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2023 DIGILAW 880 (KER)

Gopi, S/o Govindan v. State Of Kerala

2023-11-07

P.SOMARAJAN

body2023
ORDER : Crl.R.P.No.3327/2005 is by accused Nos.1, 4 and 5. Crl.R.P.No.43/2006 is by accused No.3. During the pendency of the revision, accused No.5 passed away. Nobody turned up to implead themselves and to substitute in the place of deceased. 2. Accused No.1, 3, 4 and 5 were found guilty of the offence punishable under Section 51 of the Wild Life Protection Act (for short, 'the Act') for the violation of prohibition under Section 9 of the Act. The conviction is mainly based on a confession statement alleged to have given by the accused persons before a Forest Range Officer during the course of investigation. It is under challenge mainly on the reason that the Forest Range Officer is not an authorized officer empowered to record statement under Section 50(8) of the Act, hence, it is submitted that the confession statement is vitiated and cannot be relied upon. 3. But, the prosecution heavily relied on the legal position settled by the Apex Court in Motilal v. Central Bureau of investigation and another [ (2002) 4 SCC 713 ]. 4. To resolve the issue, it is necessary to have an understanding with respect to the authority which has been given under sub-section (8) of Section 50 of the Act along with the other provisions, sub-section (1) and (9), which are extracted below for reference: “50. 4. To resolve the issue, it is necessary to have an understanding with respect to the authority which has been given under sub-section (8) of Section 50 of the Act along with the other provisions, sub-section (1) and (9), which are extracted below for reference: “50. Power of entry, search, arrest and detention -(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorized by him in this behalf or the Chief Wild Life Warden or the authorized officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,- (a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat [trophy, uncured trophy, specified plant or part or derivative thereof] in his control, custody or possession, or any license, permit or other document granted to him or required to be kept by him under the provisions of this Act; (b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession; (c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him: Provided that where a fisherman residing within ten kilometers of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized. *************** (8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests authorized by the State Government in this behalf shall have the powers, for purposes of making investigation into any offence against any provision of this Act,- (a) to issue a search warrant; (b) to enforce the attendance of witnesses; (c) to compel the discovery and production of documents and material objects; and (d) to receive and record evidence. (9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.” (emphasis supplied) 5. There shall not be any misunderstanding as to what amounts to “evidence” and the “machinery” available for collection of evidence and its “admissibility” or “evidentiary or probative value”. Going by the abovesaid sub-sections, it is clear that they are the various machineries invested with the authority for collection of evidence during the course of investigation. Among these three sub-sections, there are non-obstante clauses in sub-section (1) and (8), presumably for the purpose of giving an overriding effect to the abovesaid provisions over and above the provisions contained in other law including Code of Criminal Procedure. It is not in derogation of those provisions, but gives an addition to those provisions pertaining to the matters which would come under the purview of sub-section (8) of Section 50 of the Act. The area which are dealt with under sub section (1) and (8) are totally different, distinct and separate and there is no scope for any kind of overlapping or ambiguity, which is evident from the distinct area dealt separately under the abovesaid provisions. Sub-section (1) (a) pertains to the powers that can be exercised regarding entry, search, arrest, detention etc. and also production of any captive animal, wild animal, animal article, meat, trophy, uncured trophy, specified plant or part or derivative thereof including licence, permit and other document pertaining to the alleged subject of offence, (1)(b) pertains to conduct any search or inquiry at any premises, vehicle, vessel, baggage etc. and to seize the subject of commission of offence and (1)(c) is to arrest such person without warrant and to detain him. and to seize the subject of commission of offence and (1)(c) is to arrest such person without warrant and to detain him. On the other hand, the area which were brought under sub-section (8) is totally different from what is enumerated under clause (a) to (d). It is pertaining to certain matters that can be exercised by a criminal court either at the investigation stage or at the trial stage, but powers were vested with an officer not below the rank of an 'Assistant Director of Wild Life Preservation' or 'Assistant Conservator of Forests authorised by the State Government in that behalf' (substituted in the place of “Wild Life Warden” w.e.f. 01/04/2003 by Act 16 of 2003) for the “purpose of making investigation into any offence against any of the provisions of the said Act”. The inclusion of non-obstante clause under sub-section (8) though overrides the provisions contained in any other law for the time being in force including the provisions contained