CHANDRAN, AGED 50 YEARS S/O. SANKUNNY, ELANAD VILLAGE, PARTHIPPARA DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT, Vs. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) THE petitioners are the accused in C.C. No. 213/1998 before the Judicial First Class Magistrate's Court, Wadakkancherri. The prosecution was under Sections 27(i)(e)(iii) and 27(i)(d) of the Kerala Forest Act. The prosecution case is as follows: Accused Nos. 1 and 2 unauthorizedly entered 1985 Elanad Bamboo Forest, which is a part of the reserve forest, cut and removed 37 chinks (kazhakal) of teak wood, bamboo and other trees and attempted to remove the same from the forest area. The 3rd accused received the same knowing to be forest produce. Thus, the Government suffered a loss to the tune of 1500/ - and thereby, the petitioners committed the offences alleged against them.

(2.) THE prosecution examined PWs 1 to 4 and marked Exts. P1 to P3 documents. The petitioners did not adduce any evidence. The Magistrate found the petitioners guilty of the offences under Sections 27(i)(e)(iii) and 27(i)(d) of the Kerala Forest Act and sentenced accused Nos. 1 and 2 to undergo rigorous imprisonment for a period of one year and to pay a fine of 500/ - with a default sentence of rigorous imprisonment for a further period of six months each. The 3rd accused was convicted under Section 27(i)(d) of the Forest Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of 500/ -, with a default sentence of rigorous imprisonment for a further period of six months. The petitioners filed Crl. Appeal No. 91/1999 before the IIIrd Additional Sessions Judge (Ad hoc) Fast Track Court No. I, Thrissur. The Sessions Judge dismissed the appeal. The petitioners are challenging the judgments of the courts below.

(3.) ON the other hand, the learned Public Prosecutor would point out that the non -production of the seized materials before the Magistrate does not vitiate the prosecution. He submits that neither Section 52 of the Kerala Forest Act nor any other provision of the Act mandates production of seized materials before the Magistrate. In this connection, he relies on the Supreme Court decision in State of Kerala v. Ancy Phillip,, 2008 (3) KLT 477 (SC), wherein the Supreme Court has held that disposal of property in forest offences need not be after physical production of timber before the Magistrate, which would show that the production of forest produce is not mandatory for successful prosecution also. Regarding the other contention, the learned Public Prosecutor would contend that accused Nos. 1 and 2 were apprehended from an area, which is proved to be a forest area, by Ext. P3 notification and the official witnesses have given cogent evidence to prove the seizure of the forest produce from them while they were attempting to remove the forest produce from the forest. As far as the 3rd accused is concerned, the learned Public Prosecutor would point out that it is pursuant to the confession made by petitioner Nos. 1 and 2 that the forest produce cut by them were seized from the possession of the 3rd petitioner. It is pointed out that under Section 69, onus is on the petitioners to prove that the produce seized from them are not forest produce.