1. The petitioner is the accused in O.R No.02/2021 registered by the Social Forestry Range, Attingal, alleging that he has contravened Sections 3, 6 (7), 4 (7)(1), 4 (7)(2) and 4 (7)(3) of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and as amended by Act 19 of 2007, (hereinafter referred to as ‘Act’) and thereby committed an offence under Section 7 of the Act.

2. The petitioner seeks to quash the Occurrence Report (“O.R”, for short) and all consequential proceedings on the assertion that even if the allegations in the O.R are accepted in their entirety, they do not attract the offence alleged against the petitioner. The petitioner contends that as the respondents have failed to state the details of the specified trees in the O.R or its schedule, which is mandatory under the Act to attract the offence, the O.R is liable to be quashed.

3. The prosecution allegation, in essence, is that, as per the directions of the petitioner, who was the then Secretary of the Varkala Municipality, 440 saplings of fruit bearing trees were planted by the Social Forestry Division, Attingal Range in the property of the Varkala Municipality, but were destroyed on 24.06.2021 in violation of the provisions of the Act.

4. Sri. K. Siju, the learned counsel appearing for the petitioner, contends that Section 6(7) of the Act read with Rule 7 of the Kerala Promotion of Tree Growth in Non-Forest Areas Rules, 2011 ('Rules', in brevity), is applicable only in respect of “specified trees” as defined under Section 2(e) of the Act. Since the occurrence report does not state that any specified tree was cut, removed or disposed of, the offence is not attracted. Therefore, the proceedings may be quashed.

5. On the contrary, Sri. C. S Hrithwik, the learned Senior Public Prosecutor, opposes the petition. He submits that the allegations in the O.R. are disputed questions of fact, which can only be decided after trial. Hence, this Court may not exercise its inherent powers and quash the proceedings.

6. The specific allegation against the petitioner is that he has contravened Section 6 (7) of the Act by cutting, removing and disposing of the saplings that were planted by the Social Forestry Division in the property of the Varkala Municipality.

7. In order to answer the rival contentions, it is necessary to examine the statutory framework of the enactment.

8. Section 6 of the Act reads as follows:

                  "6. Right of owners to cut and remove trees in non-notified areas in non-forest land.-- (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:

                  Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005).

                  (2) For the purpose of this Act the Government may, by notification in the Gazette, appoint such officers not below the rank of a Forest Range Officer as they think fit to be Authorised Officers (referred to as 'Authorised Officer' in this Act) and may assign to them such local limits as the Government think fit.

                  (3) The Government may, with a view to preserving tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen:

                  Provided that the small holders in the area notified under this sub-section are free to cut and remove any tree except the specified trees:

                  Provided further that the small holders in the area notified under this sub-section may cut and remove any specified tree other than sandalwood only with the prior permission in writing of the Authorised Officer and such prior permission shall not be required for the cutting and removal of trees except specified trees:

                  Provided also that the owners other than small holders in an area notified under this sub-section may cut and remove any tree other than sandalwood tree only with the prior permission in writing of the Authorised Officer and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule:

                  Provided also that such permission mentioned in the second and third provisos shall not be refused by the Authorised Officer if the tree constitutes a danger to life or property or is wind-fallen.

                  Note:- For the purpose of this sub-section all the mangrove areas or cardamom or coffee plantations shall be deemed to be notified areas.

                  (4) No owner including a small holder shall cut or remove any sandalwood tree in any non-forest area. Such cutting or removal may be done only by the Forest Department in the manner as may be prescribed.

                  (5) Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due.

                  (6) Every declaration filed under sub-section (5) shall be acknowledged by the authorised officer forthwith and a copy of the declaration so acknowledged shall accompany the timber during its transport:

                  Provided that if acknowledgement from the Authorised Officer is not received within twenty days on receipt of the declaration, the same shall be deemed to have been received, if the trees are to be cut and removed from a non-notified area:

                  Provided further that if timber of a specified tree cut as per sub-section (3) is to be transported from a non-forest land within the notified area, necessary inspection shall be conducted by the Authorised Officer and if it is found permissible, he may issue a transport permit in such form as may be prescribed, which shall accompany the timber during its transportation.

                  (7) The cutting and removal of trees standing on non-forest areas, owned, controlled or vested in a Local Self Government Institution and its disposal shall be governed by such rules, as may be prescribed.

                  (8) An appeal against the order of refusal of permission by the Authorised Officer may be preferred before the concerned Divisional Forest Officer/Wild Life Warden within such time and in such manner as may be prescribed.

                  Explanation.-- For the purpose of this Act, the term 'timber' wherever used shall include firewood also.”

9. Section 6 of the Act regulates the cutting, removal and transportation of trees standing in non-forest areas. Sub-section (7) specifically provides that the cutting, removal and disposal of trees standing on non-forest lands owned, controlled or vested in a Local Self Government Institution shall be governed by the Rules framed under the Act.

10. Rule 7 of the Rules lays down the procedure to be followed by Local Self Government Institutions for obtaining permission for cutting, removing and disposing of specified trees. The Rule reads thus:

                  “7. Procedure for cutting, removal and disposal of specified trees standing on non-forest areas, owned, controlled or vested in Local Self Government Institutions: (1) The custodian of the non-forest areas owned, controlled or vested in Local Self Government Institutions, shall submit to the Authorized Officer an application in Form No. V for felling and transportation of specified tree proposed to be cut or fallen therefrom, giving full particulars of the land such as location sketch and survey sketch and details of the trees.

                  *** *** ***”

11. The above Rule obliges the custodian of the land vested in Local Self Government Institutions to submit an application to the Authorised Officer, furnishing particulars of the land and details of the trees proposed to be cut or fallen.

12. Equally significant is the definition of the expression “specified tree” under Section 2(e) of the Act, which reads as follows:

                  “2. (e) "specified tree" means "Sandal wood (Santalum album)", "Teak (Tectona grandis), Rosewood (Dalbergia latifolia), Irul (Xylia xylocarpa), Thempavu (Terminalia tomantosa), Kampakam (Hopea Parviflora), Chadachi (Grewia tiliaefolia), Chandana vempu (Cedrela toona) , Vellakil (Dysoxylum malabaricum) or Ebony (Diospyrus sp.)"

13. A conjoint reading of Sections 2(e), 6 and 7, and Rule 7, unmistakably reveals that an offence under Section 7 is predicated upon the unauthorised cutting, removal or disposal of a specified tree in contravention of the procedure prescribed under the enactment. The legislature has consciously restricted the operation of the regulatory mechanism to the specified trees alone and has not taken within its sweep all trees. The legislative intent is manifest that the restrictions and penal consequences contemplated under the Act are attracted only when the act complained of concerns a species recognised by the statute as a “specified tree”. The existence of a specified tree is therefore not a matter of evidence alone but constitutes a foundational jurisdictional fact necessary to attract penal consequences under the Act.

14. In the present case, the occurrence report merely alleges that 440 saplings planted by the Social Forestry Division were destroyed. There is stoic silence in the report regarding the species of the saplings, or that the saplings have become trees, or that trees fall within the category of “specified trees” as defined under Section 2(e). The occurrence report neither describes the nature of the trees nor contains any material from which such an inference can be drawn.

15. It is trite that criminal law cannot proceed on assumptions or surmises. When a statute defines an offence and the circumstances under which the offence is attracted, the ingredients must prima facie find a place in the complaint. A bald allegation that certain saplings were destroyed, without disclosing that they were specified trees protected under the Act, falls substantially short of the threshold required to constitute the offence alleged against the petitioner.

16. The inherent jurisdiction of the High Court is intended to prevent abuse of the process of the law and to secure the ends of justice. Though the power is to be exercised sparingly and with circumspection, it is equally well settled that where the uncontroverted allegations do not disclose the commission of an offence, this Court would be justified in interdicting the prosecution at its bud. The principles governing the exercise of such jurisdiction stand authoritatively enunciated by the Hon’ble Supreme Court in State of Haryana and others v. Bhajan Lal and others [(1992) Supp (1) SCC 335], Central Bureau of Investigation v. Aryan Singh and Others [(2023) 18 SCC 399], Daxaben v. State of Gujarat and Others [(2022) 16 SCC 117] and Monica Kumar and Another v. State of U.P. and Others [(2008) 8 SCC 781]).

17. Tested on the touchstone of the above principles, the allegations in the occurrence report, the materials on record and the afore mentioned reasons, the instant case does not disclose the essential ingredients to attract the offence under Section 7 of the Act. Permitting the prosecution to continue in the absence of such foundational allegations would amount to an abuse of the process of law. Therefore, I am satisfied that this is a fit case warranting the exercise of the inherent powers of this Court.

In the result, the Criminal Miscellaneous Case is allowed. O.R. No.02/2021 of the Social Forestry Range, Attingal, and all further proceedings arising therefrom, insofar as they relate to the petitioner, stand quashed.