Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 391 (GAU)

Sajal Malakar v. State of Tripura

2005-05-18

R.B.MISRA

body2005
JUDGMENT R.B. Misra, J. 1. This criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure is against the judgment dated 11.6.1998 passed by the learned Sessions Judge, North Tripura, Kailashahar in Criminal Appeal No. 23 (4) of 1997 affirming the judgment passed by the learned Chief Judicial Magistrate, North Tripura, Kailashahar in case No. C.R. 133 of 1996 convicting the Petitioners, namely, (1) Sri Sajal Malakar, (2) Ramjan Ali, (3) Kayad Miah and (4) Samsuddin under Section 42 of the Indian Forest Act (here-in-after referred to as the Act) for their involvement under Section 26(1)(f), Sections 41 and 42 of the Act and awarding the sentence of rigorous imprisonment for a period of 3 (three) months and a fine of Rs. 500/- each, in default, rigorous imprisonment for one month. 2. The prosecution case, in brief, is that on 24.11.1996 at about 2 p.m. one Shri Khawngai Liana Darlong, Officer-in-Charge of Hiracherra Special Protection Party along with other forest officers was patrolling along Balahar area near Shantipur, noticed that one Gamai tree within the Jalai Beat area, a Protected Reserve Forest area was cut that and removed recently and while tracing the same, they followed the marks of dragging the said tree, they reached village Balehar and observed that the Petitioners were sawing manually one recently cut Gamai log which had no forest marking and on enquiry, neither the ownership of the said log was claimed nor any permit was shown by the Petitioner said to have been issued by the competent authority for felling and transporting the Gamai tree was shown by the Petitioner. The said Gamai log was seized and the Petitioners were arrest d for the aforesaid offences and a C.R. Case No. 133 of 1996 was instituted against them before the learned Chief Judicial Magistrate, North Tripura, Kailashahar for adjudication. 3. The prosecution examined as many as (05) five witnesses out of which PW 2 Pachi Marak and PW 3 Renu Debbarma were not examined. Other three witnesses, namely, Pradip Kumar Chakma (PW 1), Narayan Chandra Debnath (PW 4) and K.L. Darlong (PW 5) being the employees of Forest Department on duty were examined. According to the prosecution witnesses, the Petitioners were caught red-handed for the offence of cutting Gamai tree and sawing that tree in their possession. All the three prosecution witnesses corroborated about the said incidence. According to the prosecution witnesses, the Petitioners were caught red-handed for the offence of cutting Gamai tree and sawing that tree in their possession. All the three prosecution witnesses corroborated about the said incidence. The learned trial Court, however, held that the felling up of the Gamai tree by the Petitioners was not supported by the evidence and, therefore, they were not found guilty under Section 26(1)(f) of the Act but the learned trial Court held the Petitioners guilty of transportation of the Gamai tree without permission involving in an act in contravention to the provisions of Section 41 of the Act and as such convicted them under Section 42 of the Act. 4. The questions for determination are whether the prosecution is justified in holding the Petitioners guilty for cutting and transporting for the Gamai tree without any transit permit and punishing them in the Section 26(1)(f) and Sections 41 and 42 of Act. 5. Mr. S. Dutta, the learned Counsel for the Petitioners has asserted that the learned trial Court has rightly found that the Petitioners were not guilty of cutting the Gamai tree and, therefore, had rightly acquitted the Petitioners from the offence under Section 26(1)(f) of the Act however, for no evidence, the learned trial Court as well the learned appellate Court had illegally convicted the Petitioners for transportation of gamai tree though nobody had witnessed or had observed the Petitioners transporting the Gamai tree. According to learned Counsel for the Petitioners, by not explaining the ownership or the source of gamai tree, the Petitioners were not to be convicted only for possessing the Gamai tree. According to the learned Counsel for the Petitioners, keeping in view the good previous records of the Petitioners and that they are not the habitual offenders, the State Government could have authorized the appropriate officer of Forest Department to compound the offence, if any. However, in any. The learned Sessions Judge by his order dated 11.6.1998 has observed that all the relevant witnesses are the officials of the Forest Department and PW 5 Shri Kongailiana Darlong, the complainant along with two witnesses