IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 Crl.Rev.Pet.No. 953 of 2001() ----------------------------- CC.213/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVISION PETITIONER(S): COMPLAINANT: --------------------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA RESPONDENT(S): ACCUSED: ------------------------------------------- 1. BASHEER, S/O.MOIDEENKUTTY, PUKKOTTIL VEEDU, KOTTAPPURAM, OTTAPALAM. 2. MUHAMMED HAJI, S/O.MOIDUNNI, THULIYATH VEEDU, KARIMPUZHA, PALAKKAD. 3. NOUSHAD, S/O. GOUSE, BANGALORE. 4. MUHAMMEDALI, S/O.CHERUKUTTY, THRIKKALUR, PALAKKAD. 5. K.MUHAMMED, S/O.MUHAMMEDKUTTY, PATTAMKULAM VEEDU, OTTAPALAM. 6. HAMZA, S/O. MAMUTTI, MOOCHIKKADAN VEEDU, OTHUNKKUMGAL, MALAPPURAM. 7. MUHAMMEDKUTTY, S/O. ABDULREHIMAN, PARATHUMMOOLAYIL, KODIYATHUR. 8. MUHAMMEDKUTTY, S/O.ABUBEKKER, MUTHIRATHODI VEEDU, PUKKOTTUR P.O., MALAPPURAM. Kss ..2/- ...2..... CRRP.NO.953/2001 9. MAGID, S/O.MUHAMMED, PARAMBAN VEEDU, MELUMURI P.O., MALAPPURAM. 10. BASHEER, S/O.MUHAMMED, THAZHATHUVEEDU, CHETTUR P.O., VENGARA. 11. HANEEFA, S/O.MOIDEENKUTTY HAJI, KUTTISSERY VEEDU, KOTTUR. 12. RASHID, S/O.HAMZA, PURONA VEEDU, THRIKKALUR P.O., CHIRAKKELPADI, MANNARKKAD. BY ADV. MR.G.MOHAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON 02/04/2009 PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.953 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 2nd April, 2009 ORDER The challenge in the revision is against the order of discharge rendered in favour of the accused, 12 in number, who had been prosecuted for the offences punishable under Section 3(1) (1) d, 3(v) and VI of the Kerala Forest (Amendment) Act 2 of 1993 read with Section 27 of the Kerala Forest Act, 1962, on a report filed by the Forest Range Officer, Kollengode. The State, the prosecuting agency, is the revision petitioner. 2. The prosecution case in a nutshell is thus: A Flying Squad headed by Divisional Forest Officer, Ernakulam, pursuant to the instructions given by the Chief Forest Conservator (Vigilance), Trivandrum conducted a surprise inspection over a sandalwood factory, namely, Kohinoor Oil Industries, Kozhipara in Valayar on 18.10.1996. The raid conducted in the presence of the Supervisor of the factory (A10) led to detection of 405 Kg. of sandalwood chips as kept in 13 gunny bags and 25 Kg. of sandalwood oil in a kannas as kept sealed, both unaccounted for in the stock register and records of the factory. The contraband so detected was seized and taken into custody in the presence of the Supervisor, A10, and employees Crl.R.P.No.953/01 - 2 - preparing a mahazar. The sandalwood chips and oil were found to be taken and extracted from sandalwood cut and removed from Government forest. A case was registered as O.R.21/96 for offences under Section3(1) (1) d, 3(v) and VI of the Kerala Forest (Amendment) Act 2 of 1993 read with Section 27 of the Kerala Forest Act, 1962, and the report was filed before the Magistrate Court. The sandalwood factory from where the contraband was seized was conducted by a firm, and the partners of that firm and the employees were arrayed as accused in the case. The investigation of the case was conducted by the Forest Range Officer, Kollengode range. The investigation disclosed that two of the partners, A2 and A3, had retired and in their place two new partners had been inducted. The retired partners were removed from array of the accused and the new partners were brought in as additional accused. After completing investigation, a report was filed before the court indicting the accused for the offences under Section3(1) (1) d, 3(v) and VI of the Kerala Forest (Amendment) Act 2 of 1993 read with Section 27 of the Kerala Forest Act, 1962. 3. The records of the case would show that the learned Magistrate proceeded with an enquiry whether a prima facie case has Crl.R.P.No.953/01 - 3 - been made out to proceed the guilt of the accused for the offences imputed, to direct them to stand for trial. Among the accused, A1, A7, A11 and A12 remained at large and the rest alone had entered appearance during such enquiry. Though the prosecution had cited five witnesses, the investigating officer, the Forest Range Officer, Kollengode alone was examined as P.W.1 and three documents including the mahazar prepared over the seizure were exhibited as P1 to P3. After considering the materials produced, the learned Magistrate taking note that the seized contraband alleged to be forest produce had not been produced before the court and also that no worthwhile evidence was tendered to show the contraband had been collected from the Government forest or the connection of any of the accused in the removal of such forest produce, concluded that the prosecution failed to make out a prima facie case against the accused. In that view of the matter, the order of discharge was rendered in favour of the accused. 4. I heard the learned Public Prosecutor and also the learned counsel appearing for the respondents/accused. 