IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 CRL.REV.PET.NO. 3937 OF 2008() ------------------------------ CC.283/2006 OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): REVISION PETITIONER/COMPLAINANT ------------------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI ALAN PAPALY RESPONDENT(S): ACCUSED ------------------------------------------- P.A.UMMER, S/O.PANALAM AHAMMED, 26/05, PANALAM HOUSE, CHEVOOR POST, CHENGALA VILLAGE. ADV. SRI.ALAN PAPALI SRI.SOJAN MICHEAL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.3937 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of May, 2009 O R D E R -------------- This proceeding in revision is at the instance of the State of Kerala and in challenge of the order dated 19.9.2007 in C.C. No.283 of 2006 discharging the respondent of the charges levelled against him under Section 245(1) of the Code of Criminal Procedure (for short, “the Code”). 2. Heard learned Government Pleader appearing for the petitioner and counsel for respondent. 3. Case against the respondent is that he kept in his possession chippings of sandalwood tree and sandalwood timber in his house on 20.7.2005. On getting information about that, Forest Officials led by P.W.1 inspected the house and premises of respondent and seized 45.9 Kgs. of sandalwood timber and sandalwood chippings in three plastic bags from the arecanut plantation of the respondent. Detecting officials prepared mahazar in that regard. Respondent is alleged to have committed the offence punishable under Section 27(1) (d) of the Kerala Forest Act and Rules 3(1)(iii) and 23 of the Kerala Forest Produce Transit Rules read with Sections 39 and 40 of the Forest Act. P.W.1 was examined and Ext.P1 was marked. Learned CRL. R.P. NO.3937 of 2008 -: 2 :- Magistrate observed that there is no independent witness to prove that respondent was the person who stored the thondi articles in the arecanut plantation. Prosecution relied on the confession statement stated to be given by the respondent and that the material objects stated to be seized from the respondent were not produced in court. Learned Chief Judicial Magistrate referring to the decision of this Court in State of Kerala v. Ancy Philip (2006(1) KLT 609) held that non-production of the material objects in court is fatal and discharged the respondent under Section 245(1) of the Code. That order is under challenge in this revision. 4. Learned Public Prosecutor submits that the decision in Ancy Philip's case was reversed by the Supreme Court in State of Kerala and Others v. Ancy Philip and Another (2008 (3) KHC 256 = 2008(3) KLT 477 (SC) and that the order of discharge is not justified. In the decision relied on by the Public Prosecutor which is in reversal of the decision of this Court in State of Kerala v. Ancy Philip (2006 (1) KLT 609), Apex Court held that physical production of the timber seized before the Magistrate is not required and that prosecution need only produce relevant records before the Magistrate showing seizure and the officer who has seized the articles has to testify that the offence has been committed. In this case CRL. R.P. NO.3937 of 2008 -: 3 :- P.W.1 has given evidence regarding alleged seizure and proved Ext.P1, mahazar whereunder the material objects are stated to be seized. Therefore the finding of the learned Chief Judicial Magistrate based on the non-production of material object cannot be sustained. Under Section 245 of the Code what the court has to consider is only whether a case which if unrebutted would warrant conviction is made out. Whether, materials on record would suffice that requirement is a matter which the learned Chief Judicial Magistrate has to consider. I am not required to express any opinion regarding that aspect in this revision. Resultantly, Crl. Revision Petition is allowed. The order under challenge is set aside. The matter is remitted to the learned Chief Judicial Magistrate, Kasargod for consideration of the question whether a case against respondent which if unrebutted would warrant his conviction is made out. Parties shall appear before the Court of Chief Judicial Magistrate, Kasargod on 20.6.2008. THOMAS P.JOSEPH, JUDGE. vsv