Quashed

Nhalil John v. State of Kerala

Kerala HC6 Mar 2020Crl.Rev.Pet/1150/2004

Case brief

AI extract

What is this about?

High Court of Kerala quashed the conviction and sentence of two appellants in a wildlife and forest offence case. The Court held the prosecution failed to establish the meat was from a reserved forest and rejected reliance on unexamined forensic experts under Section 57 of the Wildlife (Protection) Act.

What did the court decide?

Conviction and sentence set aside; Accused 1 and 6 acquitted and set at liberty; Bail bonds cancelled.

Nhalil John Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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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 N.ANIL KUMAR

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FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941

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Crl.Rev.Pet.No.1150 OF 2004(C)

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AGAINST THE JUDGMENT IN Crl.A.190/2003 DATED 06-02-2004 OF SESSIONS COURT,MANJERI

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AGAINST THE JUDGMENT IN CC 114/1999 DATED 30-04-2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II

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(FOREST OFFENCES), MANJERI

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REVISION PETITIONERS/APPELLANTS 1 & 4/ACCUSED 1 & 6:

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1 NHALIL JOHN, S/O.CHAKKO, NHALIL HOUSE, POOVATHIPPOYIL, VAZHIKKADAVU, NILAMBUR TALUK, MALAPPURAM DIST.

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2 M.UNNI, S/O.MALAMKUTHU APPUKUTTAN, KARAPPURAM, PANAMPATTA, EDAKKARA VILLAGE, NILAMBUR TALUK, MALAPPURAM DIST.

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BY ADV.SRI.T.K.AJITH KUMAR

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RESPONDENT/RESPONDENT/COMPLAINANT-STATE:

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THE STATE OF KERALA, REPRESENTED BY THE RANGE OFFICER, VAZHIKKADAVU FOREST STATION, VAZHIKKADAVU POST, MALAPPURAM DIST., THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.R.P.No.1150 of 2004

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ORDER

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Revision petitioners are the 1^st and 6^th accused in O.R.No.30/1998 of the Vazhikkadavu Forest Station registered for the offences under Section 27(1)(e)(iv) of the Kerala Forest Act and Sections 9 read with Section 51 and 39(3)(b) read with Section 51 of the Wildlife (Protection) Act, 1972. By judgment dated 30.4.2003, the learned Judicial First Class Magistrate-II (Forest Offences), Manjeri, convicted the accused 1, 3, 5 and 6 and sentenced them under various spells as stated herein below:-

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“The first accused is sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs.1,000/- (Rupees thousand only) u/s.27(1)(e) (iv) of K.F. Act amended by Act 2 of 1993 and shall undergo rigorous imprisonment for one year and pay fine of Rs.1,000/- (Rupees thousand only) u/s.9 r/w 51 of Wildlife (Protection) Act, 1972 and shall undergo rigorous imprisonment for one year and pay fine of Rs.1,000/- (Rupees thousand only) u/s.39(3)(b) r/w 51 of Wildlife (Protection) Act, 1972. In default of payment of fine first accused shall undergo simple imprisonment for six months

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Crl.R.P.No.1150 of 2004

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only. Accused Nos.3, 5 and 6 are sentenced to undergo rigorous imprisonment for one year each and pay fine of Rs.1,000/- (Rupees thousand only) each u/s.39(3) r/w 51 of the Wildlife (Protection) Act, 1972. In default of payment of fine each accused shall undergo simple imprisonment for two months only.”

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Accused Nos.2 and 4 were found not guilty for the

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offences charged and accordingly they were acquitted under Section 248(1) of Cr.P.C.

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Feeling aggrieved, accused Nos.1, 3, 5 and 6 preferred Crl.A.No.190/2003 before the Sessions Court, Manjeri. By judgment dated 06.02.2004, the learned Sessions Judge allowed the appeal in part setting aside the conviction and sentence imposed against A3 and A5. However, A1 and A6 were convicted and sentenced under Section 39(3)(a) of the Wildlife (Protection) Act altering the conviction and sentence imposed by the trial court under Section 39(3)(b) of the Wildlife (Protection) Act. In all other respects, their conviction and sentence imposed by the trial court were confirmed.

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Crl.R.P.No.1150 of 2004

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The prosecution case in brief is that, on

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08.11.1998, accused Nos.1 and 2 had trespassed into the Government forest land at Athithode area in Nellikuth block within the limits of Nellikuth Forest Station and illegally hunted two wild boars which is more specifically described under Schedule III of Wildlife (Protection) Act, 1972 by using country cracks and removed the meat from the forest and sold the same to accused Nos.3 to 5. It is further alleged that the 5^th accused sold the meat to the 6^th accused and the 6^th accused purchased the same knowingly. Thus, the accused committed the offences punishable under Section 27(1)(e)(iv) of the Kerala Forest Act as amended by Act 2 of 1993 and Sections 9, 39, 50, 51 and 57 of the Wildlife (Protection) Act, 1972.

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During the trial, PWs.1 to 6 were examined and marked Exts.P1 to P10 and MOs.1 to 7 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313 of Cr.P.C. Their defence is one of total denial. In support of their contention, DW1 and DW2 were examined and marked Exts.D1 and D2 on their side.

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Crl.R.P.No.1150 of 2004

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Heard Sri.T.K.Ajith Kumar, learned counsel for the revision petitioners and Smt.Pushpalatha.M.K., learned Public Prosecutor for the respondent-State.

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PW6, the Forest Range Officer, Forest Station, Vazhikkadavu filed a complaint against the accused for the offences punishable under the Kerala Forest Act and Wildlife (Protection) Act as stated above. When proceedings are initiated under the Kerala Forest Act, 1961, it is mandatory on the part of the complainant to allege and prove that the occurrence was detected within the reserved forest as defined under the Act. Proceedings for constituting a reserved forest are completed by issuing a Notification under Section 19 of the Kerala Forest Act, 1961.

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Section 19 of the Kerala Forest Act, 1961 reads as

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follows:-

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“19. Notification declaring forests reserved.- When the proceedings prescribed in the preceding sections have been taken, the Government may publish a notification in the Gazette specifying the limits of the forests which it is intended to reserve and declaring the

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Crl.R.P.No.1150 of 2004

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same to be reserved from a date to be fixed by such notification.

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Copies of the notification shall also be published at the headquarters of each taluk in which any portion of the land included in such notification is situate, and in every town, village and headquarters of Panchayats in the neighbourhood of such land.

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From the date so fixed, the forest shall be deemed to be a "Reserved Forest".

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Going by Section 19 of the Kerala Forest Act, the mode of publication and the places in which Notification is to be published have clearly stated.

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Learned counsel for the revision petitioner submitted that Notification under the Forest Act constituting

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the area where the offence was committed as a reserved forest has not been marked and proved in the case. In this case, the prosecution has failed to prove that the scene of occurrence is part of a reserved forest as notified under the Kerala Forest Act, it has been contended.

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Ext.P1 is the mahazar dated 09.11.1998 alleged to have been prepared by PW6 Range Officer. It is stated in

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Crl.R.P.No.1150 of 2004

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Ext.P1 that on getting information that A1 and A2 had hunted wild boar from Nellikuth reserved forest and had kept its meat in their possession, PW6 and other forest officials rushed to the house of A3 and on being questioned, A3 confessed about the purchasing of 10 kgs. of meat of wild boar from A1 and in the morning, he sold the same to different persons at Chunkathara area. Accordingly, the forest officials proceeded to the place with A3 who allegedly pointed out A1 and his residence. It is the case of PW6 that on being questioned, A1 admitted that he along with A2 had hunted the wild boar at Nellikuth reserve forest on 8.11.1998 using explosives and they sold the meat to A3 to A6. The main allegation is that A6 is found to have possessed the meat of the wild boar and thereby committed offence punishable under Section 39(3)(b) of the Wildlife (Protection) Act.

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On a perusal of the judgment of the trial court, it is disclosed that, A2 and A4 were found not guilty for the offences charged and accordingly they were acquitted. In

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Crl.R.P.No.1150 of 2004

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appeal, the learned Sessions Judge found A3 and A5 not guilty for the offences charged and accordingly they were also acquitted. However, the appellate court found that A1 and A6 had been in possession of the meat in contravention of the Wildlife (Protection) Act and Kerala Forest Act and accordingly they were convicted and sentenced under Sections 9 read with Section 51 and 39(3)(a) of the Wildlife (Protection) Act and Section 27(1)(e)(iv) of the Kerala Forest Act. It is disclosed from the evidence that the articles seized were sent to the Kerala Agricultural University for expert opinion by way of Ext.P4 requisition for chemical analysis. Ext.P4 requisition was forwarded by PW2-the Forest Range Officer. The expert attached to the Kerala Agricultural University issued Ext.P5 certificate stating that the meat samples were of wild boar. The broken pieces of bones collected from the scene of occurrence were forwarded to the Kerala Forest Research Institute, Peechi for examination. After examination, Ext.P6 certificate was issued by the Institute stating that the pieces of bones recovered were that of a wild boar.

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Crl.R.P.No.1150 of 2004

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Relying on Section 57 of the Wildlife (Protection)

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Act, 1972, the learned Public Prosecutor contended that, in

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any prosecution for an offence under this Act, it is established that the accused are in possession, custody or control of any captive animal, animal article, meat, etc. it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat, etc. on the date of detection of the offence. Section 57 of the Wildlife (Protection) Act, 1972 further provides that the burden of proof lies on the accused. In criminal cases, generally, it is the duty of the prosecution to prove the case beyond reasonable doubt. By virtue of Section 57 of the Wildlife (Protection) Act, 1972, the burden of proof is on the accused.