in the Code of Criminal Procedure, it is not in derogation of those provisions, but in addition, powers were given under clause (a) to (d), viz., under clause (a) to issue a search warrant (b) to enforce the attendance of witnesses (c) to compel discovery and production of documents and material objects and (d) to receive and record evidence. Clause (d) is for the purpose to receive and record evidence. The issue involved in the present case is pertaining to the validity or the evidentiary value of the confession statement alleged to have been recorded by the forest official and whether it would come under the purview of clause (d) of sub-section (8) of Section 50 of the Act. Hence, the crucial question that requires initial consideration are (1) whether the officers empowered under sub-section (8) will have the authority to record a confession statement, if so, what is the procedure to be followed (2) if not, what would be the evidentiary value of the confession statement, if any recorded by such officers and (3) whether a conviction can be based on such confession statement. 6. Sub-section (9) says that the statement or the evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, but provided that it has been taken in the presence of the accused person. 6. Sub-section (9) says that the statement or the evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, but provided that it has been taken in the presence of the accused person. The statement or the evidence recorded under clause (d) of sub-section (8) would be admissible in any subsequent trial only when it is recorded or taken down “in the presence of accused person”. The mandate that it should be recorded or taken down in the presence of accused would convey largely what is intended by the legislature by the abovesaid clause (d) to Section 50(8) and 50(9) of the Act. A confession statement taken or recorded from the accused will not come under the purview of a statement recorded “in the presence of accused”. The user of the term “in the presence of accused” indicates and stands for any evidence or statement either recorded or taken down from a person other than an accused. The said legal position can also be gathered when there are more than one accused in the crime. The upshot of the discussion is that the area specified, the power assigned and the jurisdiction vested under clause (d) of Section 50(8) of the Act is only pertaining to record any evidence or statement in the presence of an accused person by a competent officer and does not include a confession statement by the accused. A confession statement recorded by any such officer will not fall under the purview of clause (d) of Section 50(8) of the Act and hence not admissible in evidence under that provision. Necessarily, the competent officer empowered under Section 50(8) of the Act cannot exercise the jurisdiction of the Magistrate to record a confession under the provisions of the Code of Criminal Procedure viz., Section 164 Cr.P.C. during the course of investigation. 7. Then comes the question as to what would be the legal status of a confession statement, if any recorded by such officer and whether it will come under the large spectrum of “extra-judicial confession” and whether it will carry any evidentiary value. 8. 7. Then comes the question as to what would be the legal status of a confession statement, if any recorded by such officer and whether it will come under the large spectrum of “extra-judicial confession” and whether it will carry any evidentiary value. 8. It is necessary to address yet another issue as to whether the competent officer under Section 50(8) of the Act is a police officer for the purpose of Sections 25, 26 and 27 of the Evidence Act and the embargo under the said provisions – Sections 26 and 27 of the Evidence Act. Earlier, a Constitution Bench of the Apex Court in Ramesh Chandra Mehta v. State of West Bengal ( AIR 1970 SC 940 ) had laid down that a customs officer is not a police officer for the purpose of Section 25 of the Evidence Act on the reason that though he may have power to detain, arrest and obtain a search warrant, to produce the person arrested before a Magistrate and to obtain an order for remand or to keep him in custody with the view to collect evidence under the Act, may not get a deemed status of a police officer. The very same rationale was applied by the High Court of Madras in E.C.Richard v. Forest Range Officer ( AIR 1958 Mad. 31 ) and found that “in the absence of a specific provision in the Madras Forest Act conferring on the Forest Officer all the powers of an officer in charge of police station he cannot be called a 'police officer' and a statement made to him will not be hit by Section 25 of the Evidence Act”. This Court in Forest Range Officer v. Aboobacker (1989 KHC 201) had applied the very same rationale held that “neither the Kerala Forest Act nor the Wild Life Protection Act conferred all the powers of police officers on the forest officers or wild life protection force even though some of the powers have been conferred on them to be exercised in specified contexts. It is therefore clear that the embargo contained in S.25 of the Evidence Act cannot be applied to the statements made to a Forest Officer or Range Officer etc.” It is the settled law that the embargo created under S.25 of the Evidence Act is complete that a confession statement made to a police official shall not be proved against a person accused of any offence. All the abovesaid decisions are on the question of whether such embargo/complete exclusion under that provision would apply to a confession statement recorded by customs officer under the Sea Customs Act, 1878, a forest officer under Madras Forest Act or an authorized forest officer under the Kerala Forest Act or the Wild Life Protection Act or such other officers under any special enactment. Once the embargo under Section 25 goes, the question of complete exclusion of confession statement from the realm of admissibility will also go. Then the matter would fall under the category of “evidence”. The question of “admissibility” or its probative value then would stand governed by the principles of admissibility of extra-judicial confession. 9. Very recently, another Bench of this Court in Narayanan v. State of Kerala (2023 KHC OnLine 492) had extracted the legal position laid down in B.A.No.9174/2022 dated 27/1/2023 pertaining to a confession statement recorded by a forest officer and found that the officer is not an authorized officer under Section 50(8) of the Wild Life Protection Act and as such, the confession statement is inadmissible in evidence and no reliance can be given thereto. The said decision was rendered without going into the question of admissibility of said statement under any other provisions of the Evidence Act. The relevant portion is extracted below for reference: “9. Insofar as the admissibility of confession statement recorded by Officers other than the Assistant Director of Wild Life Preservation and Assistant Conservator of Forests specifically notified under Section 50(8) of the Wild Life (Protection) Act, 1972, this Court considered the legal question while considering B.A.No.9174/2022 dated 27.01.2023. ................................... Even on a cursory reading of the above legal provisions, it is clear that at the time of passing the Wild Life (Protection) Act, sub section (8) was not there. ................................... Even on a cursory reading of the above legal provisions, it is clear that at the time of passing the Wild Life (Protection) Act, sub section (8) was not there. However, by way of amendment introduced with effect from Act 16 of 2003, the Assistant Director of Wild Life Preservation was authorised to issue a search warrant; to enforce the attendance of witnesses; to compel the discovery and production of documents and material objects; and to receive and record evidence. Thereafter, by way of amendment introduced by amendment Act 44 of 1991, Assistant Conservator of Forest was authorised by the State Government in this behalf also was given the power to do the said exercise since Section 50(8) authorises an officer not below the rank of Assistant Director of Wild Life Preservation or Assistant Conservator of Forests to receive and record evidence. Any officer not below their rank cannot have the power to do any acts provided as (a) to (d) and if anything done by the officer below the rank is a nullity and has no legal effect. Be it as may, the confession recorded by the Forest Ranger is a nullity and the same has no legal effect. So the legal question is emphatically clear that the competent persons to record confession statement, i.e., to record and receive evidence are (1) Assistant Director, Wild Life Preservation or (2) Assistant Conservator of Forests authorised by the State Government in this behalf and no other officer/officers below their rank. Therefore, the confession statement relied on by the prosecution to array accused Nos.2 to 4 in the crime, only be found as a statement recorded by an incompetent officer and the same has no legal sanctity.” 10. In fact, the abovesaid decision was rendered without noticing the legal position settled by the Constitution Bench of the Apex Court in Ramesh Chandra Mehta's case (supra) and the earlier decision rendered by this Court in Aboobacker's case (supra), wherein it was held that the hurdle and exclusion under Section 25 of the Evidence Act is not applicable to a confession statement recorded by those officers. Further, the impact of sub-section (9) of Section 50 of the Act was also not taken up or considered in the abovesaid decision, hence cannot be said that good in law. 11. Further, the impact of sub-section (9) of Section 50 of the Act was also not taken up or considered in the abovesaid decision, hence cannot be said that good in law. 11. The decision rendered by the Apex Court in Motilal v. Central Bureau of Investigation and Another (supra) is pertaining to the authority to investigate the offence punishable under the Act by the CBI on being empowered by the Central Government by issuing notification under Delhi Special Police Establishment Act, 1946 and not pertaining to the question involved in the present case. It was held in that decision that Section 50 of the Act does not exclude a police officer from investigating the offences under the Act. The relevant portion of the judgment is extracted below for reference: “The scheme of Section 50 of the Wild Life Act makes it abundantly clear that a police officer is also empowered to investigate the offences and search and seize the offending articles. For trial of offences, the Code of Criminal Procedure is required to be followed and for that there is no other specific provision to the contrary. The special procedure prescribed is limited to taking cognizance of the offence as well as powers are given to other officers mentioned in Section 50 for inspection, arrest, search and seizure as well as of recording statement. The power to compound offences is also conferred under Section 54. Section 51 provides for penalities which would indicate that certain offences are cognizable offences meaning thereby a police officer can arrest without warrant. The aforesaid specific provisions are contrary to the provisions contained in the Code of Criminal Procedure and that would prevail during the trial as provided under Section 4(2) Cr.P.C.. However, from this it cannot be said that operation of rest of the provisions of the Code of Criminal Procedure is excluded.” 12. It is well settled law that extra-judicial confession is a weak piece of evidence, however, it will carry its own evidentiary value and when inspires confidence, it can be acted upon and can even the basis for a conviction when proved to be voluntary and truthful, but it is always advisable to seek corroboration. Necessarily, an extra-judicial confession cannot be brushed aside when inspires confidence and found to be voluntary and truthful. Necessarily, an extra-judicial confession cannot be brushed aside when inspires confidence and found to be voluntary and truthful. Very recently, the Apex Court while elaborating the evidentiary value of extra-judicial confession in Pawan Kumar Chourasia v. State of Bihar (2023 KHC 6253) had evolved yet another principle based on the natural human conduct and laid down that natural course of human conduct would demand that such confession must be to a person in whom he has “implicit faith”. 13. The said requirement -“implicit faith” carries the elements of truthfulness as well as voluntariness and also free of compulsion either implied or express. A confession given before an officer – a police officer or an officer empowered to initiate or register or investigate any crime or to set the criminal law in motion for any violation will carry some sort of compulsion either express or implied, either directly or indirectly since the person to whom the confession was made is an officer who is empowered to investigate or to set the criminal law in motion as against the accused and hence would stand vitiated to that extent and cannot be brought under the purview of “voluntary confession”, though it may be a true version of what had actually happened. Necessarily, an extra-judicial confession given before an officer, who is empowered to investigate the crime under Section 50(1) or (8) would be a weak piece of evidence and in the absence of sufficient corroboration, it cannot be acted upon. At this juncture, it is relevant to extract the portion of judgment rendered by the Apex Court in Pawan Kumar Chourasia's case (supra) herein below: “As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility.” 14. The upshot of the discussion is that (i) a conjoint reading of mandate under sub-section (9) with sub-section (8) of Section 50 of the Act would make the legal position clear that no authority was given to any of the officers competent under sub-section (8) to exercise the power of a Magistrate to record judicial confession in accordance with the mandate and procedure under Section 164 Cr.P.C. (ii) any statement recorded by such officer empowered under Section 50(8) of the Act cannot be brought under the wide spectrum of “judicial confession”, but would fall under the category of extra judicial confession (iii) such extra-judicial confession and its admissibility will stand governed by the law relating to admissibility of extra-judicial confession and the legal position settled by the Constitution Bench of the Apex Court in Ramesh Chandra Mehta's case (supra) and also in Pawan Kumar Chourasia's case (supra). 15. In the instant case, the statement recorded by the forest officer cannot be brought under the purview of judicial confession with the aid of Section 50(8) of the Act, but would fall under the broad spectrum of extra judicial confession since there is no application of the embargo created under Section 25 of the Evidence Act. But, the admissibility of the extra-judicial confession going by the decision rendered in Pawan Kumar Chourasia's case (supra) is very weak and no conviction can be based on such evidence, unless corroborated, for which, the prosecution relied on the recovery of carcass of the elephant based on the disclosure/information statement given by accused No.1. As discussed earlier, it cannot be brought under the purview of confession recorded. As discussed earlier, it cannot be brought under the purview of confession recorded. But since it is pertaining to collection of evidence, it may fall within the purview of Section 50(8) of the Act provided that it must be by an authorized officer as specified under sub-section (8) of Section 50 of the Act. That mandate was also not satisfied. 16. The left and right tusks which were recovered from the house of one Sarojini along with a country gun used for the commission of offence cannot be accepted in evidence since she was not examined as a witness to the prosecution so as to connect it with the accused. The witnesses to the seizure mahazer were also not examined to show the nexus between the accused and the seized articles and the weapon used. Since the offence is so grave in nature, the failure on the part of the prosecution at the trial stage to examine the material witnesses is so fatal to the prosecution and prosecution has failed to connect the recovered article from the house of Sarojini with the accused. Necessarily, the conviction rendered by both the courts below for the abovesaid offence cannot be sustained, hence will stand set aside along with the sentence awarded. The accused are found not guilty of the offence and hence acquitted and set at liberty. The bail bond, if any executed will stand cancelled. Both the Criminal Revision Petitions will stand allowed accordingly.