while patrolling in the plantation area has noticed felling of Gamai tree and has traced out the same in possession of the Petitioners by following the marks of dragging of the tree and noticed that Petitioners were sawing manually the said Gamai log. In the facts and circumstances, the conclusion arrived at by the learned trial Court was affirmed by the learned Sessions Judge holding the Petitioners were responsible for felling as well as transporting the Gamai tree from the plantation area to Balahar village. The learned Sessions Judge has discarded the version of the appellant that no independent witness had seen the felling and transporting the Gamai tree and the forest personnel were not to be disbelieved as they had no occasion before them to implicate the Petitioners without any reason. 6. I have heard Mr. S. Dutta, the learned Counsel appearing on behalf of the Petitioners and Mr. D. Sarkar, the learned Public Prosecutor appearing on behalf of the Respondent, I have also perused the documents and records and also analysed the evidences of the prosecution witnesses. Three forest personnel have observed bonafidely that the fresh Gamai log from the protected reserve forest area was cut and found in possession of the Petitioner in Balahar village where the Petitioners were manually sawing the Gamai log, however, they could not prove the ownership of the log, as the log was without marking and without permit to cut and remove the log from the forest area. Therefore, in the facts and circumstances, I affirm the view of learned Sessions Judge that the Petitioners were guilty of cutting and transporting the Gamai tree illegally. As such the question under consideration in respect of holding the Petitioners guilty of offences are dealt with. However, in respect of the quantum of punishment, since the incident took place in the year 1996, it has been submitted on behalf of the Petitioners that they are ready to obey the conditions or penalty imposed upon them and by efflux of the time they have realized the value of forest, environment and ecology. Since the Government of Tripura, Forest Department vide Notification No. 12 dated 29.41952 has framed a Transit Rules in reference to Sections 41 and 42 of the Act and also provided in Clause 12 of this Transit Rules the provisions for transportation of forest produce by Hillmen Jhoomia and also provided under Clause 13 of the provisions of same, penalties to be imposed under Section 42 of the Act. 7. 7. Keeping in view the facts and circumstances, the State Government has power to make appropriate Rules under Section 41 read with Section 42 of the Act for awarding punishment under Section 42 of the Act and has also power under Section 68 of the Act to compound the offence. In respect of quantum of punishment/sentence in facts and circumstances the Petitioners shall deposit Rs. 500/- each as fine with the Chief Judicial Magistrate, North Tripura, Kailashahar within 8 (eight) weeks from today and they shall also appear before the Chief Judicial Magistrate, North Tripura, Kailashahar within the said period from today and the learned Chief Judicial Magistrate may impose appropriate condition(s) and may also release the Petitioners on furnishing bond supported by two sureties of Rs. 3000/- each, to his satisfaction with direction that the Petitioners shall undertake to approach to the State Government within three months from today. The State Government in reference to the provisions or the Rules may indicate appropriate conditions or may make provision in the light of Section 41 read with Section 42 of the 'Act'. For imposing such other appropriate conditions or making provision or for awarding monetary conditions for deposit of additional money or such condition as may be appropriate under Section 68 of the Act. The Chief Secretary/or the in-charge Secretary of the Forest Department of the State of Tripura may take assistance of the Principal Chief Conservator of Forests of Tripura to set out such conditions to impose over the Petitioners including the direction for making plantation of prescribed plants or imposing additional amount of money by way of penal measure over the Petitioners. 8. With the above observations, on fulfilling the conditions prescribed as indicated above the sentence awarded by the learned Sessions Judge, North Tripura, Kailashahar is being reduced. A Copy of this judgment shall have to be given to the learned Public Prosecutor Mr. D. Sarkar so that the same maybe conveyed to the Chief Secretary and other appropriate officer including the Chief Judicial Magistrate, North Tripura, Kailashahar. Relevant records are to be relegated to the learned trial Court.