IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5300 of 2008()
1. BAINU THOMAS, S/O.THOMAS
... Petitioner
2. BINU JOSEPH, S/O.JOHN,
3. SUBIN JACOB, S/O.CHACKO
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :17/10/2008
O R D E R
K.HEMA, J.
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B.A. No.5300 OF 2008
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Dated this the 17th day of October, 2008
O R D E R
This petition is for anticipatory bail.
2. The alleged offences are under Section 27(I),3, iii of
Kerala Forest Act and under Section 5(I) and (9) of Kerala
Preservation of Trees Act. According to prosecution, the
petitioners, who are accused Nos.4 to 6, purchased a rose wood
tree from the first accused and it was cut down at their instance
and when it was being removed, the forest officials detected the
crime and the tree was removed and the crime was detected by
forest officials and a crime was registered under various Sections
as stated above. The second accused is the person who mediated
into the transaction and the third accused is the driver of the
jeep, in which, the tree was transported.
3. Learned counsel for the petitioners submitted that the
offence under Section 27 is the only non bailable offence, in this
case. But, the said offence is not attracted, since even as per the
allegations in the prosecution records, the tree was standing in
B.A.5300 of 2008
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the “Cardamom hill reserve”. Only if a tree is cut and removed
from a “forest”, the offences will be attracted. Admittedly, the
hill reserve is in the possession of the first accused, from whom,
the petitioners allegedly purchased the tree. It is also submitted
that the petitioners have not cut the tree, but only a dry tree was
removed and the prosecution records will show that it was a dry
tree. It is also pointed out that if a rose wood tree is cut and
removed from Cardamom hill reserve, only a permission need be
taken from the authorities for such removal and if such
permission is sought for, the authorities are bound to give the
same, as per section 5 of Kerala Preservation of Trees Act.
Probably, the first accused did not take such permission, and that
is the only reason for registering the case, and the offence under
Section 27 is included, with a view, to harass the petitioners, it is
submitted.
4. Learned Public Prosecutor submitted that the offences are
serious in nature. The place from where the tree is removed is
not a patta land and it can therefore, be treated as a government
land and it is a part of the reserved forest and therefore, the
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offence is clearly attracted. As per the allegations, the tree was
cut and thereafter it was removed and the offence was detected
only much later and by the time, the tree became dry but it does
not mean that no offence is committed. Taking into
consideration, the serious nature of the offences committed,
anticipatory bail may not be granted, it is submitted.
On hearing both sides, I find that there is an arguable case,
regarding the nature of the property from where the tree was cut
and the involvement of Section 27 of Forest Act which is the only
non-bailable offence. In the above circumstances, I find that it is
fit and proper to grant anticipatory bail and the following order is
passed :
The petitioners shall surrender before the
Investigating Officer within 7 days from today and
in the event of their arrest, they shall be released
on bail on their executing bond for Rs.25,000/-
each with two solvent sureties each for like sum to
the satisfaction of the Arresting Officer on the
following conditions :
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i. The petitioners shall make themselves
available for interrogation as and when
directed.
ii. The petitioners shall co-operate with the
investigation.
iii. The petitioners shall not commit any
offence while on bail.
The petition is allowed.
K.HEMA, JUDGE
pac