Kumar v. State represented by Forest Range Officer Vellore Range

B A I L S L I PThe Petitioner/Accused namely Kumar, Chandrakumar andMurugesan were directed to be released on bail as per order ofthis Court made in Crl.MP.No.1/2008 dated 8.2.2008 inCrl.RC.No.183/2008 on the file of the High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.07.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.183 of 20081.Kumar2.Chandrakumar3.Murugesan .. Petitioners/ accused 2,3 and 4VersusState represented by Forest Range OfficerVellore Range,Vellore District(S.T.O.R.No.50 of 1995) .. Respondent/ComplainantPetition filed under Section 397 r/w 401 of Cr.P.C, againstthe order dated 23.10.2007 passed in Crl.A.No.34 of 2007, on thefile of the learned Additional Sessions Judge (Fast TrackCourt), Vellore, confirming the order passed in C.C.No.631 of2002, on the file of the Judicial Magistrate III, Thiruppathurdated 15.11.2005.For Petitioners : Mr.V.ParthibanFor Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor.- - - - -ORDERThe revision petitioners herein are the accused inC.C.No.631 of 2002, on the file of the Judicial Magistrate III,Thiruppathur, and they were convicted for the offence underSections 36(A) & (E) of Tamil Nadu Forest Act and sentenced toundergo rigorous imprisonment for two years each and to pay afine of Rs.7,500/- each in default to undergo simpleimprisonment for six months and the sentence are to run https://hcservices.ecourts.gov.in/hcservices/ concurrently. The said conviction and sentence were confirmedby the learned Additional Sessions Judge (Fast Track Court),Vellore. Aggrieved by the said conviction and sentence, thepetitioners preferred this criminal revision.2. The case of the prosecution in brief is as follows:On 01.08.1995, at about 05.00 a.m., P.W.4, the ForestOfficer on information went to the forest area at Arasanpattualleri along with other forest officers P.Ws.1, 2 and 5. Theysaw the accused keeping some gunny bags underneath bush. Theywere surrounded. Inside the gunny bag, they found sandal woodpieces. P.W.5 recorded the confessional statement from theaccused. The sandal wood pieces were recovered and they weregiven specific mark and mahazar also was prepared. The totalweight of the sandal wood was 464 kgs worth Rs.1,07,184/- . Thetrial Court after analysing the evidence let in by theprosecution, convicted the accused. The said conviction alsowas upheld by the appellate court. 3. Mr.V.Parthiban, learned counsel appearing for thepetitioners submitted that the properties said to have beenseized by the Forest officials has not been produced before thecourt and as such, the seizure of the property has not beenestablished by the prosecution. He also relied on the decisionof the Honourable High Court reported in 2005 Crl.L.J 987(Seerangan v. Forest Range Officer, Salem) wherein it has beenheld as follows:"As held by the Supreme Court, therespondent/complainant failed to establish theoffence against the revision petitioner/accused byproducing the sandalwood and also the Ambassador Carbearing registration No.TAB 1437 in which, it isalleged, at the time of occurrence the sandalwoodwas transported by the accused along with twoothers. The non-production of the properties seizedunder Ex.P.2 during trial is very much fatal to thecase of the complainant."4. The learned counsel for the petitioners further submittedthat even if the petitioners are not acquitted, they may bereleased under Probation of Offenders Act and submitted thatthere is no bar for releasing the petitioners under Probation ofOffenders Act, since application of Probation of Offenders Actis not specifically excluded in the Tamil Nadu Forest Act. 5. Per contra, learned Additional Public Prosecutorsubmitted that the decision cited by the learned counsel for thepetitioners is not applicable to the facts of the case, sincein that case, the occurrence related to the period prior to theamendment of Section 41 of the Act, which was brought intoeffect. As per Section 41(3), every officer seizing the https://hcservices.ecourts.gov.in/hcservices/ property should place a mark indicating the same has been seizedand on account of such seizure in respect of scheduled timbershall make a report to his official superior and produce beforethe authorised officer as per Section 49(A) being subjected toconfiscation.6. The learned Additional Public Prosecutor furthersubmitted that in this case, after the property was seized byP.W.2, Form-95 was prepared which was marked as Ex.P.6, and inthe said form-95, the authorised officer has made an endorsementfor having received those properties. 7. This Court considered the submissions made by the partiesand perused the records. It is the evidence of P.Ws.1,2 and 5that they had seen the accused in the forest area and theyseized the gunny bag containing the sandalwood pieces. Thetotal weight of the sandalwood was 464 Kgs. The confessionalstatement of the accused also was recorded. Though it iscontended by the learned counsel for the petitioners that theproperties cannot be produced before the Court, it affect thecase of the prosecution. On a perusal of the records, it is seenthat in Ex.P.6, an endorsement has been made by the authorisedofficer who is also an Assistant Forest Guard. Further, thematerial shows the properties which was seized were alsosubjected to confiscation. In the said circumstance, though theproperty seized were not produced before the Court, the relateddocuments have been filed before this Court. The propertieswere seized and they were sent to the custody of the authorisedofficers as per Section 41 and 49 of the Act. Further, theconfessional statement given by the accused were also marked,wherein they admitted their guilt.8. This Court does not find any infirmity in the orderpassed by the courts below convicting the petitioners.9. The learned counsel for the petitioner contended that theoffence committed was due to ignorance in the year 1995 and thefinal report was filed in the year 2002 and the Judgment wasdelivered by the trial Court in the year 2005 and the appeal wasdisposed in the year 2007. All the petitioners were in jailfor more than 90 days. The learned counsel for the petitionersfurther submitted that they are not involved in any other caseeither before or subsequent to this occurrence.10. In view of the circumstances pointed by the learnedcounsel for the revision petitioners, the petitioners being thefirst time offenders and the petitioners had to face theprotracted criminal proceedings for more than 15 years, thisCourt feels that it is not necessary to send the petitioners tojail. As this Court does not find any provision under the TamilNadu Forest Act, barring the applicability of the probation of https://hcservices.ecourts.gov.in/hcservices/ offenders Act, the petitioners could be released on probation ofoffenders Act.11. In the result, the conviction imposed on the petitionersis confirmed. But the sentence imposed on them are set aside.The revision petitioners are released on probation of goodconduct on entering into a bond for a sum of Rs.10,000/-(RupeesTen thousand only) each with one surety to the satisfaction ofthe trial Court and also to appear and receive the sentence whencalled upon during the period of two years and in the meantimeto keep the peace and be of good behaviour. The fine amountpaid by these petitioners shall be treated as compensation andcosts as provided under Section 5 of the Probation of OffendersAct.12. Except the above modification, the revision petition isdismissed.ksrSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Additional Sessions Judge, Fast Track Court, Vellore.2. Do Through the Prl Sessions Judge, Vellore3. The Judicial Magistrate III, Thiruppathur.4. The Chief Judicial Magistrate, Vellore.5. The Forest Range Officer, Vellore Range, Vellore District.6. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. E. Kannadasan, Advocate SR No.53574TRM(CO)SR/9.8.2010CRL.R.C.No.183 of 2008