IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 Crl.Rev.Pet.No. 450 of 2001() ----------------------------- CRA.53/1999 of ADDL.SESSIONS COURT, NORTH PARAVUR CC.825/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S)/APPELLANTS --------------------- 1. MADHAVAN, S/O KONNAN, AGED 40, PAZHAYIDOM (THOMBRAKUDY) PANAMKUZHY KARA, KODANADU VILLAGE 2. GOPALAN, S/O PANICKAN, MANIYELI VEEDU, NEDUMPARABHAGAM, PANAMKUZHY KARA, KODANADU VILLAGE BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S)/RESPONDENTS/COMPLAINANTS --------------- 1. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA 2. FOREST RANGE OFFICER, KODANAD PUBLIC PROSECUTOR SMT.LAKSHMI RANI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.450/2001 -------------------- Dated this the 20th day of February, 2009 ORDER Accused, three in number in C.C.No.825/95 on the files of the Judicial Magistrate of First Class, Perumbavoor, who have been prosecuted and convicted and sentenced for the offences punishable under Sections 27(1)(e)III and IV of the Kerala Forest (Amendment) Act, 1993, are the petitioners in this Revision Petition. The prosecution alleges that on 25.4.1993, the accused had criminally trespassed into the 1950 Teak Plantation of Kaprikkadu Reserve, and had illegally cut down two teak trees and had converted them into logs and tried to remove the same by causing a loss to the tune of Rs.500/- to the Government. PWs2 and 3, Kaprikkadu beat guards, detected the case and seized the timber worth Rs.1,000/- and the same was taken into custody as per Ext.P1 mahazar. The concerned Section Forester, the superior officer of PWs2 and 3, had verified the scene of incident and had certified that Crl.R.P.450/2001 2 the contents of Ext.P1 mahazar are true and correct. On 26.4.1993, the seizure mahazar was forwarded to the concerned Magistrate by the Range Officer and subsequently, after completion of the investigation, complaint was filed before the Court by the predecessor of PW1. It seems that there were certain defects in the complaint and these were re-submitted by PW1. The trial Court found the accused guilty of the offence as alleged and convicted them there under and sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- with a default sentence of simple imprisonment for one month for the offence punishable under Section 27(1)(e)III and a similar sentence in respect of the offence punishable under Section 27(1)(e)IV of the Forest Act. The appellate Court confirmed the conviction and sentence and hence this Revision. 2. I heard learned counsel for the accused and learned Public Prosecutor. Crl.R.P.450/2001 3 3. Learned counsel for the petitioner/accused submitted that the evidence adduced by the prosecution is extremely scanty and is rather unbelievable. There is a good chance of a false case having been foisted on the accused. That the detection allegedly took place on 25.4.1993 and Ext.P1 mahazar was also drawn up on the said date, according to the prosecution. According to PW1, he verified the contents of the mahazar at the scene of the occurrence on 25.4.1993 and though Form No.1 report is dated 25.4.1993, it was forwarded thereafter. It is seen to have reached the Court only on 20.5.1993, ie, almost after a period of one month. No explanation is given for the delay. 4. It is next contended that though Section 63 of the Forest Act indicates that an arrest of any person who is found to be involved in the commission of any forest offence, is not mandatory, absence of an arrest in the present case will have crucial significance. It is contended that coupled with the unexplained delay in forwarding Form No.1 to the concerned Magistrate and Crl.R.P.450/2001 4 the absence of any corroborative evidence, with the aid of independent witnesses, a conviction is seen to have been rested merely on the testimony of PWs2 and 3. In so far as PW4, the Section Forester is concerned, he himself has deposed that he was not present at the scene of occurrence. He went to the scene of occurrence on the following day and going by the endorsement made in Ext.P1, he had verified the contents of the mahazar at the scene of occurrence and found the same to be correct. In other words, he just went by the mahazar and subscribed his signature thereto. 5. Learned Public Prosecutor, on the other hand submitted that what has been noted by the Courts below is that there has been no suggestion to PW2 and 3 as to the delay in forwarding Ext.P1 report and the accused therefore, did not take up any serious contention as regards the infraction of Section 52 in the present case. Public Prosecutor further contends that Section 63 of the Act not only does not make arrest mandatory but gives Crl.R.P.450/2001 5 sufficient liberty to the Forest Officer not to arrest the person who is stated to have committed a forest offence. Absence of an arrest is completely immaterial, it is contended. 6. I have considered the evidence in detail. I have also anxiously considered the contentions of either side. The Courts below have proceeded on the premise that the accused did not put forth any suggestion to PWs2 and 3 in the course of their cross examination as regards the delay in the receipt of Form No.1 report. According to the prosecution, Form No.1 report was drawn up on 25.4.1993. It was verified on 26.4.1993 by PW4, the Section Forester, and was forwarded to the learned Magistrate without any delay. But the endorsement by the Magistrate’s Court, evidencing the date of receipt of Form No.1 report, shows the date of receipt as 20.5.1993. There is absolutely no explanation for the delay. The delay of almost 25 days may not be vital as a matter of Rule, in a case involving forest offence and I agree with the submission made the Public Crl.R.P.450/2001 6 Prosecutor in this regard. But it cannot be gainsaid that there must be some explanation for the delay of 25 days in forwarding the seizure report, to the concerned Magistrate. Significantly only MO1, Saw, was produced before the Court and the timber logs, which are alleged to have been seized from the accused, are not produced before the Court at any point of time and though it may not be necessary to produce the seized timber as such, some explanation should have been given by the prosecution as to what really happened to the thondy articles which were seized and how the same was disposed of later. If they were taken to the nearest Depot, the report from the office of the Forest Depot acknowledging actual receipt of the thondy articles would have been sufficient. There must have been some evidence offered in this regard by the prosecution. Sadly the same is lacking. This assumes significance in the light of the unexplained delay in forwarding Form No.1 report, between 26.4.1993 and 20.5.1993. 7. There is no point in calling upon PWs2 and 3 to Crl.R.P.450/2001 7 explain the delay in forwarding Form No.1 report. They had only prepared Ext.P1 mahazar and Form No.1 report was actually drawn up by the Forester Range Officer and it is supposed to have been forwarded by one E.P.Kumaran, the Forest Range Officer, who was examined as PW1, prior to the framing of the charge and not at the stage of trial. I note the observation of the trial Court that PW1 was later re-called and examined, but I find from the original records that the Forest Range Officer, who was originally examined prior to the framing of charge was not thereafter, re-called during the trial. Instead, his successor in office, one Mathew James, was examined de novo as PW1 on behalf of the prosecution. A suggestion was put to Mathew James, examined as PW1 as regards the delay in forwarding Form No.1. A question was also asked whether there is any stipulation in this regard. He admitted that there is stipulation in the Forest Act. 8. Learned counsel for the petitioners raised a contention on the strength of Section 63 of the Forest Crl.R.P.450/2001 8 Act which reads as follows:- Power to arrest without warrant - (1). Any Forest Officer or Police Officer may, without orders from a Magistrate and without a warrant, arrest any person reasonably suspected of having been concerned in any forest offence, if such person refuses to give his name and residence, or gives his name or residence which there is reason to believe to be false, or if there is reason to believe he will abscond. (2). Any person arrested under this section shall be informed, as soon as may be, of the grounds of arrest and shall forthwith be taken or sent to the nearest Police Station and the Officer-in-charge of such station shall thereupon act according to law. 9. Counsel contended that any offence under the Forest Act is treated as cognizable, especially after the amendment brought about in the year 1993 and it is therefore, that any Forest Officer or Police Officer is given power to effect arrest without orders from a Crl.R.P.450/2001 9 Magistrate. Of course, an arrest is not mandatory. But it is made conditional upon the three conditions mentioned therein. But one has to take note of the fact that whenever a Forest Officer comes across the action which will amount to an offence under the Act, it would be advisable to straight away record the arrest, and then proceed to act in terms of Section 63(2) of the Act. If a person is found to be reasonably suspected of having been concerned in any forest offence, he is liable to be arrested. So is the situation, if he refuses to give his name and residence or gives his name or residence but there is reason to believe the same to be false or if there is reason to believe that he will abscond. It does not flow from Section 63 of the Act that an arrest can be effected, only if there is strict compliance with anyone of the contingencies which are mentioned therein and that arrest will become per se illegal unless the Forest Officer or a Police Officer, who comes across the commission of the offence, is convinced that the person concerned is refusing to give his name and residence or gives his name or residence Crl.R.P.450/2001 10 which, there is reason, to believe is false or if there is reason to believe that he will abscond. What is required to avoid arrest, is the satisfaction of the Officer concerned that none of the contingencies can even reasonably arise in relation to the persons concerned. Keeping in view the broad parameters which inform Section 63 of the Act, the absence of an arrest, in my view, seriously derogates from the veracity of the prosecution case. PWs2 and 3, the beat guards, deposed that they came across accused Nos.1 to 3 carrying teak logs on either shoulders and walking in line and obviously any person carrying around teak logs without a pass can be reasonably suspected of having been concerned in a forest offence. In cross- examination, PW2 submitted that he was acquainted with A1, but he did not depose that he was also acquainted with A2 and A3. In so far as A2 and A3 are concerned, they are not persons previously known to the Forest Officials. Absence of an arrest, in the circumstances, assumed significance, coupled with the unexplained delay of almost 25 days in forwarding Form Crl.R.P.450/2001 11 No.1 report to the concerned Magistrate. There is a clear suggestion by PWs2 and 3 that they did not come across the accused in the manner suggested by them. It was also contended that a false case had been foisted on them in circumstances where some timber logs were found to be missing. 10. The absence of an arrest in the present case has led to an unsavory situation where the entire prosecution case is rested on the evidence of PWs2 and 3. There is a total lack of any independent evidence. I agree with the learned Public Prosecutor, that it may not always be possible to get independent witnesses, in relation to the offences of this kind. But if that be so, there must have been sufficient reason for PW2 and 3 to straight away arrest the accused and produce them before the nearest police station. That was not done as mentioned above. For all these reasons, I am of the view, that it would be unsafe to convict the accused for the offences in question, merely on the testimony of PWs2 and 3, especially when there is no other reliable Crl.R.P.450/2001 12 evidence adduced by the prosecution to explain the delay in lodging a report and to explain the absence of an arrest as such. In these circumstances, I am of the view that the prosecution has not proved the guilt of the accused beyond reasonable doubt. 11. For all these reason, Criminal Revision Petition is allowed. The conviction and sentence of the accused are set aside and they are directed to be acquitted. Bail bond executed by them shall stand cancelled and any amount deposited by them by way of fine shall be refunded to them within three months from today. V.GIRI, Judge mrcs