T. Naseeb v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940 Crl.MC.No. 4281 of 2018 AGAINST C.C. 321/2016 IN C.C.61/2010 OF JFCM-II (FOREST OFFENCES) MANJERI OR NO.1/2007 OF KARUVARAKUNDU FOREST STATION OFFICE , MALAPPURAM ## PETITIONER(S)/2ND ACCUSED T.NASEEB, AGED 34 YEARS, S/O.THUMBATH MOHAMMED, THUMBATH HOUSE, OTHUKKUKNGAL, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADVS.SRI.P.SAMSUDIN SRI.JITHIN LUKOSE ## RESPONDENT(S)/STATE: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. (OR NO.1/2007 OF KARUVARAKUNDU FOREST STATION IN MALAPPURAM DISTRICT). BY SPL. PUBLIC PROSECUTOR FOR FOREST SRI.SANDESH RAJA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4281 of 2018 () APPENDIX ## PETITIONER(S)' EXHIBITS ANNEXURE A1 CERTIFIED COPY OF THE FORM A-1 IN OR NO.1/2007 OF KARUVARAKUNDU FOREST STATION. ANNEXURE A2 CERTIFIED COPY OF THE CHARGE SHEET IN OR NO.1/2007 OF KARUVARAKUNDU FOREST STATION. ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 02-12-2016 IN C.C.NO.61/2010 ON THE FILES OF THE JFCM COURT II, MANJERI. /TRUE COPY/ P.S TO JUDGE ## **P.UBAID, J.** ## **~~~~~~~~~~ Crl.M.C No.4281 of 2018 ~~~~~~~~~~~ Dated this the 11[th] July, 2018** ## **O R D E R** The petitioner herein is the 2[nd] accused in O.R 1/2007 of the Kalikavu Forest Range. The Forest Range Officer, Kalikavu brought prosecution against three persons including the petitioner. Pending the proceedings, the 3[rd] accused died and the charge against him abated. The 1[st] accused faced trial in C.C 61/2010 before the Judicial First Class Magistrate Court-II (Forest Offences) Manjeri and obtained a judgment of acquittal on merits on 2.12.2016. The case as against the petitioner was split up and refiled when he remained consistently absent. He now seeks orders quashing the prosecution as against him on the ground that the very substratum of the prosecution case stands lost by the acquittal of the 1[st] accused. The prosecution case is that the three accused trespassed into the Government reserve forest within the Kalikavu Forest Range and cut and removed a sandal wood tree. The prosecution relied on the seizure of sandal wood pieces from the possession of the accused and also the confession **Crl.M.C No.4281 of 2018** **2** statements given by them to the forest official. The prosecution adduced oral and documentary evidence in the trial court. The learned Magistrate acquitted the 1[st] accused mainly on two grounds. One is that the complainant has not produced the notification required under Section 19 of the Kerala Forest Act, and the second is that the evidence regarding the confessions made by the accused is unacceptable. Annexure -A3 is the copy of the judgment of the trial court in C.C 61 /2010. As regards failure on the part of the prosecution to produce the notification, the learned Magistrate found thus in paragraph 22 to 24 of the judgment. “22. In Chacko Pyli and Others V. State of Kerala [1966 KLT 102] a Division Bench of Honourable Kerala High Court held as follows: _It is a pre-requisite for a person to be held guilty under Section 27 of the Act that there should be a notification under Section 19 duly published in the Gazette. In the absence of such a notification, the accused could not be found guilty, for contravention of the provisions of Section of the Kerala Forest Act, 1961.”_ 23. Likewise in J _ose Uthuppan v. Forest_ **Crl.M.C No.4281 of 2018** **3** _Range Officer [2015 (4) KHC 761]_ , the Hon'ble Kerala High Court held that “ _prosecution was duty bound to produce certified copy of notification relating to Statute before court to prove notification by secondary evidence. Mere production of certified copy of notification alone was not sufficient in proof of its publication in Gazette. Honourable Kerala High Court further held that to prove act complained of was committed in reserved forest. Prosecution should have produced Gazette containing notification or certified copy of the same._ ” 24. Honourable Kerala High Court in _Pyli v. State of Kerala [1966 KLJ 76]_ after considering the relevant provisions of the Kerala Forest Act, 1961 pointed out that there should be a notification under Section 19 of the Kerala Forest Act, 1961, duly published in the Gazette and the same is a pre-requisite for a person to be held guilty under Section 27 of the Act that in the absence of such a notification the accused could not be found guilty for contravention of the provisions of Section 27 of the Act. Above dictum laid down by the Honourable Kerala High Court is squarely applicable to facts and circumstances of the case.” 2. Of course somebody was examined by the **Crl.M.C No.4281 of 2018** **4** prosecution to prove the confession statements. For such a confession statement to be admissible in evidence, the person who recorded the statement must be examined in court and he must also give evidence regarding the contents of the statement specifically amounting to confession. Merely marking a confession statement will not prove the confession. As regards the proof of the confession, the learned Magistrate found thus in paragraphs 25 and 26 of the Annexure-A3 judgment. “25. In this case, it is further interesting to note that the prosecution also relies on the alleged confession statements given by the accused. However, the manner of recording the confession statements, the place of recording the confession statements, the procedure adopted for recording the confession statements are not clear from prosecution evidence. 26. It is further significant to note that the accused persons were not shown to have given any reflection time before obtaining confession statements. It is not clear from the confession statements (Exts.P5 to P7) were given sufficient reflection time before recording the confession statements. Prosecution has not offered any **Crl.M.C No.4281 of 2018** **5** explanation in that regard. All the above circumstances clearly show that it is not possible to believe the prosecution case that the accused persons voluntarily give confession statements. Hence is not possible to rely on Exts.P5 tto P7 confession statements allegedly given by the accused persons.” 3. This Court has consistently settled the legal position that in a prosecution under Section 27 of the Kerala Forest Act, the notification issued by the Government under Section 19 of the Kerala Forest Act is a per-requisite. The copy of the notification duly certified by the competent officer or the custodian of the notification, must be produced in court and it must be proved by him as required under the Indian Evidence Act. This is a case where no such notification was produced by the prosecution. On a reading of the Annexure-A3 judgment, I find that the very substratum of the prosecution case stands lost by the acquittal of the 1[st] accused, and that continuance of the prosecution against this petitioner will be a sheer waste of time. The prosecution as against the petitioner cannot in **Crl.M.C No.4281 of 2018** **6** any manner be improved by the complainant, if the case goes to trial. In the result, this petition is allowed. The prosecution against the petitioner in C.C 61/2010 (OR 1/2007) of the Kalikavu Forest Range will stand quashed under Section 482 Cr.P.C. Sd/- **P.UBAID JUDGE** ma **/True copy/ P.S to Judge**