Surendan v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2015-10-15
Court Decision / Holding: The revision petitions are allowed. The convictions and sentences under Section 27(1)(e)(iii) of the Kerala Forest Act are set aside; the petitioners are acquitted. Bail bonds are cancelled and the accused are to be set at liberty.
Final Disposition: Acquittal; bail bonds cancelled; set at liberty

Parties to the Case

Appellants / Petitioners

Surendan

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Dr. George Abraham

Counsels for Respondents

• Public Prosecutor, Shri. V.S. Sreejith

Case Synopsis & Summary

Surendan challenges two criminal revision petitions arising from a Kerala Forest Act case. The trial court convicted both accused under Section 27(1)(e)(iii) of the Kerala Forest Act for carrying timber after an inspection by a Flying Squad detected teak stumps and timber remnants. The appellate court dismissed the appeal, and the revision petitions were filed. The High Court, hearing on 15 October 2015, examined whether the alleged offence occurred in a "reserved forest" as required by the statute and whether the Gazette notification establishing such reserved forest was properly proven. The court relied on precedents including Jose Uthuppan v. Forest Range Officer, Pathanamthitta and Chacko Pyli v. State of Kerala to emphasize that the Government must issue and publish a Gazette notification to constitute a reserved forest, and that prosecution evidence must establish this fact through admissible documentary proof. Photocopies of the notification (Ext. P7) were found inadmissible, and no other material established the scene of offence as a Reserved Forest. Consequently, the court held that the prosecution failed to prove an essential element of the offence and allowed the revision petitions, acquitting the petitioners and cancelling their bail bonds. The decision underscores the necessity of proper Gazette notification in forest-reserved areas for Section 27 convictions.”

Provisions of Law Cited

Section 27(1)(e)(iii) of the Kerala Forest ActSection 19 of the Kerala Forest Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners contended that the prosecution failed to establish that the alleged offence occurred in a Reserved Forest. Conviction under Section 27(1)(e)(iii) requires proof that the act occurred within a forest notified as reserved. Relying on Jose Uthuppan v. Forest Range Officer, Pathanamthitta and Chacko Pyli v. State of Kerala, it was urged that the Gazette notification of the reserved forest must be proven, either by the Gazette itself or a certified copy with evidence of publication. In the absence of admissible Gazette proof (Ext. P7 photocopy alone is not sufficient), the prosecution’s case collapses, and the conviction cannot stand.

