The court emphasized the importance of following judicial precedents concerning the interpretation of offenses under the Kerala Forest Act as they apply to agricultural practices.

COMMON ORDER

These Criminal Miscellaneous Cases are filed challenging the orders passed by the Judicial Magistrate of First Class Court, Nedumkandam in a petition filed under Section 457 Cr.P.C. Crl.M.C.No.7377/2023 is filed against Annexure-2 order, Crl.M.C.No.7334/2023 is filed against Annexure-3 order and Crl.M.C.No.7440/2023 is filed against Annexure-2 order.

2. The vehicles of the petitioners were seized by the Forest officials in connection with O.R.No.15/2023 of Forest Range Office, Devikulam, which was registered under Section 27(1)(e)(iii), 52(1), 61A of the Kerala Forest Act and also under Section 5 (2) r/w Section 9 of the Kerala Preservation of Trees Act, 1986 . The Investigating officer in these cases filed a report stating that the vehicles were produced before the Munnar Divisional Forest Officer and confiscation proceedings under Section 61A of the Kerala Forest Act have been initiated. Hence the vehicles may not be released.

3. It is the case of the petitioners that the provisions of the Kerala Forest Act are deliberately incorporated for the purpose of confiscation. It is submitted that the order passed by the learned Magistrate is unsustainable. The learned Magistrate dismissed these applications mainly for the reason that the petitioners will have to approach the Forest Officer under Secion 61B of the Kerala Forest Act . The contention of the petitioners is that the Kerala Forest Act is not applicable to the facts and circumstances of the case. It is also submitted that the offence under the provisions of the Kerala Forest Act is not attracted going by the dictum laid down inTomy v. State of Kerala, [ 2011(3) KHC 655 ]. Annexure-4 in Crl.M.C.No.7334/2023 is the judgment inTomy's case supra. The State of Kerala challenges that judgment before the Honourable Supreme Court but the appeal was dismissed confirming the findings inTomy's case as evidenced by Annexure-5 order in Crl.MC.No.7334/2023 of the Supreme Court is the submission. The petitioner also relied on the judgment in CRP No.60/2011 dated 18.07.2022, which is also produced as exhibit in these cases. Even then, the learned Magistrate dismissed the application is the grievance.

4. After hearing the learned counsel for the petitioners and the learned Pubic Prosecutor, I think there is some force in the argument of the petitioners. InTomy's case supra, this Court observed that, cutting of trees from cardamom estates might attract offence under the Kerala Preservation of Trees Act but would not amount to offence under the Kerala Forest Act . It would be better to extract the relevant portion of the above judgment.

'8. I stated that the enquiry which the Settlement Officer is to conduct under S.8 of the Act does not refer to any claim for cultivation of the land intended to be notified as Reserved Forest. I also stated that by virtue of the right conferred on accused 1 to 3 they are entitled to cultivate cardamom in the estates in question. If that be so, it is inappropriate to say that entering those Cardamom Estates or indulging in cultivation of cardamom in the said estates would amount to any offence under S.27 of the Act. For, under S.27 (1)e)) of the Act even cultivating, clearing or breaking the land for cultivation or for any other purpose or putting shed or other structures (in Reserved forest or other places to be notified as reserve forest and at the disposal of the Government) are offences. I am unable to understand that clearing the land (not amounting to cutting of trees or other act prohibited by the lease agreement), cultivating cardamom, breaking the land or putting up shed for the said purpose in a Cardamom Estate which is permitted would amount to an offence under S.27(1) of the Act. If that be so, the contention that cutting of the trees from the Cardamom Estate is an offence punishable under S.27(1)(e)(ii) of the Act cannot be accepted when the Government have provided sufficient safeguards against such cutting by enacting the KPT Act an