THOMAS K P Vs. STATE OF KERALA

JUDGEMENT

(1.) The main question urged for a decision in these cases is whether in the absence of a specific mention in Sub-section (3) (a) of Section 9 of the Kerala Promotion of Tree Growth in Non-forest Areas Act, 2005 (for short, "the Act") about cutting, uprooting, burning or otherwise destroying the tree in contravention of Section 6 of the Act, a prosecution could be initiated and proceeded with for such acts punishable under Section 7 of the said Act

(2.) Facts necessary for a decision of the said question and allied questions urged by the Petitioners are: Certain trees which require permit for its cutting (which is not disputed before me) and coming within the purview of the Act were cut from the property of Petitioners in Crl. M.C. Nos. 4193, 4194 and 4197 of 2010. The trees were (allegedly) cut by the Petitioner in Crl. M.C. Nos. 3914, 4189 and 4195 of 2010. On detection of the said act which according to the second Respondent is violation of Section 6 of the Act, cases were registered as O.R. Nos. 18, 19 and 20 of 2009 against the respective owners of properties and the person who is said to have assisted them in cutting the trees. The occurrence reports in the said cases are under challenge. Though Petitioners have a contention that properties from which the trees were cut are not notified under the Act, at the time of hearing learned Counsel for Petitioners in fairness did not pursue that contention. Learned Counsel contended that initiation and continuation of prosecution against Petitioners is bad in law since the allegation is cutting of the trees in violation of Section 6 of the Act but a prosecution could lie in view of Section 11 of the Act only if a report is made by the Divisional Forest Officer (for short, "the DFO") to the Magistrate concerned under Section 9(3)(a) of the said Act. It is the contention of learned Counsel that the DFO is to make a report under Section 9(3)(a) of the Act only when the officer of a Forest Department who seizes the timber under Sub-section (1) of Section 9 of the Act submits a report to that effect under Sub-section (2) and when the DFO is satisfied that the timber is of any tree (coming within the purview of the Act) "transported" in contravention of Section 6 of the Act. In the present cases, no transportation of timber is involved and hence question of the DFO submitting a report to the Magistrate as required under Section 9(3)(a) of the Act and consequently, the Magistrate taking measures as may be necessary for trial of the accused did not arise. According to the learned Counsel the prosecution has to be quashed for the said reason. Learned Counsel has placed reliance on the decision of the Apex Court in Dr. Aletta Grace Bell [Ms] v. Dr. S. Tirkey [Ms] and Anr., 1996 1 SCC 285 to contend that any lacuna in the framing of the Act has to go to the advantage of the person facing prosecution. It is the further contention of learned Counsel that there is no sanction accorded by the DFO as required under Section 12 of the Act for initiation of prosecution and at any rate the sanction if any, is granted without application of mind. The third point urged is that so far as Petitioner in Crl. M.C. Nos. 3914, 4189 and 4195 of 2010 is concerned there is no material to show that he has in any way assisted in cutting of the trees. Learned Special Government Pleader (for Forest) in response contended that though it may appear that there is a legislative lacuna in Sub-section (3)(a) of Section 9 of the Act in so far as the said provision only refers to transportation of timber of any tree in contravention of Section 6, it is within the power of court to read into the provision and if necessary supply words to give effect to the object of legislation. According to the learned Public Prosecutor, Section 9 of the Act must be read in such a way as to mean that the officer of the Forest Department referred to therein has the power to seize not only the tree cut or timber transported in violation of Section 6, but also any tree uprooted, burnt or otherwise destroyed in contravention of Section 6 of the Act. Hence the report of the DFO referred in Sub-section (3)(a) of Section 9 of the Act could be in respect of any tree cut, uprooted, burnt or otherwise destroyed in contravention of Section 6 of the Act and seized under Sub-section (1) of Section 9 of the Act. It is contended by learned Special Government Pleader that a report as contemplated in Sub-section (3)(a) of Section 9 of the Act has been forwarded to the Magistrate. It is also contended that sanction as required under Section 12 of the Act to launch prosecution has been given to the Forest Officer. According to the learned Special Government Pleader, whether Petitioner in Crl. M.C. Nos. 3914, 4189 and 4195 of 2010 is involved in the incident or not is a question of fact which is not required to be adjudicated by this Court under Section 482 of the Code of Criminal Procedure (for short, "the Code"). It is contended that these Crl.M. Cs. are liable to be dismissed.

(3.) There is prima facie materials to show that trees of the category coming under Section 6(3) of the Act were cut from the properties of Petitioners in Crl. M.C. Nos. 4193, 4194 and 4197 of 2010. Section 6(3) of the Act says that the Government may with a view to preserve tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen. Sub-section (5) of Section 6 says that where a specified tree is to be cut or any timber of a specified tree is to be transported from any nonforest land to any other place, the owner of such tree shall before cutting the tree or transporting the timber, as the case may be file before the Authorised Officer having jurisdiction over the area a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported either directly or send it by registered post with acknowledgment due. There is no dispute before me that the land wherefrom the trees were (allegedly) cut is a notified area and that no permission was obtained for such cutting. Cutting, uprooting, burning or otherwise destroying the trees in violation of the provisions of the Act or transportation of timber in contravention of the provisions of Section 6 or filing of a false declaration are made punishable under Section 7(1) of the Act. Sub-section (3) of Section 7 declares that all offences under the Act shall be cognizable.