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2021 DIGILAW 666 (KER)

Roji Augustin v. State Of Kerala

2021-07-26

K.HARIPAL

body2021
ORDER : These are applications filed under Section 438 of the Cr.P.C. by the first accused in OR No.1/2021 and accused Nos.2, 3 and 1 respectively in OR No.41/2021, both of Meppadi forest range. The petitioner in Bail Application No.2109/2021 and the third petitioner in the other application are one and the same. They are brothers. Apprehending arrest in these cases, they have moved this Court seeking pre-arrest bail. An interim order has been passed in BA No.2109/2021, by order dated 08.04.2021, directing to release the petitioner on anticipatory bail on execution of bond for Rs.50,000/-. Now the petitioner in BA No.2109/2021 wants to make that order absolute. 2. BA No.2109/2021 is in respect of OR 1/2021 of Meppadi forest range; that occurrence report was registered alleging offence under Sections 27(i) (d)(e)(iii) & (iv) and Sections 39, 40, 52 and 61A of the Kerala Forest Act, 1961, besides under Sections 12 and 23 of the Kerala Forest Produce Transit Rules, 1975. It is submitted that during the course of investigation offence under Sections 2(c)(o) 7, 24 and 25 of the Biological Diversity Act, 2002 also has been incorporated and investigation is going on. OR 41/2021, in which BA No.4823/2021 is filed, was registered alleging offence under Sections 27(1)(d), 39, 40, 52, 61A and 69 of the Forest Act besides under Rules 10 and 23 of the Kerala Forest Produce Transit Rules, 1975. 3. The petitioner in BA No.2109/2021 has contended that he is a trader in timber, proprietor of M/s. Surya Timbers, Wayanad. He obtained trade licence from Muttil Grama Panchayat and also obtained property marks registration under the Kerala Forest Produce Transit Rules from the Divisional Forest Officer, Kalpetta. He is doing business after obtaining necessary permit and property marks registration from the panchayat and the forest officials, respectively. He has also been issued Form IV white permits for the transit of timbers within the State. While so, on 01.02.2021 he purchased 54 logs of rosewood from two persons by name Josekutty and Moly. He had also struck a deal with the Malabar Timbers in Karimugal, Ernakulam and using one of the Form IV white permits issued by the Divisional Forest Officer, those 54 log woods were transported through Lukkidy, Thamarassery and Kozhikode route as permitted in the pass. He had also struck a deal with the Malabar Timbers in Karimugal, Ernakulam and using one of the Form IV white permits issued by the Divisional Forest Officer, those 54 log woods were transported through Lukkidy, Thamarassery and Kozhikode route as permitted in the pass. According to him, the trees were cut by the buyers, i.e. Josekutty and Moly, after obtaining cut permit from the authorities, producing possession certificate and certificate issued by the Village Officer. The said properties are legally owned by his sellers and on that basis both the sellers produced applications before the Forest Range Officer, which were forwarded to the DFO; after the transit copy of the Form IV certificate has already been submitted before the DFO, which is evident from Annexure-3 produced along with the application. 4. He had also drawn e-Way bill showing the details of the GST paid by him; the items were duly delivered to his buyer, M/s.Malabar Timbers, at Karimugal; after completing the deal, the matter was duly intimated to the Divisional Forest Officer, Wayanad. But later, to his utter dismay, on 08.02.2021, the Forest Range Officer, Meppadi filed an Occurrence Report before the Judicial First Class Magistrate Court, Sulthan Bathery, which is Annexure 4. According to the petitioner in BA No.2109/2021, it is a false implication, the allegations are factually incorrect, it is launched with ulterior motive misusing the powers vested in the forest officials, none of the ingredients of the offence are attracted, he has never dealt with a forest produce, he had purchased the rosewood from the said Josekutty and Moly as evidenced from records, for which he had also obtained Form IV pass; the log woods were transited lawfully and that the initiation of criminal proceedings against him is an exhibition of ulterior motive. Therefore, he has sought for granting him anticipatory bail. According to him, in the nature of the allegations, custodial interrogation is not necessary, he has no criminal antecedents, he is a bona fide trader in timber, had only acted bona fide and there is no suspicious circumstances to interrogate him in custody. 