Rikhi Ram vs State of Himachal Pradesh

Bhawani Singh, J.—The short question for determination in this revision petition is whether the decisions of the courts below convicting and sentencing the accused are within the legal parameters or call for interference for any legal impropriety or inaptly evaluating the evidence on record thereby leading to miscarriage of justice. The matter arises in the following circumstances.

The accused is a Katha contractor. He appears to have a Kathabhathi for manufacture of this article. To do so, like many Ors. , khair trees are either purchased from the government or from the private owners. The present case pertains to the transport of Katha by the accused along with his co-accused who, it appears, has not filed any revision petition like the accused in the present revision petition. During the night intervening 26th and 27th may, 1981, truck no. Hpg-268 was intercepted by the police near kalu-di-Hatti at Palampur. It was found carrying 1850 kgs. of Katha in boxes and three bags of charcoal without any permit for its transportation under Rule 11(1) of Himachal Pradesh forest produce transit (land routes) Rules, 1978, enacted under sections 41 and 42 of the Indian forest act, 1927. The matter was investigated and ultimately the accused were proceeded against for the contravention of these statutory provisions. The defense of the accused is that he was carrying the Katha on this day to amrita to be kept in the safe custody of amrita Transport Company since he apprehended danger of fire to his produce as in the case of one Shri Parkash Chand, Katha valuing about rupees five lakes was also burnt to ashes in the forest. This Katha, he states, was also loaded at Ghata at 12 noon oh. 26-5-1981 but the vehicle developed some mechanical defect near banner and while these boxes were covered with tarpaulin, as it started raining, the vehicle was intercepted by the police. Thus the transport of Katha has been admitted. It has also been admitted that no permit for the transport thereof was obtained by the accused. The defense tinned herein before;

There is no dispute that Katha is a forest produce within the meaning of section 2(4) of the Indian forest Act, 1927. This provision defines it as under;

(4) forest produce, includes

(a) the following whether found in, or brought from, a forest or not, that is to say:

timber, charcoal, daout chouc, catechu, wood-oil, resin natural varnish, bark, lac, mahua flowers, mahua seeds, kuth and myrabolams, 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 trees,

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

(iii)wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax arid all other parts or produce of animate, and

(iv) peat, surface soil, rock and minerals (including lime-stone, literate, mineral oils, and all products of mines or quarries).

Sections 41 and 42 of the Indian forest act, 1927 are necessary to be reproduced since rule 11(1) has been enacted under these provisions:

(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 may

(a) prescribe the routes by which alone timber or other forest produce may be imported, exported or moved into, from or within the state;

(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorized to issue the same, or otherwise than in accord dance with the conditions of such pass;

(c) provide for the issue, production and return of such passes and for the payment of fees therefore;

(d) provide for the stoppage, reporting examination and making of timber or other forest-produce in transit, in respect of which there is reason to believe that any . Money is payable to the government on account of the price thereof, or on account of any duty, fees, 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, brush-wood, branches or leaves into any such river or any act which may cause such liver 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 of sawpits, the converting, cutting, burning, concealing or making of timber, the altering or effecting 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.

(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.

41-A. xx xx xx xx xx 42. (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 like offence."

Now, Rule 11 States as under :

Prohibition on transport of forest produce:(1) No person shall transport or cause to be transported any forest produce by land routes, without obtaining pass (annexure. ''A'').from the concerned divisional forest officer or any other officer so authorized.

(2) No person shall transport or. Cause to be transported any timber for conversion for sawing or for sale enrooted.

(3) Transport routes and other conditions.

(a) the authority issuing the pass shall prescribe a route by which along the forest produce may be transported for export outside Himachal Pradesh in such a manner that the forest produce crosses through one of the following barriers established by the excise and taxation department;

------------------------------------------------------------------------- S.No. Name of barrier district ------------------------------------------------------------------------- 1. Baroti (parwanoo) solan 2. Barotiwala solan 3. Dharewal solan 4. Baddi solan 5. Dhabhota solan 6. Kandaghat solan 7. Kumarhatti solan 8. Dharampur solan 9. Kala amb Sirmaur 10. Naughat sirmaur 11. Behral sirmaur 12. Haripur sirmaur 13. Dakpathar sirmaur 14. Swarghat bilaspuf 15. Mehatpur una 16. Gagret una 17. Pandoga una 18. Marwari, tehsil, amb, daulatpur chowk, talwara road, una 19. Santokhgarh una 20. Jajjon, una 21. Kandowal Kangra 22. Sansatpur terrace kangra 23. Indora Kangra 24. Kandrodi kangra 25. Tannuhatti chamba 26. Shimla railway station shimla 27. Meenus shimla 28. Dhali shimla 29. Totu shimla 30. Jogindernagar mandi

provided that such authority shall also. Prescribe the check post(s) where the forest procedure shall be compulsorily checked reroute.

(b) In case the produce is not to be exported outside the territory of Himachal Pradesh, the austerity issuing the pass shall prescribe the route by which a one the forest procedure may be transported and shall also determine the check post(s) where it shall be compulsorily checked

(4) the issuing authority shall also determine the other conditions subject to which the pass shall be issued and shall also determine the period for which the pass shall remain valid. However the validity of any pass "shall under no circumstances exceed a period of six months, including any extension(s) allowed a fee, of Rs. 5/-. Shall be liable for the issue of such a, pass"

4a. Rule 20 of these rides prescribes the penalty for the breach therefore and the same is as under:

20, penalty Ector breach of rules any person who contravenes these rules shall be liable to imprisonment for a term which may expend to six months or with fine which may extend to Rs. 500/- of with both and the forest procure being transported may also be seized and dealt with under the provisions of, the Indian forest act:

provided that the penalties will be doubled in cases where the offence has been committed after sunset or before sunrise, or after resistance to the lawful ftauihrity where the offender has been previously convicted of like offence.

Examination, of this matter clearly demonstrates that the accused did not have any permit to transport the forest produce in question. Therefore, the contravention of the provisions of rule1 1(1) is clearly established. The defense of the accused that he wanted to transport it to make/it safe from fire, cannot, at all, be believed for the reasons that in case this was the object, it could be moved from one place to Anr. in the same area, but transport thereof to Amritsar outside the state of Himachal Pradesh was obviously without this object in mind, further, the assertion that the vehicle was loaded during day time, cannot, at all; be believed. There is no cogent and convincing evidence to justify it, rather this defense has been set up by the accused to save himself from the seriousness of the offence only.

Perusal of the record and the judgments of the courts below indicate that the matter has been dealt with and examined quite exhaustively and the conclusions arrived at are absolutely correct and in tune with legal principles and the evidence on record. I do not see any justification to come to any conclusion in this revision petition other than the one already arrived at by the courts below. The conviction and sentence imposed are, therefore, up-held.

Learned counsel for the accused submits that lenient view of the matter be taken and the accused may be given the benefit of the provisions of probation of offenders act. This plea has been very seriously opposed by Shri M.S. Guleria, learned assistant advocate general, appearing in opposition. To this revision petition, he contends that illicit felling of trees, in this state, has played havoc in the past. This has resulted not only in great loss to the ecology of the whole nation but also to the revenue of the state. Forest contractors, he submits, cut large number of trees illicitly and mix them up with other trees, may be legally allotted to them and then transport the same stealthily in collusion with the owners of the vehicles. Therefore, in case transport of the forest produce is checked seriously and effectively, minimum 80 percent of the loss to the ecology, forest wealth and revenue to the state can be saved. Shri. Guleria also submits that in order to protect the forests from destruction, constitutional amendments have been made. Reference in this connection is made to article 48A and 51A of the constitution which were enacted by the parliament by the constitution (forty-second amendment) act, 1976. They are reproduced as under :

PART IV

DIRECTIVE PRINCIPLES OF STATE POLICY

48a. Protection and improvement of environment and safeguarding of forests and wild life.

The state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."

PART IV A

FUNDAMENTAL DUTIES

51A. Fundamental duties.

it shall be the duty of every citizen of India

xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures ;

xx xx xx xx xx xx xx xx xx xxxx xx xx xx xx xx xx xx

These submissions of Shri M.S. Guleria have great force. Looking to the matter from these angles, find that the accused cannot be given the benefit of the benevolent provisions of the probation of offenders act. The sentence imposed by the trial court is already minimal and does not, therefore, call for any interference by this court.

The result, therefore, is that there is no merit in this revision petition and the same is accordingly dismissed.