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Judgment
The instant application is directed against the judgment dated 14.06.2013, passed by the learned Judicial Commissioner -VI, Ranchi in Cr. Appeal
No.290/2012, whereby the appeal preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence dated
29.11.2012, passed by the learned Judicial Magistrate 1st Class, Ranchi in G.R. No.3888/2005 (T.R. No.146/12), whereby the petitioners have been
found guilty for the offence punishable under Section 42 of Forest Act and sentenced to undergo RI for a period of one year with fine of Rs.1,000/-
each and in default of payment of fine the petitioners were directed for further SI for 15 days each, has been affirmed.
The case of the prosecution in brief is that on 15.12.05 at 10.30 a.m the O/c Lapung, along with Arjun Tiwary, Constable Adulunt Lakra, Constable
Md. Rafique, Constable Budheshwar Oraon, Police Veerendra Kujur, Police Yadu Oraon and driver police Radhe Mohan Singh, was on patrolling,
when he found a vehicle Max Jeep no. JH 01J-2989 carrying wood from the forest Deogaon and on suspicion he stopped the vehicle, but the driver
started the vehicle at once and tried to flee away. They chased and caught the vehicle and found 80 pieces of Sakhua wood loaded on the vehicle.
Each piece of the wood was 6' in height & 3'' and 5'' in width. The apprehended persons told their names as Raiman Tirky & Safik Aalam. When the
documents were demanded, both the persons could not produce any document and they stated that they were bringing the wood from forest.
Thereafter, seizure list was prepared before two independent witnesses namely Munna Minz and Mangra Oraon and duly signed by them and copy
served to the accused persons.
The learned counsel for the petitioners submits that seized goods were not marked. Further, the prosecution witness P.W.1 has admitted that he did
not try to identify that whose van was that in which the seized goods was loaded. He further submits that P.W.2 has admitted that he has sent the
seized articles in the police station. Further P.W.3, who is the seizure list witness has admitted that seizure list was not prepared before him and he
signed on the plain paper. He further submits that the learned trial court while acquitting the petitioners under Section 414 IPC has opined that the
prosecution has failed to prove that the wood or van was stolen property and the accused persons assisted in concealing or dispossessing the same but
at the same time the learned trial court convicted the petitioner for the offence under Section 42 of Indian Forest Act. As such, the impugned orders
passed by the learned trial court and upheld by the learned appellate court deserves to be set aside.
The learned counsel further referred an order passed by the A.O.-cum-District Forest Officer, Ranchi, East Forest Division, wherein the other co-
accused- Ranjit Toppo has been acquitted. However, he fairly admits that the said order was not placed before the learned appellate court. However,
in the interest of justice he prays that the said order may be considered in allowing this application in favour of the petitioner.
Per contra, the learned APP supports the impugned order and submits that there is no error in the impugned orders and the same should not be
interfered by this Court under its revisional jurisdiction.
Heard the learned counsel for the petitioners and learned APP for the State.
In order to appreciate this case Sections 41 & 42 of Indian Forest Act are reproduced here under:
“41. Power to make rules to regulate transit of forest produce.â€"(1) The control of all rivers and their banks as regards the floating of
timber, as well as the control of all timber and other forest-produce in transit by land or water, is vested in the State Government, and it may
make rules to regulate the transit of all timber and other forest-produce.
(2) In particular and without prejudice to the generality of the foregoing power such rules mayâ€
(a) prescribe the routes by which alone timber or other forest-produce may be imported exported or moved into, from or within 1[the State];
(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same,
or otherwise than in accordance with the conditions of such pass;
(c) provide for the issue, production and return of such passes and for the payment of fees therefor;
(d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is
reason to believe that any money in payable to the Government on account of the price thereof, or on account of any duty, fee, royalty or
charge Government on account of the price thereof, or on account of any duty, fee, royalty or charge due thereon, or, to which it is
desirable for the purposes of this Act to affix a mark;
(e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge of it for
examination, or for the payment of such money, or in order that such marks may be affixed to it, and the conditions under which such timber
or other produce shall be brought to, stored at and removed from such depots;
(f) prohibit the closing up or obstructing of the channel or banks of any river used for the transit of timber or other forest-produce, and the
throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed;
(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such
prevention or removal from the person whose acts or negligence necessitated the same;
(h) prohibit absolutely or subject to conditions, within specified local limits, the establishment or sawpits, the converting, cutting, burning,
concealing or making of timber the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or
other implements used for marking timber;
(i) regulate the use of property marks for timber, and the registration of such marks; prescribe the time for which such registration shall
hold good; limit the number of such marks that may be registered by any one person, and provide for the levy of fees for such registration.
2[(2-A) The State Government may by notification in the Gazette delegate, either unconditionally or subject to such conditions as may be
specified in the notification, to any Forest Officer, not below the rank of Conservator, the power to prescribe fees under clause (c) of sub-
section (2).
(2-B) Notwithstanding any judgment, decree or order of any Court, any rule purporting to have been made by a Conservator before the
commencement of the Indian Forest (Uttar Pradesh Amendment) Act, 1965, prescribing fees to be paid in respect of passes specified in
clause (b) of sub-section (2) shall be deemed to have been made under a power delegated under sub-section (2-A) as if the provisions of
sub-section (2-A) were always in force and the Conservator were duly authorised thereunder, and shall be deemed to be and always to have
been valid, and shall continue in force until altered, repealed or amended by the State Government or a duly authorised Conservator, as the
case may be:
Provided that nothing in this sub-section shall be deemed to authorise the prosecution or punishment of any person under Section 42 for
any act done before the commencement of the said Act.]
(3) The State Government may direct that any rule made under this section shall not apply to any specified class of timber or other forest-
produce or to any specified local area.â€
“ 42. Penalty for breach of rules made under Section 41. â€"1[(1) The State Government may by such rules prescribe as penalties for
the contravention thereof imprisonment for a term which may extend to two years, or fine which may extend to five thousand rupees or
both.]
(2) Such rules may provide that penalties which are double of those mentioned in sub-section (1) may be inflicted in cases where the offence
is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or where the offender has been
previously convicted of a like offence.â€
By going through the aforesaid provisions it appears that the rules and regulations made by the Government to regulate transit of forest produce should
be strictly adhered and any breach of the rule attracts penalty under Section 42 of the said Act. In the instant case when the patrolling party chased
and caught the vehicle and found 80 pieces of Sakhua wood and on being asked the petitioners could not show any document so as to corroborate
their contentions that they are the legal owners of the wood.
The learned trial court has appreciated this aspect of the matter and did not commit any error in convicting the petitioners under rule Section 42 of the
Forest Act. So far as the contention of the petitioners that the co-accused- Ranjit Toppo in other case or in similar case has been acquitted by the
competent authority, has no force in the eye of law for the reason that any new document cannot be seen under the revisional jurisdiction and
admittedly the said order was not placed before the learned trial court or the appellate court, as such I am not giving any opinion on the said
order/document or on this submission of the learned counsel for the petitioners. The petitioners have failed to point out any error on procedure or
perversity in the orders so as to want any interference by this Court as such, the judgment of conviction passed by the learned trial court and upheld
by the learned appellate court is, hereby, confirmed.
However, so far as sentence is concerned, it is apparent from record that the incident is of the year 2005 and 14 years have elapsed and the
petitioners must have suffered the rigors of litigation for the last 14 years and petitioner no.1-Md. Safique Alam @ Safique Alam remained in custody
for 17 days and petitioner no.2-Raiman Tirkey remained in custody for 11 days. It is not stated that the petitioners have ever misused the privilege of
bail. Further, the incident does not reflect any cruelty on the part of the petitioners or any mental depravity. In a situation of this nature, I am of the
opinion that it may not be proper for this Court to send the accused persons back to prison. As such, in my considered opinion interest of justice would
be served if the sentence is modified in lieu of fine.
Thus, the sentence passed by the Court below is, hereby, modified to the extent that the petitioners are sentenced to undergo for the period already
undergone subject to payment of fine of Rs.2,500/- each ( Total Rs.5,000/-) which shall be deposited before the Secretary, DLSA, Ranchi within a
period of 2 months from the date of this order.
With the aforesaid observations, directions and modification in sentence, this revision application is disposed of.
The petitioners shall be discharged from the liability of their bail bonds subject to aforesaid conditions.
Let the lower court record be sent back to the court concerned forthwith.
Let the copy of this order be communicated to the court below and the Secretary, DLSA, Ranchi through 'FAX'.