IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 Bail Appl..No. 5611 of 2011() ----------------------------- O.R.No.02/2011 of Nelliyampathy Forest Range, Palakkad. PETITIONERS/ACCUSED NOS.1 & 2 : ------------------------------ 1. M.S.MADANNA,AGED 31 YEARS, S/O.SUBBAIH,(SENIOR EXECUTIVE ) (PRODUCTION), MANALAROO ESTATE,PADAGIRI POST,NELLIYAMPATHY, PALAKKAD. 2. KANAKARAJ,S/O.AGAL RAJ,ADANGUMPURATH HOUSE,(SUPERVISOR),MANALAROO ESTATE,PADAGIRI POST,NELLIYAMPATHY, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.VIPIN NARAYAN RESPONDENT: --------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, REP.THE FOREST RANGE OFFICER,NELLIYAMPATHY FOREST RANGE. PUBLIC PROSECUTOR SRI.P.M.POULOSE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.5611 of 2011 ---------------------------------------------- Dated this the 11th day of August, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The Petitioners are the accused in O.R.No.2 of 2011 of Nelliyampathy Forest Range, Palakkad District. 2. The offence alleged against the petitioners is under Sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act. 3. The prosecution case is that on 31/05/2011, on instruction by the petitioners, certain employees cut and removed the under growth and small trees from an area extending to about one acre thereby causing a loss of Rs.3,000/- to the State. According to the prosecution the area from where the under growth and small trees were cut and removed was a notified land under “The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003”. According to the petitioners, the land in question is not part of the notification. According to them the notified area is not identified. The petitioners had filed W.P.(C). Bail Appln.No.5611/2011 : 2 : No.19546 of 2003 challenging the notification. In that Writ Petition an interim order dated 23rd June, 2003 was passed permitting the petitioner therein (Nelliyampathy Tea and Produce Company Ltd.) to continue to do whatever “it has been doing hithertofore.” Subsequently, the Writ Petition was disposed of leaving open the right of the petitioner in the Writ Petition to approach the Tribunal constituted under the Act. The Nelliyampathy Tea and Produce Company Ltd. approached the Tribunal and filed O.A.No.10 of 2010 which is pending disposal. 4. It would appear that the Government proposed to issue an 'erratum notification' in respect of the land in question. That notification was challenged by the company in W.P.(C).No.15274 of 2011 which was disposed of by the judgment dated 07/06/2011 holding that notification was not issued and only a proposal was made and therefore the Writ Petition was premature. The Tribunal was also directed to dispose of the O.A. expeditiously. 5. The petitioners are the Senior Executive (Production) and Supervisor, respectively of Manalaroor Estate of Nelliyampathi Tea and Produce Company Ltd. It is Bail Appln.No.5611/2011 : 3 : stated that employees were directed to cut and remove the under growth for the smooth running of the Tea factory situated in the land. The learned Counsel for the petitioners pointed out that in the order rejecting the application for anticipatory bail passed by the Sessions Court, it is specifically stated that the learned Sessions Judge called for the interim report submitted by the Advocate Commissioner in the O.A. pending before the Tribunal. The learned Sessions Judge noticed that the Commissioner stated in the report that the respondent failed to point out the boundaries of the area notified as ecologically fragile land. Annexure-C is the report submitted by the Advocate Commissioner. It is submitted by the Counsel that in these state of affairs it was not at all proper to register the case against them on the flimsy ground that the under growth were cut and removed. 6. Taking into account the facts and circumstances of the case, I am of the view that this is a fit case where the discretionary relief under Section 438 of the Code of Criminal Procedure should be granted in favour of the petitioners. There will be a direction that in the event of the arrest of the petitioners, the officers of the Nelliyampathy Forest Range Bail Appln.No.5611/2011 : 4 : shall release them on bail on each of them executing bond for `10,000/- (Rupees Ten thousand only) with two solvent sureties each for the like amount to the satisfaction of the officer concerned, subject to the following conditions: A) The petitioners shall appear before the investigating officer for interrogation as and when required; B) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence. C) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail. D) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated above. K.T.SANKARAN, JUDGE skj