The challenge is against the concurrent findings of the courts below in a prosecution under Section 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act. Apart from the challenge against the appreciation of evidence of DWI and DW2, the point raised before me by the learned defence Counsel is as follows:-

It is the submission that as per the dictum laid down by this Court in Mundamdra Kareem and Another v. Deputy Ranger, Forest Station, Pothukal and Another reported in [2014 (4) KHC 529], the conviction and sentence under Section 27(I)(e)(iii) alone need be therein. The ingredients of Section 27(I)(e)(iv) will be over lapping the earlier one.

The second point raised before me is regarding the proof of reserve forests as required under Section 19 of the Forest Act. A copy of notification as required to be certified under Section 57 of the Evidence Act was not produced in this case. Hence, it is contended that it is not proved that the incident occurred in a reserved forest. In this regard, the learned counsel highlighted the decision in Jose Uthuppan and Another v. Forest Range Officer, Pathanamthitta and Another reported in [2015 (4) KHC 761].

2. I heard the learned Special Government Pleader (Forest).

3. Facts of the case:-

On 02.10.1996, Forest officials attached to Plappally Forest Station was on beat duty in Plathodu Nalumukku forest area of Goodrical Forest Range. They saw two persons carrying Teak logs. They were intercepted. They had felled a teak tree from the forest and attempted to remove the same from the reserved forest and thereby caused a loss of Rs.2,000/-. Prosecution altogether examined 5 witnesses and Exts.P1 to P5 were marked. On the side of the defence, DWI and DW2 were examined. Prosecution case is that appellants were arrested from the forest while carrying the teak logs, whereas the defence case was that appellants were taken into custody from their houses and a false case has been foisted. After appreciating the evidence, two courts believed the prosecution case and disbelieved the evidence adduced by the defence.

4. Two courts below, after appreciating the evidence, found that accused was found carrying teak logs and felled teak tree. A re-appreciation of evidence in that regard is not necessary. The next question raised before this Court is that whether the prosecution succeeded in proving that the tree was felled from a reserved forest to attract the offence, further conviction and sentence under two heads were necessary.

5. Following the decision laid in Chacko Pyli and Others v. State of Kerala [1966 KLT 102], this Court held in Jose Uthuppan and Another v. Forest Range Officer, Pathanamthitta and Another reported in [2015 (4) KHC 761] that for a person can be held guilty, the prosecution has to establish that the act complained was done in a reserved forest and further held that to establish the commission of offence in a reserved forest, the prosecution must either produce gazette containing notification or a certified copy of notification and adduce evidence of its publication in Gazette.

6. A Single Bench of this Court earlier doubted the correctness of dictum laid down in Chacko Pyli and Others v. State of Kerala (supra) and on reference, it was considered by a Division Bench of this Court in S.Nagarajan, Assistant Collector of Customs v. Vasanthkumar and Another reported in [1988 Crl.LJ 1217]. In para 17 of the said judgment the court held that “The long line of decisions of the Supreme Court referred to above would lead to the conclusion that power exercised by the executive by virtue of the conferment of the delegated authority by the Statute is a legislative Act and hence law within the meaning of Section 57 of the Evidence Act.''

7. This Court while rendering the decision in Jose Uthuppan and Another v. Forest Range Officer, Pathanamthitta and Another reported in [2015 (4) KHC 761] was considering a prosecution case where allegation was that accused blasted stones from the land occupied