Kerala High Court
E.K.Haneefa vs Wednesday on 3 March, 2011
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938
Crl.MC.No. 4495 of 2013 ()
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PETITIONER/ACCUSED:
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E.K.HANEEFA, AGED 53 YEARS,
S/O.KASIM,ELAVANTHADATHIL,KAAPKARA, MANJALLOOR VILLAGE,
MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT.
BYADV. SRI.P.M.POULOSE
RESPONDENT/RESPONDENT
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SMT.MAYA M.N.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.12.2016 , THE COURT ON 4.1.2017 PASSED THE FOLLOWING:
Crl.MC.No. 4495 of 2013 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE-1 .TRUE COPY OF THE AGREEMENT DATED 3/3/2011.
ANNEXURE-2 CERTIFIED COPY OF THE CHARGE SHEET FILED BY THE
FOREST DEPARTMENT DATED 2/7/2013 BFORE THE COURT
BELOW.
ANNEXURE-3. TRUE COPY OF THE REPORT DATED 18/9/2012 SENT BY THE
VILLAGE OFFICER, KARIMANOOR TO THE TAHSILDAR,
THODUPUZHA BEARING NO.327/12.
ANNEXURE-4. TRUE COPY OF THE ORDER NO.F1-25802/12/K.DIS DATED
26/09/2012.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
TRUE COPY
P.A TO JUDGE
SMM
'C.R'
SHIRCY.V,J
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Crl.M.C.No.4495 of 2013
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Dated this the 4 th day of January, 2017
ORDER
This petition is filed by the sole accused in OR.No.24/2012 on the files of the Judicial First Class Magistrate, Muvattupuzha registered for the offence under Rule 3 (iii) punishable under Section 23(1) of the Kerala Forest Produce Transit Rules 1975 (for short 'the Rules').
2. The prosecution allegation is as follows:
The petitioner has transported 47 pieces of teak-Irul, 4 pieces of Kumbil Irul, 20 pieces of teak Irul and 2 pieces of Marudi Irul timber without transit pass issued from the Forest Department and stacked in a house by name 'Elavumthadathil' at 'Madakkathanam' and thereby committed the aforesaid offence.
Crl.M.C.No.4495 of 2013 2
3. The learned counsel for the petitioner/accused has submitted that the petitioner has entered into an agreement for sale with one Jose, son of Kaavukatt Augasthi and Antony, son of Kaavukatt Kurian on 3.3.2011 and cut down 32 trees of teak and some trees of Irul and Marudi from their private property for consideration and transported and stacked in his premises. The trees were cut and removed in the month of March 2011. On 6.9.2012, the officials of the Forest Department booked him for the offence aforesaid in OR.No.24/2012. According to the learned counsel, no forest offence has been committed by this petitioner as the trees were cut and removed from the private property owned by the aforementioned Jose and Antony for valuable consideration and hence the registration of the case by the forest officials against him has to be quashed and hence this petition. He relies on Annexure 1, the agreement executed by him with Sri Jose and Crl.M.C.No.4495 of 2013 3 Sri Antony as early as on 3.3.2011. Annexure 2 is the charge sheet filed against this petitioner for having committed an offence under Rule 3 (iii) and punishable under 23 (1 )of the Rules.
4. To appreciate the controversy it is apposite to reiterate the relevant provision of the Kerala Forest Produce Transit Rules, which reads as follows:
"3(iii) transport timber or other forest produce by land, by rail or by water in any part of the State, unless such timber or other forest produce is accompanied by a pass required by these rules, and unless the timber is stamped by a Government stamp or a stamp registered as laid down in Rule 11."
An offence is said to have been committed under this provision if one transport timber or other forest produce without the required pass issued by the officials. Rule 23 provides the penalty for violation of the provisions of rule. Forest produce is defined in Rule 2(c) as follows:
"2(c). forest produce in transit includes 'forest produce' as defined in sub-clause(f), timber as defined in sub-clause (k), and 'tree' as defined in sub-clause (l) of Crl.M.C.No.4495 of 2013 4 Section 2 of the Act , found on or on the margin of any public road, whether loaded in carts or other vehicles or not and forest produce found in any river or stream whether tied into rafts or not."
