Tripura High Court

Abdul Kader Son Of Rajjak Miah ... vs The State Of Tripura Represented ... on 11 August, 2021

                        HIGH COURT OF TRIPURA
                              AGARTALA
                            Crl. Rev.P. No.18 of 2019

1. Abdul Kader son of Rajjak Miah Resident of Kakraban, PO and PS
Kakraban, District-Gomati, Tripura, Pin-799105
2. Sri Brajendra Debbarma S/o Late Tripendra Debbarma, Resident of
Village -Jirania, PO and PS Jirania, West Tripura District, Pin- 799045
                                                            --------Petitioner(s)
                                     Versus

The State Of Tripura represented By PP                      -----Respondent(s)

                                  BEFORE

         HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY


For the Petitioner(s)        :      Mr.P.K.Ghosh, Adv.

For the Respondent(s)        :      Mr. S.Ghosh,Addl. PP.
Date of hearing              :      29.07.2021
Date of pronouncement        :      11.08.2021
Whether fit for reporting    :      Yes/ No.


                                 JUDGMENT

[1] Trial Court held the petitioners guilty of offence under

Section 42 of the Indian Forest Act for violation of Tripura Forest

Transit Rules, 1952 and after conviction, sentenced each of them to

Simple Imprisonment (SI) for 6 (six) months. In appeal, the Sessions

court upheld the said conviction and sentence of the appellants and

dismissed their appeal. Aggrieved appellants, have, therefore, challenged

the impugned judgment and order dated 15.02.2019 passed by the

learned Sessions Judge of Dhalai Judicial District in Criminal Appeal

No.01 of 2018 where by the learned Sessions Judge upheld their

conviction and sentence awarded by the trial court and dismissed their

appeal.

[2] Essential facts necessary for disposal of the case are as

under:

On the tip of information received from secret source, the

Officer in charge of Forest Protection Unit, spotted a Maruti Omni Van

on its way from Ambassa to Gandacherra on 13.12.2017 at around 4

O'clock in the morning. It was noticed that the said vehicle had no

number plate. Sri Suman Das, Officer-in-Charge of Ambassa Forest

Protection Unit along with his accompanying staff detained the vehicle

and carried out search in the vehicle. The vehicle was found carrying 4

sawn teak timbers inside it. Petitioner Abdul Kader was the driver of the

said vehicle who was accompanied by co-accused Brajendra

Debbarma(petitioner). None of them could produce any permit or valid

transit pass for movement of those sawn timbers. As a result, both of

them were booked under Section 42 of the Indian Forest Act and the

timbers recovered from their possession were seized by the Forest

officials. Consequently, they were prosecuted for the said offence and

after a full trial in case No.CR (Forest) 02 of 2017 in the court of the

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Sub-divisional Judicial Magistrate at Kamalpur, both of them were

found guilty. Accordingly, they were convicted and sentenced by the

trial court by judgment and order dated 17.07.2018. Relevant extract of

the said judgment and order of the trial Judge is as under:

"O R D E R

22. In the result, Prosecution has successfully proved the accusation leveled against the accused persons namely Abdul Kader and Brajendra Debbarma under Sec. 42 of the Indian Forest Act, 1927 read with Rule 13 of the Tripura Forest Transit Rules beyond all shadows of reasonable doubt and as a result I find them guilty for commission of the offence punishable under Sec. 42 of the Indian Forest Act, 1927 read with Rule 13 of the Tripura Forest Transit Rules. Consequently, accused Abdul Kader and Brajendra Debbarma are hereby convicted under Sec. 42 of the Indian Forest Act, 1927 read with Rule 13 of the Tripura Forest Transit Rules.

23. Now as the convicts Abdul Kader and Brajendra Debbarma have been found guilty so the Court has to consider whether benefit under the Probation of Offenders Act, 1958 may be extended to them. The purpose behind the enactment of the Probation of Offenders Act, 1958 is to give a chance to a person found guilty of committing an offence for correction so that his incarceration in jail as a result of sentence does not make him a seasoned criminal. This is based on reformative theory of modernday Penology. However, lenient view under the Probation of Offenders Act, 1958 can be taken against those convicts who have been compelled to commit offence due to some exceptional situation or who are first time offenders and are below 21 years of age. This Court, relies on the decision of the Hon'ble Supreme Court in the case of T.

N. Godavarman Thirumulkpad vs. Union of India (1997) 2 SCC 267 where it is held that the Forest Conservation Act was enacted with a view to check further deforestation which ultimately results in economic imbalance and therefore the provisions made therein are for the conservation of forests and for matters connected therewith. Thus, taking the spirit of this judgment I am of the view that Courts below are duty bound to share the consciousness of protection of forest and

Crl.Rev.P No.18 of 2019

environment and the Courts cannot be oblivious of the depletion of the vast area of forest resources. When the question is of the sphere of protection of forest and preservation of ecology and environment, absolutely, there could be no room for leniency. When it is proved that an offence under the Forest Act has been committed, it is mandatory to impose the appropriate sentence or at least the minimum sentence prescribed in the Forest Act. The sentencing Court has therefore to approach the question seriously and make an endeavour to see that no leniency is shown to the offenders. In the opinion of this Court invoking the Probation of Offenders Act, 1958 in offences relating to forest produce could have deleterious effect of polluting the Criminal Justice System. It might subvert the process of law and frustrate the social object and purpose behind the Forest Act. The practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of practice.

24. Thus, on the basis of the above discussion and reasons, I am not inclined to allow any benefit to the convicts Abdul Kader and Brajendra Debbarma under the Probation of Offenders Act, 1958.

25. This is a summons procedure case and as such the question of sentence hearing does not arise. Thus, I hereby sentence convicts Abdul Kader and Brajendra Debbarma to suffer simple imprisonment for six months for committing the offence punishable under Sec. 42 of the Indian Forest Act, 1927 read with Rule 13 of the Tripura Forest Transit Rules.

26. Period of detention, if any, undergone by the convicts shall be set off as per Sec. 428 of CrPC."

[3] Aggrieved by and dissatisfied with the judgment of the trial

court, petitioners preferred appeal in the court of Sessions Judge in

Dhalai Judicial District at Ambassa. Learned Sessions Judge found no

fault with the findings of the trial court and consequently by judgment

and order dated 15.02.2019 passed in Crl. Appeal. No.1 of 2018, the

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learned Sessions Judge upheld the conviction and sentence of the

petitioners observing as under:

"24. I have considered the evidence on record in the light of the story recorded in the complaint filed before the trial court. They story , so recorded in the4 complaint, is found to be totally in the tune of the stories told by the witnesses before the trial court during trial of the accused /appellants. From the testimonies of the prosecution witnesses it has been proved that both the accused/appellants were arrested along with the seized forest produce i.e. four numbers of the teak sawn timbers. The accused/appellants were duly identified by the witnesses during trial in the court. Therefore, the story of the occurrence so recorded in the complaint petition gives confidence to the prosecution case while stood unfurled during trial.

25. On the basis of the evidence of the prosecution witnesses, involvement of the appellant in the case stood proved beyond reasonable doubt and there was no scope to disbelieve the prosecution story simply on the ground of that only official witnesses has supported the prosecution case. Ld. Trial court had properly appreciated the evidence on record with reasoning and the findings so returned by the Ld. Trial court its sustainable and there is no reason to interfere the same.

26.In view of the above discussion the appeal of the accused /appellants is devoid of merit and liable to be dismissed. Accordingly, the appeal is dismissed. The accused/appellants shall surrender before the trial court within one month to serve the sentence as imposed by the trial court failing which the Ld. Trial court shall proceed accordingly to law."

[4] Aggrieved petitioners have, therefore, approached this court

by means of filing this criminal revision petition for setting aside the

impugned judgment and order of the learned Sessions Judge mainly on

the following grounds:

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(i)Learned trial court as well as the appellate court did not consider the fact that all of the prosecution witnesses were official witnesses who were interested in the punishment of the petitioners and the trial court should not have convicted the petitioners on the basis of the evidence of such partisan witnesses without looking for corroboration from independent eye witness. Judgments of the trial court as well as of the appellate court are, therefore, erroneous and liable to be set aside.

(ii) Even though it was alleged by the prosecution that the sawn teak timbers and the vehicle were seized at public road, the seizure list would show that such seizure was made at the police station complex which should have created doubt in the minds of the courts about the veracity of the said search and seizure.

(iii)Though the prosecution witnesses stated that they signed the seizure list at the spot, the evidence would show that they actually signed the seizure list in their forest camp which impeaches the credibility of the seizure witnesses.

(iv)Neither the seized timbers nor any sample thereof was ever produced in the court during trial which casts ring of doubt over the prosecution case.

(v)The trial court as well as the appellate court did not take note of the fact that during cross examination, the prosecution witnesses admitted that they used to maintain duty register to record their movements. But they could not

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produce such duty register or any extract thereof during trial to prove the fact that they were out on duty when they allegedly spotted the petitioners committing the offence.

[5] Heard Mr.P.K.Ghosh, learned counsel appearing for the

petitioners. Also heard Mr.S.Ghosh, learned Addl. PP appearing for the

state respondent.

[6] Counsel of the petitioners has vehemently argued that both

of the accused have been falsely implicated in the case. Counsel referred

to various contradictions appearing in the evidence of the witnesses and

contended that the trial court as well as the appellant court punished the

petitioners without appreciating those contradictions appearing in the

evidence of prosecution witnesses. Counsel also argued that all the 7

prosecution witnesses were forest officials who parroted the facts in

same tune at the trial court and no independent eye witness was adduced

on behalf of the prosecution to prove its case.

[7] Counsel contends that admittedly a duty register was

maintained in the office of the complainant to record the movement of

the forest officials. But no such document was produced at the trial court

to establish the fact that the said officials were actually out on duty while

the petitioners were allegedly apprehended by them. According to

learned counsel, evidently a fictitious seizure list was produced by the

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complainant to establish the charge against the petitioners which was not

considered by the trial court as well as by the appellate court. Learned

counsel, therefore, urges the court to set aside the judgment of the trial

court and that of the appellate court and pass an order of acquittal of the

petitioners.

[8] Mr.S.Ghosh, learned Addl.PP on the other hand contends

that the concurrent findings of the courts below are well founded and

petitioners could not make out any ground to interfere with the said

judgments. Learned counsel therefore, urges the court for dismissal of

the petition.

[9] It appears from the LC record that after taking cognizance

of offence under Section 42 of the Indian Forest Act, 1927, the trial

court summoned both of the accused to appear before the court and

answer the charges brought against them. When they appeared at the

trial court, the substance of accusation was read over and explained to

them. Both of them pleaded not guilty and claimed trial. During trial,

prosecution examined as many as 07 witnesses all of whom were forest

officials. Besides adducing their oral testimony, prosecution introduced

some documents which were taken into evidence and marked as

Exhibit1 to Exhibit 14. After the recording of prosecution evidence was

over, the entire incriminating evidence was explained to the accused Crl.Rev.P No.18 of 2019

petitioners during their examination under Section 313 Cr.P.C. They

pleaded innocence and claimed that the charge was foisted on them. No

evidence was adduced on their behalf. Thereafter, the trial court heard

the arguments advanced by the learned counsel of the parties and after

considering their submissions and examining the evidence on record,

found that the petitioners violated the provisions of Tripura Forest

Transit Rules, 1952 for which both of them were punished under Section

42 of the Indian Forest Act, 1927 and such decision of the trial court was

also upheld by the learned appellate court by the judgment aforesaid.

[10] Perused the entire record and considered the submissions of

learned counsel appearing for the parties.

[11] It is well settled that when there are concurrent findings of

the trial magistrate and sessions Judge based on proper appreciation of

evidence, it would not be appropriate for the High Court to re-appreciate

such evidence in its revisional jurisdiction to come to its own conclusion

unless any material is brought to the notice of the high court which, if

allowed to prevail, would cause gross miscarriage of justice.

[12] While making its observation on the limited jurisdiction of

the high court with regard to re-appreciation of evidence in its revisional

jurisdiction, the Hon'ble Supreme Court in STATE OF KERALA Versus

PUTTUMANA ILLATH JATHAVEDAN NAMBODIRI With MANAGING

Crl.Rev.P No.18 of 2019

DIRECTOR, WESTERN PLYWOODS Versus PUTHUMANA ILLATH

JATHAVEDAN NAMBODIRI reported in (1999) 2 SCC 452 has held as

under:

"5.....In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice.........................................................."

[13] Same ratio was reiterated by the Hon'ble Apex Court in

SHLOK BHARDWAJ Versus RUNIKA BHARDWAJ AND OTHERS

reported in (2015) 2 SCC 721 in the following words:

"12. In any case it is well settled that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence........................."

[14] In the case in hand, counsel appearing for the parties had

drawn the attention of the court to the evidence of the prosecution

witnesses. PW-1, Ratan Kr.Sutradhar, an officer of the Forest Protection

Unit, testified at the trial that he had witnessed the petitioners carrying

04 sawn teak timbers in their vehicle and the vehicle along with the said

teak timbers were seized in presence of the PW. He was subjected to

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cross examination which could not impeach his evidence to any extent.

Similarly, PW-2, Jothan Khuma, a forest guard also supported the

evidence of PW-1 by saying that both the petitioners were caught red-

handed when they were transporting the said teak timbers

unauthorizedly in their vehicle. His evidence was also supported by PW-

3, Ratan Pal who was also one of the members of the said Forest

Protection Unit which spotted the petitioners committing the offence.

PW-4, Sankar Das, another Forest Official, PW-5 Suman Das,

complainant, PW-6, Dipak Pal, a Forest guard and PW-7 who was also a

forest guard gave consistent and corroborative support to the prosecution

case. All of those witnesses were put to incisive cross examination by

the counsel of the accused petitioners. Evidently their evidence could not

be demolished in cross examination.

[15] Argument of the petitioners' counsel that all of them were

partisan and unreliable witnesses does not stand to reason because there

is no proof of their animosity towards the petitioners for which they

would have implicated the petitioners in a false case. Petitioners could

not make out any ground at all to disbelieve the evidence of the

prosecution witnesses with regard to their detention at the spot and

recovery and seizure of the said sawn teak timbers and the offending

vehicle from their possession. It is also evident that the vehicle in which

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they were unauthorizedly carrying the said forest produce at about 4

O'clock in the morning had no number plate.

[16] Undisputedly, they could not produce any valid transit pass

authorising them to convey such forest produce. Any movement of

timber and firewood or any other forest produce without a valid transit

pass constitute violation of the Tripura Forest Transit Rules 1952

inviting penalty under Section 42 of the Indian Forest Act, 1927. The

law was discussed by this court in Abdul Mannan vs. State of Tripura

reported in 2021 CRI.L.J 2112 :AIR Online 2021 Tri 97 which is as

under:

"[17] Indian Forest Act, 1927 was enacted to consolidate the law relating to forest, the transit of forest produce and duty leviable on timber and other forest produce. Among the various provisions of the Act, Section 41 of the Act pertains to power of the State Government to make rules to regulate the transit of all timber and other forest produce. Under Clause-(b) of sub-section (2) of Section 41 it has been provided that such rules, inter alia, may 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. [18] Apparently, in this case, the sized logs of teak tree which were seized from the vehicle in which the petitioner was travelling were all unmarked and apparently, the petitioner was transporting those forest produce in the said vehicle without any pass from an authorised forest officer. The State Government in exercise of power provided under Section 41 of the Forest Act has framed Tripura Forest Transit Rules, 1952. Rule 1 of the said Rules reads as under:

"1.(1) No timber or other forest produce, including dhari and umbrella handles may be

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transported except as under Paragraph 12 along any part, road or stream unless it is covered and accompanied by a permit, or by a transit pass issued by a Forest Officer specifying therein :-

a) the name of the owner of the forest produce,

b) the number of pieces and description and, in the case of timber, dimensions.

c) the mark or marks, if any, and

d) the date of issue and the date up to which the transit pass will remain in force.

(2) The permit of collection of forest produce other than timber and firewood will be considered sufficient in regard to the movement of the produce within the jurisdiction of the Forest Beat of the origin. There shall be no movement of timber and firewood from its origin to any other place within or beyond the jurisdiction of the Beat without being covered by valid transit pass."

[19] Rule 13 of said Tripura Forest Transit Rules, 1952 provides punishment for breach of any of the provisions of these rules which may extend to imprisonment for six months or fine to Rs.500/-or both.

[20] Section 42 of the Indian Forest Act, 1927 also provides penalty for breach of rules made under Section 41 of the Act. It provides that the Rules framed by the State Government in exercise of power under Section 41 may prescribe penalties for contravention of such rules for a term which may extend to six months or with fine extending to Rs.500/- or both. The provision reads as under:

"42. Penalty for breach of rules made under section 41.--

(1) The [State Government] may by such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to six months, or fine which may extend to five hundred rupees, or both.

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(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."

From the aforesaid statutory provisions, it is clear that unauthorised movement of forest produce is a clear breach of the Tripura Forest Transit Rules, , 1952 framed by the State Government under the power derived from Section 41 of the Indian Forest Act which is punishable under Section 42 of the Act."

[17] Situated thus, there is no ground to interfere with the

concurrent findings of the courts below with regard to the conviction of

the petitioners.

[18] However, as far as their sentence is concerned, it appears

that maximum sentence provided under Section 42, is imprisonment for

a term which may extent to 6 months or fine which may extent to

Rs.500/- or both. The trial court seems to have imposed the maximum

sentence of imprisonment on the petitioners after recording detailed

reasons as to why the benefit of the Probation of Offenders Act was not

extended to them. Trial Court rightly held that their imprisonment was

necessary to prevent slaughtering of forest in the state resulting in rapid

environmental degradation.