IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl[SECTION]Rev[SECTION]Pet[SECTION]No[SECTION] 3310 of 2008() 1[SECTION] RAJU @ RADHAKRISHNAN AGED 49 YEARS Petitioner Vs 1[SECTION] STATE OF KERALA, REP BY THE GOVERNMENT Respondent For Petitioner :SRI[SECTION]A[SECTION]CHERIAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR[SECTION] Justice [ENTITY] Dated :05/06/2009 O R D E R [ENTITY], J[SECTION] Crl[SECTION]R[SECTION]P[SECTION]No[SECTION]3310 of 2008 Dated this the 5th day of June, 2009[SECTION] ORDER
Heard counsel for petitioner and the Public Prosecutor[SECTION]
2[SECTION] This revision is in challenge of judgment of learned I Additional Sessions Judge, Thodupuzha in Crl[SECTION]Appeal No[SECTION]156 of 2007 confirming conviction and sentence of the petitioner for offence punishable under [SECTION] of the [ACT] (for short, "the Act")[SECTION] Case is that on 5[SECTION]10[SECTION]2003 petitioner trespassed into Malayattoor reserve forest at Pattayidumbu
-Kalluvathikkal area, cleared thicket and effected cultivation in the forest land in an attempt to take possession of forest land[SECTION] PW1, forest guard gave evidence regarding the alleged incident and stated that on his reaching the scene of occurrence on the relevant day and time he found petitioner engaged in clearing thicket in about two acres of forest land and effecting cultivation[SECTION] He recorded statement of the petitioner which is Ext[SECTION]P4[SECTION] Ext[SECTION]P1 is the mahazar prepared by PW1[SECTION] Ext[SECTION]P2 is form No[SECTION]I report[SECTION] Ext[SECTION][SECTION] is purported to be a copy of the reserve notification issued by the Government under [SECTION] of the Act and signed by the Chief Conservator of Forests (Regional south), Kollam[SECTION] Ext[SECTION]P5 is memo for arrest of petitioner[SECTION] MO1 is the sickle said to be seized from petitioner at the relevant time[SECTION] PW2 is the forestor who submitted final report[SECTION] Petitioner produced Ext[SECTION]D1, joint verification report contending that he effected cultivation in the 60 cents of land which was put in his possession[SECTION] Courts below did not accept Ext[SECTION]D1 and found that petitioner trespassed into the reserve forest[SECTION]
3[SECTION] It is contended by learned counsel that prosecution has not proved the case beyond reasonable doubt[SECTION] According to the learned counsel, it is the essential prerequisite for a conviction under [SECTION] of the Act that prosecution produced the notification issued under [SECTION] of the Act or its certified copy[SECTION] But in this case, Ext[SECTION][SECTION] did not conform to that requirement[SECTION] Learned counsel placed reliance on the decisions in Chacko Pyli v[SECTION] State of Kerala (1966 KLT 102), State of Kerala v[SECTION] Adichan Sasi (1975 KLT
839) and Antony v[SECTION] Forest Range Officer (1977 KLT 691)[SECTION] Learned Public Prosecutor appearing for the respondent relied on the decision in Alipilla and others v[SECTION] State of Kerala (1983 KLN 107)[SECTION]
4[SECTION] I have gone through Ext[SECTION][SECTION][SECTION] It is styled as a notification under [SECTION] of the [SECTION][SECTION] In the decisions relied on by counsel for petitioner it is stated that notification issued under [SECTION] of that Regulation can be treated as a notification issued under [SECTION] of the Act[SECTION] But the question is whether Ext[SECTION][SECTION] is actually such a notification or even its certified copy[SECTION] It is seen from Ext[SECTION][SECTION] that it does not contain the number of the notification, page number and date, etc of the gazatte notification[SECTION] It is also seen that Ext[SECTION][SECTION] is not certified to be a true copy of the notification[SECTION] Ext[SECTION][SECTION] can only be taken as an extract prepared from the notification[SECTION] It cannot be treated as the notification or its certified copy[SECTION] In these circumstances, counsel for petitioner is well founded in his contention that Ext[SECTION][SECTION] is not a notification as contemplated under [SECTION] of the Act[SECTION] Therefore, on the facts and circumstances of this case and considering the inadequacy of Ext[SECTION][SECTION] with the requirements of [SECTION] of the Act conviction and sentence on petitioner cannot be sustained[SECTION] It is liable to be set aside[SECTION]
Resultantly, this revision succeeds[SECTION] Conviction and sentence on the petitioner are set aside and he is acquitted of the charges against him[SECTION] Bail bond is cancelled[SECTION]
Crl[SECTION]M[SECTION]A[SECTION]No[SECTION]10051 of 2008 will stand dismissed[SECTION]
[ENTITY], Judge[SECTION]