Forest produce is defined in Kerala Forest Act as follows:
"2(f): forest produce includes-
(i) the following whether found in, or brought from, a forest or not, that is to say-
timber, charcoal, wood-oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood; and
(ii) the following when found in, or brought from, a forest, that is to say,-
(a) trees and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, of trees;
(b) plants not being trees(including grass, creepers, reeds and moss) and all parts or produce of such plants; and ( c) silk, cocoons, honey and wax;
(d) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries) 2(k) "timber" includes trees when they have Crl.M.C.No.4495 of 2013 5 fallen or have been felled, and all wood, whether cut up or fashioned or hollowed out for any purpose or not, and
5. On a meticulous examination of Annexure 2 and other documents available, it could be seen that the forest officials have no case that the trees stacked at the residence of the petitioner were cut and removed from the forest land or from Government land . The trees are alleged to have been cut and removed from the private property belonging to one Jose and Antony. So the relevant Act applicable is the 'Kerala Promotion of Tree Growth in Non- Forest Areas Act, 2005' ('the Act' for short). Section 6 of the Act deals with the right of owners to cut and remove trees in non-notified area in non-forest land . It reads as:
"6. (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:
Crl.M.C.No.4495 of 2013 6
Provided that the provisions of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003"
6. It is to be noted that the respondent has no case that the trees were cut and removed from a forest land or from a notified area and hence as per Section 6 (1) an owner has the right to cut and transport any tree other than sandalwood standing on his land. The proviso to Section 6(1) of the Act will not apply to trees in the land reserved by the Government at the time of assignment of such land or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act. Here the forest officials have no such case.
7. Section 1(4) of this Act is applicable to all non-
forest lands in the state. So as per Section 6(1) the owner of a land has the right to cut and remove and Crl.M.C.No.4495 of 2013 7 transport any tree other than sandalwood. Here the trees in question are not sandalwood trees. As per Annexure 2 the nature and details of the trees are clearly mentioned. By Annexure 1 the petitioner has become the owner of the trees cut and removed from the private land as per the agreement dated 3.3.2011.
8. As per Annexure 3, the Village Officer has addressed the Tahsildar to the effect that the property owned by Sri Jose and Sri Antony in Re.Sy No.742/3 of Karimannur village is not a puramboke land or excess land or a notified land. Annexure 4 is the letter issued by the Tahsildar to the effect that the property from where the trees were cut down belonged to Sri Jose and Sri Antony and they had no liability towards the State and the trees were cut down after obtaining consent from the owners of the land and the Forest Range Officer can issue required permit to remove the tree from the land. It is also to be noted that Kerala Promotion of Tree Growth in Crl.M.C.No.4495 of 2013 8 Non -forest Land Rules have been amended as per the Government notification dated 7.12.2011 which came into force at once. But Section 6(1) of the Act has not been amended or modified. So the non obstinate clause in Section 6(1) of the Act will give power to the owner of the land to cut and transport any tree other than the sandalwood tree standing on his land. As the trees were cut and removed from the private land, which is a non- forest land in a non- notified area , the forest officials cannot initiate legal proceedings against the petitioner for having committed a forest offence.
9. The inherent jurisdiction under Section 482 of Cr.P.C has to be exercised carefully and such exercise is justified, when applied to secure the ends of justice. There is clear abuse of process of law and it is obvious that the prosecuting agency did not apply its mind properly. So to prevent abuse of the process of any court and to secure ends of justice the power can be exercised Crl.M.C.No.4495 of 2013 9 to quash criminal proceedings. Here, Section 6(1) of the Act gives an overriding effect to certain the provisions of the Act .The petitioner had entered into a legal agreement with the owners of the private land to cut and transport certain trees standing in the property. It clear from Annexure 2 that Sandalwood tree is not included in the list for non application of this provision. So also the respondent has no case that the trees were standing in a land reserved by the Government or in a notified area where there is prohibition of cutting trees as per the proviso to Section 6 (1) of the Act. Prime facie, materials available do not constitute any forest offence and FIR does not discloses violation of the relevant provisions of the Rules and the Act concerned so as to face trial before a court by the petitioner.
Hence, I find that this Court is fully justified in quashing OR.No.24/2012 of Thodupuzha Range (Annexure 2) on the file of the Judicial First Class Crl.M.C.No.4495 of 2013 10 Magistrate, Muvattupuzha by invoking the inherent jurisdiction under Section 482 of CrPC Crl.M.C. is allowed.
SHIRCY.V JUDGE smm