MAMACHAN @ ISSAC FRANCIS Vs. STATE OF KERALA

JUDGEMENT

(1.) Bail application No.4798 of 2018 and Bail Application No.5023 of 2018 are related to O.R.No.2 of 2018 of Irulam Forest Range, Wayanad District and Bail Application No.4936 of 2018 is related to O.R.No.3 of 2018 of the very same Forest Range, Wayanad District. The petitioners who had applied for bail as per Bail Application No.4798 of 2018 and 5023 of 2018 respectively are accused Nos.2,1,3 and 4 respectively in O.R.No.2 of 2018 of Irulam Forest Range. The petitioner who has applied for bail by Bail Application No.4936 of 2018 is the 4 th accused involved in O.R.No.3 of 2018.

(2.) The case of the prosecution in O.R.No.2 of 2018 was that the forest officials found 54 trees as cut and removed from the Pambra Coffee Plantation situated at Wayanad District, which according to them was vested in the Government vide Notification No.B6.211/2005 dated 08.06.2017. They prepared a mahazar and registered the Crime and occurrence report as above. Accused Nos.1 to 4, who are petitioners in bail application Nos.4798 of 2018 and 5023 of 2018, on their apprehension of being arrested in O.R.No.2 of 2018, have moved these applications seeking pre arrest bail. The allegation of the prosecution in O.R.No.3 of 2018 was that based on an information that more trees than those found as cut in O.R. No.2 of 2018 were cut from the same plantation, the Forest Officials proceeded to the spot and found 106 numbers of Silver Oak trees as cut and kept therein. A mahazar was prepared by the forest officials, following which the Crime and occurrence report was prepared as O.R.No.3 of 2018. Accused No.4, the petitioner in Bail Application No.4936 of 2018, moved this application on his apprehension that he would be arrested by the forest officials in the aforesaid Crime.

(3.) Sri.Raman Pillai, the learned Senior Counsel advanced arguments on behalf of the petitioners in all the three bail applications. According to him in both O.Rs, 4 accused were involved and in O.R.No.3 of 2018 all the 3 accused except the 4 th accused were granted regular bail. According to him, the Manager was not arrested in O.R.No.2 of 2018, though he was very much available at the place at the time when the forest officials made a visit of the place of occurrence. He has invited my attention to Section 63 of the Kerala Forest Act, 1961 to contend that arrest of suspected culprits in forest offences without warrant or order from a court could only be effected in the three contingencies stated therein. According to the Senior Counsel the contingencies firstly was, when the suspected culprit failed to furnish his address. Secondly, when the address furnished by them found to be false and thirdly, when the officer finds reason that they would abscond. The learned counsel has also brought to my attention Suku alias Paravattom Suku v. State of Kerala and others 2014(1) KHC 559, a judgment of the Division Bench of this court to contend that the offence under Section 27 being a cognizable and non bailable one and a forest officer or a police officer would have power to arrest a person suspected, without obtaining a warrant or order from a court of law in any of the three contingencies enumerated under Section 63 of the Kerala Forest Act, exist. The learned counsel has also drawn the attention of this court to some more aspects. According to him, the petitioners are owners of 825 acres of coffee plantation namely Pambra coffee plantation in Wayanad District. The estate was purchased by Isaac Peter and brothers from a company namely Bombay Burma Trading Corporation Ltd in the year 1975. After the conveyance of the plantation, with the coming into force of the Kerala Private Forests (Vesting and Assignment Act), 1971, in the year 2012, the Government attempted to acquire certain area of the said property under the guise that it was a part of the private forest. In restraint of the act, the Pambra plantation filed Writ Petition No.7336 of 2012 before this court and an interim order directing to maintain status quo was obtained. On 8.6.2017, a Notification was issued claiming possession of 85.4 hectors of the plantation. Writ Petition No.22787/2017 was filed by the Pambra Coffee plantation to get the Notification quashed. Counter statement was filed by the State in the Writ Petition and after hearing both sides, a judgment was passed on 11.12.2017, a copy of which is produced and appended to as Annexure 1. The Writ Petition was dismissed reserving liberty to the petitioners to approach the Tribunal to settle the issues. Direction was issued to the respondents not to disturb the possession and enjoyment of the property by the petitioners till the issue regarding the ownership of the property will be decided by the Forest Tribunal. Since the relief sought was not granted in the Writ Petition, the petitioners challenged the judgment of the Single Bench in Writ Appeal No.277 of 2018. In the Writ Appeal, a judgment was passed, a copy of which is produced and appended to as Annexure -II. After hearing both sides, the Writ Appeal was dismissed, but the right to possess the aforesaid property till the settlement of the issue by approaching the Forest Tribunal, is maintained. O.A.No.19/2018 was preferred by the petitioners before the Forest Tribunal, Kozhikode, a copy of which is produced and appended to as Annexure-III and the O.A is pending consideration. It is contended by the learned counsel that in the meanwhile in the month of June, 2018, due to torrential rain, certain Silver Oak trees which have been planted by the coffee plantation for affording protection to the coffee plants, were uprooted and accordingly those were cut and removed by the petitioners through their workers to ensure their safety. It is alleged that knowingly of this on 17.6.2018, the forest officials visited the plantation and on finding the fallen and uprooted trees, they prepared a mahazar and that culminated in the registration of the respective ORs. It is contended by the learned counsel that the Manager, Mr.Sijo Mathew, the 1 st accused, though was available at the place was not arrested then and that itself shows that the forest officials had no plan originally to arrest. Later on, they changed their mind at the instigation of some one and now is after them only to harass them. The learned counsel has also urged that though vast number of trees were alleged as cut and some of the cut trees were alleged as removed from the place of occurrence, loss allegedly sustained by the Government is only to the extent of Rs.2000/- and Rs.6000/- respectively in the ORs. It is also contended by the learned counsel that two of the accused have already furnished their correct address and the addresses of two others are stated as yet to be obtained. According to the learned counsel, petitioners are ready to furnish their address and to co-operate with the interrogation and therefore, there exist no circumstances as contemplated under Section 63 of the Act to arrest the petitioners. Therefore, in view of the discussion made as above, all the petitioners are entitled to get orders of pre arrest bail in their favour.