Case: Dr.Emerico DSouza vs State - 1995 (1)BomCR 266

- The petitioner is involved in an offence under section 52 of the Indian Forest Act for possessing illegally forest timber.

- The Range Forest Officer, soon after seizure of the illegally cut wood, recorded the statements of those accused and it was disclosed from those statements that all the accused were involved in cutting, removing and possessing the illegally cut wood.

- The learned Magistrate observed that the statements of other accused, implicating the present petitioner, were not admissible as they were hit under section 30 of the Evidence Act. It was further observed that those statements are in the nature of confession and the same are hit under section 25 of the Indian Evidence Act.

- The State, having been aggrieved by this discharge of the petitioner, appealed under section 59A of the Indian Forest Act. The learned Sessions Judge, Panaji, in the above proceedings found that the approach of the learned Magistrate was erroneous; that it was incorrect in law to say that the statements of the accused were not admissible because the Range Forest Officer is not a police officer.

- The petitioner, who is the accused, has preferred this revision and the main thrust of argument on behalf of the petitioner is that except the statements made by the petitioner and other accused before the Range Forest Officer there was no other evidence and in that light, the order of discharge was wholly warranted and that the order passed by the learned Sessions Judge should be quashed.

Judgment:

- The Bombay High Court stated that the competency of the Range Forest Officer to record the statements has not been disputed.

- Section 72 of IFA empowers the Range Forest Officer to carry out the search under the Code of Criminal Procedure. In sub-section (2) of section 72, it is laid down that the evidence recorded by the Forest Officer shall be admissible in any subsequent trial before the Magistrate provided that it has been taken in presence of the accused persons.

- The learned P.P. has relied upon the observations of the Supreme Court in in the case of Baduka Joti Svant v. The State of Mysore and Attorney General of India. The provisions of section 21 of the Central Excise and Salt Act were referred to and the Court has observed that the statements made by an accused person to the Deputy Superintendent of Customs and Excise would not be affected by section 25 of the Evidence Act. It was held that the officers were not empowered to file charge sheet under section 173 of the Code of Criminal Procedure and hence ex-facie, the above provision of section 21 cannot be read as the customs officers being police officers.

- The Range Forest Officer has clearly stated that these were the statements made by the respective accused persons, including the petitioner and hence there was prima facie offence established against the petitioner.

- It must also be observed that the statements made by the accused are not confessions under section 25 of the Evidence Act. It is only the confession under section 25 of the Indian Evidence Act which can not be read against the co-accused but such is not the situation in this case because the statements before the Range Forest Officer are not the statements recorded under section 25 of the Indian Evidence Act as the Range Forest Officer is not a police officer.