Partly allowed

Basheer v. State of Kerala

Kerala HC8 Oct 2012Crl.Rev.Pet/323/2004

Case brief

AI extract

What is this about?

The High Court of Kerala acquitted the petitioner of stripping bark (Section 27(1)(e)(iii)) as evidence only showed possession, not the act itself. However, the Court confirmed the conviction for trespassing into the reserve forest (Section 27(1)(e)(iv)) based on witness testimony of the arrest location. Pending disposal of other issues regarding evidence admissibility.

What did the court decide?

Petitioner acquitted of Section 27(1)(e)(iii); conviction for Section 27(1)(e)(iv) confirmed; sentence confirmed; bail bond cancelled.

Basheer Vs State of Kerala — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934

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Crl.Rev.Pet.No. 323 of 2004 ( )

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CRA.189/2001 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA CC.255/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI

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REVISION PETITIONER(S)/APPELLANT/IST ACCUSED.:

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BASHEER, S/O.KONTHALAM, ANTHINATTU HOUSE, KULAMAVU KARA, IDUKKI VILLAGE.

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BY ADV. SRI.ASOK M.CHERIAN

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COMPLAINANT(S)/RESPONDENTS/COMPLAINANT.:

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STATE OF KERALA,

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REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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tss

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S. SIRI JAGAN, J.

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- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.323 of 2004

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- - - - - - - - - - - - - - - - - - - - - - - Dated this the 8^th day of October, 2012

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O R D E R

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The petitioner is the accused in C.C. No.255/1999 before the Judicial First Class Magistrate's Court, Idukki. He was prosecuted for offences punishable under Sections 27 (1) (e) (iii) & (iv) of the Kerala Forest Act, 1961.

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The prosecution case was as follows: On 09.01.1997, the petitioner along with another Reji trespassed into the Muthikandam Bhagam Reserve Forest coming within the Nagarampara Reserve, which is a

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notified reserve forest and stripped the bark of five Kulamavu trees and attempted to remove the stripped bark weighing about 250 Kgs. having a value of Rs. 500/-, causing a loss of Rs.1,000/- to the Government. The petitioner was arrested while he was carrying a sack of kulamavu bark. A2 could not be apprehended as he ran away from the scene and arrested later. Thus the accused committed offences punishable under Sections 27 (1) (e)

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Crl. Rev. Petition No.323 of 2004

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(iii) & (iv) of the Kerala Forest Act. The Magistrate convicted the petitioner for both offences but acquitted the 2^nd accused. The petitioner was sentenced to undergo simple imprisonment for one year under Section 27 (1) (e) (iii) of the Kerala Forest Act and to pay a fine of Rs.1,000/-, with a default sentence of simple imprisonment for one more month. He was also sentenced to undergo simple imprisonment for one year under Section 27 (1) (e) (iii) & (iv) of the Kerala Forest Act and to pay a fine of Rs.1,000/-, in default of which to undergo simple imprisonment for one

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more month. The sentences were directed to run concurrently. Challenging the conviction and sentence, the petitioner filed Crl. Appeal No.189/2001 before the Additional Sessions Judge (Adhoc-II), Thodupuzha. The Sessions Judge confirmed both the conviction and the sentence. The judgments of the courts below are under challenge in this Crl. R.P.

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The contention of the petitioner is that there is no evidence to prove the offences alleged against the petitioner. The petitioner submits that the arrest of the

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Crl. Rev. Petition No.323 of 2004

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petitioner itself has not been proved insofar as the person who has recorded the arrest of the petitioner had not been examined before the Magistrate. It is further submitted that under Section 63 (2) of the Kerala Forest Act, 1961, as soon as a person is arrested he shall be informed of the grounds of arrest and shall forthwith be taken or sent to the nearest Police Station whereupon the Officer in charge of such station shall act according to law. According to the petitioner, admittedly the petitioner was not taken to the police station as contemplated under Section 63 (2) and therefore the arrest has not been properly proved. The counsel for the petitioner further submits that under Section 58 of the Kerala Forest Act, the Magistrate is duty bound to sell the forest produce seized, which has not been done in this case. He also submits that the forest produce allegedly seized from the petitioner had not been produced before the Magistrate and as such there is no evidence to prove that the petitioner is guilty of stripping the bark of a forest tree. Therefore, the counsel for the petitioner argues for acquitting the accused.

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Crl. Rev. Petition No.323 of 2004

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In answer, the learned Public Prosecutor appearing for the State argues that the petitioner was produced before the Magistrate immediately on arrest who granted bail to the petitioner and therefore the arrest of the petitioner is beyond reproach. It is further submitted that the witnesses examined on the side of the prosecution have categorically given evidence to the effect that the petitioner was apprehended inside the reserve forest carrying bark of a forest tree, which itself is sufficient to prove the ingredients of the offence alleged. He would further submit that Section 58 is applicable only in cases where there is confiscation. Here, there is no question of confiscation and therefore application of Section 58 does not arise. He would further submit that Section 63 (2) is applicable only when the arrested person is not immediately produced before the Magistrate. In this case, the arrested person was straight away produced before the Magistrate and therefore Section 63 (2) is not attracted at all. According to the learned Public Prosecutor, there is sufficient evidence on record to prove the offences committed by the petitioner

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Crl. Rev. Petition No.323 of 2004

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and therefore he argues for confirming the judgments of the courts below.

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I have considered the rival contentions in detail.

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In this case, the offences alleged against the

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petitioner are under Sections 27 (1) (e) (iii) & (iv), which read as follows:

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“2 7. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests .- (1) ....

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(a) x x x x x

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x x x x x

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(e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest-

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(i) x x x x

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(ii) x x x x

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(iii) cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;

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(iv) trespasses or pastures cattle or permits or causes cattle to trespass; or

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For conviction for the offences under Section 27 (1) (e) (iii)

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the prosecution has to necessarily prove that the accused

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stripped a forest tree of its bark. Here, the case of the prosecution is that the petitioner was apprehended carrying on his head a sack containing bark of a forest tree. The

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Crl. Rev. Petition No.323 of 2004

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evidence adduced is also to that effect. That does not prove to any extent that the petitioner has actually stripped a forest tree of its bark. Of course, the learned Public Prosecutor would point out the difficulties in apprehending a person actually stripping of the bark of a forest tree within the deep forest. Whatever be the difficulties in detecting such crimes, for punishing a person for an offence under the Kerala Forest Act, the prosecution has to necessarily prove the ingredients of the offence. Here, the ingredient of the offence alleged against the petitioner is stripping the bark of a forest tree. Nobody has given evidence to the effect that he has seen the petitioner stripping the bark of a forest tree. All what has been proved is that the petitioner was apprehended carrying a sack of bark collected from the forest. That does not prove the offence under Section 27 (1) (e) (iii). Therefore, the petitioner could not have been convicted for the offence under Section 27 (1) (e) (iii).

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But the question is different in the case of the offence under Section 27 (1) (e) (iv). Of course, the counsel

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for the petitioner took great pains to prove before me that there is no evidence to prove that he was arrested from inside a forest. According to him, he was arrested from his home. But I am unable to countenance that contention. Although the person who has recorded the arrest of the petitioner has not been examined as a witness in this case, three persons who were present along with the person who recorded the arrest of the petitioner have been examined. All of them have stated on oath that the petitioner was apprehended inside the Muthikandam, Bhagam reserve forest. The Notification proving that the area is a forest has also been proved in evidence. It is also a fact that immediately after arrest the petitioner was produced before the Magistrate. Ext.P1 mahazar has also been proved, in which also, it is specifically stated that the petitioner was apprehended from the Vairamani Forest Police Station limits. Ext.P1 specifically says that because the petitioner is likely to abscond he was arrested and taken into custody from there. Therefore, the prosecution has succeeded in proving that the petitioner was arrested from within the

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reserve forest. The petitioner has no explanation for his presence in the forest. Therefore, the petitioner has trespassed into reserved forest and therefore he is clearly guilty of an offence under Section 27 (1) (e) (iv) and is liable to be punished for that offence. Accordingly, I hold that the petitioner is not guilty of offence under Section 27 (1) (e) (iii) but he is guilty of an offence under Section 27 (1) (e) (iv). He is liable for punishment for the same. Accordingly, he is acquitted for the offence under Section 27 (1) (e) (iii) and the conviction and sentence under Section 27 (1) (e) (iv) is confirmed. His bail bond is cancelled. He shall surrender to undergo the sentence forthwith.

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The Criminal Revision Petition is disposed as above.

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Sd/-

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S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE

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shg/

Basheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

Basheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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