Contentions of Respondents

The State argued that the alleged offence occurred within a forest area designated as reserved and that the prosecution sufficiently proved the essential elements under Section 27 by presenting the relevant forest records and testimony. It was urged that the Gazette notification and its publication are required, and the prosecution should be permitted to rely on documentary evidence to establish the reserved-forest status for the purpose of conviction under Section 27.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jose Uthuppan v. Forest Range Officer, Pathanamthitta	2015(4) KLT 761	Positive	Cited to emphasize requirement of Gazette notification (publication) to prove a Reserved Forest for purposes of Section 27. Its reasoning underpins the court’s conclusion that Ext. P7 photocopy is inadmissible and that proper Gazette proof is lacking.
Chacko Pyli v. State of Kerala	1966 KLT 102	Positive	Cited as authority for the proposition that the Government must issue and publish the Gazette notification to establish a Reserved Forest; adopted in the Jose Uthuppan line of reasoning.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 15TH DAY OF OCTOBER 2015/23RD ASWINA, 1937 Crl.Rev.Pet.No. 279 of 2010 ( ) -------------------------------CRA 293/2008 of ADDL.S.C.-IV, EKM CC 1638/2003 of JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM ## REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------ SURENDRAN, AGED 42 YEARS S/O.SREEDHARAN, OLLOPPILLIL HOUSE THALAKKODE ALUMCHUVADU BHAGAM, NERIAMANGALAM KOTHAMANGALAM. BY ADV. DR.GEORGE ABRAHAM RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-10-2015, ALONG WITH CRRP. 280/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. Nos.279 of 2010 and 280 of 2010 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of October 2015 ## O R D E R The revision petitioner in Cr.R.P. No.279 of 2010 is the first accused and the revision petitioner in Crl.R.P. No.280 of 2010 is the second accused in C.C.No.1638 of 2003 on the files of the court of the Judicial Magistrate of First Class, Kothamangalam. 2. The trial court convicted the revision petitioners under Section 27(1)(e)(iii) of Kerala Forest Act and sentenced them thereunder to rigorous imprisonment for one year each and to pay a fine of Rs.1,000/- each with a default clause for simple imprisonment for one month Crl.R.P.279 & 280/2010 : 2 : each. The appeal filed against the said conviction and sentence was dismissed by the appellate court. Aggrieved by the said conviction and sentence, this Revision Petition has been filed. ## 3. Heard. 4. The prosecution allegation is that on 18.12.1997, the members of Kothamangalam Flying Squad conducted an inspection in Kollamvettiyapadavu part of reserved forest and detected 3 teak stumps, from which some part of timber had been removed. The mahazar was prepared. The loss was assessed at Rs.1,25,000/-. While so, the revision petitioners were found carrying timber on their head. It is alleged that the said timber belonged to the stumps, which were detected by the Forest Officers. Crl.R.P.279 & 280/2010 : 3 : 5. Before the trial court, PW1 to PW8 were examined and Exts.P1 to P7 were marked for the prospection. DW1 was examined for the revision petitioners. 6. PW1, PW2, PW4 and PW5 were the members of the Flying Squad who on 8.12.2009 detected three teak stumps, from which some part of the timber had been removed. Ext.P1 mahazar was prepared in connection with the same. Thereafter, on 2.1.1998, the revision petitioners were found carrying timber. When arrested and questioned, the involvement of the revision petitioners in the commission of the offence was revealed. PW2, PW6 and PW8 were the Forest Officers, who were on beat duty on 2.1.1998. They found accused Nos.1 and 2 carrying timber on their head on that day. When questioned, they Crl.R.P.279 & 280/2010 : 4 : led the witnesses to the stumps referred to in Ext.P1. 7. The learned counsel for the revision petitioners, relying on the decision of this Court in **Jose Uthuppan v. Forest Range Officer, Pathanamthitta** [2015(4) KLT 761], argued that the prosecution has failed to establish that the offence alleged was committed in a reserved forest, as alleged by the prosecution and in the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. 8. It is clear from 27 of the Forest Act that before a person to be held guilty under Section 27 of the said Act, the prosecution has to establish that the act complained of had been done in a reserved forest. This is a very essential ingredient for the offence under Section 27 of the Act. This Crl.R.P.279 & 280/2010 : 5 : court relied on the decision of the Division Bench in **Chacko Pyli v. State of Kerala** (1966 KLT 102) and held in **Jose Uthuppan** (supra) thus:- “It is implicit from the provisions of Section 19 of the Act that the Government has to not only issue notification but the Government has also to publish the same in the Gazette. Therefore, it is the duty of the prosecution not only to establish that the notification was issued, but the prosecution has also to establish that the said notification was published in the Gazette. That can be done either by producing the Gazette containing the notification or by producing the certified copy of the notification and adduce evidence of its publication in the Gazette. In view of the above reason, in order to establish that the act complained of was committed in a forest constituted as a reserved forest, the prosecution must either produce the Gazette containing the notification or a certified copy of the notification and adduce evidence of its publication in the Gazette.” Crl.R.P.279 & 280/2010 : 6 : 9. In this case, Ext.P7 is the photocopy of the notification which is not admissible in evidence. There is no other material before the court to establish that the scene of offence in this case was part of a Reserved Forest as notified under Kerala Forest Act or any other statute. Therefore, it has to be held that the prosecution failed to establish that the revision petitioners committed the offence within the reserved forest notified under the Kerala Forest Act or under any other statute and consequently, the conviction and sentence passed by the courts below cannot be sustained. In the result, these revision petitions stand allowed setting aside the conviction and sentence passed by the courts below under Section 27(1)(e)(iii) of the Kerala Crl.R.P.279 & 280/2010 : 7 : Forest Act and the revision petitioners are acquitted for the said offence. The bail bonds of the revision petitioners stand cancelled and they are set at liberty. SD/- **B.SUDHEENDRA KUMAR, JUDGE** _dl_ _// True Copy // PA to Judge_