained of was done within the reserve forest in accordance with the notification under Section 19 of the Act. The said notification is to be proved either by production of the Gazette or by a certified copy of the notification before the court. In this case, the original of Ext.P5 notification is not produced before the trial court. The certified copy is also not produced. Crl.R.P.No.540 of 2014 **==> picture [28 x 8] intentionally omitted <==** 13. In this case Ext.P5 notification has not been proved in accordance with law. Ext.P5 is neither the original nor a certified copy. It is only a copy of the notification signed by the Chief Conservator of Forest. This is not seen certified as true copy by anybody. Just because it contains the seal of an officer, it cannot be said to be a true copy or a copy certified by him. In _**Kanthaswami v. State of Kerala**_ [2019 ICO 398:2019 (2) KLT 113], this Court held that the notification, as required under Section 19 of the Act, has to be proved in accordance with law. The notification has not been proved in this case. There is no evidence to show that the alleged occurrence took place within the reserve forest as detailed in Ext.P5 notification. 14. Judged by the above standards, this Court is of the view that the trial court and the appellate court erroneously appreciated the evidence and wrongfully convicted and sentenced the accused for the offences punishable under Sections 27(1)(d), 27(1)(e)(iv) and (v) of the Kerala Forest Crl.R.P.No.540 of 2014 ..14.. Act. Thus, the conviction and sentence imposed by the trial court as confirmed by the appellate court in appeal are liable to be set aside. 15. The revision petitioners/accused 1 and 2 are found not guilty of the offences under Sections 27(1)(d), 27(1)(e)(iv) and (v) of the Kerala Forest Act and they are acquitted thereunder. Cancelling their bail bonds, this Court directs that they be set at liberty. If any fine amount is deposited during the pendency of the proceeding pursuant to an interim order passed by this Court, the same shall be refunded to the revision petitioners/accused 1 and 2 in accordance with law. Pending applications, if any, stand disposed of. The criminal revision petition is allowed accordingly. Sd/- **N.ANIL KUMAR, JUDGE** skj