Baiju vs State By
2023 Latest Caselaw 726 Mad

                                                                                  Crl.A.No.399 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 19.01.2023

                                                          CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                  Crl.A.No.399 of 2016

                    Baiju                                                     ...Appellant

                                                           Versus
                    State by,
                    The Forest Range Officer,
                    Valparai Range,
                    O.R.No.54 of 2001,
                    Coimbatore District.                                      ...Respondent

                    Prayer: Criminal Appeal filed under Section 374 (2) of Criminal Procedure
                    Code, to set aside the conviction and sentence imposed in Judgment dated
                    07.04.2016 made in C.C.No.14 of 2008 on the file of the learned Additional
                    District Sessions Judge/Special Court for Essential Commodities Act Cases,
                    Coimbatore, by allowing this Criminal Appeal.

                                          For Appellant      : Mr. N.Manokaran

                                          For Respondent     : Mr.R.Kishore Kumar,
                                                               Government Advocate (Crl.Side)

                                                      JUDGMENT

The Forest Range Officer, Valparai Range has filed a final report in

O.R.No.54 of 2022 before the Additional Sessions Judge cum Special Court

under the Essential Commodities Act, Coimbatore, which was taken on file https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

as C.C.No.14 of 2008 in and by which, the appellant herein as the first

accused (A1) was charged for the commission of the offences under

Section 8(b) r/w 20(a) of the Narcotic Drugs and Psychotropic Substances

Act, 1985; under Section 21(d)(e)(f) r/w 21 (2) of the Tamil Nadu Forest

Act, 1882 and under Sections 27(1), 29, 30, 31, 32 of the Wildlife

Protection Act, 1972.

2. Originally, in this case, there were totally six accused, of whom, the

accused Nos.2, 3, 4 and 5 remain untraceable, therefore, the case against

them was split up and the accused/A1 & A6 alone were tried as accused

No.1 & 2 in the above said C.C.No.14 of 2008.

3. Upon the charges being framed and questioned, the accused denied

the charges and stood trial. The prosecution examined one Arjunan,

Forester, who was part of the team which went to the spot on receipt of

information and conducted the search, caught hold of the appellant and

recovered the contraband and other items. Similarly, one Lakshamanasamy

and one Chinnasamy, who were also Foresters and were also part of the

team, were examined as P.W.2 & P.W.3. The Forensic Expert who analysed

the contraband and gave a report was examined as P.W.4. The Head Clerk https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

of the concerned Court, who sent the contraband for analysis, upon

receiving the samples was examined as P.W.5. One Moorthy and One

Sivamani, both Forest Range Officers, who had completed the investigation

and had laid down a final report, were examined as P.W.6 & P.W.7. On

behalf of the prosecution, Exs.A-1 to A-11 and M.O.1 to M.O.18 were also

marked.

4. Upon being questioned about the incriminating circumstances and

material evidence on record under Section 313 of the Criminal Procedure

Code, the accused denied the same as false. Thereafter, no evidence was let

in on behalf of the defense.

5. Thereafter, the Trial Court proceeded to hear the Learned Special

Public Prosecutor on behalf of the prosecution and the learned Counsel for

the accused, and by a Judgment dated 07.04.2016, acquitted the second

accused, namely, Manoj (originally the accused No.6), but convicted the

appellant (the accused No.1) as follows:

i) for the offences under Section 21(d)(e)(f) r/w 21 (2) of the

Tamil Nadu Forest Act, 1882, imposed punishment of three years Rigorous

Imprisonment and fine of Rs.500/-, in default of payment of fine to undergo https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

two weeks Simple Imprisonment;

ii) under Section 8(b) r/w 20(a) of the Narcotic Drugs and

Psychotropic Substances Act, 1985, imposed punishment of three years

Rigorous Imprisonment and fine of Rs.25,000/-, in default of payment of

fine to undergo nine months Rigorous Imprisonment; and

iii) for the offences under Section 27(1), 29, 30, 31, 32 of the

Wildlife Protection Act, 1972, imposed punishment of three years Rigorous

Imprisonment and fine of Rs.25,000/-, in default of payment of fine to

undergo nine months Rigorous Imprisonment.

Aggrieved by the conviction and sentence, the present Criminal

Appeal is laid before this Court.

6. Heard Mr.N.Manoharan, learned Counsel appearing on behalf of

the appellant and Mr.Kishore Kumar, learned Government Advocate

(Criminal Side) appearing on behalf of the prosecution.

7. Mr.N.Manoharan, learned Counsel for the appellant taking this

Court through the entire evidence on record and documents produced by the

prosecution would contend that the very identity and existence of the

Accused no.2 to 5 remains a mystery as till date as they are elusive that https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

throws considerable doubt on the very case of the prosecution.

8. The learned Counsel would further submit that as far as the

appellant is concerned, it can be seen that the allegations are that P.W.1 to

P.W.3/Foresters seized about 1,500 Ganja saplings by which only five

saplings are said to have been taken as samples. Even among the said five

samples only 1 sapling alone weighing 3.4 gms was sent for analysis.

9. The learned Counsel would contend that the alleged occurrence is

said to have happened on 11.10.2001, in and by which, it is alleged that the

appellant was apprehended on the spot, however, even the said samples are

said to have been taken from the 1500 saplings were not produced before

the Court at the time of remand. It was produced for the first time only after

a delay of 28 days i.e., on 29.10.2001, before the Trial Court. There is

absolutely no evidence on record to show the manner of custody of the said

saplings from the alleged date of seizure till date of production before the

learned Magistrate and thus, the belated production of the sample for testing

is fatal to the case of the prosecution.

https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

10. He would further contend that on a perusal of the evidence of

P.W.4, the Expert in this case, it would be clear that when he examined the

alleged sapling, it was fresh. The saplings were allegedly examined on

09.11.2001. But, had the Ganja saplings were recovered on 11.10.2001

there was no way for sapling to remain fresh for almost a period of one

month after it was packed in a polythene cover. The same would clearly

falsify the case of the prosecution, and in any event, it throws considerable

doubt on the case of the prosecution. He would further submit that the

alleged Ganja seeds were not sent for analysis and only on the analysis of

the lone sapling, the appellant is charged.

11. He would further submit that the other items which were

recovered from the appellant are the cooking utensils and other necessary

items of the accused, which were projected by the prosecution as if they are

all weapons and other tools. Even in respect of cutting the trees except for

the ipsi dixit of P.W.1 & P.W.3, no evidence whatsoever was produced

before the Trial Court either by producing the felled or cut wood or trees or

by the production of any other evidence in respect thereof.

https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

12. The learned Counsel would further submit that, as far as the

Wildlife Protection Act also, it is for the prosecution to prove beyond doubt

that the alleged place in which the appellant was apprehended was a

Reserve Forest/Wildlife Sanctuary. The only document which was

produced by P.W.1 is a Gazette Copy and it is totally illegible. From the

same, nobody can conclude that the alleged place in which the accused was

apprehended was actually a reserve forest. Therefore, he would submit that

the prosecution has not proved any of the offences alleged and would pray

that the appeal be allowed.

13. Per contra the learned Government Advocate (Criminal side)

would submit that in this case, P.W.1 & P.W.3 have categorically conducted

the inspection and caught the appellant herein red handed. As far as the

other accused is concerned, they are absconding and the case was split up

and they will be traced out and then prosecuted in the split up case. The

three foresters could catch hold only the appellant alone and therefore, the

other accused could not be apprehended immediately. He would further

submit that as far as the offences are concerned, it is very clear that the

appellant had actually been cultivating and was attempting to re-plant the

Ganja saplings and therefore, the offence under Sections 8(b) r/w 20(a) of https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

the Narcotic Drugs and Psychotropic Substances Act, 1985 is categorically

made out once the saplings have been seized and proved to be contraband. It

is not necessary that the entire 1500 saplings which were seized must be

produced before the Court and they were duly destroyed in the manner

known to law. Adequate sample had been taken and was duly analysed and

P.W.4, the Forensic Expert, who analysed the sample of Ganja saplings, has

been examined and from the evidence the prosecution has proved that the

appellant was trying to grow Ganja plants inside the Reserve Forest, so as to

illegally commercially exploit the same. Therefore, the Trial Court has

rightly convicted the appellant. He would further submit that from the

circumstances, the very presence of the appellant along with the other

material objects such as Matchbox, Kerosene Lamp, Tools such as Saws,

Cutters etc., would clearly prove that they were actually for cutting the trees

inside the Reserve Forest and leveling the field, so that they can plant the

saplings and do the cultivation. This attempt was thwarted upon specific

information. Therefore, the other offences under the Tamil Nadu Forest Act,

and Wildlife Protection Act, have been categorically proved. The very

smuggling of the chemicals and other items inside the Reserve

Forest/Wildlife Sanctuary by itself poses great threat to the fauna and flora

inside the forest. Therefore, the Trial Court has rightly convicted the https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

appellant and would pray for the appeal be dismissed.

14. I have considered the rival submissions made on either side and

perused the material records of this case.

