Roji Augustin vs. State Of Kerala - Kerala High Court, 26 July 2021

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.

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

B.A. Nos.2109 & 4823 of 2021 4 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. 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

B.A. Nos.2109 & 4823 of 2021 5 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.

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

B.A. Nos.2109 & 4823 of 2021 6 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.

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,

B.A. Nos.2109 & 4823 of 2021 7 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.

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

B.A. Nos.2109 & 4823 of 2021 8 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.

I heard Adv. Sri.M.P. Ashok Kumar, the learned counsel for the

B.A. Nos.2109 & 4823 of 2021 9 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