Seerangan vs Forest Range Officer, Servarayan South Range

S. Sardar Zackria Hussain, J.—This revision is filed by the accused in C.C.No.761 of 1994 on the file of the Special Judicial Magistrate (for

Sandalwood Offences), Salem, challenging the judgment dated 28.6.2002 and made in Criminal Appeal No.23 of 2000 on the file of the

Additional District and Sessions Judge, (Fast Track Court No.1), Salem, confirming the conviction and sentence of two years rigorous

imprisonment and the fine of Rs.5,000/- on each counts, in default to undergo six months simple imprisonment each for the offences u/s 21(d) and

(f) of the Tamil Nadu Forest Act, 1882.

The Forest Range Officer, Servarayan South Range, Salem, filed a complaint that on 29.3.1992 at 5.00 a.m. while checking Kurumbappatti,

Kappukadu, Thekkappatti and Aruvankurai forest region by P.W.2, the Forest Ranger, Jayapal, the Forester, Munusamy and David, the Forest

Rangers and Perumal, Rajendran and Ramadass, the Forest Guards, headed by him; the accused along with Sudhakar and Chinnakannan by

trespassing into the forest found transporting sandalwood weighing 196.500 kilo grams in Ambassador Car bearing registration No.TAB 1437;

under Sections 21(d) and (f), 35 and 36 of Forest Act, 1882; Rules 3 and 7 of Tamil Nadu Sandalwood Possession Rules, 1970 and Rule 3 of

Tamil Nadu Sandalwood Transit Rules, 1967.

The case against the other two accused were split up.

In the trial in respect of the revision petitioner, Seerangan, the Special Judicial Magistrate (for Sandalwood Cases), Salem, considering the

evidence adduced on the side of the complainant through P.Ws.1 and 2 and Exs.P-1 to P-8 and also the evidence of the accused as D.W.1 and

accepting the case of the complainant as proved as per such evidence, found the revision petitioner guilty and accordingly convicted and sentenced

as set out above. In the appeal in C.A.No.23 of 2000 on the file of the learned Additional District and Sessions Judge, (Fast Track Court No.I),

Salem, the conviction and sentence has been confirmed by the learned Additional District and Sessions Judge which made the revision

petitioner/accused to prefer this revision.

Heard the learned counsel appearing for the revision petitioner/accused and the learned Government Advocate (Criminal Side) appearing for the

respondent.

The learned counsel appearing for the revision petitioner/accused vehemently contended that the conviction and sentence awarded to the

revision petitioner/accused is not proper, in view of the fact the respondent failed to prove the charges levelled against the accused, inasmuch as

the properties seized, viz., sandalwood and Ambassador Car had not been produced before the Special Judicial Magistrate (for sandalwood

offences), Salem. The learned counsel also submitted that the respondent/complainant failed to prove the place of occurrence as reserve forest

warranting prosecution under the Forest Act. The learned counsel also argued that P.W.1 being the complainant, the investigation made by him

and filing of the complaint is not proper. The learned counsel also pointed out that the delay in producing the properties before the Judicial

Magistrate Court between 29.3.1992 to 2.4.1992 and thereafter, has not been satisfactorily explained. It is further contended by the learned

counsel that it is not proved that the properties actually seized from the accused alone were produced in the Court of Judicial Magistrate and taken

back since the properties have not been identified by the witness in the Court of Judicial Magistrate on production of such properties.

The learned Government Advocate (Criminal Side) argued that inasmuch as the revision petitioner/accused gave confession statement Ex.P-1

admitting the offence and the properties, viz., sandalwood and Ambassador Car also have been seized under mahazar Ex.P-2 and the area is

forest area as per Government Notification Ex.P-5, the learned Special Judicial Magistrate (for sandalwood offences) and the trial Court

considering such documents and also the evidence of P.Ws.1 and 2, rightly found that the prosecution has proved the case against the accused

beyond reasonable doubt and therefore, the conviction and sentence awarded to the accused finding him guilty for the offence u/s 21(d) and (f) of

the Forest Act, have been rightly confirmed by the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem.

As regards the non-production of properties, viz., sandalwood and the Ambassador Car in which the sandalwood was alleged to have been

transported by the accused along with two others, the learned Government Advocate (Criminal Side) argued that though the properties were not

actually produced in the Court of Special Judicial Magistrate (for Sandalwood Offences), Salem, during trial, the properties seized under mahazar

Ex.P-2 were produced along with the accused at the time of remand in the Judicial Magistrate Court, Omalur and on return by that Court the

properties were kept safely in the Forest Office and again they were produced on 2.4.1992 in the Court of Judicial Magistrate, Omalur, and taken

back on return by the Judicial Magistrate Court, Omalur, and were kept in the Forest Range Office, Servarayan South Range, and therefore, the

non-production of the said properties during trial is not fatal to the case of the prosecution.

In paragraph 12 of the judgment of the Special Judicial Magistrate (for sandalwood offences), Salem, it is stated that the properties seized in the

case were produced on 29.3.1992 along with the accused in the Judicial Magistrate Court, Omalur and since it was night it was directed to be

produced on some other date and pursuant to such direction, again the properties were produced on 2.4.1992 before the Judicial Magistrate,

Omalur, which have been received in Case Property No.156 of 1996 and again returned for safe custody to be kept in the Forest Range Office.

Incidentally the learned Special Judicial Magistrate (for sandalwood offences) has stated that the Forest Officer is empowered to confiscate the

property so seized and therefore, the non-production of the properties seized is not fatal to the case of the complainant.

It is not the case of the respondent/complainant that the properties seized were ordered to be confiscated by the authority concerned.

Admittedly, the properties were produced during night on 29.3.1992. Therefore, it does not stand to reason as to why the properties were not

produced at the time of trial in the Court of the Special Judicial Magistrate (for sandalwood offences), Salem, despite the fact P.Ws.1 and 2 were

cross-examined for non-production of the properties. Therefore, it cannot be said that the properties alleged to have been seized from the accused

on 29.3.1992 were actually produced in the Judicial Magistrate Court, Omalur at the time of remand of the accused during night on 29.3.1992 and

were returned for safe custody and again the same properties were produced on 2.4.1992 and after assigning number as C.P.No.156 of 1996

again the properties were returned for safe custody to the Forest Ranger Officer.

Therefore as per the alleged confession statement Ex.P-1, it cannot be said that the respondent/complainant has proved the offence levelled

against the revision petitioner/accused. The Supreme Court in Mrs. Bama Vs. Mrs. Rukiyal Bivi, ruled:-

In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the

possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and

marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of

panchanama does not discharge the heavy burden which lies on the prosecution.

As held by the Supreme Court, the respondent/complainant failed to establish the offence against the revision petitioner/accused by producing the

sandalwood and also the Ambassador Car bearing registration No.TAB 1437 in which, it is alleged, at the time of occurrence the sandalwood was

transported by the accused along with two others. The non-production of the properties seized under Ex.P-2 during trial is very much fatal to the

case of the complainant. It follows the judgment of the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem in

confirming the conviction and sentence awarded by the learned Special Judicial Magistrate (for Sandalwood Offences), Salem in C.C.No.761 of

1994 being erroneous, is to be set aside.

In the result, in view of the discussions made above, the revision is allowed. The judgment dated 28.6.2002 made in C.A.No.23 of 2000 on

the file of the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem is set aside and the revision petitioner is acquitted

from the charges levelled against him. The fine amount paid by the revision petitioner/accused is ordered to be refunded. No costs.