IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 Crl.MC.No. 3914 of 2010() ------------------------- CC.73/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD SHOLAYUR FOREST STATION OFFENCE NO.OR.18/09 .................... PETITIONER(S): 2ND ACCUSED -------------------------- K.P.THOMAS, S/O.POULOSE, KULANGARA, CHITTOOR P.O., CHITTOOR P.O., AGALI VILLAGE, MANNARKKAD TALUK. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. FOREST RANGE OFFICER, AGALI-678 581. BY PUBLIC PROSECUTOR(FOREST) SRI.P.M.POULOSE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/03/2011, ALONG WITH CRMC NO. 4189 OF 2010 & CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “C.R.” THOMAS P.JOSEPH, J. ==================================== Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 ==================================== Dated this the 21st day of March, 2011 O R D E R The main question urged for a decision in these cases is whether in the absence of a specific mention in sub-sec.(3) (a) of Section 9 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (for short, “the Act”) about cutting, uprooting, burning or otherwise destroying the tree in contravention of Sec.6 of the Act, a prosecution could be initiated and proceeded with for such acts punishable under Sec.7 of the said Act? 2. Facts necessary for a decision of the said question and allied questions urged by the petitioners are: Certain trees which require permit for its cutting (which is not disputed before me) and coming within the purview of the Act were cut from the property of petitioners in Crl. M.C Nos.4193, 4194 and 4197 of 2010. The trees were (allegedly) cut by the petitioner in Crl. M.C. Nos.3914, 4189 and Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 2 4195 of 2010. On detection of the said act which according to the second respondent is violation of Sec.6 of the Act, cases were registered as O.R. Nos.18, 19 and 20 of 2009 against the respective owners of properties and the person who is said to have assisted them in cutting the trees. The occurrence reports in the said cases are under challenge. Though petitioners have a contention that properties from which the trees were cut are not notified under the Act, at the time of hearing learned counsel for petitioners in fairness did not pursue that contention. Learned counsel contended that initiation and continuation of prosecution against petitioners is bad in law since the allegation is cutting of the trees in violation of Sec.6 of the Act but a prosecution could lie in view of Sec.11 of the Act only if a report is made by the Divisional Forest Officer (for short, “the DFO”) to the Magistrate concerned under Sec.9(3)(a) of the said Act. It is the contention of learned counsel that the DFO is to make a report under Sec.9(3)(a) of the Act only when the officer of a Forest Department who seizes the timber under sub-sec.(1) of Sec.9 of the Act submits a report to that effect under sub-sec.(2) and when the DFO is satisfied that the timber is of any tree (coming within the purview of the Act) “transported” in contravention of Sec.6 of the Act. In the present cases, no transportation of timber is involved and hence question of the DFO submitting a report to the Magistrate as required under Sec.9 (3)(a) of the Act and consequently, the Magistrate taking measures as Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 3 may be necessary for trial of the accused did not arise. According to the learned counsel the prosecution has to be quashed for the said reason. Learned counsel has placed reliance on the decision of the Apex Court in Dr.Aletta Grace Bell [Ms] v. Dr.S.Tirkey [Ms] and Another ([1996] 1 SCC 285) to contend that any lacuna in the framing of the Act has to go to the advantage of the person facing prosecution. It is the further contention of learned counsel that there is no sanction accorded by the DFO as required under Sec.12 of the Act for initiation of prosecution and at any rate the sanction if any, is granted without application of mind. The third point urged is that so far as petitioner in Crl. M.C. Nos.3914, 4189 and 4195 of 2010 is concerned there is no material to show that he has in any way assisted in cutting of the trees. Learned Special Government Pleader (for Forest) in response contended that though it may appear that there is a legislative lacuna in sub-sec.(3)(a) of Sec.9 of the Act in so far as the said provision only refers to transportation of timber of any tree in contravention of Sec.6, it is within the power of court to read into the provision and if necessary supply words to give effect to the object of legislation. According to the learned Public Prosecutor, Sec.9 of the Act must be read in such a way as to mean that the officer of the Forest Department referred to therein has the power to seize not only the tree cut or timber transported in violation of Sec.6, but also any Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 4 tree uprooted, burnt or otherwise destroyed in contravention of Sec.6 of the Act. Hence the report of the DFO referred in sub-sec.(3)(a) of Sec.9 of the Act could be in respect of any tree cut, uprooted, burnt or otherwise destroyed in contravention of Sec.6 of the Act and seized under sub-sec.(1) of Sec.9 of the Act. It is contended by learned Special Government Pleader that a report as contemplated in sub-sec. (3)(a) of Sec.9 of the Act has been forwarded to the Magistrate. It is also contended that sanction as required under Sec.12 of the Act to launch prosecution has been given to the Forest Officer. According to the learned Special Government Pleader, whether petitioner in Crl. M.C. Nos.3914, 4189 and 4195 of 2010 is involved in the incident or not is a question of fact which is not required to be adjudicated by this Court under Section 482 of the Code of Criminal Procedure (for short, “the Code”). It is contended that these Crl. M.Cs are liable to be dismissed. 3. There is prima facie materials to show that trees of the category coming under Sec.6(3) of the Act were cut from the properties of petitioners in Crl. M.C. Nos.4193, 4194 and 4197 of 2010. Section 6(3) of the Act says that the Government may with a view to preserve tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 5 ground that the tree constitutes a danger to life or property or is wind fallen. Sub-sec.(5) of Sec.6 says that where a specified tree is to be cut or any timber of a specified tree is to be transported from any non- forest land to any other place, the owner of such tree shall before cutting the tree or transporting the timber, as the case may be file before the Authorised Officer having jurisdiction over the area a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported either directly or send it by registered post with acknowledgment due. There is no dispute before me that the land wherefrom the tress were (allegedly) cut is a notified area and that no permission was obtained for such cutting. Cutting, uprooting, burning or otherwise destroying the trees in violation of the provisions of the Act or transportation of timber in contravention of the provisions of Sec.6 or filing of a false declaration are made punishable under Sec.7 (1) of the Act. Sub-sec.(3) of Sec.7 declares that all offences under the Act shall be cognizable. 4. Section 9(1) of the Act invests any Officer of the Forest Department not below the rank of a Forester with the power to seize timber and other articles involved in the commission of the offence if he has reason to believe that “any tree has been cut or any timber has been transported” in contravention of Sec.6. Sub-sec(2) requires the Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 6 Officer seizing timber under sub-sec.(1) to place on such timber a mark indicating that the same has been so seized and to make a report of such seizure, as soon as may be, to the DFO having jurisdiction over the area. Sub-sec.(3) of Sec.9 states: “(3) The Divisional Forest Officer to whom a report is made under sub-sec.(2) shall,- (a) if he is satisfied that the timber mentioned in such report is of any tree transported in contravention of Section 6, make a report of the seizure of such timber to the Judicial Magistrate of the First Class, having jurisdiction over the area in which such seizure has been made; (b) if he is not so satisfied, order that such timber and any tool, rope, chain, or other articles or any boat, vehicle or animal, seized along with it, shall be returned to the person from whom they were seized.” (emphasis supplied) Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 7 Section 11 of the Act deals with the procedure to be followed by the Magistrate and states, “11. Procedure by Magistrate.- Upon the receipt of report under clause (a) of sub-sec.(3) of Section 9, the Magistrate shall take such measures as may be necessary, for the trial of the accused and the disposal of the timber, and tool, rope, chain or other article or any boat, vehicle or animal seized along with it, according to law.” Section 13 of the Act confers power on the Magistrate of the First Class having jurisdiction over the area to take cognizance of the offences punishable under the Act and try the offender. 5. The contention raised is that the Magistrate, under Sec.11 of the Act could take such measures as may be necessary for trial of petitioners only on receipt of a report under clause (a) of sub-sec.(3) of Sec.9 but the said provision only deals with timber of any tree “transported” in contravention of Sec.6, no transportation of timber is involved in the present cases and hence, there could be no report to the Magistrate under clause (a) of sub-sec.(3) of Sec.9. So much so, the Magistrate could not, under Sec.11 of the Act take any measure as may be necessary for trial of petitioners and hence the prosecution against petitioners is liable to be quashed. Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 8 6. It is relevant to refer to Sec.7 of the Act which deals with the penalties. Section 7 as now seen in the Statute Book was brought in by Amendment Act 19 of 2007 published in the K.G. Ext.No.1420 dated 30.07.2007. Before the amendment, Sec.7 read as under: “7. Penalties.- (1) Whoever transports any timber contravening the provisions of Section 6 or files a false declaration shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees.” (emphasis supplied) The said Section is substituted with the present Section which is as follows: “7. Penalties.- (1) whoever cuts, uproots, burns or otherwise destroys any tree other than sandalwood in violation of the provisions of this Act or transports any timber contravening the provisions of Section 6 or files a false declaration shall on conviction be punishable with imprisonment for a term which Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 9 may extend to six months or with fine which may extend to twenty five thousand rupees. (2) Whoever cuts, uproots, burns or otherwise destroys or transports any sandalwood tree in violation of the provisions of this Act shall, on conviction be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with a fine which shall not be less than fifty thousand rupees, but which may extend to One lakh rupees. (3) All offences under this Act shall be cognizable.” (emphasis supplied) In other words, prior to the amendment of Sec.7, what was punishable was only transportation of timber and filing of a false declaration in contravention of Sec.6 of the Act while by the amendment cutting, uprooting, burning or otherwise destroying any tree in violation of Sec. 6 are also made punishable. Corresponding amendment is made to Sec.9(1) also by Act 19 of 2007. Before amendment, Sec.9(1) only Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 10 dealt with transportation of timber. After the amendment, Sec.9 (1) of the Act includes cutting of the tree as well. It would appear that when these changes were made in Secs.7 and 9(1) of the Act, no corresponding amendment was made to sub-sec.(3)(a) of Sec.9 of the Act which originally and presently states that if the DFO is satisfied that the timber mentioned in the report mentioned in sub-sec.(2) of Sec.9 is of any tree transported in contravention of Sec.6 he shall make a report of the seizure of such timber to the Magistrate who under Sec.11 of the Act on receipt of such report is to take such measures as may be necessary for the trial of the accused. 7. It is in the above background that learned counsel contended that in the present cases no report could be given by the DFO under sub-sec.(3)(a) of Sec.9 of the Act (in so far as no transportation of timber is involved) so that, under Sec.11 the Magistrate could take such measures as may be necessary for trial of the accused. It is to buttress that contention that learned counsel has placed reliance on the decision referred above which says that the benefit of legislative lacuna if any has to go to the accused. There, the Supreme Court was dealing with the Rules framed under Sec.33 of the Drugs and Cosmetic Act, 1940 prescribing only two forms for obtaining licence for manufacture for sale and for sale of drugs and cosmetics. It was held that no form of licence for manufacture or for distribution of drugs or cosmetics have been provided under the rules Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 11 nor any conditions laid subject to which such licence may be issued and the benefit of such vacuum must go to the accused. But, I must bear in mind that a precedent is authority for what it actually decides. Judgments are not statutes. A decision is available as a precedent only if it decides a question of law. Each case is to be decided on the facts of that case. 8. Supplying of necessary words by judicial enactment is not beyond the power of court. In Re Waine Wrigt ([1843] 1 Phil. 258, Lord Lyndhurst said that to give effect to the obvious intention of the legislature it is within the power of court to supply omissions. That case concerned Sec.33 of Fines and Recoveries Act, 1833 which provided that if the protector of a settlement should be a lunatic, or convicted of felony, or an infant, the Court of Chancery should be the protector in lieu of the lunatic or infant. The provision failed to mention the case of the convicted felon. It was held that it was within the power of court to supply those words so that the case of the convicted felon also came within Sec.33 of the said Act. 9. Sir Rupert Cross in his Book, “Statutory Interpretation” states as follows: “If the Judge considers that the application of the words in their ordinary sense would produce absurd result, which cannot Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 12 reasonably be supposed to have been the intention of the legislature, he may apply them in secondary meaning which they are capable of bearing ..... he has limited power to add, alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable.......” (emphasis supplied) That power of the court is re-iterated in N.Kannadasan v. Ajoy Khose and Others (2009 [5] Supreme 4). The Supreme Court says that it is well settled that with a view to give complete and effective meaning to a statutory provision some words can be read into and some words can be subtracted as well and the provisions of a statute can be read down although sparingly and rarely. Learned counsel contended that the relevant provisions being penal in nature, strict interpretation of the provisions is necessary. It is held in Thomas Varghese v. P. Jerome (1992 [1] KLJ 831) that the rule of strict interpretation in favour of accused is not of rigid or universal application and if it leads to absurd results, then interpretation which further the object of the statute should be Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 13 resorted to. In the circumstances while interpreting sub-sec.(1) and (3)(a) of Sec.9 of the Act, this court must adopt a purposive approach to give effect to intention of the legislature rather than a literal interpretation which would defeat it. 10. Sub-sec.(1) of Sec.9 of the Act refers to seizure of timber of any tree cut or transported in contravention of Sec.6 of the Act together with other articles mentioned in the Sub-section. Sub-sec. (2) refers to the timber seized under Sub-sec.