State represented by Forest Range Officer, Kollengode v. Sakkir S/I.Saidalavi; Muhammed; Hassenkoya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 **Crl.Rev.Pet.No. 370 of 2001()** **-----------------------------** C.C.NO.26/1998 OF JUDICIAL FIRST CLASS MAGISTRATE, CHITTUR REVISION PETITIONER/COMPLAINANT: --------------------- STATE REPRESENTED BY FOREST RANGE OFFICER, KOLLENGODE. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. RESPONDENTS/ACCUSED: --------------- 1. SAKKIR S/I.SAIDALAVI, KAKKODI VEEDU, NEAR KODATHIPADI, MANNARKKADU. 2. MUHAMMED S/O.HAMSA, CHIRAKKELPADI, KANJIRAPUZHA, MANNARKKADU. 3. HASSENKOYA, S/O.MUHAMMED, THALAKKARAPURAM, ATHIYOORKUNNU, MALAPPURAM. ADV. SRI.SANTHEEP ANKARATH FOR R1TO3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.R.P. No.370 of 2001 -------------------------------------Dated this the 13[th] day of October, 2008.** ## **ORDER** The State has come up in revision against the order passed by learned Judicial First Class Magistrate, Chittur in C.C.No.26 of 1998 discharging the respondents of the charge under Sections 3(1)(i)(d) and (e) and VI of the Kerala Forest (Amendment) Act, 1993 (for short, 'the Act') (Act 2 of 1993) read with Section 27 of Act 4 of 1962. ## 2. Heard both sides. 3. Case is that respondents and fourth accused (he died before the complaint was filed) committed offences punishable under Sections 3(1)(i)(d) and (e) and VI of the Act read with Section 27 of Act 4 of 1962 as they unauthorisedly and illegally entered Government Forest and collected sandal wood and transported the same to Premier Perfumery Works, Kannimari in jeep bearing registration No.KL/10-D.9642 without any document and kept the sandal wood in that factory. CW9 and party inspected the factory on 18.10.1996 and seized 50 kg. of sandal wood as per mahazar (Ext.P1). Prosecution examined PWs 1 to 3 and proved Exts.P1 and P2. Learned magistrate vide the impugned order found that no case is made out against respondents which if unrebutted would warrant their conviction and discharged them. It is contended by learned **Crl.R.P.No.370/2001** 2 Public Prosecutor that the order under challenge is not legal and proper since sufficient material was brought on record to frame charge against the respondents. 4. PW1 is an attestor in Ext.P1, mahazar and did not support the prosecution. PW2, Forest Guard stated that CW9 inspected the factory in question in October, 1996 and seized 50 kgs of sandal wood from that factory. Mahazar (Ext.P1) was prepared at the spot. PW3, Forest Range Officer claimed that his predecessor-in-office registered the case. Ext.P2 is the crime and occurrence report. Learned magistrate observed that though the charge is that respondents and fourth accused collected sandal wood from Government forest there is no evidence in support of that allegation it is not stated from which Government forest sandal wood was collected but, evidence of PW3 would indicate that sandal wood was brought from Tamil Nadu in which case offences charged against the respondents (for alleged trespass into Government forest a in Kerala and collection of sandal wood therefrom) will not lie. Learned magistrate also observed that there is no document to connect the respondents with the factory in question. Sandal wood said to be seized has not been produced in court. The officer concerned has not obtained permission of the court to keep the sandal wood in custody. Stock register and pass are not produced before the court. Without perusing the stock register, it is not **Crl.R.P.No.370/2001** 3 possible to say that stock of sandal wood was unauthorised. Thus, learned magistrate concluded that no prima facie case is made out against the respondents. 5. In Ext.P1, mahazar dated 18.10.1996 it is stated that CW9 along with party inspected the factory in question and detected 50 kgs of sandal wood. First respondent/first accused, said to be the son of one of the partners of the factory when questioned is said to have stated that he brought the sandal wood in question from Tamil Nadu in a jeep and that there are no documents authorising to keep the sandal wood in the said factory. CW9 and party checked the jeep referred in the statement of the first respondent and found pieces of sandal wood in that jeep. Hence that vehicle also was seized. As per the direction of CW9, statement of first respondent was recorded by one of the Forest Guards (on 18.10.1996). In that statement also it is stated about seizure of the sandal wood. The statement further states that first respondent had brought the sandal wood to the factory in jeep bearing registration No.KL/10D.9642. 6. Under Section 245(1) of the Code of Criminal Procedure (for short, 'the Code') the magistrate could discharge the accused when no case against accused has been made out, which, if unrebutted would warrant his conviction. In the case on hand Ext.P1, the seizure mahazar stated that sandal wood was **Crl.R.P.No.370/2001** 4 seized from the factory in question on the relevant day and further when questioned, first respondent had stated that he had brought the sandal wood to the said factory in the jeep referred above. Ext.P1 further states that on examining the said vehicle, CW9 found pieces of sandal wood in the said jeep and accordingly, that jeep also was seized to be produced before the authorised officer as per the provisions of Section 61A of the Kerala Forest Act. Ext.P1 further states that the sandal wood in question was also taken into custody. It would appear that while PWs 2 and 3 were in box, no attempt was made to bring into evidence the statement recorded on 18.10.1996 said to be given by the first respondent. It is stated in Ext.P1 that first respondent who was present in the factory at the time of inspection and seizure had failed to produce any document authorising to keep the seized sandal wood in the factory. Moreover, it is also stated in Form I Report that notice has been issued to the respondents as well as fourth accused (who later died) but only the first respondent accepted the notice. None claimed the sandal wood producing any valid document. It is in these circumstances complaint was filed against the respondents. 7. Learned Public Prosecutor submitted that Section 69 of the Kerala Forest Act permits the prosecution to draw a presumption regarding the offences committed under the said Act. Assuming that the presumption is not available in the case on hand regarding offence punishable under the Kerala **Crl.R.P.No.370/2001** 5 Forest Act in view of the statement of PW3 that his investigation revealed that sandal wood in question was brought from Tamil Nadu and as such it is not a case of any of the respondents or even fourth accused allegedly trespassing into any of the Government forest in Kerala or collecting sandal wood therefrom, learned magistrate ought to have considered the materials on record as to whether any other offence is made out. Learned magistrate did not consider whether offence under Rule 3 read with Rule 23 of the Kerala Forest Produce Transit Rules, 1975 (for short, 'the Rules') is made out. Rule 3(1)(i) refers to import of timber or other forest produce into the State, necessarily it refers to the timber or other forest produce collected from beyond the State. This aspect was not considered by the learned Magistrate while observing that no prima facie case is made out against respondents. Prosecution had also produced the attested photocopy of a deed of retirement of partners of the factory executed on 3.2.1995 to show how respondent No.3 is connected with the factory. That was not marked in evidence. 8. It is contended by learned counsel for respondents that neither the sandal wood nor the jeep said to be seized by CW9 are produced in court. According to learned counsel in similar cases involving similar set of facts, a learned Single Judge of this Court refused to interfere with the discharge of the accused under Section 245(1) of the Code. Learned counsel placed reliance on a certified copy of order dated 30.5.2008 in Crl.R.P.No.440 of 2001. **Crl.R.P.No.370/2001** 6 9. So far as non-production of sandal wood as well as jeep in the court below is concerned, it is stated in Ext.P1 itself that the vehicle was seized to be produced before the authorised officer under Section 61A of the Kerala Forest Act. Ext.P1 further stated that the sandal wood in question was seized. The Hon'ble Supreme Court in **State of Kerala v. Ancy Philip (2008(3) KLT 477)** held that it is not necessary that the articles should have been produced in the criminal courts. it is suffice to say that relevant records for seizure are produced. Ext.P1 prima facie would satisfy that requirement. Whether that decision is applicable to the facts of the case is a matter which learned magistrate has to consider in the trial. 10. So far as the decision in Crl.R.P.No.440 of 2001 is concerned, that is a decision taken on the facts of that case. It is also important to remember that the application of the Kerala Forest Produce Transit Rules, 1975 was not brought to the notice of the learned Single Judge. 11. On consideration of all the materials on record, I am inclined to accept the contention of the Public Prosecutor on behalf of the revision petitioner that learned magistrate has not properly applied mind to the material on record and consider whether any offence is made out. As such, the order under challenge cannot stand. **Crl.R.P.No.370/2001** 7 Resultantly, Revision Petition is allowed. The order under challenge is set aside and the matter is remitted to the trial court for fresh disposal after giving revision petitioner opportunity to adduce further evidence if any and in the light of the observations made above, but untrammelled by the finding if any, contained in this order. Parties shall appear before the trial court on 10.12.2008. **THOMAS P.JOSEPH, JUDGE.** **cks** **Crl.R.P.No.370/2001** 8 ## **Thomas P.Joseph, J.** **Crl.R.P.No.370 of 2001** ## **ORDER** **13[th] October, 2008**