IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.MC.No. 3996 of 2010() ------------------------- (CMP.5032/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM) .................... PETITIONER/PETITIONER/2ND ACCUSED ------------------------------------------------------------- BIJU, S/O. VARGHESE, MULLANCHIRAYIL HOUSE, KULAPPARACHAL KARA, RAJAKUMARI VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.REFEECK CHENNARA RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR, SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: vk THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.3996 of 2010 ==================================== Dated this the 21st day of February, 2011 O R D E R Petitioner challenges Annexure-4, order passed by learned Judicial First Class Magistrate, Nedumkandam on C.M.P. No.5032 of 2010. Petitioner is the second accused in the said crime case and owner of the vehicle involved for alleged commission of offence under Rule 3(3) of the Forest Produce Transit Rules (for short, “the Rules”). It is alleged that timber of Jack tree was transported in the vehicle belonging to the petitioner without the requisite pass. Petitioner filed C.M.P. No.4747 of 2010 purporting to be under Section 4s57 of the Code of Criminal Procedure for release of the vehicle contending that no offence as alleged is committed since timber of Jack tree is an agricultural produce and hence no pass is required. That petition was dismissed. Later petitioner filed C.M.P. No.5032 of 2010 under Section 54 of the Kerala Forest Act (for short, “the Act”) for the same relief. Learned Magistrate has passed Annexure-4, order dismissing that petition for the reason that CM.P. No.4747 of 2010 seeking the same relief was dismissed. Learned counsel contends that dismissal of C.M.P. No.4747 of 2010 is no ground to dismiss C.M.P.No.5032 of 2010 CRL.M.C. No. 3996 of 2010 -: 2 :- which was preferred under Sec.54 of the Act. It is contended that learned Magistrate is competent under Sec.54 of the Act to release vehicle as laid down by the Supreme Court in State of Kerala v. Ancy Philip (2008 [3] KLT 477). Further contention is that no offence under Rule 3(3) of the Rules is made out since timber of Jack tree does not require a transit pass. I have heard learned Public Prosecutor also. 2. According to the learned counsel there could be no confiscation since no forest offence is involved, the timber involved is not forest produce and dismissal of C.M.P. No.5032 of 2010 for the reason that C.M.P. No.4747 of 2010 for the same relief was already dismissed is not correct. Learned counsel has also pleaded reliance on the decisions in Bhargavan v. Divisional Forest Officer (1994 KHC 29) and Aliyakutty Paul v. State of Kerala (1995 (2) KLT 93). Learned Public Prosecutor submitted that timber involved in this case is the Thondi article in OR No.9 of 2008 regarding which final report was filed in the court of learned Judicial First Class Magistrate-I, Nedumkandam and the case is pending as C.C. No.245 of 2009. It is also submitted that since a forest offence is involved the vehicle in question is liable to be confiscated under CRL.M.C. No. 3996 of 2010 -: 3 :- Section 61A(2) of the Act and the vehicle has already been produced before the Authorised Officer. 3. It is seen from Annexure-4, order that dismissal of that petition was merely for the reason of dismissal of C.M.P. No.4747 of 2010. But that application was filed admittedly under Sec.457 of the Code while the present petition is filed under Sec.54 of the Act. That application was required to be considered by the learned Magistrate. The contention that no forest offence is involved cannot prima facie be accepted. True, that in Bhargavan’s case teak poles involved transported in violation of Rule 3(1)(3) of the Rules was ordered to be released to the petitioner therein. But that was a case where ultimately it was found that the teak poles belonged to the petitioner and admittedly it was not the property of the Government. Contention that violation of transit rules is not a forest offence prima facie cannot be accepted. It is not disputed that the said Rule is framed in accordance with the power conferred on the Government under Sec.39 of the Act. Definition of 'forest offence' in Sec.2(e) of the Act takes in any offence committed under the Act or the Rules made thereunder meaning thereby that violation of transit rule is also a forest offence. Hence that contention cannot be accepted. CRL.M.C. No. 3996 of 2010 -: 4 :- 4. Yet another contention raised is that timber of jack tree is not a forest produce and reliance is placed on the decision in Aliyakutty Paul’s case. According to the learned counsel that is an exempted item. Learned Public Prosecutor submitted that timber involved in the case is Thondi article in OR No.9 of 2008 concerning which the Range Officer has filed final report before the learned Judicial First Class Magistrate, Nedumkandam and the case is pending as C.C. No.245 of 2009. Learned counsel for petitioner would contend that the said allegation is not correct and no such argument was raised when the matter was pending before the learned Magistrate. In view of the order I propose to pass it is not necessary for me to decide that question. 5. It is the further submission of learned counsel that at any rate under Sec.54 of the Act it is within the power of learned Magistrate to release the vehicle even if it is liable for confiscation. To support that argument reliance is placed on the decision in Ancy philip’s case. I leave that matter to the learned Magistrate to decide whether in view of the non-obstante clause in Sec.61A of the Act it is possible for the court to release the vehicle under Sec.54 of the Act. In the light of what I have stated above I am inclined to set aside Annexure-4, order and remit C.M.P. No.5032 of 2010 to the court below for fresh decision in CRL.M.C. No. 3996 of 2010 -: 5 :- the light of the observation made above. Learned Magistrate shall consider the contentions raised by petitioner and pass appropriate orders in that regard. Criminal Miscellaneous Case is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv