Range Officer, Kalakot Range, District Rajouri and Others vs Bal Krishan and Others

T.S. Doabia, J.—Question of propriety and jurisdiction in the matter of exercise of jurisdiction on the part of the Sessions Judge, Rajouri

while exercising revisional jurisdiction is involved in this petition, preferred for quashing the order passed in two Criminal Revisions No. 13/2000

and 14/2000 on 28-4-2000.

It is submitted that the Sessions Judge Rajouri who was under order of transfer should not exercise the jurisdiction in this matter. It is also urged

that in case the Sessions Judge was to reverse the order under revision, then he should have made recommendation to this Court in terms of

Section 438 of the Code of Criminal Procedure. It is also urged that when this Court had taken cognizance of the matter u/s 561A, Cr. P.C. and a

petition bearing No. 16/2000 was pending in this Court, then least which was required on the part of the learned Sessions Judge, Rajouri was to

keep his hands off the file. Though these issues have been urged with great vehemence on the part of the State Counsel and though the counsel for

the private respondents have urged that there is no lack of propriety, nevertheless the issue which is involved on facts requires serious

consideration. Day in and day out the State is being deprived of vital source of revenue in the matter of exploitation of forests and forest produce.

It is precisely for this reason stringent provisions have been incorporated in the legislation dealing with forests.

With a view to appreciate the controversy the facts be noticed.

Range Officer, who figures as petitioner along with his Field Staff intercepted two trucks loaded with Pomegranate seeds (Anardana). This was

on 18-11-1999 time is said to be 9 p.m. Place is said to be Kalakot. On enquiry it was found that Anardana was being transported. As the driver

and three occupants of the trucks were not in a position to produce the documents regarding the source of this forest produce and as they were

not in a position to produce or in possession of any valid permit, two trucks along with Anardana were seized. A report was made to the Divisional

Forest Officer, Rajouri also. In this report it was mentioned :--

(i) three persons namely, Bal Krishan, Nanak Chand and Puskar Raj could not be apprehended as they fled from the scene.

(ii) That on further verification it was found that truck No. JKO 2F 1963 was driven by Om Parkash and Truck No. JKO 2H 9807 was driven

by Parshotam Lal:

(iii) On scrutiny it was found that truck No. JKO 2F 1963 was owned by Vaneet Kumar Gupta and Truck No. JK 2H 9807 was owned by

Bishan Kumar Sethi;

(iv) That the total quantity of Anardana loaded in the truck No. 1963 was about 100 Qtls and truck No. 9807 was 44.52 Qtls;

(v) The Range Officer found no reason not to believe that an offence has been committed u/s 26(2) of the Forest Act;

(vi) A report was sent to the Chief Judicial Magistrate. This report is required to be sent in terms of Section 26(4) of the Forest Act;

(vii) Proceedings were taken for confiscation. This was on 3-12-1999. These proceedings continued on 10-12-1999, 27-12- 1999 and 29-1-

2000;

(viii) The Forest Officer before whom these proceedings were going on was of the opinion that Anardana which was seized was a forest produce.

Its possession was illegal and unauthorised.

(ix) That the persons from whom seizure was made were unable to rebut the presumption which arises u/s 39 of the Forest Act. Accordingly two

trucks as also the Anardana were ordered to be confiscated. It was this order passed on 29-1-2000 which was challenged before the Sessions

Judge, Rajouri.

Some other facts which are matter of history only may also be examined.

Respondents filed a Civil Suit for permanent injunction calling upon the defendants from taking royalty and also seeking a mandatory injunction

that they be permitted to transport the Anardana. An application under Order 39, k RPC was also filed. This application was allowed. It was

observed that the balance of convenience is in favour of the plaintiffs who figure as respondents in this petition. The plaintiffs were permitted to

transport the Anardana weighing 200 Qtls. They were however, directed to furnish an undertaking. This order was passed on 17-11-1999. On

25-11-1999 yet another prayer was granted. This was for the release of the trucks. These orders were subject-matter of challenge in Civil 1st

Misc. Appeals in this Court. In all five appeals came to be preferred. As by that time the order was passed u/s 26 of the Forest Act i.e. order

dated 29-1-2000, the parties were left free to seek appropriate relief for the release of the confiscated Anardana and also the trucks in question.

Thereafter an order dated 28-4-2000 came to be passed before the learned Sessions Judge, Rajouri. It was pleaded :

(i) that Anardana is not a forest produce;

(ii) that the findings recorded that the Anardana is a forest produce is recorded in a mechanical manner;

(iii) that as per the practice the respondents have been purchasing the Anardana from private parties and have been getting permission for

transportation in Form 25. Permission was not being granted and as Anardana was likely to deteriorate, they were left with no option but to file a

Civil Suit in which interim direction with regard to Anardana was issued on 15-11-1999 and with regard to the trucks was issued on 25-11-1999;

(iv) That there was absolutely no Intention or knowledge that the act of transportation is a criminal offence;

(v) that the Anardana in question was being transported in pursuance of the interim directions given by the Civil Court on 17-11-1999 and

therefore, the question of taking action under penal provisions of Forest Act on 18-11-1999 was not justified;

(v) That the Act of the Range Officer is mala fide.

With a view to substantiate that the Anardana is not a Forest Produce and it does not fall within the purview of Section 2(d), it is contended that

it does not find place in the trees and plants mentioned therein. It is further stated that in the Forest Produce, only trees and leaves, fruits and

produce are mentioned. Anardana is neither a tree nor forest produce, but a product obtained by peeling of 'Daruna'. If this is obtained by

mechanical process, it is submitted that this would not be a forest produce. Rule 10 of the General Statutory Rules and Orders mention's the

different trees which should not be felled under the rule unless marked for the purpose and that the said trees include Daruni tree as well. It is in this

manner urged that Anardana is not a Forest produce. With regard to confiscation of trucks, it is urged that the owners of the trucks were not

aware of the fact that they were supposed to take permission by obtaining Form No. 25. Having not done so and having not taken steps with that

regard, they could not be said to have rendered themselves liable to penal provisions of the Forest Act including confiscation of the trucks also.

Thus, the arguments raised by the revision-petitioners before the learned Sessions Judge, Rajouri prevailed with him and he expressed an

opinion that the Anardana is procured from the 'Daruni' tree. This is extracted from the fruit of 'Daruni'. Mere possession of Anardana would not

be prohibited and would not amount to a forest offence. It was also observed that the Anardana having been removed from the forest its

possession would not be Illegal. It was also observed that presumption in terms of Section 39 of the Act is rebuttable and this would be seen at the

time of trial. With regard to the seizure of the trucks, the argument of the State that as drivers and owners had failed to prove that they had

obtained requisite permission, therefore, the trucks could be seized was found to be an argument without any merit. It was observed that

knowledge could not be attributed to the truck drivers. The fact that in the past also they were transporting Anardana was found to be good and

sufficient reason to not to order confiscation. It was held that u/s 26(1) of the Forest Act seizure of the vehicle can be made only if the concerned

officer has reason to believe that the vehicle has been used for committing a forest offence. Seizure, it was held cannot be effected merely on

suspicion. This argument also found favour with the Sessions Judge. It was accordingly held that Anardana is not a Forest produce and that no

ground was made out for seizure of the trucks. Taking note of this view the petition was allowed. Custody of Anardana was ordered to be given

and its sale was ordered to abide by the decision of the Civil Court.

The State has preferred this petition challenging this order.

As noticed in the beginning, 1t has been urged that the Sessions Judge, Rajouri did not act with propriety inasmuch as he passed the final

order, without making a reference to this Court in terms of Section 438, Cr.P.C. He was under transfer. It is further stated that a petition was

already pending u/s 561-A, Cr.P.C. In this Court. It is further urged that the findings as recorded by the Forest Officer under the Forest Act were

not required to be given a fresh look. On merits. It is urged that Anardana is a forest produce and once it is so shown then any effort in

transporting the same without obtaining permission was made this would amount to committing an offence and not only forest produce but the

trucks in which the same were carried would also be liable to confiscation.

Arguments with regard to the propriety in passing the order and not referring the matter to this Court and also the argument that the Sessions

Judge, should not have passed the order when the matter was pending in this Court are more or less academic and are not being dealt with. The

sole issue as to whether the Anardana is a forest produce or not and whether its transportation without permission of the Forest Authorities is

illegal and whether the trucks through which it was being carried could be confiscated, are being gone into.

Definition of Forest produce is given in Section 2(g) of the Forest Act. For facility of reference this is being re-produced below:

2(g)(a) The following when found in, or brought from a forest or not, that is to say timber cautchus, catechu"", wood-oil, resin, natural varnish,

bark, lac, mahua flowers, myrobalans and krench lodldwold-diceooria, firewood, charcoal, rasoant, carbon chips, rosin and turpentine and

(b) the following when found in or brought from a forest, that is to say :

(i) trees and leaves, flowers and fruits and all other parts or produce not hereinbefore mentioned of such trees;

(ii) Plants not being trees (including Kuth, grass, creepers, reeds and moss) and all parts of produce of such plants.

As per the State, Anardana is a forest produce. For this reliance is being placed on Rule 10 at page 333 of Vol. II of General Statutory Rules

and Orders. It is submitted that Anardana is part of 'Daruni' fruit derived from 'Daruni' tree. The fact that 'Daruni' tree is mentioned at page 333 of

Vol. II of General Statutory Rules and Orders is being referred to. Relevant paragraph is 11. At para 16 of the writ petition, it is stated that the

following trees should not be felled unless marked for the purpose :

Barachar. Moro â€" Jammu

Barmi â€" Kam

Batang, Keint, Katani â€" Kamlian

Bani, Rin Karik

Bankhor, Gugu Kirshu, Heru, Kru.

Dhaman Zum

Bhata â€" Krangal, Klnjal,

Riai, Amaltas

Bran, Bron, Mannu â€" Marna, Kanjal

Chikri â€" Salali, Sarol, Champ.

Daruni â€" Siri

It is accordingly submitted that felling of 'Daruni' tree is prohibited. This according to the state and its functionaries would be forest produce as

trees leaves, flowers and fruits and all other parts or produce are to be treated as forest produce.

Both sides were aware of this fact that Anardana is obtained from 'Daruni' trees. It is precisely for this reason a distinction was sought to be

made that this is procured by mechanical means and therefore, it would not be a forest produce.

I am of the opinion that once 'Daruni' tree is mentioned in the Forest Manual referred to above, and it is a tree which is not to be cut then by

referring to definition of forest produce it would become crystal clear that the trees and leaves, flowers as well as fruits and all other parts or

produce would be forest produce. The reasoning given to the contrary by the learned Sessions Judge, Rajouri cannot be sustained. The findings is

accordingly reversed. This is purely a legal issue and depends upon the statutory rules and regulations. Therefore, the findings recorded by the

learned Sessions Judge, Rajouri is reversed.

Further the question as to whether the possession of Anardana would be Illicit or not be examined. u/s 39 of the Forest Act, when a person is

found to be in possession of Forest produce then it is for that person to discharge the burden that his possession was not illegal. Section 39 of the

Forest Act is re-produced below :

Presumption that the possession of forest produce is illicit : When in any proceedings taken under this Act or in consequence of anything done

under this Act, a question arises as to whether the possession of any forest produce of a person is illicit or not such possession shall be presumed

to be illicit until contrary (is proved by the accused).

A bare reading of the above would Indicate that it is for the person in possession to indicate that his possession is legal. Forest Officer rightly

came to the conclusion that the respondents failed to discharge the burden imposed under Section. 39 of the Forest Act, therefore, on this issue

also the findings as returned by the Officer are upheld and findings as recorded/returned by the Sessions Judge are reversed.

The question as to whether the order of confiscation of trucks as passed by the Forest Officer is good or bad be examined.

In case State of M.P. Vs. Suresh Kumar, a truck carrying forest produce Illegally was confiscated. It was observed that burden is on the

owner of the truck to prove that this truck was involved in illegal activities without his knowledge or connivance. Opportunity was given to the

truck owner to cross-examine the Forest employee whose statements were recorded by the competent authority during confiscation proceedings.

The truck was found to be carrying wooden logs. Owner failed to produce any material to discharge the burden which was placed upon him under

M. P. Van Upaj Act, 1969. In these circumstances it was held that the competent authority and the appellate authority committed no error in

corning to the conclusion that the owner had failed to satisfy the Forest Officer that the illegal activity committed by the driver of the truck was

without his knowledge of connivance. Sessions Judge, who was dealing with the matter on the revisional side had taken a view to the contrary.

This decision was upheld by the High Court of Madhya Pradesh. The Supreme Court of India was of the opinion that the order passed by the

competent authority was Justified and the view expressed by the Court of Sessions Judge, which was affirmed by the High Court was on

misreading and misinterpreting the provisions of Section 15(6) of the Act.

Earlier view expressed by the Supreme Court in State of Madhya Pradesh Vs. Azad Bharat Finance Co. and Another, was found to be not

applicable.

In the face of the aforementioned decision, the view expressed by the learned Sessions Judge, Rajouri cannot be sustained. The order passed

by the Forest Officer would be a valid order.

A preliminary objection to the maintainability of this petition has been taken by the respondents. This is on the ground that the Forest Officer,

who passed the order being a party to the lis cannot file this petition. It be seen that this petition has been preferred by the Range Officer and also

by the State of J. and K. through Chief Secretary. Therefore, this technical objection would not prevail. Even the Forest Officer. Rajouri can file

the petition. He was not only a proper but a necessary party. In this regard it would be apt to refer the decision of the Supreme Court of India in

Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, , wherein the view expressed was that not only the person

affected but also the authority whose order is challenged is a necessary party. These objections are therefore, held to be devoid of merit. This

petition, as such, is allowed. The order passed by the learned Sessions Judge, Rajouri on the file No, 13/1 2000 and File No. 14/2000 are set

aside.

As the Courts are closing for ensuing summer vacations and the affected parties have expressed a desire to challenge this order in appeal, the

operation of this order shall remain in abeyance for a period of six weeks.

Disposed of accordingly.