State of Himachal Pradesh vs Raghubar Dass

V.P. Bhatnagar, J.—One Raghubar Dass was challaned and tried for having committed an offence u/s 379 I.P.C. and Sections 41 and 42 of the Indian Forest Act. In brief, the case against him was that he had illicitly felled trees from the Government forest and was found an illegal possession of 227 scants of kail and 219 scants of deodar.

The cases was tried by the learned Magistrate, 1st Glass, (11), Shimla who, vide his judgment dated February 28, 1986, acquitted the accused mainly on the ground that the prosecution could hot establish as to from which Government forest illicit felling had been done.

In his statement recorded u/s 313 Code of Criminal Procedure the accused had claimed the timber to be his own. He pleaded that he was constructing one house and repairing Anr. and that the timber in. question had been collected by him through T. D. permits and/or from the trees standing on his land. One of the points framed by the learned trial court pertained to the ownership of the timber arid the findings were, that the timber belonged to the accused. These finding rested on the reasoning that the timber had been seized from the house, of the accused and that mere possession was no offence. Some, T.D. permits issued by the Forest Department in favour of the accused were also adverted to and relied upon. As a result; it was ordered that the timber be returned to the accused who, as stat ed earlier had been acquitted so far as the charges framed against him were concerned.

Aggrieved from the aforesaid judgment, the State of Himachal Pradesh preferred an appeal against the acquittal in the High Court. This appeal was dismissed in liming on July 1, 1986. The State of Himachal Pradesh had also preferred an appeal under the provisions of Section 454 Code of Criminal Procedure on May 26, 1986 against hat portion of the trial court judgment vide which it directed the timber to be returned to the accused. This appeal was dismissed by the learned Sessions Judge, Shimla by his order dated January, 1, 1987 mainly on the ground that the High Court had already refused to grant special leave; to appeal against the order of acquittal dated February 28, 1986 of the learned Judicial Magistrate, 1st Class (II), Shimla and that, by necessary implication, the order of the learned trial court pertaining to the return of the timber to the accused also stood approved by the High Court.

In the present criminal revision petition, the State of Himachal Pradesh has challenged the aforesaid findings of the learned Sessions Judge, Shimla recorded in his order dated January 1, 1987.

It has been forcefully argued by Mr. G.D. Verma, learned Counsel for Respondent Raghubar Dass, that the present petition is not maintainable at all interlaid due to the reason that the State had riot only challenged the earlier order of acquittal but also the findings regarding return of timber to the accused. On the other hand, the learned Asstt. Advocate General has stated that the proper remedy available to the State regarding the order of return-of timber to the accused was by way of filing an appeal under the provisions of Section 454 Code of Criminal Procedure before the learned Sessions Judge whereas the appeal against acquittal lay before the High Court by way of a petition asking for special leave to appeal u/s 378 Code of Criminal Procedure.

In strict legal parlance, the point raised by Mr. G.D. Verma does require serious consideration. It appears that the State of Himachal Pradesh ought to have obtained specific orders from the High Court not only on the point of grant of special leave to appeal against the Order of acquittal but also with respect to that portion of the order by which the timber in question had been directed to be returned to the accused. The perusal of the record unfortunately shows that this was not done since the application for the grant of special leave to appeal preferred by the State was dismissed by a short order reading "Leave not granted". There appears to be no manner of doubt that the point pertaining to the ownership of timber was given a complete go by. All the same, the intention of the State of Himachal Pradesh was abundantly clear inasmuch as if had filed a separate appeal u/s 454 Code of Criminal Procedure challenging the order of the learned trial Magistrate regarding return of the timber to the accused. It was possibly on account of this reason that the State did not fully, press that point before the High Court.

It is now being realized by all and sundry that the forest wealth belongs to the entire country. Do nudging the forest of its wealth has come to be regarded as an evil which must be dealt with the stronger hand. Unsystematic cutting of trees can adversely affect the environment conditions not only of that particular place and region but also of the entire country in the long run. The legal bitch presented on the above background.

In the present case, accused put forward a specific plea in defense that he had collected this timber through T.D. permits and by cutting trees standing on his own land. It was sufficient for him to have raised this plea and he could afford to remain contented with placing a few certified copies of the T.D. permits during his trial so as to raise a reasonable doubt that the timber in question may not be illicit. In other words, he was not required, nor he actually went to that length, to prove during the course of the criminal trial that each and every scant belongs to him. Such an opportunity can be afforded to him even how in case a direction is issued that he may establish his title to the timber in question through a civil suit. Here, it may be noticed that he learned Asstt. Advocate General has very fairly conceded that he State of Himachal Pradesh in that eventuality would not raise any objection on the point of limitation provided the suit is filed within a reasonable time say a period of six months.

And then, it may also be noticed that there is a presumption that forest produce which is the subject matter of any proceeding under the Indian Forest Act, 1927 belongs to the Government. In this connection, reference may be had to the provisions of Section 69 of the said Act. The provisions contained in Chapter XXXIV of the Code of Criminal Procedure regarding disposal, of property which is connected with a criminal case will have to be read together with Section 69 of the Indian Forest Act. Whereas the case of an acquittal, such a course cannot be as opted with respect to forest produce in view of the clear cut provisions of Section 69 of the Forest Act.

Before paring with this case, notice may also be taken of Section 15 of the Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983. It reads:

Whoever trades in any forest procedure and is or had been in possession of that produce which he cannot satisfactorily account for shall be punished with imprisonment of either description which shall not be less than one year but which may extend to three years, and shall also, be liable to fine:

Provided that the court may, for any special reason to be recorded in writing, impose a sentence of imprisonment of less than one year.

Explanation - For the purpose of this section

(a) "forest produce" means "timber" and "trees" as defined in Clauses (6) and (7) of Section 2 of the Indian Forest Act, 1927 and shall include resin, catechu or any other forest produce, which the State Government may, by notification, specify in this behalf; and

(b) trading in forest produce means the sale or purchase of any forest produce in any manner, shape or form, whatever, or carrying on any business in it with a view to make profit.

Thus, it would be seen that the mere possession of forest produce without being able to satisfactorily account for it has been made an offence punishable with imprisonment for not less than one year but which may extend up to 3 years. The intention of the law makers for due preservation of the forest wealth cannot be made more clear.

In the above view of the matter and in the totality of the facts and circumstances of this case, this criminal revision is accepted and the impugned order dated January 1,1987 of the learned Sessions Judge, Shimla quashed Pursuant to the Court''s order made on August 26, 1989, an affidavit has been filed by Mr. A. N. Sharma, Superintendent of Police (Enforcement), South Zone, Shimla, perusal of which shows that the timber in question was auctioned by the Divisional Manager, Forest Corporation on November 28, 1985 against net amount of Rs. 42,240/-, It will be open to Shri Raghubar Dass to file a separate civil suit to establish his title to the timber in question or to pray for such further relief as may be available to him under the law. His suit, if filed within a period of six months from to-day, will not be resisted by the State of Himachal Pradesh on the ground of limitation.