IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 Crl.MC.No. 1907 of 2006() ------------------------- CC.283/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... PETITIONER/IST ACCUSED: -------------------------- K.T.THOMAS, S/O.THOMAS, KAKKUYZHIYIL HOUSE, OLAMATTOM, THODUPUZHA. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENT/COMPLAINANT: -------------------------- STATE,REPRESENTED BY THE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1907 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of October 2008 ORDER Petitioner along with three others have been charge sheeted by the Forest Range Officer, Kumily for the offence punishable under Section 27(1)(e)(iii) of the Kerala Forest Act 1961 and also for the offence under Section 5(2) and 9 of the Kerala Preservation of Trees Act, 1986. Annexure-I is stated to be the charge sheet filed before the Judicial Magistrate of First Class, Kattappana in the above case viz. C.C.No.283/2005. The prayer in this petition filed under Section 482 of the Code of Criminal Procedure is to quash Annexure-1 charge sheet. 2. The prosecution case in brief appears to be that on May 6, 2003 the Forest guards, while they were on beat duty, had found accused Nos.2 to 4 carrying certain some wood logs of 'chandana Vayambu' on their head. The accused persons, on being questioned after interception, stated before the Forest Guards that they had cut a dried up 'chandana vayambu tree' standing in the property of the petitioner (accused No.1) as instructed by him for Crl.M.C.No.1907 OF 2006 :: 2 :: the purpose of using the same as firewood. The forest officials had taken into custody the pieces of timber and the saw used for cutting it. Total loss allegedly sustained by the Department was assessed at Rs.6,000/-. According to the prosecution, cardamom estate of the petitioner fell within the cardamom hill reserve. No tree could have been cut from the cardamom hill reserve without obtaining prior permission of the authority concerned. The accused had committed the offence punishable under Section 27 (1)(e)(iii) of the Kerala Forest Act 1961 as well as the offence under Section 5(2) and 9 of the Kerala Preservation of Trees Act, 1986. It was thus that the charge sheet was laid against the petitioner and three others for commission of the above offences. 3. Sri.Gopakumaran Nair, learned Senior counsel appearing for the petitioner, contends that the prosecution launched against the petitioner is manifestly vitiated in as much as he has been roped in only on the basis of an alleged statement made by accused No.2 who claimed to be an employee of the petitioner. It is further pointed out by the Crl.M.C.No.1907 OF 2006 :: 3 :: learned Senior counsel that the petitioner was not even in the country at the relevant point of time. He invites my attention to the relevant pages of the passport of the petitioner and the visa issued to him which would reveal that the petitioner had left the country for England on April 16, 2003. He had come back to the country only on May 10, 2003. 4. Annexure-I, as mentioned earlier, is the photocopy of the charge sheet and Annexure-II is the mahazar prepared by the Forest Officials at the time of interception and recovery of the alleged contraband. It is not in dispute that petitioner's cardamom estate falls within the cardamom hill reserve, which is indisputably a notified area. Petitioner does not dispute the fact that no scheduled tree could have been cut without the permission of the competent authority as postulated under Section 5 the Kerala Preservation of Trees Act, 1986. But according to the petitioner, he had never authorised anybody to cut any tree from his property. Accused Nos.2 to 4 are not his employees nor had he authorised anybody, even his employees, Crl.M.C.No.1907 OF 2006 :: 4 :: to cut any tree from his property and that too during his absence from the country. What is seen stated in Annexure-II mahazar is that accused No.2 had informed the officials that the tree had been cut for the purpose of firewood as instructed by the petitioner. But as rightly pointed out by the learned Senior counsel, there is nothing on record to show that petitioner had in fact issued such an instruction or that petitioner had any knowledge about the alleged act. In the peculiar facts and circumstances of the case, I am inclined to accept the above contention raised by the petitioner in this regard. 5. There is yet another aspect of the matter. It is seen from the mahazar itself that the tree in question was in fact a dried up one. The Department does not have a case that the logs or the timber pieces could have been used for any purpose other than as firewood. I hasten to add that the above observation is being made only as a passing remark and I do not intend to touch upon the prosecution case especially since the other accused are yet to be tried. This observation shall be Crl.M.C.No.1907 OF 2006 :: 5 :: confined to this case and only for the purpose of disposal of the same. 6. Having perused the entire materials available on record, I am satisfied that in the peculiar facts and circumstances of the case, the prosecution is not justified in implicating the petitioner in the case. Therefore, the proceedings pending against the petitioner in C.C.No.283/2005 on the file of the Judicial Magistrate of First Class, Kattappana are quashed. Crl.M.C. is allowed. (A.K.BASHEER, JUDGE) jes Crl.M.C.No.1907 OF 2006 :: 6 ::