5. In the other application, it is stated that the first petitioner is an entrepreneur being the Managing Director of M/s. Asian Surya Udyog Pvt. Ltd. and the Managing Partner of Asian Motors. 5. In the other application, it is stated that the first petitioner is an entrepreneur being the Managing Director of M/s. Asian Surya Udyog Pvt. Ltd. and the Managing Partner of Asian Motors. He has got various business interests in Kerala and Dubai, that himself and the second petitioner have their own properties in their possession and enjoyment, they are remitting land tax for the same; for the purpose of selling certain logs of rosewood stood in their respective holdings they moved the Village Officer, who gave them necessary certificates of possession and also visited the property and satisfied himself that the rosewood trees stood in their property were cut down. In order to transit those woods both of them filed applications before the Forest Range Officer, which were duly forwarded to the Divisional Forest Officer; as the Divisional Forest Officer did not issue transit passes, both of them approached the Judicial First Class Magistrate, Kalpetta with petitions, which were opposed by the Forest Range Officer. However, in the light of the circular dated 11.03.2020 and also the Government Order dated 24.10.2020, the objection raised by the Forest Range Officer cannot stand. By virtue of circular dated 11.03.2020 of the Revenue Department, after 17.08.2017, i.e. after the issuance of order No.SRO 621/2017, there cannot be any fetters in cutting of trees stood in the land assigned to the parties. This has been clarified by the Government in the Order dated 24.10.2020 also. Still, by Annexure 12, an Occurrence Report has been prepared and launched against them and now, under the cover of that report, the forest officials are after them, they might be arrested for the case. Thus, apprehending arrest they have moved the application under Section 438 of the Cr.P.C. 6. The 2nd respondent in both the applications, namely Forest Range Officer, Meppadi, filed a detailed counter affidavit in BA No.2109/2021. The substance of his contentions in the counter affidavit is that the petitioners, especially the petitioner in BA No.2109/2021, had misused Form IV white permit and transported so much quantity of log wood to the premises of M/s.Malabar Timbers without obtaining transit permit from the Forest Range Officer. According to him, the trees were cut and removed without obtaining necessary sanction as provided under the Act and the Rules. Passes issued by the Divisional Forest Officer, Wayanad have been misused. According to him, the trees were cut and removed without obtaining necessary sanction as provided under the Act and the Rules. Passes issued by the Divisional Forest Officer, Wayanad have been misused. Trees were cut and removed indiscriminately without obtaining sanction; such passes were not issued even though Josekutty and Moly had applied for getting passes; after considering the fact that necessary permits were not issued for the purpose of cutting the trees, the applications were rejected against which appeals were filed and the alleged transit was done during the pendency of the appeals. Moreover, the lists attached to the applications for getting transit permits and the logwoods seized from the premises of M/s.Malabar Timbers do not tally. On the basis of the occurrence report launched and the intimation given by the proprietor of Malabar Timbers and finding that the petitioner in BA No.2109/2021 had misused Form IV passes, a show cause notice was issued to him as to why the passes shall not be cancelled. Later, the Divisional Forest Officer, Wayanad passed orders against the said Josekutty and Moly, rejecting their applications for issuing transit passes. The crime was registered in such a backdrop after seizing 54 logwoods from the premises of M/s.Malabar Timbers. 7. I heard Adv. Sri.M.P. Ashok Kumar, the learned counsel for the petitioners and also the learned Senior Adv. Sri.T.A. Shaji, who is the Director General of Prosecution, elaborately. In the background of Covid 19 pandemic, on the basis of a decision of the Full Court, all the benches of the High Court are sitting online, on the digital platform. But after initial hearing, the Court as well as the learned counsel on both sides felt that since large number of documents are involved and elaborate arguments have to be addressed, these applications should be heard physically. Thus, I passed an order directing the Registrar General of this Court to facilitate physical hearing. Accordingly physical sitting was arranged for the purpose of hearing both these matters and both the counsel elaborately. I heard the learned counsel for the petitioners and also the learned Public Prosecutor and also the Director General of Prosecution. 8. Numerous documents were relied on by both parties. In Bail Application No.2109/2021, Annexures A1 to A22 were marked, whereas in Bail Application No.4823/2021, 24 documents were marked. I heard the learned counsel for the petitioners and also the learned Public Prosecutor and also the Director General of Prosecution. 8. Numerous documents were relied on by both parties. In Bail Application No.2109/2021, Annexures A1 to A22 were marked, whereas in Bail Application No.4823/2021, 24 documents were marked. On the other side, along with the counter affidavit of the 2nd respondent, Annexures R2(a) to R2(k) were produced. 9. The arguments of the learned counsel for the petitioners can be summed up like this: The petitioners have not committed any offence as defined in Section 2(e) of the Forest Act. Even under the Promotion of Tree Growth in Non-Forest Areas Act, they have not committed any offence. The cuttings were done after obtaining necessary sanction from the Village Officer; the sellers who are land owners had moved for transit permits as provided under the proviso to sub-section 6 of Section 6 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, hereinafter referred to as the Non-Forest Areas Act, the authorised officer is expected to give sanction within 20 days on receipt of the declaration. Even though they had waited for more than the said statutory period, certificates were not issued; thus, using the Form IV passes issued by the DFO, the items were transited by the petitioner in BA No.2109/2021. Referring to Section 6 of the Non-forest Areas Act he said that the trees were cut from private holdings, the respondents cannot say that the trees were cut either from Government land or notified area or Government puramboke; therefore, the respective land owners cannot be blamed for cutting the trees. From the proviso to Section 6 it is clear that they could cut trees if the trees were not standing in the reserved forest or were not in existence at the time of the assignment or not in the area notified under Section 5 of the Preservation of Trees Act or if it is not the areas notified under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. According to him, assignment mentioned in the proviso has to be read as future assignments falling under Section 22 of the Kerala Preservation of Trees Act. According to him, assignment mentioned in the proviso has to be read as future assignments falling under Section 22 of the Kerala Preservation of Trees Act. The property stood in Muttil village, which is not a notified area in Wayanad district, under sub-clause (3) of Section 6 of the Non-Forest Areas Act, restriction is only in five villages, Muttil is not one among them. The trees were cut and removed after getting necessary sanction from the Village Officer who had visited the properties, the land owners had had deemed permission and he was authorised to transit as per Form IV pass issued by the DFO, and the attempt to prosecute him is clear violation of the Act and the Rules. The learned counsel asserted that the petitioners have not possessed any forest produce so that the provisions under the Forest Act cannot be invoked. He also relied on the decision reported in Bhadresh Bipin Bhai Sheth v. State of Gujarat and another [ (2016) 1 SCC 152 ]. 10. Regarding Bail Application No.4823/2021 the learned counsel said that even though the petitioners 1 and 2 had moved the Forest Range Officer along with certificates issued by the Village Officer for getting transit permits, that were illegally declined, that was how they moved the Judicial First Class Magistrate, Sulthan Bathery for a direction to the Forest Range Officer to issue passes for the transportation of the timber logs. But the applications were opposed by the Forest Range Officer raising untenable contentions. Relying on Annexure 10 circular issued by the Revenue Department on 11.03.2020 and also Annexure 11 Government Order dated 24.10.2020, the learned counsel said that after the issuance of SRO No.621/2017 dated 17.08.2017 the stipulations, if any, in the order of assignment are no longer in force and all the trees except sandal wood trees could be cut and removed by the land owners. According to him, the entire controversy is the creation of the Government and the Government is the real culprit. Referring to a press conference conducted by the Hon'ble Minister for Forests he said that the State has not lost a single Rosewood from reserved forests. Referring to sub-section (3) of Section 7 of the Land Assignment Act, he submitted that, unlike other subordinate legislations, all amendments, if any, to the Rules made under the Act are liable to be placed before the Legislative Assembly. 11. Referring to sub-section (3) of Section 7 of the Land Assignment Act, he submitted that, unlike other subordinate legislations, all amendments, if any, to the Rules made under the Act are liable to be placed before the Legislative Assembly. 11. The learned Director General of Prosecution strongly opposed these contentions. According to him, on their own showing the petitioners have proved that they are not entitled to get any relief from this Court. They had transited 54 logwoods, which is the subject matter of OR 1/2021, without obtaining necessary permit from the Forest Range Officer or the DFO. Similarly, they had not obtained permit for cutting and felling the trees. Referring to the first condition in the Kerala Land Assignment Rules, in Appendix II, he said that the full right over all the trees stood within the grant and specified in the Schedule vest with the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it. In other words, even though some circulars or Government Orders were happened to be issued, that cannot substitute the statutory requirements of the Land Assignment Act and Rules. According to him, the first condition in the said Appendix is remaining the same. Moreover, he said that the said circular and the subsequent Government Order stand cancelled by virtue of the order dated 02.02.2021. He also invited my attention to an order passed by a Division Bench of this Court dated 8th July of 2020 by which the operation of the circular dated 11.03.2020 stands stayed. According to the learned DGP, the petitioners have moved this Court suppressing these matters; the said certificates were obtained from the Village Officer suppressing material facts. There is large scale corruption in the matter of obtaining such certificates. The petitioners are highly influential. They had obtained such certificates without disclosing the entire aspects. Similarly, it is stated that massive cutting of trees have been done from reserved forests. Mere fact that the schedules attached to the requests for obtaining transit permits do not tally with the logwoods seized from the yard of M/s. Malabar Timbers alone is sufficient to infer foul play committed by the petitioners. Similarly, it is stated that massive cutting of trees have been done from reserved forests. Mere fact that the schedules attached to the requests for obtaining transit permits do not tally with the logwoods seized from the yard of M/s. Malabar Timbers alone is sufficient to infer foul play committed by the petitioners. He also submitted that when the petitioners had failed to produce necessary documents, under Annexure R2(i), the Managing Director of M/s. Malabar Timbers alerted the Chief Conservator of Forests and that was how the matter had come up and OR No.1/2021 was registered. Later, on investigation, large scale malpractices committed by the petitioners and others have come out and the petitioners are not entitled to get any relief from this Court. 12. The specific case of the learned Director General of Prosecution is that the logwoods seized from the yard of the Malabar Timbers as well as in OR 41/2021 are forest produces which were cut and removed from reserved forests. According to him, now 43 cases have been registered against such unscrupulous timber merchants, in which, in 37 cases the petitioner in BA No.2109/2021 is accused. Even though he wanted to make out that he is a bona fide timber merchant, the mahazar prepared in OR 1/2021 will prove that no such business is being done, his office remains closed, there was no trace of any timber in the yard allegedly being traded by the petitioner. The petitioner has criminal antecedents to his credit and such a person cannot be granted any discretionary relief by the Court. 13. It seems that for the limited purpose of deciding the question whether the petitioners are entitled to get anticipatory bail, it is not necessary to delve into deep all the contentions raised by the parties. But it is evident from the records produced by the parties that the petitioners are assignees of land under a pattayam issued under the Land Assignment Act. 14. First of all, as rightly pointed out by the learned Director General of Prosecution, Section 6 of the Kerala Promotion of Tree Growths in Non-Forest Areas Act is very specific. But it is evident from the records produced by the parties that the petitioners are assignees of land under a pattayam issued under the Land Assignment Act. 14. First of all, as rightly pointed out by the learned Director General of Prosecution, Section 6 of the Kerala Promotion of Tree Growths in Non-Forest Areas Act is very specific. Section 6 says that 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 sandal wood trees standing on his land. Proviso to sub-section (1) of Section 6 is very important. It says that this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of the land or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. In other words, if any one of these conditions is applicable, such a tree cannot be cut and removed without sanction from the authorised officer, as provided under Rules 3 and 4 of the Kerala Promotion of Tree Growth in Non-Forest Areas Rules, 2011. Rosewood (Dalbergia latifolia) is a specified tree, as defined in Section 2(e) of the Non-Forest Areas Act. Rule 3 of the Rules insists that, before cutting and transporting such a tree standing on a non-forest land, the owner of the land has to file a declaration in Form No. 1 in duplicate before the Authorised Officer. Rule 4 of the said Rules says that an application for permission to fell, uproot or burn or caused to be fell, uprooted or burnt any such tree for which permission is required under Section 6 of the Act or for transport of any timber of such specified species shall be made in duplicate in Form II appended to the Rules. Even though the petitioner in BA No.2109/2021 had claimed in paragraph 5 of the statement of facts that application for approval of cutting of Rosewoods was given, such a document as provided under Rules 3 and 4 is not forthcoming. The petitioner is harping on Annexures-7 to 9, 13 etc. Even though the petitioner in BA No.2109/2021 had claimed in paragraph 5 of the statement of facts that application for approval of cutting of Rosewoods was given, such a document as provided under Rules 3 and 4 is not forthcoming. The petitioner is harping on Annexures-7 to 9, 13 etc. to say that the land owners have clearance from the Revenue department. But these certificates do not come within the category, pursuant to an 'application for approval of cutting of Rosewood'. 15. Secondly, as stated earlier, even though it was claimed on the strength of the certificate issued by the Village Officer that the cutting does not require sanction from the authority, it is evident from the Government Order dated 02.02.2021 that the Government Order dated 24.10.2020, which has been relied on by the Village Officer, stands cancelled. It is true that such an Order was passed after the stay given by a Division Bench of this Court on th July, 2020. Whatever it may be, even in the absence of a Government Order dated 02.02.2021 cancelling the earlier order, by virtue of the stay order, the circular dated 11.03.2020 had no operation. But the Village Officer has conveniently ignored this aspect and issued certificates. I will state more about the misadventure of the Village Officer a bit later. 16. What I wanted to say is that such an application for cutting and removal of trees was never placed before any authorised officer under the Act and the Rules. On his own showing in BA No.2109/2021, the petitioner was not issued any transit pass as per the Rules by the Forest Range Officer or the Divisional Forest Officer. It is also certain that applications for issuing transit passes were rejected against which appeals were preferred, which also went against and thereafter finding that the petitioner had misused the passes issued under the Transit Rules, show-cause notice was issued by the DFO asking as to why the passes shall not be cancelled. Annexures-10 and 14 applications dated 24.11.2020 and 23.12.2020 respectively stood rejected by the Forest Range Officer by his proceedings, Annexure R2(b) series dated 30.01.2021. Against the said orders, both Josekutty and Moly moved Annexure-R2(c) series appeals before the DFO on 03.02.2021. These logwoods were transported during the period when the appeals were preferred. Annexures-10 and 14 applications dated 24.11.2020 and 23.12.2020 respectively stood rejected by the Forest Range Officer by his proceedings, Annexure R2(b) series dated 30.01.2021. Against the said orders, both Josekutty and Moly moved Annexure-R2(c) series appeals before the DFO on 03.02.2021. These logwoods were transported during the period when the appeals were preferred. In other words, it is not the case that the petitioner in BA No.2109/2021 and the land owners were not aware of the fact that requests for transit permits were rejected by the Forest Range Officer. Ignoring the same, under a misinterpretation that there was deemed permit under the proviso to Section 6(6) of the Non-Forest Areas Act, he had been venturing to transit the logwoods to the said yard in Karimugal. To put in it other words, the said land owners, one of them is the petitioner in BA No.4823/2021 or the trader had neither obtained cutting permits nor transit passes. 