15. In respect of the charge under Section 8(b) r/w 20(a) of the NDPS

Act, it can be seen that at the time of seizure except for the three foresters

no other independent witnesses was available. That is explainable because

of the circumstances of the case that the inspecting party has gone deep

inside the forest. But, however, once the accused was apprehended on the

spot and was produced before the Court, time and again it has been insisted

that at the time of production itself the alleged contraband which is seized

has to be produced before the Court. A perusal of the material records of

the case would clearly show that initially when the Form-H was produced, it

was returned by the Trial Court only for the non-production of saplings

along with it. As rightly contended by the learned Counsel for the appellant,

much belatedly, that is, only on 29.10.2001, the sample is produced before

the Court. The said time period ought to have been explained by the

prosecution. Even if the saplings are not produced before the Court,

prosecution can explain the proper custody of the samples which is drawn https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

by it by adducing evidence as to whether the sample was in the custody of

P.W.1 or by the Investigation Officer or whether it was kept under any other

godown maintained for the said purpose with due entries thereon. However,

this is absolutely not spoken by any of the witnesses and therefore, there is

no evidence absolutely as to the custody of the contraband and there is an

enormous delay of 28 days. Therefore, I am of the view that the said delay

coupled with the fact that there is no evidence to explain the said delay,

throws doubt on the case of the prosecution. More so the plant was fresh

when it was examined/analysed by P.W.4, on 09.11.2001. In that view of

the matter, I am of the view that the appellant is entitled to the benefit of

doubt with respect to the offence under Section 8(b) r/w 20(a) of the NDPS

Act.

16. As far as the offence under Section 21(d)(e)(f) r/w 21 (2) of the

Tamil Nadu Forest Act, 1882, even though the learned Counsel for the

appellant would raise a doubt that the prosecution has not properly proved

that the place is Reserve Forest or Wildlife Sanctuary, when the prosecution

witnesses have marked Ex.A-11, the entire Gazette containing survey

numbers of the entire area, just because it is an old Gazette and it is not

properly legible, in the absence of specific cross-examination by the defense https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

eliciting any answer in their favour and when P.W.1 to P.W.3 have asserted

that the place was a Reserve Forest/Sanctuary, the submission on behalf of

the appellant is rejected.

17. The Trial Court also only awarded the punishment of three

months Rigorous Imprisonment and imposed fine of Rs.500/- in respect of

the offence under Section 21(d)(e)(f) r/w 21 (2) of the Tamil Nadu Forest

Act, 1882. So far he been in prison for the total period of 128 days and

therefore, has even undergone three months period of imprisonment, being

the substantive sentence.

18. Similarly, as far as the offences under Section 27(1), 29, 30, 31,

32 r/w Section 51 of the Wildlife Protection Act, 1972 is concerned, I am

of the view that the allegation is, for the purpose of cultivating the Ganja

plant the appellant had gone into the Wildlife Sanctuary with tools like Saw,

Matchbox, Kerosene lamp etc. The primary allegation by the prosecution

being the cultivation of Ganja plant remains unproved and considering the

overall facts and circumstances of the case, the conviction and sentence

imposed by the Trial Court i.e., the punishment of three years of Rigorous

Imprisonment is excessive and the interests of justice will be best served if https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

the substantive sentence alone be reduced to that of the period of

imprisonment already undergone (i.e., 128 days) in this case. The fine

amount of Rs.25,000/- is maintained.

19. In the result,

(i) Crl.A. No. 399 of 2016 is partly allowed;

(ii) The appellant is acquitted of the offense under Section 8(b)

r/w 20(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985;

(iii) The appellant's conviction for the offenses under Sections

21(d)(e)(f) r/w 21 (2) of the Tamil Nadu Forest Act, 1882 and the sentence

of three months Rigorous Imprisonment imposed by the Trial Court is

confirmed and the fact that the appellant has already undergone the said

sentence is recorded. The appellant is also liable to pay a fine of Rs.500/-

within 15 days from the date of receipt of a copy of the Judgment, if not

already paid and in default of payment of fine shall undergo Simple

Imprisonment for a period of two weeks;

(iv) The appellant's conviction for the offenses under Sections 27(1),

29, 30, 31, 32 r/w Section 51 of the Wildlife Protection Act, 1972 is

confirmed and the substantive sentence of Rigorous Imprisonment of three

years imposed by the Trial Court is modified as period already undergone https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

and the fine amount of Rs. 25,000/- imposed by the Trial Court is

confirmed. The appellant is granted 15 days time from the receipt of a copy

of this Judgment to pay the fine amount, if not already paid and in default to

undergo three weeks of Simple Imprisonment.

19.01.2023

Index:Yes/No Speaking order/Non-speaking order Neutral Citation : Yes/No

klt

To

1.The Additional District Sessions Judge/Special Court for Essential Commodities Act Cases, Coimbatore.

2.The Forest Range Officer, Valparai Range, Coimbatore District.

3.The Public Prosecutor, Madras High Court.

https://www.mhc.tn.gov.in/judis

Crl.A.No.399 of 2016

D.BHARATHA CHAKRAVARTHY, J.

klt

Crl.A.No.399 of 2016

19.01.2023

https://www.mhc.tn.gov.in/judis