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. 748 of 2001() ----------------------------- C.C.NO.212/1998 OF JUDICIAL FIRST CLASS MAGISTRATE, CHITTUR. REVISION PETITIONERS/COMPLAINANT: --------------------- 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. FOREST RANGE OFFICER, KOLLENGODE. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. RESPONDENT/ACCUSED: --------------- CHERUKUTTY @ MUHAMMED, S/O.HAMZA, MANALINGAL VEEDU, CHIRAKKELPADI, VIYYAKURRISSI. ADV. SRI.SANTHEEP ANKARATH 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.748 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.212 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'). 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 Premier Perfume Works, Kannimari, Perumatti Panchayat. Prosecution examined PWs 1 and 2 and marked Exts.P1 and P2. Learned magistrate observed that no prima facie case is made out against the respondent and discharged him vide the impugned order. Learned Public Prosecutor submitted that the order under challenge is not legal and proper. According to the Public Prosecutor, non-production of sandal wood in court is not fatal in the light of the decision of the Hon'ble Supreme Court in State of Kerala v. Ancy Philip (2008 (3) KLT 477). Counsel for respondent submitted that no prima facie case is made out against the respondent and hence, the discharge is justified. Crl.R.P.No.748/2001 2 4. Case is that CW5 and party inspected the factory on 14.12.1994 and seized 325 kg. of sandal wood which according to the prosecution was collected from Government forest and unauthorizedly kept in the factory. The same was seized as per Ext.P1, mahazar. 5. PW1, Guard stated that on 14.12.1994 CW5 and party including himself inspected the factory in question and seized the sandal wood. Ext.P1 is the mahazar prepared for the said purpose. As per Ext.P1, there were no Government marks on the sandal wood. Respondent who was managing the factory could not produce any valid document pertaining to the sandal wood. Respondent also is a signatory in Ext.P1. Notice was given to the respondent to produce documents pertaining to the seized sandal wood. He did not respond. Ext.P1 states that at the time of seizure, respondent had told CW5 that the sandal wood was obtained from a person from Tamil Nadu and kept in the factory. It is further stated in Ext.P1 that CW5 inspected the stock register but found that the stock of sandal wood was in excess as per the stock register. Learned magistrate observed that though the case is that sandal wood was collected from the Government forest, PW2 who conducted the investigation did not investigate into the source and instead, PW2 stated in cross-examination that sandal wood was brought from Tamil Nadu in which case no offence as alleged (trespass into Government forest in the State and collecting sandal wood therefrom) is made out. Learned magistrate observed that though the question of limitation did not arise, there was delay in submitting the chargesheet (in the year 1997) though the alleged detection of the offence was in the year 1994. Crl.R.P.No.748/2001 3 The sandal wood allegedly seized was not produced before the court and no permission was obtained from the court to keep the same in the custody of the officer concerned. So the respondent was discharged. 6. Ext.P1, mahazar dated 14.12.1994 stated that 325 kg of sandal wood was seized from the factory in question. Respondent who was allegedly managing the factory is reported to have told the seizing officer that there were no documents or passes, etc. for transporting and keeping the said sandal wood in the said factory and that it was obtained from a person who brought it from Tamil Nadu. 7. What the learned magistrate observed is that if the sandal wood in question was collected from Tamil Nadu, no offence as alleged would stand. According to Public Prosecutor, Section 69 of the Kerala Forest Act enabled the prosecution to rely on the presumption stated therein. Assuming that the presumption is not applicable for any reason including that as stated by PW2, and as the respondent is said to have told CW5 that the sandal wood in question was brought from beyond the State, Learned Magistrate did not consider whether the materials on record prima facie disclosed any offence punishable under Rule 3 read with Rule 23 of the Kerala Forest Produce Transit Rules, 1975 which penalised importing of forest produce into the State without valid permit. Crl.R.P.No.748/2001 4 8. In the decision relied on by the Public Prosecutor, the effect of non- production of the seized article before the court was considered. According to learned counsel for the respondent, that decision has no application to the facts of this case. That certainly is a matter which learned magistrate has to consider at the time of trial. 7. Going through the records, I am inclined to think that there was no proper application of mind by learned magistrate while reaching the conclusion that no offence as alleged is made out. Learned Magistrate ought to have considered whether, assuming that the Sections of the offence incorporated in the complaint are not applicable, any offence punishable under the provisions of the Rules above stated is made out from the materials on record. As such, the order under challenge cannot stand and it is liable to be set aside. Resultantly, Revision Petition is allowed. The order under challenge is set aside and the matter is remitted to the trial court for fresh disposal after giving the revision petitioner opportunity to adduce further evidence if any, and in the light of the observations made above, but untrammelled by 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.748/2001 5 Thomas P.Joseph, J. Crl.R.P.No.748 of 2001 ORDER 13th October, 2008