(1). Under that Sub-section, the officer making the seizure is to make a report of such seizure to the DFO having jurisdiction over the area. The DFO in turn, by virtue of Sub-section (3)(a) is to make a report of such seizure of timber to the Magistrate having jurisdiction over the area in which such seizure has been made if the DFO is satisfied that the timber seized is of any tree transported in contravention of Sec.6. True, that the report of seizure referred to in sub-sec.(3)(a) of Sec.9 specifically refers only to seizure of timber of any tree transported in contravention of Sec.6. The timber of a tree can be transported in contravention of Sec.6 only if such tree is severed from the land in some manner. I referred to the amendment made to Secs.7 and 9(1) of the Act by Amendment Act 19 of 2007 as per which apart from transportation of timber in violation of the Act and filing of a false declaration, cutting, uprooting, burning or otherwise destroying the trees are also made offences punishable under the Act and any Officer of the Forest Department not below the Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 14 rank of a Forester is invested with the power to seize the timber of any tree cut or transported in contravention of Sec.6 of the Act. Cutting, uprooting, burning or otherwise destroying the trees also having been made an offence punishable under the Act and the Magistrate having been invested with power under Sec.12 of the Act to take cognizance of any offence punishable under the Act and try the offender, it is difficult to think that the legislature, by virtue of Sec.11 of the Act wanted the Magistrate to proceed with the trial of the accused only if it related to transportation of timber in violation of the Act and when a report of such transportation and seizure of the timber is submitted by the DFO to such Magistrate. Though there is a legislative lacuna in sub-sec.(3)(a) of Sec.9 of the Act in that while amending Secs.7 and 9 (1) of the Act, corresponding and suitable amendment was not made in sub-sec.(3)(a) of Sec.9 of the Act, it is possible to read into sub- sec.(3)(a) of Sec.9 that transportation of timber referred to therein is of the tree cut or in any other manner severed from the land in contravention of Sec.6 of the Act. 11. The object of the Act is to promote cultivation of trees in non-forest areas of the State, in order to increase green cover, preserve bio diversity and arrest soil erosion and to increase availability of timber and bamboo for industry. The legislature wanted to prevent cutting, uprooting, burning or otherwise destroying trees in non-forest area in contravention of Sec.6 of the Act and in order to Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 15 achieve that object made the said acts punishable under Sec.7 of the Act. Bearing the above object in mind and having regard to the power conferred on the Officer of the Forest Department under Sec.9 (1) of the Act, one has to read into the said provision a power conferred on such Officer, not only to seize the tree cut or timber transported in contravention of the Act but also to seize the tree severed from the land in any other manner, in contravention of Sec.6 of the Act. If so, the reports contemplated under sub-secs.(2) and (3) (a) of Sec.9 of the Act could be in respect of the tree cut, uprooted, burnt or otherwise destroyed in contravention of Sec.6 of the Act and seized under sub-sec(1) as well. To say otherwise would bring about absurd result, that the Officer concerned has power to seize under sub-sec.(1) of Sec.9 only if the tree is cut or timber is transported but not, if the tree is uprooted, burnt or otherwise destroyed (but not transported) in contravention of Sec.6 of the Act. I therefore hold that the Officer mentioned in Sec.9(1) of the Act has the power to seize not only trees cut or timber transported in contravention of Sec.6, but also trees uprooted, burnt or otherwise destroyed in contravention of the said provision and hence the reports of the officer effecting the seizure and of the DFO under sub-secs.(2) and (3)(a) of Sec.9 of the Act, respectively could also be in respect of the trees cut, uprooted, burnt or otherwise destroyed in contravention of Sec.6 of the Act. The absence of specific mention in Sec.9(3)(a) of the Act about cutting, Crl. M.C. Nos.3914, 4189, 4193, 4194, 4195 & 4197 of 2010 16 uprooting, burning or otherwise destroying the tree in contravention of Sec.6 of the Act therefore, cannot affect initiation or proceeding with prosecution of the accused for such acts punishable under Sec.7 of the Act. In the circumstances the contention that the DFO could have made a report under Sec.9(3)(a) of the Act only when there is transportation of timber in contravention of Sec.6, and hence the Magistrate could have taken measures for trial of accused only if transportation of timber is involved has to fail (The question whether the report under Sec.9(3)(a) of the Act is mandatory for the Magistrate to proceed with the trial of the accused is not urged before me and hence is left open). 12. Then the question is whether a report has actually been made by the DFO to the learned Magistrate as required under Sec.9(3) (a) of the Act. Annexure-A4 is the report relied on by the learned Special Government Pleader. That is a report submitted by the DFO to the learned Judicial First Class Magistrate, Mannarkad referring to the registration of the cases under Sec.6(3) of the Act and Sec.5 of KPT Act (according to the learned Special Government Pleader, no offence under Sec.5 of the KPT Act is involved in these cases). It is true that there is no specific reference to