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2009 DIGILAW 429 (JK)

Chander Bhan v. State Of J. &K.

2009-08-28

J.P.SINGH

body2009
1. Petitioners were convicted and sentenced to simple imprisonment for six months under Section 16 of the Jammu and Kashmir Forest Act, 1987 (1930 A.D.), hereinafter to be referred as, "the Act", for short, for transportation of 12 Shisham logs, without permission, by the Judicial Magistrate 1st Class, R.S.Pura vide his judgment of November 1, 1990. 2. Their appeal against the sentence having failed before the learned Sessions Judge, Jammu, they have invoked the Revisional jurisdiction of this Court on the criminal side seeking setting aside of their conviction and sentence. 3. Petitioners learned counsel submitted that the learned Judicial Magistrate 1st Class has convicted the petitioners under Section 16 of the Act without recording any finding as to the violation of one or the other rules framed under Section 15 of the Act, by the petitioners, which, according to him was impermissible rendering their conviction illegal. 4. Learned State counsel, when asked to demonstrate as to which rule framed under Section 15 of the Act had been violated by the petitioners, was unable to refer to any such rule. 5. I have considered the submissions of learned counsel for the parties. 6. Conviction under Section 16 of the Forest Act may be recorded only on proof of the infringement of one or the other rules framed under Section 15 of the Act, as the plain language of Section 16 of the Act, which is reproduced hereunder for reference, so indicates. The Section reads thus:- "16. Penalty for breach of rules made under section 15 [Any person, who infringes any of the rules made under section 15 may be punished with] imprisonment for a term [which may extend to two years but shall not be less than three months and with fine which may extend to five thousand rupees but shall not be less than one thousand rupees:] [Provided that where the value of timber seized exceeds rupees five thousand the fine may extend up to the value of timber so seized.] 7. Neither the learned Judicial Magistrate, nor the learned Sessions Judge has adverted to the violation or otherwise of the rules framed under Section 15 of the Act by the petitioners. Neither the learned Judicial Magistrate, nor the learned Sessions Judge has adverted to the violation or otherwise of the rules framed under Section 15 of the Act by the petitioners. The whole discussion of the two Courts centers around the question as to whether the logs had by the petitioner, Chander Bhan in auction by the Irrigation Department of the State and transported on petitioner Rashpal Singhs cart, were Shisham or Kikkar logs, in resolution whereof a finding has been recorded that the petitioners had failed to prove that petitioner Chander Bhan had obtained Shisham logs in auction held by the Irrigation Department of the State. 8. Perusal of the Land Transport Rules framed under Section 15 of the Act indicates in rule 4 thereof, that no timber or other forest produce shall be moved on any route on which a depot or check post has been established, unless covered by a Pass issued by the Forest Officer or the Revenue Officer or by the owner of a private forest or his agent. 9. The prosecution has not led any evidence to prove that the seized timber had been moved on the route on which a depot or check post had been established and therefore no finding has been recorded in this regard by the learned Judicial Magistrate, suggesting violation of rule 4 of the Land Transport Rules by the petitioners. 10. The prosecution having failed to prove the violation of the rules framed under Section 15 of the Act by the petitioners, the conviction recorded and the sentence awarded to the petitioners by the learned Judicial Magistrate 1st Class cannot thus be sustained. 11. Both the Courts below have acted illegally in convicting and sentencing the petitioners under Section 16 of the Jammu and Kashmir Forest Act, 1987, without recording any finding regarding violation of any rule framed under Section 15 of the Act, by the petitioners. 12. Accordingly, setting aside the trial courts judgment dated 1st of November, 1990 and the appellate courts judgment of September 30, 1992, the petitioners are acquitted of the charge.