17. Worsening the case of the petitioner in BA No.2109/2021 the list of logwoods attached to the requests issued by the said sellers, i.e. Josekutty and Moly, do not tally with the logwoods found from the yard of Malabar Timbers. It was after growing suspicion that the buyer had alerted the Forest officials that the petitioner had not obtained the mandatory permits. It is for the petitioner in BA No.2109/2021 to prove how this difference in the measurements in the logwoods had happened. As rightly pointed out by the learned Director General of Prosecution, there is no comparison between the lists furnished by the said Josekutty and Moly and the size and measurements of timber seized from the yard of Malabar Timbers. Even though the Court had put specific questions, the learned counsel for the petitioners could not give plausible explanation for the same. Moreover, the unwanted haste shown by the petitioner in transporting the valuable timbers without obtaining cutting and transit passes from the authorised officer is highly suspicious. Everything has to be seen in the backdrop that the petitioners did not obtain prior sanction for felling the trees. All these matters have to be read together. 18. Moreover, it is evident from the documents produced by them that they are the assignees of a land assignment patta issued by the Government. This is evident from Annexures 19 and 20 in BA No.4823/2021. 19. All these matters have to be read together. 18. Moreover, it is evident from the documents produced by them that they are the assignees of a land assignment patta issued by the Government. This is evident from Annexures 19 and 20 in BA No.4823/2021. 19. In fact I had specifically put a question as to how the petitioners had obtained the property. May be in answer to the same, at first, copy of sale deeds 1201/2013 and 920/2013 of Kalpetta Sub Registry were produced by the learned counsel on 05.07.2021. From Annexure-19 in BA No.4823/2021 it is evident that the vendor in that document traces his right through title deed No.LA189/2068 dated 7.1.1974, serial No.2269. From page No.5 of Annexure 19 document it is clear that the original patta was also handed over to the assignee at the time of execution of the sale deed. Annexure 20 document also is a subsequent assignment following the very same LA title deed. In fact the Court was skeptical about the non production of the said title deed which was handed over to the assignee on 06.03.2013. But at last, on 20.07.2021, a copy of the document was produced. The learned counsel submitted that he was waiting for obtaining copy from the Taluk Office which was received only on 19.07.2021. He pleaded ignorant about the original title deed shown handed over by the assignor in Annexure-19 in BA No.4823/2021. Whatever it be, this document exposes the petitioners. From the document, two inferences are possible. Firstly, the assignment was made in favour of Smt.U. Kamalakshmi Amma who sold the property to P.T. Gopalakurup, the assignor in Annexures 19 and 20, among other things, on the following two conditions: 1. The full right over the trees within the grant and specified in the Schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or it may come into existence subsequent to it. 2. The assignee is bound to afford all facilities to the officers of Government in the matter of inspecting the land periodically for checking the trees referred to in condition (1) above and removing them, if necessary. Incidentally, the above conditions are in tune with the 1st and 2nd conditions set out in Appendix II to the Kerala Land Assignment Rules, 1964. Incidentally, the above conditions are in tune with the 1st and 2nd conditions set out in Appendix II to the Kerala Land Assignment Rules, 1964. In token of accepting the conditions, Kamalakshi Amma, the title holder had signed the document. 20. Secondly, in the Schedule appended to Annexure-23 patta the following trees are also shown : Name of tree No. Other particulars 1. Rosewood 1 126 x 600 2. Do 1 202 x 900 3. Do 1 170 x 900 21. There cannot be any dispute that the above trees vest in the Government. Here, the learned counsel for the petitioners submitted that as per condition No.1, the full right over the trees within the grant confine to four categories of trees noted in the schedule namely, (1) Teak (2) Blackwood (3) Ebony and (4) Sandalwood. These four categories are shown printed, whereas details of Rosewood were additionally inserted by hand in ink, which is suspicious. According to the learned counsel, category of trees shown in the patta printed alone can be reckoned. 22. It is true that details of these Rosewood trees are shown in Annexure-23, inserted by hand. But on their own showing three Rosewood trees are vested in Government. All the same, it cannot be believed that details of such trees are subsequent insertion. If it was so, that could have been made out by the petitioners themselves so long as the original title deed is with them. The non-production of the original is still suspicious. 23. Elaborate and detailed arguments were addressed by the learned counsel Sri. Ashok Kumar, when the case was posted seeking certain clarifications on 19.07.2021. He took me through the legislative history of the Kerala Forest Act which evolved from the Travancore Forest Act, the Travancore-Cochin Forest Act, The Madras Forest Act etc. He asserted that till the introduction of the Kerala Forest Act, the species Rosewood stood alien to the legislation. At last, he produced Annexure-24, a title deed in Malayalam where 'Karimaram' and 'Veetti' are shown differently. In fact, that is evident from Annexure-23 also. All the same, from Annexures-23 and 24 it is certain that Blackwood and Rosewood are different species of trees. But it requires to be stated that reference to various Malayalam-English dictionaries indicates that Rosewood stands for the species 'Veetti'. 24. In fact, the arguments were academically enriching experience. In fact, that is evident from Annexure-23 also. All the same, from Annexures-23 and 24 it is certain that Blackwood and Rosewood are different species of trees. But it requires to be stated that reference to various Malayalam-English dictionaries indicates that Rosewood stands for the species 'Veetti'. 24. In fact, the arguments were academically enriching experience. But questions whether Blackwood and Rosewood are the same or the legislative history of statutes etc. cannot trouble this Court while considering an application for bail. Suffice it to say that three Rosewood trees were reserved in the prior title deed which are vested with the Government which cannot be cut and removed by the title holder or his subsequent assignees. Section 8 of the Land Assignment Act is unambiguous. It is the settled proposition that in view of the non-obstante clause in Section 8, restrictions contained therein are bound to prevail. Such restrictions run with the land. 25. Even assuming that the Government Order was not cancelled or stayed by this Court, still that does not affect an assignment or conditions in the assignment that was issued way back in 1974. Even going by the Government Order dated 24.10.2020, such a tree could be cut down or felled by the assignee only if he had paid the value of the timber of the reserved tree. Here the petitioners have no case that the land owners have paid value of the tree, if any, stood in the property at the time of assignment. It is true that an assignee is entitled to cut and remove trees which were grown or planted by him subsequent to the assignment. But the burden is on the petitioners who claim right under the assignment to prove that they were not in possession of any specified tree at the time of assignment or that they had paid the value of trees stood on the land at the time of assignment. This has not been done which is very fatal to the case of the petitioners. In a way, Annexure-23 document alone is sufficient to say that three Rosewood trees stood vested with the Government. 26. In my opinion, the petitioners have managed things by manipulating records and influencing the officials. It is not known as to how a Village Officer could issue such certificates. In a way, Annexure-23 document alone is sufficient to say that three Rosewood trees stood vested with the Government. 26. In my opinion, the petitioners have managed things by manipulating records and influencing the officials. It is not known as to how a Village Officer could issue such certificates. 