Kerala High Court

Abdul Gafoor vs State Of Kerala on 23 February, 2024

Author: C.S.Dias

Bench: C.S.Dias

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
 FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
                   BAIL APPL. NO. 10660 OF 2023
    CRIME NO.9/2023 OF Mupliyam Forest Station, Thrissur
PETITIONER/S:

    1    ABDUL GAFOOR,AGED 45 YEARS,S/O.HAMZA, NAMBIATH
         HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582

    2    NISAR,AGED 32 YEARS,S/O.HAMZA, NAMBIATH HOUSE,
         MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582

    3    MUHAMMED SHAREEF,AGED 43 YEARS
         S/O.SAIDALAVI, ACHIPRA HOUSE, MANNARKKAD, PALAKKAD
         DISTRICT, PIN - 678582

    4    AKBAR ALI,AGED 46 YEARS,S/O.HAMZA, NELLIKKOTTAYIL
         HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 678582

         BY ADV BABU S. NAIR

RESPONDENT/S:

    1    STATE OF KERALA,
         REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
         KERALA, ERNAKULAM, KOCHI, PIN - 682031

    2    THE DEPUTY RANGE OFFICER,
         MUPLIYAM FOREST STATION, VELLIKULANGARA FOREST
         RANGE, THRISSUR DISTRICT, PIN - 680312

         SPECIAL PP Sri Nagraj Narayanan,Sr PP Sri Aravind
         Mathew ,Sr PP Smt Neema T.V ,PP Smt Nima Jacob



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.02.2024,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                            2
Bail Application No. 10660 of 2023


                                       C.S.DIAS,J
                      ======================
                   Bail Application No. 10660 of 2023
                       -----------------------------------
                 Dated this the 23rd day of February, 2024
                                       ORDER

The application is filed under Section 438 of the Code

of Criminal Procedure, 1973, for an order of pre-arrest

bail.

2. The petitioners are the accused 6 to 9 in OR

No.9/2023 of the Mupliyam Forest Station in

Vellikulangara Forest Range in Chalakkudy Division,

Thrissur District, registered against the accused (nine in

number) for allegedly committing the offences punishable

under Sections 27 (1) e (iii) (iv) and 47A, B, C, D, G, H of

the Kerala Forest Act, 1961 (in short, 'Act').

3. The crux of the prosecution case is that: some of

the accused had trespassed into the Areswaram area of

the Kodassery notified Reserve Forest and by using tools

had illegally felled, converted and removed three sandal

Bail Application No. 10660 of 2023

trees with vehicles, and caused a loss of Rs.6000/- to the

exchequer. The Mupliyam Forest Station filed Form I

report before the jurisdictional Magistrate on 14.8.2023.

The investigation has revealed that it was the 3 rd accused

and other persons who committed the crime. The 4 th

accused had transported the sandalwood and gave it to the

accused 6 to 9. The confession statements of the 4 th

accused reveals that the accused 6 to 9 had pre-planned

the crime. Thus, the accused have committed the above

offences.

4. Heard; Sri. Babu S. Nair, the learned counsel

appearing for the petitioners, Sri, Nagaraj Narayanan, the

learned Special Public Prosecutor.

5. Sri. Babu S Nair strenuously argued that the

petitioners have been falsely implicated in the crime.

Other than for the alleged confession statement of the 4 th

accused there is nothing on record to connect the

petitioners with the crime. The so called confession

statements are inadmissible in evidence, in view of the

Bail Application No. 10660 of 2023

law laid down by this Court in Luca Beltrami and Others

v. State of Kerala, [2020 (4) KHC 603], Prakashan v.

State of Kerala [2023 (1) KHC 536] and Gopi v. State of

Kerala [2024 KHC 18]. He also relied on the provisions

under Section 72 of the Act, Article 20(3) of the

Constitution of India and Section 25(3) of the Evidence

Act, to fortify his contention that a confession recorded by

a Forest Officer cannot be used in evidence. According to

him, the whole case set up by the prosecution, against the

petitioners, based on the alleged confession of the 4 th

accused is a nullity as held by this Court in Prakasan's

case. He further contended that the petitioners are the

law abiding citizens and have no criminal antecedents. The

petitioners are ready to abide by any stringent conditions

that may be imposed by this Court. They are also willing

to co-operate with the investigation.

6. The learned Special Public Prosecutor seriously

opposed the application. The Investigating Officer has also

filed a bail objection report. The learned Special Public

Bail Application No. 10660 of 2023

Prosecutor placed reliance on the decisions of the

Honourable Supreme Court in Badku Joti Savant v

State of Mysore [ AIR 1966 SC 1746] Moti Lal v.

Central Bureau of Investigation [2001 KHC 2250] and

the decisions of this Court in Forest Range Officer v.

Aboobacker[1989 KHC 201] and Kunhali and others v.

Forest Range Officer and another [2012 KHC 231], to

canvass the position that the confession recorded by the

forest officer is admissible in evidence. He contended that

the arguments of the learned counsel for the petitioners is

untenable. In addition to the above contention, he also

submitted that there are other incriminating materials,

including the pictures recovered from the mobile phone of

the 4th accused, with the pictures of the farm house of the

6th accused. The investigation has also revealed that the

accused have jointly travelled in a car and passed through

the Paliyekkara Toll Plaza in Thrissur District. He

submitted that the accused 6 and 7 have criminal

antecedents. The petitioners custodial interrogation is

Bail Application No. 10660 of 2023

necessary and recovery is to be effected. If the petitioners

are granted an order of pre-arrest bail, it would hamper

with the investigation. Hence, the application may be

dismissed.

7. From the materials placed on record, the gist of

the prosecution allegation is that, the accused 1 to 3 cut

and removed six sandal trees from the Kodassery notified

Reserve Forest, which was transported by the 4 th accused

and given to the petitioners.

8. The 4th accused was implicated on the basis of the

confession made by the accused 1 to 3 and consequently

he was arrested. Then, the 4 th accused in his interrogation

allegedly confessed that he had given the sandalwood to

the petitioners - accused 6 to 9. Therefore, the petitioners

have been implicated, on the alleged confession made by

the 4th accused.

9. Section 72 of the Kerala Forest Act, 1961 reads as

follows:-

" 72. Investing Forest Officers with powers. - The Government may invest any Forest Officer not below the rank of an Assistant Conservation of

Bail Application No. 10660 of 2023

Forests with all or any of the following powers, and may withdraw the same:-

(a) power to enter upon any land and to survey, demarcate and make a map of the same ,

(b) powers of a Forest Settlement Officer;

(c) powers of a Civil Court to compel the attendance of witnesses and the production of documents ;

(d) power to hold inquiries into forest offences and, in the course of such inquiries, to receive and record evidence and to issue search warrants which may be executed in the manner provided by the Code of Criminal Procedure, 1898;

(e) power to accept compensation for forest offences under section 68 of this Act

Any Evidence Recorded Under Clause (D) Of This Section Shall Be Admissible In Any Subsequent Trial Of The Alleged Offender Before A Magistrate ; Provided That it Has Been Taken In The Presence Of The Accused Person And recorded In The Manner Provided By The Code Of Criminal Procedure, 1898."

10. While interpreting Section 72 of Forest Act,

1961, this Court in Luca Beltrami's case has held thus:-

"8. Therefore, the Forest Range Officer and the Deputy Forest Range Officer by whom the enquiries into the alleged offence have been made and confession statements of the petitioners have been recorded, are not empowered by the Act to do so. In the said circumstances, the proceedings conducted by them are without authority invested by the Act and therefore illegal. The evidence in the case on hand, having been

Bail Application No. 10660 of 2023

collected by officers not empowered to do so, the prosecution undoubtedly is devoid of basis and is only to fail. Xxxxxxx"

(emphasis supplied)

11. This Court in dealing with an analogous provision

to Section 72 of the Act, namely Section 50 of the Wild

Life Protection Act, 1972, in Prakashan's case, while

considering an application filed under Section 438 of the

Code, has succinctly observed thus:-

"5. The learned Counsel for the petitioners pointed out a very serious anomaly insofar as the investigation and recording of the confession by the Investigating Officer herein, who is none other than the Forest Ranger who is not authorised under S.50(8) of the Wild Life (Protection) Act, 1972 neither to investigate nor to record confession. The learned Counsel for the petitioner placed two decisions on this point. Luca Beltrami and Others v. State of Kerala reported in 2020 (4) KHC 603 is the final decision placed to substantiate the said point. Apart from that, he has placed decision of the Bombay High Court in Criminal Revision Application No.1 of 2015 rendered on 22/06/2015.

6. The learned Public Prosecutor though opposed this contention, she failed to go out of the orbit of S.50(8) of the Wild Life (Protection) Act, 1972. S.50 deals with the power of entry, search, arrest and detention of persons involved in offences under the Wild Life (Protection) Act, 1972. Sub-Sections (8) and (9) of S.50 of the Wild Life (Protection) Act provides as under:

(8) Notwithstanding anything contained in any other law for the time

Bail Application No. 10660 of 2023

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 authorised 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.

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 S.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

Bail Application No. 10660 of 2023

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."

(emphasis given)

12. Almost on the same lines in the afore-cited two

precedents this Court again while construing Section 50 of

the Wild Life Protection Act, in Gopi' s case has held in

the following lines:-

"5. xxxxxx 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

Bail Application No. 10660 of 2023

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."

(again emphasised)

Bail Application No. 10660 of 2023

13. The ratio decidendi in the above three precedents

of this Court leaves no room for any doubt that any officer

below the rank of Assistant Conservator of Forests does

not have the power to do any act prescribed under Section

72 of the Forest Act. Therefore, as rightly observed in

Prakashan's case, any confession recorded by any other

officer, other than the above Officer is a nullity and have

no sanctity in the eyes of law.

14. Admittedly, in the instant case, the confession of

the 4th accused has not been recorded by the above stated

Officer. There is also no other incriminating materials

placed before this Court to establish the involvement of the

petitioners in the crime.

15. Viewed in the above background and taking into

account the initial statement filed by the Investigating

Officer that the petitioners have been implicated on the

strength of the confession statement made by the 4 th

accused, I am prima facie of the view that the petitioners

have made out exceptional grounds to invoke the extra

Bail Application No. 10660 of 2023

ordinary jurisdiction of this Court under Section 438 of the

Code and have fulfilled the parameters laid down by the

Honourable Supreme Court in Siddharam Satlingappa

Mhetre v. State of Maharashtra [(2011) 1 SCC 694] and

a plethora of judgments warranting this Court to exercise

its discretionary powers. Hence, I am inclined to allow the

bail application, but subject to stringent conditions:-

In the result, the application is allowed subject to the

following conditions:

i) The petitioners are directed to surrender before the

Investigating Officer within one week from today.

ii) In the event of the petitioners' arrest, the

Investigating Officer shall produce them before the

jurisdictional court on the date of surrender itself.

iii) On such production, the jurisdictional court shall

release the petitioners on bail on them executing a bond

for Rs.1,00,000/- (Rupees One Lakh only) each with two

solvent sureties for the like amount each, to the

satisfaction of the jurisdictional court;

Bail Application No. 10660 of 2023

iv) The petitioners shall co-operate with the

investigation and make themselves available for

interrogation as and when directed by the Investigating

Officer ;

v). The petitioners shall not intimidate witnesses or

interfere with the investigation in any manner;

vi). The petitioners shall not get involved in any other

offence while on bail.

vii). In case of violation of any of the conditions

mentioned above, the jurisdictional court shall be

empowered to consider the application for cancellation of