IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.MC.No. 3464 of 2009() ----------------------------------- OR.NO.11/2009 OF PLACHERY FOREST STATION. ................ PETITIONER/3RD ACCUSED --------------------------------------- ISMAIL, AGED 52 YEARS, S/O. KUNJUMUHAMMED, MYLAKKUNNEL, ERUMELI, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADV. MR.V.SETHUNATH RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. THE DEPUTY RANGE OFFICER, FOREST STATION, PLACHERY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 & R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3464 OF 2009 =========================== Dated this the 4th day of December,2009 ORDER Petitioner the second accused in O.R.11/2009 of Plachery Police Station registered for the offence under section 27(1)(e)(iii) of Forest Act filed this petition under section 482 of the Code of Criminal Procedure to quash the entire case and to direct the first respondent to release vechile KL-14C-2843 seized by the Forest Authorities on the allegation that the vehicle was used for transporting Anjili tree cut from the reserved forest. 2. Learned counsel appearing for the petitioner and learned Public prosecutor were heard. 3. Learned counsel relying on Annexure 2 certificate issued by the Village Officer, Erumeli argued that it shows that first accused has been in possession of 40 cents of land Sy.No.219/part of in Block 27 of Hillmen Settlement and the Anjili trees were cut from the said property and not from reserved forest and petitioner was unaware that there is any prohibition for cutting the trees and he was only Crl.M.C.3464/2009 2 engaged to transport the logs and in such circumstances petitioner has not committed any offence. It is argued that when the allegation is that the first accused cut two Anjili trees standing in the Hillmen settlement area and the vehicle of the petitioner was used for transporting the same, no offence under section 27(1)(e)(iii) is attracted. The argument is that in order to attract an offence under Section 27(1)(e)(iii) the property should be part of the reserve forest and when it is not a part of the reserve forest, no offence would lie and therefore the case is to be quashed. 4. Learned Public Prosecutor pointed out that Annexure 2 certificate produced by the petitioner itself establish that the 40 cents over which the first accused claimed possession is part of Hillmen settlement area and under Rule 2(e) of the Kerala Hillmen Rules, 1964 a settlement could only be inside the reserve forest and under Rule 13 no Hillman shall be entitled to grant of patta or is entitled to claim any land cultivated by him irrespective of the years he has been in occupation of the same and under Rule 15 though Hillmen may fell and use any timber other than timber of reserved trees,it could only for bona fide domestic or agricultural purposes and in such circumstances it cannot be said that no offence is Crl.M.C.3464/2009 3 attracted. It is also argued that as defined under section 2 (a) 'Hillmen' can only be a member of the tribe or tribal communities specified as Scheduled Tribes in relation to the State of Kerala, by Notification and first accused cannot be a Hillman as defined under Rule 2(a) and therefore he cannot claim any right over the land or the tree. 5. Section 27(1)(e)(iii) provides that any person who in a reserved forest or in a land proposed to be constituted a reserve forest, cuts or fells any trees or removes any tree including fallen or felled shall be punished with imprisonment for a term which shall not be less than one year but may extend to five years. Annexure 2 certificate produced by the petitioner himself establish that the property from where the Anjili trees were cut is part of Hillmen Settlement area. By the definition of Hillmen under Rule 2(a) first accused cannot be a Hillmen as he is not a member of tribe or tribal community specified as Scheduled Tribes in relation to the State by notification issued under Article 342 of Constitution of India. So also under section 2(e) settlement means an approved area inside the reserve forests set apart and used for housing members of Hillmen. Though under the Kerala Hillmen Rules, 1964 a Hillmen is provided the right to Crl.M.C.3464/2009 4 cultivate the specified property as a licensee, the land is not alienable and under Rule 13 Hillmen has no right to get patta or is entitled to claim any right except cultivation of the lands, in spite of the long period of his occupation. In such circumstances when the property from where the Anjili trees were cut is inside the reserve forest, a Hillmen settlement and it can only be treated as part of the reserve forest. If so it cannot be said that an offence under section 27(1)(e)(iii) is not attracted. In such circumstances, the crime cannot be quashed as sought for. 6. Though learned counsel appearing for the petitioner submitted that the vehicle seized by the forest officials is to be directed to be released to the petitioner, he being the owner of the vehicle, when a vehicle is seized for involving in a forest offence it is liable to be confiscated. Hence remedy of the petitioner to get interim custody is to approach the appropriate authorised officer under section 61A for interim custody. If an application is filed, appropriate order is to be passed, in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.3464/2009 5 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006