793 series documents are one-page certificates; these are detailed certificates, referring to the order dated 17.08.2017 in SRO No.621/2017 and Government Order dated 24.10.2020 to justify his conclusion. It does not require much research to say that everything was done to appease and to toe the line of the persons who had applied for such certificates. Obviously, the Village Officer was dancing to the tunes of the applicants. He has strained his nerves very much. At the same time, even though mention is made about the tree for which timber value should have been paid, the Village Officer has bunked that vital aspect as to whether price of the tree was remitted. It is also clear that before cutting the trees no one had visited the property. The Village Officer has only seen some trees felled in the holdings of the petitioners. The Authorised Officer or the Revenue Officers were not alerted before cutting the trees. 27. The petitioners were trying to get an order by misguiding the Magistrate by filing CMP Nos.1203/2020 and 1204/2020 seeking direction to the Range Officer to issue transit passes. It is not known under what provision of law the jurisdiction of the court was invoked for the purpose. But the learned Magistrate recognised the cunningness and the ingenuity and declined jurisdiction. One another aspect to be noted is that the number of log woods mentioned in the CMPs have no nexus with the numbers shown in the respective requests made before the Forest Range Officer. 28. Mahazar dated 08.02.2021 indicates that traces of any timber sale could not be noticed by the Forest Officials by the petitioner in BA No.2109/2021. At least on the date of preparation of the mahazar purchase register, stock register, sales register etc. could not be seen maintained. All these are highly suspicious. 29. In the circumstances, setting the law in motion by registering forest crimes is justified. Conduct of the petitioners is capable of inferring commission of forest offences and drawing presumptions under Section 69 of the Kerala Forest Act. could not be seen maintained. All these are highly suspicious. 29. In the circumstances, setting the law in motion by registering forest crimes is justified. Conduct of the petitioners is capable of inferring commission of forest offences and drawing presumptions under Section 69 of the Kerala Forest Act. Burden is on the accused to say that timber pieces 1 seized under mahazars are not forest produces. As the timber logs are Rosewood, it is not even necessary for the prosecution to prove whether those timber logs were brought from a forest because the word 'or not' succeeding the word 'forest' in Section 2(f) of the Kerala Forest Act, 1961 would make it clear that even if the timber logs of Rosewood were found outside the forest, still the presumption under Section 69 of the Forest Act would apply that it is the property of the Government until the contrary is proved. Section 69 provides for a statutory presumption that the forest produce belongs to Government and casts burden on the person proceeding to establish the contrary. (Kunhali v. Forest Range Officer [2012 (2) KLT SN 6, CN 4]). 30. The learned Director General of Prosecution had to confide that the petitioners could act only with the aid of some corrupt officials, against whom actions have already been initiated. According to him, that was how a copy of the Form IV pass could be inserted in official records of the DFO putting ante-date. It is also not known as to how Annexure-2 proceedings was issued as if the applicant in BA No. 2109/2021 had clean records, whereas now it is alleged that he has criminal antecedents to his credit. 31. It is not necessary for the Court to make any comment, sitting in bail jurisdiction, on the argument of the learned counsel that the Government is the real culprit in the entire episode. But it is disturbing that statutory provisions are being infringed by issuing executive directions with impunity. Apex Court has in catena of decisions held that, when Government is competent to amend statutory provisions even retrospectively, it cannot be whittled down by executive orders [See the decisions in T.R. Kapoor v. State of Hariyana ( AIR 1987 SC 415 ), C.L. Varma v. State of M.P. ( AIR 1990 SC 463 ) etc.] Any how, this Court has already taken cognisance of the matter. 32. 32. In the above setting, the petitioners are not entitled to get any relief from this Court. The report of the Forest Range Officer also indicates that the petitioner in BA No.2109/2021 has already collected an amount of Rs.1.40 crores from the Managing Director of M/s. Malabar Timbers on the promise that he would arrange more than 10,000 cubic feet of Rosewood. It is not known as to how he would arrange so much quantity of Rosewood. The materials produced by the petitioners themselves indicate that they have not come with clean hands. Such a discretionary relief cannot be granted to the petitioners who have not acted bona fide. The petitioners are not entitled to get any relief. The applications are dismissed. The interim order shall stand vacated.