The charges against the appellants under the Kerala Forest Act were not legally sustainable due to incorrect references in the prosecution.

ORDER

The concurrent verdicts of the Judicial First Class Magistrate Court-II, Pathanamthitta and the Additional Sessions Court (Adhoc)-I, Pathanamthitta, convicting and sentencing the petitioners for the commission of offences under Section 2 7 (1)(g) and Section 2 (c) of the Kerala Forest Act , are under challenge in this revision.

2. The prosecution case is that on 24.07.1994, the petitioners were found to have been removing timber from the reserved forest at Naduvathumoozhi range in Kokkathode forest station limit. According to the prosecution, the aforesaid timber related to a teak tree, cut and removed from a place at a distance of about 20 metres from the place where the petitioners were attempting to remove the same.

3. Before the learned Magistrate, 5 witnesses were examined from the part of the prosecution as PW1 to PW5, and 3 documents were marked as Exts. P1 to P3. Relying on the aforesaid evidence, the learned Magistrate found the petitioners guilty of commission of the aforesaid offences and sentenced them to Rigorous Imprisonment for one year and fine Rs.1000/- each. Though the petitioners challenged the aforesaid verdict in appeal, the Appellate Court declined to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the courts below, the petitioners are here before this Court with this revision.

4. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the Forest Department.

5. The learned counsel for the petitioners pointed out that the entire prosecution launched against the petitioners is prima facie vitiated since there is no such offence as stated in the prosecution records in the statute book. It is pointed out that the offence under Section 2 7 (1)(g) of the Kerala Forest Act is not there in the statute book, and that the courts below went wrong in convicting the petitioners for the commission of such an offence. It is also pointed out that Section 2 (c) mentioned in the prosecution records relates to the definition of Forest Officer, and that it will not constitute a substantial offence. There is substance in the aforesaid contention of the learned counsel for the petitioners. The relevant Act which was in force at the time of commission of the offence involved in this case is the Kerala Forest Act , 1961 as amended by Act 2 of 1993 published in the Kerala Gazette dated 27.02.1993. As per the above enactment, there are only clauses from (a) to (e) for the Section incorporated as Section 2 7 (1). Thus, it appears to be strange and mysterious that the Investigating Agency quoted Section 2 7 (1)(g) as the substantial offence alleged against the petitioners, and the courts below relied on the above records and convicted the petitioners for the commission of such an offence which is not there in the statute book.

6. The learned counsel for the petitioners further pointed out that Ext.P3 notification relied on by the prosecution is not the notification required under Section 19 of the Kerala Forest Act . As per Section 19 of the Kerala Forest Act , 1961, Government may publish notification in the Gazette specifying the limits of the forest which it is intended to reserve and declaring the same to be reserved from a date to be fixed by such notification. Obviously, the aforesaid notification can only be one published after the enactment of Kerala Forest Act , 1961. In the alternative, the Government will have to publish a notification reviving any earlier notification prescribing the limits of reserve forest. As far as the present case is concerned, Ext.P3 document relied on by the prosecution is a