IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3464 of 2009()
1. ISMAIL, AGED 52 YEARS,
... Petitioner
Vs
1. THE DEPUTY RANGE OFFICER,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.V.SETHUNATH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/12/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No. 3464 OF 2009
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Dated this the 4th day of December,2009
ORDER
Petitioner the second accused in O.R.11/2009 of
Plachery Police Station registered for the offence
under section 27(1)(e)(iii) of Forest Act filed this
petition under section 482 of the Code of Criminal
Procedure to quash the entire case and to direct the
first respondent to release vechile KL-14C-2843 seized
by the Forest Authorities on the allegation that the
vehicle was used for transporting Anjili tree cut from
the reserved forest.
2. Learned counsel appearing for the petitioner
and learned Public prosecutor were heard.
3. Learned counsel relying on Annexure 2
certificate issued by the Village Officer, Erumeli
argued that it shows that first accused has been in
possession of 40 cents of land Sy.No.219/part of in
Block 27 of Hillmen Settlement and the Anjili trees
were cut from the said property and not from reserved
forest and petitioner was unaware that there is any
prohibition for cutting the trees and he was only
Crl.M.C.3464/2009 2
engaged to transport the logs and in such circumstances
petitioner has not committed any offence. It is argued
that when the allegation is that the first accused cut two
Anjili trees standing in the Hillmen settlement area and
the vehicle of the petitioner was used for transporting the
same, no offence under section 27(1)(e)(iii) is attracted.
The argument is that in order to attract an offence under
Section 27(1)(e)(iii) the property should be part of the
reserve forest and when it is not a part of the reserve
forest, no offence would lie and therefore the case is to
be quashed.
4. Learned Public Prosecutor pointed out that Annexure
2 certificate produced by the petitioner itself establish
that the 40 cents over which the first accused claimed
possession is part of Hillmen settlement area and under
Rule 2(e) of the Kerala Hillmen Rules, 1964 a settlement
could only be inside the reserve forest and under Rule 13
no Hillman shall be entitled to grant of patta or is
entitled to claim any land cultivated by him irrespective
of the years he has been in occupation of the same and
under Rule 15 though Hillmen may fell and use any timber
other than timber of reserved trees,it could only for bona
fide domestic or agricultural purposes and in such
circumstances it cannot be said that no offence is
Crl.M.C.3464/2009 3
attracted. It is also argued that as defined under section
2 (a) ‘Hillmen’ can only be a member of the tribe or
tribal communities specified as Scheduled Tribes in
relation to the State of Kerala, by Notification and first
accused cannot be a Hillman as defined under Rule 2(a) and
therefore he cannot claim any right over the land or the
tree.
5. Section 27(1)(e)(iii) provides that any person who
in a reserved forest or in a land proposed to be
constituted a reserve forest, cuts or fells any trees or
removes any tree including fallen or felled shall be
punished with imprisonment for a term which shall not be
less than one year but may extend to five years. Annexure
2 certificate produced by the petitioner himself establish
that the property from where the Anjili trees were cut is
part of Hillmen Settlement area. By the definition of
Hillmen under Rule 2(a) first accused cannot be a Hillmen
as he is not a member of tribe or tribal community
specified as Scheduled Tribes in relation to the State by
notification issued under Article 342 of Constitution of
India. So also under section 2(e) settlement means an
approved area inside the reserve forests set apart and used
for housing members of Hillmen. Though under the Kerala
Hillmen Rules, 1964 a Hillmen is provided the right to
Crl.M.C.3464/2009 4
cultivate the specified property as a licensee, the land is
not alienable and under Rule 13 Hillmen has no right to
get patta or is entitled to claim any right except
cultivation of the lands, in spite of the long period of
his occupation. In such circumstances when the property
from where the Anjili trees were cut is inside the reserve
forest, a Hillmen settlement and it can only be treated as
part of the reserve forest. If so it cannot be said that an
offence under section 27(1)(e)(iii) is not attracted. In
such circumstances, the crime cannot be quashed as sought
for.
6. Though learned counsel appearing for the petitioner
submitted that the vehicle seized by the forest officials
is to be directed to be released to the petitioner, he
being the owner of the vehicle, when a vehicle is seized
for involving in a forest offence it is liable to be
confiscated. Hence remedy of the petitioner to get interim
custody is to approach the appropriate authorised officer
under section 61A for interim custody. If an application
is filed, appropriate order is to be passed, in accordance
with law.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
Crl.M.C.3464/2009 5
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006