Kerala High Court
K.P.Thomas vs State Of Kerala on 21 March, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3914 of 2010()
1. K.P.THOMAS, S/O.POULOSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED
... Respondent
2. FOREST RANGE OFFICER,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/03/2011
O R D E R
THOMAS P.JOSEPH, J.
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Crl. M.C. Nos.3914, 4189, 4193,
4194, 4195 & 4197 of 2010
====================================
Dated this the 21st day of March, 2011
O R D E R
One of the questions urged for a decision in these cases is whether in the absence of a specific mention in sub-sec.(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, a prosecution for such act if it is in contravention of Sec.6 of the Act could be sustained?
2. Facts necessary for a decision of the said question and allied questions urged by learned counsel for petitioners are:
Certain trees which require permit for its cutting (which is not Crl. No.3914 of 2010 & connected cases -: 2 :- disputed before me) and coming within the purview of the Act were cut from the property of petitioners in Crl. M.C No.4193, 4194 and 4197 of 2010. The trees were (allegedly) cut by the petitioner in Crl. M.C. Nos.3914, 4189 and and 4195 of 2010.
On detection of the said act which according to the second respondent is in violation of Sec.6 of the Act, cases were registered as O.R. Nos.18, 19 and 20 of 2009 against the respective owners of the 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 Crl. No.3914 of 2010 & connected cases -: 3 :- 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 of prosecution against petitioners is bad in law since the allegation is cutting of trees in violation of Sec.6 of the Act but a prosecution could lie in view of Sec.11 of the Act only if a report is made by the Divisional Forest Officer (for short, "the DFO") to the Magistrate concerned under Sec.9(3) (a) of the said Act. It is the contention of learned counsel that the report contemplated under Sec.9(3)(a) of the Act is only when the DFO to whom a report is made under sub-sec.(2) of Sec.9 by the Officer seizing the timber under sub-sec.(1), is Crl. No.3914 of 2010 & connected cases -: 4 :- satisfied that the timber in question is of any tree (coming within the purview of the Act) "transported" in contravention of Sec.6 of the Act. In the present cases no transporting of timber is involved and hence the question of the DFO submitting a report to the Magistrate under Sec.9(3)(a) of the Act and consequently, the Magistrate initiates proceeding did not arise. Learned counsel placed reliance on the decision of the Apex Court in Dr.Aletta Grace Bell [Ms] v. Dr.S.Tirkey [Ms] and Another ([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 indictment. It is the further contention of learned counsel Crl. No.3914 of 2010 & connected cases -: 5 :- that there is no sanction accorded by the DFO as required under Sec.12 of the Act for initiation of prosecution and at any rate the sanction if any, granted is 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 are 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-
sec.(3)(a) of Sec.9 of the Act it is within the power of the court to read into the provision and if necessary supply words to give effect to the object of legislation. It is also contended by learned Crl. No.3914 of 2010 & connected cases -: 6 :- Special Government Pleader that a report as contemplated in sub-sec.(3)(a) of Sec.9 of the Act has been forwarded to the Magistrate concerned. It is contended that sanction as required under Sec.12 of the Act to launch prosecution has been given to the Forest Officer. According to the learned Special Government Pleader the question whether petitioner in Crl. M.C. Nos.3914, 4189 and 4195 of 2010 is involved in the incident is a disputed question of fact which is not required to be adjudicated under Section 482 of the Code of Criminal Procedure (for short, "the Code"). It is therefore contended that this Crl. M.Cs are liable to be dismissed.Crl. No.3914 of 2010
& connected cases -: 7 :-
3. There is prima facie materials to show that trees of the category coming under Sec.6(3) of the Act were cut from the properties belonging to the 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-sec.(5) of Sec.6 says that where a specified tree is to be cut Crl. No.3914 of 2010 & connected cases -: 8 :- or any timber of a specified tree is to be transported from any non-forest 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 are 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.
4. There is no dispute before me that the land where from the tress were cut is a notified area and that no permission Crl. No.3914 of 2010 & connected cases -: 9 :- was also obtained for such tree cutting. Cutting of the trees in the circumstances is an offence punishable under Sec.7(a) of the Act.
Sub-sec.(3) of Sec.7 declares that all offences under the Act shall be cognizable. Section 9(1) of the Act invests any Officer of the Forest Department not below the rank of a Forester with the power to seize timber and other articles involved in the commission of the offence if he has reason to believe that "any tree has been cut or any timber has been transported" in contravention of Sec.6. Sub-sec(2) requires the Officer seizing any timber under sub-sec.(1) to place on such timber a mark indicating that the same has been so seized and to make a report Crl. No.3914 of 2010 & connected cases -: 10 :- of such seizure, as soon as may be, to the DFO having jurisdiction over the area. Sub-sec.(3) of Sec.9 states that the DFO to whom a report is made under sub-sec.(2) shall,-
(a) if he is satisfied that the timber mentioned in such report is of any tree transported in contravention of Section 6, make a report of the seizure of such timber to the Judicial Magistrate of the First Class, having jurisdiction over the area in which such seizure has been made;
(b) if he is not so satisfied, order that such timber and any tool, rope, chain, or other articles or Crl. No.3914 of 2010 & connected cases -: 11 :- any boat, vehicle or animal, seized along with it, shall be returned to the person from whom they were seized.
Section 11 of the Act deals with the procedure to be followed by Magistrate and states, "upon the receipt of report under clause (a) of sub-sec.(3) of Section 9, the Magistrate shall take such measures as may be necessary, for the trial of the accused and the disposal of the timber, and tool, Crl. No.3914 of 2010 & connected cases -: 12 :- rope, chain or other article or any boat, vehicle or animal seized along with it, according to law."
Section 13 of the Act confers power on the Magistrate of the First Class having jurisdiction over the area to take cognizance of the offences punishable under the Act and try the offender.
5. Now the contention is that the Magistrate, under Sec.11 of the Act could take such measures as may be necessary for trial of petitioners only on receipt of a report under clause (a) of sub-sec.(3) of Sec.9, the said provision only deals with timber of any tree transported in contravention of Sec.6, no transportation of timber is involved in the present cases and Crl. No.3914 of 2010 & connected cases -: 13 :- hence, there could beno report under clause (a) of sub-sec.(3) of Sec.9. So much so, the Magistrate could not, under Sec.11 of the Act take any measure as may be necessary for trial of petitioners and hence the prosecution against petitioners is liable to be quashed.
6. It is relevant to refer to Sec.7 of the Act which deals with penalties. Section 7 as now seen in the Statute Book was brought in by Amendment Act 19 of 2007 published in the K.G. Ext.No.1420 dated 30.07.2007. Before the amendment Sec.7 read as under:
Crl. No.3914 of 2010& connected cases -: 14 :-
"7. Penalties.- (1) Whoever transports any timber contravening the provisions of Section 6 or files a false declaration shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees."
The said Section is substituted with the present Section which is as follows::
"7. Penalties.- (1) whoever cuts, Crl. No.3914 of 2010 & connected cases -: 15 :- uproots, burns or otherwise destroys any tree other than sandalwood in violation of the provisions of this Act or transports any timber contravening the provisions of Section 6 or files a false declaration shall on conviction be punishable with imprisonment for a term which may extend to six months or with fine which may extend to twenty five thousand rupees.
(2) Whoever cuts, uproots, burns Crl. No.3914 of 2010 & connected cases -: 16 :- or otherwise destroys or transports any sandalwood tree in violation of the provisions of this Act shall, on conviction be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with a fine which shall not be less than fifty thousand rupees, bu which may extend to One lakh rupees.
(3) All offences under this Act shall be cognizable."Crl. No.3914 of 2010
& connected cases -: 17 :- In other words, prior to the amendment of Sec.7, what was punishable was transportation of timber or filing of false declaration in contravention of Sec.6 of the Act while by the amendment, it is not merely transportation and filing of false declaration but also transportation, cutting, uprooting, burning or otherwise destroying any tree in violation of the Act are made punishable. Corresponding amendment was made to Sec.9(1) also by Act 19 of 2007. Before amendment, Sec.9(1) dealt with transportation of timber alone. After the amendment, as sub-sec.
(1) of Sec.9 includes cutting of the tree as well. It would appear Crl. No.3914 of 2010 & connected cases -: 18 :- that when these changes were made in Secs.7 and 9 of the Act, no corresponding amendment was made to sub-sec.(3) of Sec.9 of the Act which originally and presently states that if the DFO is satisfied that the timber mentioned in the report mentioned in sub-sec.(2) of Sec.9 is of any tree transported in contravention of Sec.6 he shall make a report of the seizure of such timber to the Magistrate who under Sec.11 of the Act on receipt of such report is to take such measures as may be necessary for the trial of the accused.
7. It is in the above background that learned counsel contended that in the present cases no report could be given by Crl. No.3914 of 2010 & connected cases -: 19 :- the DFO under sub-sec.(3)(a) of Sec.9 of the Act (in so far as no transportation of timber is involved) so that under Sec.11 the Magistrate could take such measures as may be necessary for trial of the accused. It is to buttress that contention that learned counsel has placed reliance on the decision referred above which says that the benefit of legislative lacuna if any has to go to the accused. There the Supreme Court was dealing with the Rules famed under Sec.33 of the Drugs and Cosmetic Act, 1940 prescribing only two forms for obtaining licence for manufacture for sale and for sale of drugs and cosmetics. It was held that no form of licence for manufacture or for distribution of drugs or Crl. No.3914 of 2010 & connected cases -: 20 :- cosmetics have been provided under the rules nor any conditions laid subject to which such licence may be issued and the benefit of such vacuum must go to the accused. But, I must bear in mind that a precedent is authority for what it actually decides.
Judgments are not statutes. A decision is available as a precedent only if it decides a question of law. Each case is to be decided on the facts of that case.
8. Supplying of necessary words by judicial enactment is not beyond the power of the court. In Re Waine Wrigt ([1843] 1 Phil. 258, Lord Lyndhurst held that to give effect to the obvious intention of the legislature it is within the power of court to Crl. No.3914 of 2010 & connected cases -: 21 :- supply omissions. That case concerned Section 33 of Fines and Recoveries Act, 1833 which provided that if the protector of a settlement should be a lunatic, or convicted of felony, or an infant, the Court of Chancery should be the protector in lieu of the lunatic or infant. The provision failed to mention the case of the convicted felon. It was held that it was within the power of court to supply those words so that case of convicted felon also came within Section 33 of the said Act.
9. Sir Rupert Cross in his Book "Statutory Interpretation"
stated as follows:Crl. No.3914 of 2010
& connected cases -: 22 :- "If the Judge considers that the application of the words in their ordinary sense would produce absurd result, which cannot reasonably be supposed to have been the intention of the legislature, he may apply them in secondary meaning which they are capable of bearing ..... he has limited power to add, alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or tally unreasonable, Crl. No.3914 of 2010 & connected cases -: 23 :- unworkable......."
The Supreme Court in N.Kannadasan v. Ajoy Khose and Others (2009 [5] Supreme 4) has re-iterated power of the court. The Supreme Court says that it is well settled that although plain meaning should be given their ordinary meaning, with a view to give complete and effective meaning to a statutory provision some words can be read into and some words can be subtracted as well and the provisions of a statute can be read down although sparingly and rarely. If by literal interpretation several vital considerations which must always be borne in mind Crl. No.3914 of 2010 & connected cases -: 24 :- would be ignored it should be ignored. In the circumstances while interpreting sub-sec.(3)(a) of Sec.9 of the Act, this court must adopt a purposive approach to give effect to the legislature, rather than a literal interpretation which would defeat it.
10. I have to approach Sec.9 (3)(a) of the Act in the light of the above principles. True in the said provision, the report of seizure specifically refers only to transportation of timber in contravention of Sec.6. Even as per sub-sec.(3)(a) of Sec.9 as it now stands, the report of the DFOI is regarding transportation of timber in contravention of Sec.6 of the Act. A tree can be transported in contravention of Sec.6 only if it is cut, uprooted, Crl. No.3914 of 2010 & connected cases -: 25 :- burnt or otherwise destroyed. I referred to the amendment made to Secs7 and 9(1) of the Act by Amendment Act 19 of 2007 as per which apart from transportation of timber in violation of the Act and filing of false declaration, cutting, uprooting or otherwise destroying the trees are also made offences punishable under the Act and any Officer of the Forest Department not below the rank of a Forester is invested with the power to seize timber cut or transported in contravention of Sec.6 of the Act. Cutting, uprooting, burning or otherwise destroying the trees also having been made an offence punishable under the Act and the Magistrate having been invested with power under Sec.12 of the Crl. No.3914 of 2010 & connected cases -: 26 :- Act to take cognizance of any offence punishable under the Act and try the offender, it is difficult to think that the legislation, by virtue of Sec.11 of the Act wanted the Magistrate to proceed with the trial of the offender only when it related to transportation of timber in violation of the Act and when a report of such transportation and seizure of the timber is submitted by the DFO to such Magistrate. Learned counsel contended that the relevant provisions being penal in nature strict interpretation of the provisions is necessary. It is held in Thomas Varghese v.
P. Jerome (1992 [1] KLJ 831) that the rule of strict interpretation in favour of accused is not of rigid or universal Crl. No.3914 of 2010 & connected cases -: 27 :- application and if it leads to absurd results, then interpretation which further the object of the statute should be resorted to.
Though there is a legislative lacuna in sub-sec.(3)(a) of Sec.9 of the Act in that while amending Secs.7 and 9(1) of the Act, corresponding and suitable amendment was not made in sub-
sec.(3)(a) of Sec.9 of the Act it is possible to read into sub-sec.(3)
(a) of Sec.9 that the transportation of timber referred to is of the tree cut, uprooted, burnt or otherwise destroyed in contravention of Sec.6 of the Act.
11. The object of the Act is to promote cultivation of trees in non-forest areas of the State, in order to increase green cover, Crl. No.3914 of 2010 & connected cases -: 28 :- preserve bio diversity and arrest soil erosion and to increase availability of timber and bamboo for industry. The legislature wanted to prevent cutting, uprooting, burning or otherwise destroying trees in non-forest area in contravention of Sec.6 of the Act and in order to achieve that object made the said acts punishable under Sec.7 of the Act. Bearing the above object in mind and having regard to the power conferred on the Officer of the Forest Department under Sec.9 o the Act, one has to read into the said provision a power conferred on the Officer concerned not only the tree cut or timber transported in contravention of the Act but also the power to seize any tree uprooted, burnt or otherwise Crl. No.3914 of 2010 & connected cases -: 29 :- destroyed under the Act. If so, the report contemplated under sub-
sec.(3)(a) of Sec.9 of the Act could be in respect of the tree cut, uprooted, burnt or otherwise destroyed and seized under sub-sec (1) as well. To say otherwise would bring the absurd result, that the Officer concerned has the power to seize under sub-sec.(1) of Sec.9 only if the tree is cut or transported but not if it is uprooted, burnt or otherwise destroyed (whether or not it is transported). I therefore hold that the Officer mentioned in Sec.9(1) of the Act has the power to seize not only trees cut or transported in violation of Sec.6, but also trees uprooted, burnt or otherwise destroyed (whether transported or not) and hence the report of Crl. No.3914 of 2010 & connected cases -: 30 :- the DFO referred to in sub-sec.(3)(a) of Sec.9 of the Act could be in respect of the trees cut, uprooted, burnt or otherwise destroyed in contravention of Sec.6 of the Act. In the circumstances the contention that report under Sec.9(3)(a) of the Act is contemplated only when there is transportation of timber in contravention of Sec.6, the DFO could have made a report to the Magistrate only in the case of transportation of timber and hence the Magistrate could have taken measures for for trial of accused only if transportation of timber is involved has to fail.
12. Then the question is whether a report has actually been given by the DFO to the learned Magistrate as required Crl. No.3914 of 2010 & connected cases -: 31 :- under Sec.9(3)(a) of the Act. Annexure-A4 is the report relied on by the learned Special Government Pleader (for Forest). That is a report submitted by the DFO to the learned Judicial First Class Magistrate, Mannarkad referring to registration of cases under Sec.6(3) of the Act and Sec.5 of KPT Act (according to the learned Special Government Pleader, no offence under Sec.5 of the KPT Act is is involved in these cases). It is true that there is no specific reference to any seizure of timber in Annexure-A4. But I must bear in mind that the relevant documents prepared by the Officer for seizure of timber and registration of the case were appended to Annexure-A4, report. That is sufficient compliance Crl. No.3914 of 2010 & connected cases -: 32 :- with the requirement of sub-sec.(3)(a) of Secs.9 and 11 of the Act.
13. Yet another argument advanced by learned counsel is that there is no sanction accorded by the DFO as required under Sec.12 of the Act for initiation of prosecution and at any rate sanction granted is without application of mind. Section 12 of the Act says that no prosecution shall be initiated against any person without the sanction of the DFO. Learned Special Government Pleader has given to me for perusal the file relating to the case.
The file contains latter No. O.R. 18/2009 (similar sanction according to the learned Special Government Pleader ) is given in all the cases) dated 09.03.2010 by the DFO and addressed to the Crl. No.3914 of 2010 & connected cases -: 33 :- Range Officer. Reference is made in that letter to letter dated 08.03.2010 of the Range Officer and states that sanction is accorded for prosecution and that Form C order and Form II compliant are enclosed with the said letter. No doubt the sanction order is not a detailed order. But question is whether the sanctioning authority has applied his mind. It is seen that relevant records were made available to the DFO as per letter dated 08.03.2010. It is based on those records that the DFO has accorded sanction. This Court in Sajan John v. State of Kerala (2000 [1] KLT 192) has held that a detailed order (while according sanction) is not required.
Crl. No.3914 of 2010& connected cases -: 34 :-
14. Last argument is concerning the alleged role of petitioner in Crl. M.C.Nos.3914, 4189 and 4195 of 2010 in the tree cutting. Learned counsel contended that there is only an allegation that petitioner has helped in cutting the trees.
Involvement or otherwise of petitioner in the alleged tree cutting is not a matter required to be decided by this Court in a procee3ding under Sec.482 of the Code. That being a disputed question the prosecution should get an opportunity to adduce evidence in support of its case. I do not find merit in the challenge to the prosecution of petitioners.
15. Learned counsel submitted that petitioners in Crl. M.C. Crl. No.3914 of 2010 & connected cases -: 35 :- Nos.4193, 4194 and 4197 of 2010 are aged and their physical presence in the trial court may be exempted. In the light of the decision in TGN Kumar v. State of Kerala (2011 [1] KHC 142) it is not appropriate for this Court to issue any such direction. I make it clear that it is open to the said petitioners to make appropriate request for exemption in the trial court. If any such request is made learned Magistrate shall consider the same and pass appropriate orders having regard to the age of the said petitioners, penalty that could be imposed under Sec.7 of the Act as also the question whether identification of the said petitioners is required.
Crl. No.3914 of 2010& connected cases -: 36 :- Criminal Miscellaneous Cases fails and are dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv