IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 419 of 2001() ----------------------------- C.C.NO.4/1998 OF JUDICIAL FIRST CLASS MAGISTRATE, CHITTUR REVISION PETITIONER/COMPLAINANT: --------------------- STATE REPRESENTED BY FOREST RANGE OFFICE, KOLLENGODE. BY PUBLIC PROSECUTOR SHRI PUZHAKKARA MUHAMMED RESPONDENT/ACCUSED: --------------- ABUBEJKKAR, S/O.MUHAMMED HAGI, THULIYATH VEEDU, KARIMPUZHA, KUPPANDAGOUNDANNUR, (PERFUME OIL INDUSTRIES), CHITTUR. ADV. DR.K.B.MUHAMED KUTTY (SR.) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.419 of 2001 -------------------------------------- Dated this the 13th day of October, 2008. ORDER The State has come up in revision against the order passed by learned Judicial First Class Magistrate, Chittur in C.C.No.4 of 1998 discharging the respondent of the charge under Sections 3(1)(i)(d) and (e) and VI of the Kerala Forest (Amendment) Act, 1993 (for short, 'the Act') (Act 2 of 1993) under Section 245(1) of the Code of Criminal Procedure. 2. Heard both sides. 3. Case is that the respondent unauthorisedly and illegally collected and transported sandal wood from Government forest without documents and kept the same in Chittur Perfume Oil Industries, Kuppandakoundannur. Assistant Deputy Conservator and party inspected the factory on 31.10.1994 and seized 47 kg. of sandal wood. Respondent, said to be the owner of the factory told the Range Officer that he has no documents pertaining to that sandal wood. He told the Range Officer that he got it from Tamil Nadu. There were no Government marks on the sandal wood. Prosecution examined PW 1 and marked Exts.P1 to P3. Learned magistrate considered the materials and found that no case if unrebutted, would warrant conviction is made out against the respondent and discharged him vide the impugned order. Learned Public Prosecutor contended that the order under challenge is not legal and proper and Crl.R.P.No.419/2001 2 sufficient materials for framing charge had been made out. According to the Public Prosecutor, production of the seizured article is not required and that it is sufficient that relevant documents pertaining to the seizure are produced in the court. Learned Public Prosecutor placed reliance on the decision of the Hon'ble Supreme Court in State of Kerala v. Ancy Philip (2008 (3) KLT 477). Counsel for respondent contended that no sufficient material was placed on record by the prosecution. It is also contended that PW1 had not conducted investigation nor seized the sandal wood and that he was not competent to prove Exts.P1 to P3. Learned counsel contended that the decision relied on by the Public Prosecutor has no application to the facts of this case. 4. PW1, Forest Range Officer stated that on 31..10.1994 CW7, Assistant Deputy Conservator and party inspected the factory in question and seized the sandal wood in question. Ext.P1 is the mahazar prepared for the said purpose. Ext.P2 is stated to be the statement of respondent recorded as per the direction of CW7. Ext.P3 is the Form I Report. Learned magistrate observed that according to prosecution, sandal wood was collected from Government forest, but PW1 had not conducted any investigation into the source. In Ext.P2 statement, respondent had stated that the sandal wood was collected from Tamil Nadu and kept in the factory. Learned magistrate concluded that if the sandal wood was brought from Tamil Nadu, the offences alleged (trespass into Government forest in Kerala and collection of sandal wood therefrom) would not stand. Crl.R.P.No.419/2001 3 5. Assuming that as stated by respondent in Ext.P2, sandal wood was collected from Tamil Nadu and therefore, the allegation that the respondent had trespassed into the Government Forest in Kerala and thereby committed the offence under the Kerala Forest Act cannot be sustained learned magistrate ought to have considered whether any offence under Rule 3 read with Rule 23 of Kerala Forest Produce Transit Rules, 1975 which prohibited importing of timber or forest produce into the State of Kerala except in the manner stated therein is made out. Learned magistrate has not properly applied his mind to the materials on record and considered whether any other offence, if not what is stated in the complaint, is made out. As such, the order under challenge cannot be sustained and is liable to be set aside. Resultantly, Revision Petition is allowed. The order under challenge is set aside and the case is remitted to the trial court for fresh disposal after giving revision petitioner opportunity to adduce further evidence if any, and in the light of the observations made above, but untrammelled by the finding if any, contained in this order. Parties shall appear before the trial court on 10.12.2008. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.419/2001 4 Thomas P.Joseph, J. Crl.R.P.No.419 of 2001 ORDER 13th October, 2008