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It is the specific case of PWs.2, 3 and 6 that, on 08.11.1998, the 1^st and the 2^nd accused hunted two wild boars by using country cracks from the Government Forest at Athithode area and sold the meat to A3 to A5. They proceeded

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to the house of A4 and A5. But no materials could be recovered from their house. However, they could recover boiled and partly dried meat of wild boar from the residence of the 6^th accused.

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Going by the facts of the case, it is very clear that the alleged occurrence took place inside the reserved forest as defined under Section 19 of the Kerala Forest Act. When the proceedings prescribed in the Kerala Forest Act is taken, Section 19 of the Kerala Forest Act mandates that the Government is duty bound to issue a Notification in the Gazette specifying the limits of the forest which it is intended to reserve. This is to enable the complainant to set the criminal law in motion wherever action is initiated under the Kerala Forest Act. It is the definite case of the prosecution that the accused had committed an offence punishable under Section 27(1)(e)(iv) of the Kerala Forest Act, 1961. In view of the assertion made by the prosecution that the accused committed an offence under Section 27(1)(e)(iv) of the Kerala

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Forest Act which enables the prosecuting agency to initiate proceedings against the accused who trespasses or pastures cattle or permits or causes cattle to trespass, as provided under the Act, the prosecution is duty bound to produce Notification under Section 19 of the Act. The prosecution cannot blow hot and cold at the same breath contending that once possession of the meat of wild boar is established, the presumption under Section 57 of the Wildlife (Protection) Act is applicable and it is not necessary to produce notification issued under Section 19 of the Act.

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It is true that under Section 57 of the Wildlife (Protection) Act, the burden is on the part of the accused to prove that any prosecution for an offence under the Wildlife (Protection) Act if it is established that the accused are in possession, custody or control of any captive animal, animal article, meat, etc. The presumption under Section 57 of the Wildlife (Protection) Act, 1972 can be pressed into service in a case where the prosecution has discharged its initial burden to

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Crl.R.P.No.1150 of 2004

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show that the accused has been in possession of the contraband meat consciously. What is material is conscious possession on the part of the accused. It is necessary on the part of the prosecution to prove that the meat so recovered from A6 is a contraband item as defined under the Wildlife (Protection) Act, 1972. Requisition for chemical analysis was made by PW2. Consequently, Ext.P5 certificate was issued by Kerala Agricultural University. The certificate submitted by the expert attached to the Kerala Agricultural University is an expert opinion as defined under the Evidence Act. Unless and until the expert is examined before the court in accordance with law and the contents in Ext.P5 is proved, it is not safe to act upon Ext.P5 certificate. In the case on hand, the author of Ext.P5 certificate was not examined before the court below. Similarly, broken pieces of bones collected from the scene of occurrence allegedly pointed out by A1 were sent for examination before the expert attached to the Kerala Forest Research Institute, Peechi. On examination, Ext.P6 certificate

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Crl.R.P.No.1150 of 2004

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was issued stating that the pieces of bones recovered from the occurrence place were that of a wild boar. As stated earlier, the expert attached to the Kerala Forest Research Institute, Peechi, who issued Ext.P6 certificate, was not examined before the trial court. Instead Exts.P5 and P6 certificates were proved through PW2 the Forest Range Officer. PW2 is incompetent to prove the contents in Exts.P5 and P6.

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On analysing the facts and circumstances in detail, this Court is of the view that the prosecution has not succeeded in proving that the meat samples recovered from A6 and the broken pieces of bones collected from the scene of occurrence as pointed out by A1 were that of a wild boar have not been proved in evidence. In the absence of reliable evidence, this Court is of the view that, the initial onus on the part of the prosecution to prove the offence against the accused has not been proved. Unless and until the initial onus is discharged, the presumption under Section 57 of the Wildlife (Protection) Act, 1972, is not applicable.

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In view of the discussion made herein above, the conviction and sentence imposed by the appellate court against A1 and A6 are liable to be set aside. Accused Nos.1 and 6/revision petitioners 1 and 2 are found not guilty for the offences under Section 39(3)(a) and 9 read with Section 51 of the Wildlife (Protection) Act and Section 27(1)(e)(iv) of the Kerala Forest Act. Accordingly, they are acquitted for the said offences. Cancelling their bail bonds, this Court directs that they be set at liberty.

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Sd/-

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N.ANIL KUMAR, JUDGE

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skj

Nhalil John v. State of Kerala

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Nhalil John v. State of Kerala

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