5. Inviting my attention to State of Kerala v. Ancy Philip (2008(3) KLT 477(SC), the learned Public Prosecutor submitted that Crl.R.P.No.953/01 - 4 - the non-production of the forest produce involved in the case before the court would no way affect the merit of the prosecution and at the most permission from the court for disposal of the forest produce alone was mandated by the statute. The view taken by the learned Magistrate that the non-production of the forest produce seized in the case was fatal to the prosecution in the light of the above decision rendered by the apex court, it is submitted, is patently erroneous and unsustainable. Sufficient opportunity was not provided to the prosecuting agency to establish its case is the other submission made by the Public Prosecutor to contend that such denial of opportunity had resulted in the order impugned, leading to miscarriage of justice. On the other hand, the learned counsel appearing for the respondents/accused contended that the factory from where the seizure is alleged had long been defunct and the continuation of the prosecution proceedings against the accused unsettling the order of discharge for any reason whatsoever after so much lapse of time would inflict on them severe harassment and grave injustice. Learned counsel further submitted that prosecution had not brought in any evidence to show the sandalwood chips seized were removed from sandalwood in Government forest nor the connection of the accused Crl.R.P.No.953/01 - 5 - in cutting and removal of such forest produce to inculpate them for the offences imputed. So, in any view of the matter, it is submitted, the order of discharge by exercise of revisional jurisdiction does not call for any interference. 6. I am really surprised to note that after the seizure of the sandalwood chips and sandalwood oil by the flying squad of the forest department from the sandalwood factory, there is practically no investigation at all to connect anyone connected with the factory as having committed the offences imputed in relation to the cutting and removal of sandalwood from Government forest. The records would show that notice was issued to the managing partner, which was not responded, only to consider the question whether confiscation should be proceeded with as covered by the Forest Act. Two years later, after the seizure, presumably for the reason that the managing partner of the factory had not responded to the proceeding relating to confiscation, as evidently seen from the final report filed, such a report was presented before the court to proceed against the accused therein. Strangely enough, there is no mention as to what happened to the 25 Kg. of sandalwood oil seized along with the chips of sandalwood under Ext.P1 mahazar in the final report. When that be Crl.R.P.No.953/01 - 6 - the case of the prosecuting agency, it is noticed, the learned Magistrate for reasons not discernible from the order sheet, after issuing summons to P.Ws.1 to 3 in the case did not pursue steps to compel their appearance but summoned the investigating officer, C.W.5, examined him and closed the proceedings, rendering an order of discharge in favour of the accused under the impugned order. The prosecuting agency, it is evident, was not at all interested in prosecuting the accused, or at least it can be safely concluded they did not pursue the investigation of the case and later its prosecution with the seriousness called for. The learned Public Prosecutor was fully justified in contending that the conclusion formed by the learned Magistrate that the non-production of the seized goods before the court is fatal to the prosecution is incorrect as physical production of the forest produce before the court was not necessary. The position has been well settled by the decision rendered by the apex court in State of Kerala v. Ancy Philip (2008(3) KLT 477(SC). However, in the given facts of the case, I find that when the prosecuting agency has not even placed materials to establish a case that the accused had knowingly received or possessed the forest produce seized, as illicitly removed from a Government forest, the presumption Crl.R.P.No.953/01 - 7 - available under the statute will not be sufficient to bring home their guilt for the offences imputed. As already pointed out, there is nothing in the material to show that during the investigation any attempt was made by the investigating agency to establish that the forest produce had been illicitly removed from the Government forest. When investigation is silent on that aspect, it is needless to point out nothing was there before the court to show prima facie that any of the accused had committed an offence under Section 27 (d) of the Kerala Forest Act. In such circumstances, even if the order of discharge is set aside and the case remitted, no purpose will be served other than wastage of the precious time of the court in having an unsuccessful prosecution of the case. In such circumstances, it has to be concluded that the order of discharge passed against the accused is not liable to be set aside. The revision fails and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE