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2014 DIGILAW 845 (KER)

Mundamdra Kareem v. Deputy Ranger

2014-10-24

A.HARIPRASAD

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JUDGMENT A. HARIPRASAD, J. 1. Revision petition filed by the first and second accused in C.C. No. 904 of 1998 on the file of the Judicial First Class Magistrate Court - II (Forest Offences), Manjeri. The revision petitioners and the third accused were convicted by the trial court and they challenged the conviction, imposed on them under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act, 1961 (in short the Act), before the learned Sessions Judge, Manjeri in Criminal Appeal No. 278 of 2001. Learned Sessions Judge, after considering the entire evidence, allowed the appeal in part. The conviction and sentence imposed on the third accused was set aside. The conviction and sentence in respect of the revision petitioners were confirmed. 2. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. 3. Learned counsel contended that the petitioners have been framed up in this case. It is further contended that the Forest Officers took nearly three years to complete the investigation, indicating that actually they were groping in darkness. Yet another contention raised by the learned counsel for the petitioners is that there is no material to show the arrest and remand of the accused. 4. The question to be considered in a criminal revision is regarding the correctness, legality or propriety of any finding, sentence or order passed by the lower court. I have carefully gone through the evidence in the case and the judgments of the courts below. Ext.P1 is the seizure mahazar. Prosecution case, in short, is that on 24-11-1995 morning, they got a reliable information that two persons were engaged in removing timber from Kariyam muriyam reserve in the limits of Pothukal Forest Station. On the basis of that information, PW's 1 and 3 went for inspection in the reserve forest. At that time, the petitioners were found carrying pieces of teak wood. Both PW's 1 and 3 deposed that the petitioners were seen within the forest, with logs carried on their head. Both PW's 1 and 3 restrained them and inspected the logs. When questioned, they confessed that trees standing in the reserve forest were cut and removed and they showed the stumps of the trees. Ext.P1 seizure mahazar was prepared by PW3 from the place of detection. 5. Both PW's 1 and 3 restrained them and inspected the logs. When questioned, they confessed that trees standing in the reserve forest were cut and removed and they showed the stumps of the trees. Ext.P1 seizure mahazar was prepared by PW3 from the place of detection. 5. PW2 testified that the accused were produced before the Forest Ranger and as per his direction, the accused were produced before the learned Magistrate on the same day at 4.50 p.m. It is seen from the endorsement made by the learned Magistrate on the remand report that the accused were remanded to Sub Jail, Manjeri. It is true that the records do not show when the accused persons were released on bail. But the fact remains that the accused were arrested and produced before the court and they were in remand for some time. Hence the contention raised by the petitioners that there is no evidence regarding their arrest cannot be sustained. 6. Learned counsel for the petitioners submitted that there is undue delay in completing the investigation and submitting the charge. The offence was detected on 24-11-1995. The report was filed only on 19-03-1998. But the records in the case show that Ext.P1 mahazar, Ext.P2 Form A1 report etc. were produced immediately after the detection. I do not find any reason to hold that the petitioners suffered any prejudice on account of the delay in filing charge. 7. Courts below considered the oral evidence correctly and found that the accused were seen inside a reserve forest and that they cut and removed teak tees therefrom. Notwithstanding that, there is a legal issue raised by the learned counsel for the revision petitioners which deserves consideration. According to him, the courts below went wrong in convicting the petitioners both under sub Clauses (iii) and (iv) of Section 27(1)(e) of the Act ignoring the facts and circumstances alleged by the prosecution and revealed in evidence in this case. Section 27(1)(e)(iii) and (iv) of the Act is quoted hereunder for clarity: "27. According to him, the courts below went wrong in convicting the petitioners both under sub Clauses (iii) and (iv) of Section 27(1)(e) of the Act ignoring the facts and circumstances alleged by the prosecution and revealed in evidence in this case. Section 27(1)(e)(iii) and (iv) of the Act is quoted hereunder for clarity: "27. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests – (1) Any person whox (e) In a Reserved Forest or in a land proposed to be constituted a Reserve Forest – xxxxxxxxxxxxxxxxxx (iii) Cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same. (iv) Trespasses or pastures cattle or permits or causes cattle to trespass, shall be punished with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than one thousand rupees but may extend to five thousand rupees in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid." 8. On a careful reading of these provisions, it can be seen that Sub Clause (iii) of the Section deals with cutting or felling of any trees or girdles, marks, lops, taps, uproots etc. any tree including fallen or felled tree. Sub Clause (iv) of the Section deals with trespassing or pasturing cattle or permitting or causing cattle to trespass. Rule of ejusdem generis is relevant in this context. When particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified. (See – Thakur Amar Singhji and Others vs. State of Rajasthan and Others, AIR 1955 SC 504 ; Kochuni vs. States of Madras and Kerala, AIR 1960 SC 1080 ; State of Karnataka and Others vs. Kempaiah, AIR 1998 SC 3047 ). (See – Thakur Amar Singhji and Others vs. State of Rajasthan and Others, AIR 1955 SC 504 ; Kochuni vs. States of Madras and Kerala, AIR 1960 SC 1080 ; State of Karnataka and Others vs. Kempaiah, AIR 1998 SC 3047 ). Binding precedents on this topic would show that for application of the rule, following conditions are to be satisfied - (1) the statute contains enumeration of specific words (2) the subjects of enumeration constitute a class or category (3) that class or category is not exhausted by the enumeration (4) the general terms follow the enumeration and (5) there is no indication of a different legislative intent. Applying the principle of ejusdem generis to this case, it can be seen that sub Clause (iv) in Section 27 (1)(e) of the Act deals with trespass into a reserve forest, pasturing cattle or permitting or causing cattle to trespass. Whereas, sub Clause (iii) above speaks about cutting, felling, marking, burning, uprooting etc. of any tree, standing, fallen or felled, in the reserve forest. Learned counsel forcefully contended that without trespassing into a reserve forest, the acts prohibited by sub Clause (iii) cannot be done. I am of the view that the contention is sustainable. Sub Clause (iii) above, though not specifically stated so, takes in trespass into the reserve forest also as an ingredient for committing the said acts. Normally a person can cut, fell, mark, uproot etc. a tree standing in a forest only after committing an act of trespass. Logically the offences contemplated under sub Clause (iii) of the Section can be done by a person only after a completed trespass. The term trespass used in sub Clause (iv) of the Section can only be for any other act or offence than those mentioned in sub Clause (iii) of the Section. Established rules of interpretation of statutes like purposive and harmonious interpretations will take us to an irresistible conclusion that the term trespass used in sub Clause (iv) of the Section may be for any purpose other than those mentioned in sub Clause (iii) above. It may even take in a person's entry into a reserve forest without any intention to commit any offence. It may even take in a person's entry into a reserve forest without any intention to commit any offence. As the offences under sub Clause (iii) of the Section include an implied trespass, in the facts and circumstances of this case, the petitioners cannot be charged both under sub Clauses (iii) and (iv) of the Section. Reckoning the wording employed in the two limbs of the Section, I find no legal logic in implicating the petitioners under sub Clauses (iii) and (iv) of the Section separately in the facts of this case. Evidence in this case show that the conviction of the petitioners under Section 27(1)(e)(iv) of the Act is not legally sustainable. In the result, the revision petition is partly allowed. Conviction of the appellants under Section 27(1)(e)(iii) of the Act is confirmed. As the Section prescribes a minimum punishment and I do not find any legal reason to interfere with the sentence, I confirm the sentence thereunder. The conviction and sentence of the petitioners under Section 27(1)(e)(iv) of the Act is set aside. They are entitled to get the benefit of set off under Section 428 Cr. P.C. The records shall be transmitted to the trial court forthwith and the learned Magistrate is directed to determine the period for which the petitioners are entitled to get set off. The court below shall take steps to issue process for execution of the sentence. All pending interlocutory applications will stand dismissed.