LUCA BELTRAMI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused Nos.1 to 3 in O.R. No.6/2018 of Kuttampuzha Forest Range, Pooyamkutty Forest Station, Ernakulam District. O.R. No.6/2018 was registered for offences punishable under Sections 27(1)(e) (iv) of the Kerala Forest Act, 1961 (for short 'the Act').

(2.) As per the case of the prosecution, petitioners trespassed into the notified Government Forest by travelling through Blavana-Kallelimedu road and committed the offence alleged against them. Accordingly, O.R (Form-I) was registered against them. The petition on hand is filed in the above circumstances to quash O.R.No.6/2018 (Form-I report) filed by the Deputy Range Forest Officer, Pooyamkutty Forest Station under Section 52(2) of the Act before the Judicial First Class Magistrate Court-II, Kothamangalam which is appended to the petition on hand as Annexure B and all further proceedings initiated by the Court pursuant to the registration of the same.

(3.) It is contended by Sri.Nireesh Mathew, the learned counsel for the petitioners that the confession statements of the petitioners were recorded, copies of which have been appended to the petition on hand as Annexures C, E and F, wherefrom it can be seen that the confessions were made before the Forest Range Officer, Kuttampuzha who is not an officer empowered to do so under Section 72 of the Act. According to him, an officer below the rank of Assistant Conservator of Forests, is not empowered to enquire into a forest offence, receive and record evidence and the officer who had recorded the confession statements in the case on hand being a Forest Range Officer who is below in rank of the Assistant Conservator of Forests mentioned in Section 72 of the Act, Annexures C, E and F have no validity at all and cannot be received in evidence and relied upon. According to the learned counsel, Annexures C, E and F confession statements recorded from accused 1 to 3 being the only material pieces of evidence available for the prosecution to establish guilt against them, those having been recorded by an incompetent officer, is non est in the eye of law and being the solitary evidence, even if the petitioners are directed to face trial, a conviction cannot be procured against them on the basis of those. It is further contended by the learned counsel that the first petitioner is an Italian resident permanently residing at Udumbannoor and being the Director of Goground Beans and Spices Pvt Ltd, is engaged in the business of Cocoa Beans. Therefore, he was in search of areas where Cocoa beans are available and for the purpose, along with other petitioners, he travelled in a jeep to visit the ration shop of one Mr.Natarajan, who was informed as engaged in the business of Cocoa beans in Kallelimedu area. Annexure A is the Mahazar prepared in O.R. No.6/18 by the prosecution and it is evidenced therefrom that solely to meet Mr.Natarajan, the petitioners have visited Kallelimedu area. It is clear from Annexure C confession statement recorded from 1st accused that their visit to the area was with the permission of a Forest Officer/Guard and therefore, their entry cannot be said to be "trespass" into the notified forest area. For the reason itself an offence under Section 27(1)(e)(iv) of the Act, will not be attracted on the basis of the allegations. Moreover, in the case on hand there is not even an allegation against the petitioners that they have trespassed into the reserve forest area intentionally to commit any offence. Therefore, registration of Annexure B crime against the petitioners is devoid of any basis. In the above circumstances Annexure B and all further proceedings being unsustainable in law are sought to be quashed.