Allowed

Abbas v. the State of Kerala

Kerala HC6 Jul 2023Crl.Rev.Pet/613/2005

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentence of accused persons charged with forest offences under Section 27 of the Kerala Forest Act 1961. Holding that the existence of a reserved forest must be proved by the production of a notification under Section 19 of the Act, the Court acquitted the petitioners due to the non-production of such notification, relying on precedents Jose Uthuppan and

What did the court decide?

Criminal Revision Petition allowed; conviction and sentence set aside; petitioners acquitted.

Abbas Vs the State of Kerala — Writ and Judicial Review | Kerala HC (2023)

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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 BECHU KURIAN THOMAS

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THURSDAY, THE 6TH DAY OF JULY 2023 / 15TH ASHADHA, 1945

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CRL.REV.PET NO. 613 OF 2005

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AGAINST THE ORDER/JUDGMENT, CRL.A.160/2003 OF SESSIONS COURT,

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MANJERI

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CC 201/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II

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(FOREST OFFENCES), MANJERI.

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REVISION PETITIONERS/APPELLANTS/ACCUSED:

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1ABBAS
S/O.KUNHIMOHAMMED, MUNDAPOTTY COLONY, VAZHIKKADAVU
VILLAGE, NILAMBUR TALUK.

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2SHIHAB
S/O.MOHAMMED
VEDATAKODE VEEDU, MUNDAPOTTY, VAZHIKKADAVU VILLAGE,
NILAMBUR TALUK.

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3SHIHAB
S/O.MOHAMMED
AKKAPPARAMBIL, MARUTHA, KETTUNGAL, VAZHIKKADAVU
VILLAGE, NILAMBUR TALUK.

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BY ADV – SRI. T.K AJITH KUMAR

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RESPONDENT/RESPONDENT/COMPLAINANT:

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THE STATE OF KERALA

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REPRESENTED BY THE FOREST RANGE OFFICER, NELLIKKUTHU
FOREST STATION, MALAPPURAM (DT), BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR – SRI. K.A NOUSHAD

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 06.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl. RP No. 613 of 2005

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BECHU KURIAN THOMAS, J.

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…………………...………………………

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Crl.RP. No. 613 of 2005

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………………………………..……………………… Dated this the 06^th day of July, 2023

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O R D E R

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Revision petitioners are accused Nos.2,3 and 4 in O.R.No.7/1999 of Nellikuthu Forest Station. They were arrayed as accused in C.C.No.201/1999 on the files of Judicial First Class Magistrate Court-II, (Forest Offences) Manjeri, alleging offences punishable under Section 27(1)(e)(iv) and (iii) of the Kerala Forest Act 1961 ( for short ‘the Act’). Revision petitioners were convicted for the aforesaid offences and were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- ( Rupees One Thousand only ) for each of the offences and in default for payment of fine, to undergo simple imprisonment for four months. The case against the first accused was split and refiled separately.

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According to the prosecution, on 06.09.1999, the accused trespassed into a reserved forest at Paralunda area in Marutha block within the limits of Nellikuthu Forest Division and

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Crl. RP No. 613 of 2005

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illegally cut and removed 4 Irul and 3 Vaga trees and caused a loss of Rs.2,000/- (Rupees two thousand only) to the Government and committed the offences alleged.

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In order to prove the prosecution case, PW1 to PW5 were examined and Exhibits P1 to P7 were marked. After analyzing the evidence adduced the learned Magistrate found the petitioners who were accused Nos.2, 3 and 4 guilty and sentenced them to imprisonment as mentioned earlier. On appeal to the Sessions Court in Crl.A.No.160/2003, the learned Sessions Judge confirmed the conviction but modified the sentence and reduced it to six months each and the default sentence was also reduced to one month each under the two heads.

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Sri. T.K Ajith Kumar learned counsel for the petitioner, contended that the very foundation of the prosecution against the revision petitioner is that the accused had cut and removed trees from a reserved forest. However, without the production of the notification reserving the area as a forest, prosecution could not have been initiated, and on that sole ground the conviction and sentence ought to be set aside, contended the learned Counsel.

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Crl. RP No. 613 of 2005

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Sri. K.A Noushad the learned Public Prosecutor, on the other hand submitted that though the notification regarding the reserved forest had not been produced, the Court can take judicial notice of the existence of the notification, declaring a particular area as a forest, and therefore the conviction Is only to be sustained.

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I have considered the rival contentions.

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It is settled law that when the prosecution initiate action under Section 27(I)(e)(v) of the Act, the main ingredient to be proven is that the alleged acts were committed in a reserved forest. The law provides that an area can be declared as a reserved forest only by a notification. Therefore the edifice on which the prosecution vests its case is that the area is a reserved forest.

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In the absence of production of the notification, declaring the area as a reserved forest, it cannot be held that the prosecution has proved its case beyond reasonable doubt. The decisions in Jose Uthuppan and another v. Forest Range Officer, Pathanamthitta and another [2015 (4) KHC 761] and also in Joonus v. State of Kerala , [2018 (3) KLT 420] as categorically held that the prosecution has to produce the

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Crl. RP No. 613 of 2005

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Government notification issued under Section 19 of the Act, for prosecution of an offence under Section 27 of the Act.

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In the light of the above proposition, the contention of the learned counsel for the revision petitioner is only to be sustained. The prosecution against the petitioners in the absence of the notification cannot be justified, and therefore conviction and sentence is liable to be interfered with.

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In the result, the criminal revision petition is allowed and the conviction and sentence imposed on the petitioners in C.C No.201 of 1999 on the files of Judicial First Class Magistrate’s Court -II (Forest Offences), Manjeri, as confirmed in Criminal Appeal No. 160/2003 on the files of the Sessions Court, Manjeri, is hereby set aside and the revision petitioners are acquitted.

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The Criminal Revision Petition is allowed as above.

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Sd/BECHU KURIAN THOMAS JUDGE

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Rvm

Abbas v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Abbas v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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