PRASAD v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934** **Crl.Rev.Pet.No. 2767 of 2004 (A)** **-------------------------------CRA.89/1995 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-I), PATHANAMTHITTA CC.209/1991 of J.M.F.C.,RANNI** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **PRASAD, S/O. NARAYANAN, VETTIKANAL, PULAYANPARA, SEETHATHODU, CHITTAR.** **BY ADV. SRI.V.PHILIP MATHEW** **COMPLAINANT(S)/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPECIAL G.P. (FOREST) SRI. M.P. MADHAVAN KUTTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 2767 of 2004** ## **========================= Dated this the 1[st] day of November, 2012** ## **ORDER** The first accused in C.C.209/1991 of J.F.C.M. Ranny is the revision petitioner. He along with two other persons faced trial for offences punishable under Secs.27 (1)(g) and 27(2)(c) of the Kerala Forest Act as it stood in 1991. The complaint was filed against four accused persons. Out of them one accused absconded and so the case against him was split up. The petitioner was sentenced to undergo R.I for three months. 2. The case of the prosecution is that on 13.07.1989, the petitioner and other accused persons were seen in the reserve forest in a part that Velloonnippara reserve forest carrying logs of teak wood on their heads. A1 and A2 were caught red-handed, while the third and fourth accused took to their heels. When Crl.R.P.No.2767/2004 : 2 : questioned, they disclosed as to the place from where the teak wood logs were cut and removed. M.O.1 sword was also recovered. The petitioner and other accused who was arrested, were taken to the office of the Forest Range Officer. The occurrence report was prepared and registered. After verification of the facts noted in the mahazar and after completing the investigation complaint was filed before the learned Magistrate. 3. PW1 to PW4 were examined and Exts.P1 and P2 (a) were marked. M.O.1 sword was also identified and marked. Accepting the evidence given by PW1 and PW2, the learned Magistrate found the petitioner and others guilty of the offences levelled against them. The learned Sessions Judge after reappraisal of the evidence, concurred with the finding so entered by the trial court. 4. Sri.Philip Mathew, the learned counsel appearing for the petitioner, submits that the evidence adduced by the prosecution is not sufficient to hold that Crl.R.P.No.2767/2004 : 3 : the petitioner and other accused persons were seen in the reserve forest so as to contend that they trespassed into the reserve forest. Once upon a time, it might have been a forest but there had been change in the nature and topography of the land and major portion of the erstwhile forest subsequently became planted area held by private individuals, the learned counsel argues. 5. The learned counsel has relied upon the decision of the Full Bench of this court in **Nature Lovers Movement v. State of Kerala and others** (2000(1) ILR 677) in support of his submission that the forest department itself had filed affidavit in that case that the areas under occupation were ceased to be forest lands years back. It was also stated by the learned Advocate General before the court that 66,000 families may have to be evicted in case the regularization of the occupation was not allowed. That has absolutely no relation to the facts of this case. Here, the evidence given by PW1 and Crl.R.P.No.2767/2004 : 4 : PW2 would show that they were on beat duty in the reserve forest-Velloonnippara which was part of Chittar beat, Konni Reserve of Vadakkekara Forest Range situated in Ranny Taluk. 6. The learned counsel for the petitioner submits that Ext.P2 notification also cannot be accepted. The contention that it is only a copy of a copy is factually incorrect. In Ext.P2 there is a certificate which reads: _“Certified that this is a true copy of the notification published on page 170 of Government Gazette dated 9-21896.”_ That certificate was signed by Mr. M.Sivarajan, I.F.S, Principal Chief Conservator of Forest, Trivandrum -14. His designation seal and office seal are seen affixed on Ext.P2. It is actually the printed notification certified as true by the competent officer; namely, Principal Chief Conservator of Forest. Relying on the earlier decisions of this court it was held in **Sivaraman and others v. State of Kerala** (2012(2)KHC 416) that the Chief Conservator Crl.R.P.No.2767/2004 : 5 : as the head of the department is the officer to certify to the correctness of the copy in view of Sec.78 and 79 of the Evidence Act. Since Ext.P2 was attested by the Principal Chief Conservator of Forest, in the light of the decisions in **Sivaraman's case** cited supra, the contention that Ext.P2 is inadmissible in evidence also must fall to the ground. 7. The learned counsel for the petitioner submits that even if Ext.P2 is accepted as correct, it cannot be relied upon to hold that the entire area within the four boundaries mentioned in Ext.P2 was/is still a reserve forest. According to the learned counsel, the forest survey was done several years back and so the Forest land that might have been available at that point of time may not be available now and so it cannot be said that the area covered by Ext.P2 notification is still a forest. That contention also cannot be sustained. When Ext.P2 notification is admissible in evidence and as it shows that Crl.R.P.No.2767/2004 : 6 : the area in question is a reserve forest and when there is no contra evidence it has to be held that the area covered by Ext.P2 is a reserve forest. To crown it all, there is the unimpeachable evidence given by PW1 and PW2 which would unhesitatingly show that the particular area through which this petitioner and others were seen walking carrying teak wood logs on his head is actually a reserve forest. Therefore, the contention to the contrary advanced by the petitioner cannot be accepted at all. 8. This petitioner and others were found inside the reserve forest. They were seen carrying teak wood logs. When they were questioned it was revealed as to the place from where the teak wood logs were cut and removed. The evidence so given by PW1 and PW2 was rightly accepted by the courts below. Since the petitioner and others were found inside the forest, the offence under Sec.27(2)(c) stands proved. Since the evidence would show that the accused was carrying teak wood Crl.R.P.No.2767/2004 : 7 : logs, it also stands proved that the accused cut and removed teak wood logs. Hence, the conviction under Secs.27(1)(g) and 27(2)(c) is well merited. It is, accordingly, confirmed. 9. As the law then stood the punishment prescribed for offence under Sec.27(1)(g) was imprisonment in a term which may extend to three years **and** fine which may extend to Rs.1,000/-. Therefore, the imprisonment is mandatory. It is true that minimum sentence was not prescribed, as made mandatory subsequent to the amendment. For the offence under Sec.27(2)(c), the punishment prescribed is imprisonment for a term which may extend to three years **or** a fine of Rs.1,000/-. Though, for the offence under Sec.27(2)(c) imprisonment is not mandatory, as imprisonment is mandatory for the offence under Sec.27(1)(g) it cannot be said that the sentence awarded by the courts below is unjust or irrational. Crl.R.P.No.2767/2004 : 8 : 10. Showing undue leniency to such persons who trespassed into the forest area and removed forest wealth cannot be shown any leniency. However, considering the fact that the incident took place several years back, substantive sentence is reduced to S.I for one month. In the result this criminal revision petition is disposed of as stated below: The conviction is confirmed. The petitioner is sentenced to undergo S.I for one month and to pay Rs.1,000/- as fine and in default of payment of fine he will undergo S.I for two months. ## Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge