Tripura High Court

High Court Of Tripura vs The State Of Tripura on 17 March, 2021

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                          HIGH COURT OF TRIPURA
                                AGARTALA
                            Crl. Rev. P No.73/2018
Sri Abdul Mannan,
Son of late Habil Miah,
Of Durgapur, Sonamura,
P.S. Sonamura, Dist.-Sepahijala,
Tripura.
                                                      ............... Petitioner(s).

                                        Versus
The State of Tripura,
(To be represented by the Public Prosecutor,
Hon'ble High Court of Tripura, Agartala,
West Tripura).
                                                    ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Petitioner(s) : Ms. Monalisa Pal, Advocate.

For Respondent(s) : Mr. S. Debnath, Addl. Public Prosecutor.

       Date of hearing              :     5th March, 2021.

       Date of Judgment & Order :        17th March, 2021.

       Whether fit for reporting    :    NO.


                            JUDGMENT AND ORDER

[1]            This criminal revision petition has been filed challenging the

judgment dated 07.09.2018 delivered by the Sessions Judge, Gomati

Judicial District, Udaipur in Criminal Appeal No.09(1) of 2018. By the

impugned judgment the leaned Sessions Judge affirmed the judgment

and order of conviction and sentence dated 18.01.2018 passed by the

Chief Judicial Magistrate, Gomati Judicial District, Udaipur in Case

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No.CR(F) 01/2016 convicting the petitioner under Section 42 of the

Indian Forest Act, 1927 and sentencing him to R.I for three months and

fine of Rs.500 with default stipulation.

[2] The factual background of the case is as under:

Prabitra Kr. Jamatia (PW-1), Officer-in-Charge of Forest

Protection Unit, Garjee lodged a prosecution report in the Court of the

Chief Judicial Magistrate at Udaipur on 1st February, 2016 alleging that at

about 11.30 am on the day, he along with his accompanying forest staff

detained a vehicle carrying registration No.TR-03B-1879 on its way from

a place called Pitra to Udiaipur. Soon after they stopped the vehicle the

driver of the vehicle along with three other persons ran away. But the

petitioner could not escape. A search operation was carried out in the

vehicle and 23 unmarked sized logs of teak tree were found loaded in the

vehicle which were seized and the petitioner was detained. On

interrogation, the petitioner confessed to the forest patrolling team that

he was engaged in smuggling forest produce from Udaipur to Bangladesh

over a long period of time. The prosecution report was then submitted in

Court and the accused was also produced before the Chief Judicial

Magistrate.

[3] Having taken cognizance of offence, the learned Chief Judicial

Magistrate explained the particulars of the alleged offence to the

petitioner who pleaded not guilty and claimed trial. Accordingly, case of

the accused was tried in the Court of the Chief Judicial Magistrate and

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oral evidence of five prosecution witnesses including the complainant was

recorded at the trial. The other witnesses were forest guards Sri Rasamoy

Debnath (PW-2), Sri Kinkar Chakma (PW-3), Sri Dinesh Debbarma (PW-

4) and Sri Sukhendu Ch. Dey (PW-5). Besides their oral statements,

prosecution also adduced four documents which were marked as Exhibit-

1 to Exhibit-4 at the trial and the logs which were seized from the

possession of the petitioner was marked as Exbt.MO-1. The petitioner

was also given opportunity to explain the circumstances appearing in

evidence against him. During his examination under Section 313 Cr. P.C

the learned trial Judge explained the incriminating evidence in detail to

him. The petitioner simply denied the case and claimed that he was

implicated in a false case.

[4] On appreciation of evidence the learned trial Judge found him

guilty and convicted him under Section 42 of the Indian Forest Act, 1927.

Having recorded reasons as to why the benefit of Probation of Offenders

Act was not extendable to the petitioner, the trial Court sentenced the

petitioner to RI for three months and fine of Rs.500/- with default

stipulation. In appeal, the learned Sessions Judge by the impugned

judgment affirmed the conviction and sentence by observing as under:

"11. Apart from the confessional statement of the appellant, the evidence of the Pws otherwise also is sufficient by itself to fetch the conclusion that the appellant was found in possession of the illegal teak logs in the offending vehicle and he failed to justify his possession. Hence, as a whole, there is absolutely no doubt about the commission of offence punishable under Section 42 of the I.F.Act by the convict appellant.

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12. In view of the above discussion and observation, I am of the view that the learned trial court has rightly concluded that the prosecution has proved its case by adducing cogent evidence.

As regards the sentence vis-a-vis probation:

13. As regards the sentence, it needs to be noted that the accused is guilty of forest offence which has a bearing on the ecology. Destruction of forests is a menace and threat to the ecology. Ecological balance of the earth is sine qua non for our survival. Forest is the source of oxygen which is the prime component of our survival. Without oxygen we cannot live for a minute. Deforestation is also the cause of global warming and environmental pollution which is a burning issue all over the world. As such, the people who are involved in the illegal destruction forest do not deserve any leniency and there should be zero tolerance for them. In fact the punishment prescribed under section 42 of the Forest Act is rather tenuous i.e. jail for six months or fine of Rs.500/-. In ancient times there was death penalty for cutting down a tree. Destruction of forest is an attempt to destroy the very existence of civilization. From the above perspective, I am of the view that the present accused-appellant who is part of a forest destruction menace, does not deserve the benefit of probation and the learned trial court has rightly refused to extend said benefit to him.

14. In the light of the above, I am of the view that the judgment of the trial court does not suffer from any material infirmity and is thus not liable to be interfered with."

[5] In this factual backdrop, this revision petition was filed

challenging the impugned judgment of the Sessions Judge. This Court by

order dated 10.10.2018 in IA No.1 of 2018 suspended the sentence and

released the petitioner on bail on his furnishing a bail bond of Rs.10,000/-

with one surety of the like amount to the satisfaction of the trial Court.

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[6] Heard Ms. Monalisa Pal, learned advocate appearing for the

petitioner and Mr. S. Debnath, learned Additional Public Prosecutor

representing the State-respondent.

[7] In Support of the petition, the following contentions are

mainly raised:

(i) No independent witness other than the forest officials

has been examined in this case, although the place where the

petitioner was allegedly detained was surrounded by

residential huts and those residents could easily be cited as

witness in this case.

(ii) The petitioner was singled out and maliciously

prosecuted without even trying to book the other offenders.

Though the offending vehicle was detained, no effort was

made to bring the owner of the vehicle to book. The provision

of the Indian Forest Act under which the petitioner was

prosecuted was not applicable to the case.

(iii) The Courts below did not appreciate the fact that a

conviction based solely on the evidence of interested official

witnesses was not sustainable in law.

[8] Counsel appearing for the petitioner contended that evidence

available on record were not sufficient to hold him guilty for the said

offence. Learned counsel therefore, urges the Court to set aside the

impugned judgment.

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[11] Mr. S. Debnath, learned Additional Public Prosecutor on the

other hand argued that the concurrent findings of the Courts below are

based on proper appreciation of evidence which do not call for any

interference.

[12] It has surfaced from the record that the petitioner was

prosecuted for unauthorisedly possessing and transporting forest

produce.

[13] PW-1, Sri Pabitra Jamatia who was in-charge of the Forest

Protection Unit at Garjee in Gomati judicial district has stated in his

evidence before the trial Court that while he was on patrol along with his

accompanying forest guards, truck carrying registration No.TE-03B-1879

on its way from Pitra to Udaipur was stopped by them and during the

search carried out by them in the said vehicle, 23 sized logs of teak tree

were found loaded in the truck. The driver managed to flee away along

with three other persons. The petitioner was detained and the said logs of

teak tree were seized by them vide seizure list (Exbt.1) and offence

report was submitted in Court for prosecuting the petitioner for

committing forest offence. During his cross-examination, few suggestions

were put to the PW on behalf of the petitioner. It was suggested to the

PW that the entire case was false, no forest produce was seized from his

possession and he was not at all involved in the offence. The PW denied

all those suggestions. Thus, the evidence of the witness remained

unblemished.

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[14] PW-2, Sri Rasamoy Debnath a forest guard who was

accompanying PW-1 at the material time gave corroborative support to

the evidence of PW-1. He stated that the petitioner was detained in his

presence and 23 sized logs of teak tree were recovered and seized from

the truck in which the petitioner was travelling.

[15] PW-3, Sri Kinkar Chakma, PW-4, Sri Dinesh Debbarma and

PW-5, Sri Sukhendra Ch. Dey gave similar statements supporting the

evidence of PW-1 and PW-2. In cross-examination the accused could not

impeach their evidence to any extent.

[16] The question is whether in the given facts of the case and the

evidence recorded at the trial, the conviction and sentence of the

petitioner under Section 42 of the Indian Forest Act, 1927 has been

appropriate.

[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

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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. Section 1 of the said Rules reads as under:

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

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[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.

(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.

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[21] The petitioner could not bring on record any material to

disbelieve the consistent, corroborative and coherent evidence of the

prosecution witnesses with regard to his involvement in the alleged

offence. It has been established that he was found transporting 23

unmarked sized logs of teak tree in his vehicle from one place to another