Patna High Court
Mohd. Mokhtar Ahmad @ Mohd. Mokhtar vs State Of Bihar And Ors. on 17 May, 1995
Equivalent citations: 1995(2)BLJR1182
JUDGMENT Nagendra Rai, J.
1. The petitioner has filed the present application for setting aside the order dated 13.12.1993, passed by me Chief Judicial Magistrate, Gumla, in G.R. No. 439/93, taking cognizance and issuing processes under Section 414 of the Indian Penal Code and Sections 41 and 42 of the Indian Forest Act against the petitioner and one another as well as the order dated 16.7.1994 passed by the Sub-Divisional Judicial Magistrate, Gumla in the said case framing charges under the aforesaid Sections against both of them.
2. On 11.6.1993 at 9.30 P.M. the S.I. of Police Md. Quamruddin Gumla Police Station (the informant) received a confidential information that 13 bags of Meda Bark (Chhal), a forest produce, illegally removed, were loaded in a Metador, bearing No. B.R. 14L 7454, in Palkot Mohalla of Gumla town for the purpose of selling in black market. On the said information he along with police party went at that place and found the aforesaid Metador loaded with 13 bags of Meda Chhal. Two persons were found on the said Metador, who disclosed their names as Reyazul Ansari and Budhiraj Oraon (the driver of the Metador). Reyazul-Ansaritold that he has hired the Taxi in question for Rs. 200/-on the pretence of transporting lmli from Gram Ambua, P.S. Gumla, but loaded 13 bags of Meda Chhal, collected from Gumla Forest Area. He also stated that he is a labourer of the petitioner, namely. Md. Mokhtar Ahmad, and the Meda Chhal belongs to him and on his direction he had brought the Meda Chhal by the Metadoor. He has no valid paper for possessing the Chhal.
3. The S.I. of Police on his own statement registered a case bearing Gumla P.S. Case No. 115/93 against the two persons, namely, Reyazul Ansari and the petitioner for me offence under Section 414/34 I.P.C. and Sections 41 and 42 of the Indian Forest Act and after investigation submitted charge sheet only against Reyazul Ansari under the aforesaid sections. The Chief Judicial Magistrate, after perusal of the records took cognizance and issued processes against him as well as the petitioner by the aforesaid order and later on, transferred the case to S.D.J.M., Gumla, who framed charges against the petitioner and Reyazul Ansari, as stated above.
4. The only point pressed on behalf of the petitioner is that no offence under any section's of the Indian Forest Act is made out against the petitioner. According to him Meda tree or its Chhal has not been notified as a reserved tree in the protected forest under Section 30 of the Indian Forest Act, 1927 (hereinafter referred to as the Act) nor any rule has been framed under Section 32 of the Act for the same and, in that view of the matter, he cannot be prosecuted under Section 33 of the Act for possessing the Meda Chhal. He also contended that as no rule to regulate transit of Meda Tree or its Chhal (bark) has been framed by the State Government under Section 41 of the Act, he cannot be prosecuted under Section 42 of the Act.
5. Learned Counsel appearing for the State, on the other hand, contended that Meda Chhal is a forest produce, as defined under Section 2(4) of the Act and if any person is found removing any forest produce or strips off the bark of the tree from the reserved forest notified as such under Section 20 of the Act, he shall be prosecuted under Section 26 of the Act. Similarly, in a protected forest if after the issuance of Notification under Section 30 reserving a tree a person feels, strips of the bark, girdles etc. of any tree reserved, or removes the forest produce against the prohibition under Section 30 of the Act, he commits an offence under Section 33 of the Act. He contended that the allegation is mat he has removed the forest produce from forest area. If it is proved that the removal is from the reserved area he is liable for conviction under Section 26 of the Act. If the removal is from protected forest against the prohibition contained in the notification issued under Section 30 of the Act, men the petitioner shall be convicted under Section 33 of the Act. Apart from this, it is stated that as the petitioner was found in possession of Meda Chhal removed from the forest area without valid papers and was taking steps in concealing the stolen forest produce, he is liable to be prosecuted under Section 414 of the Penal Code.
6. The only question to be determined is as to whether on the materials on the record, a prima facie case against the accused person is made out or not for the offences under the Forest Act and the Penal Code.
Section 2(4) of the Act defines the "forest produce" which runs as follows:
Section 2(4). "Forest-Produce" includes-
(a) The following whether found in, or brought from, a forest or not that is to say:
Timber, charcoal, caouthouc, 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 tree.
(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 and all other parts or produce of animals, and.
(iv) peat, surface soil, rock, and minerals (including limestone, laterite, mineral oils, and all products of mines or quarries).
"Timber" has been defined under Section 2(6) of the Act, which runs as follows:
"Timber" includes trees when they have fallen or have been felled and all wood whether cut up or fashioned or hollowed out for any purpose or not.
"Tree" has been defined under Section 2(7) of the Act, which runs as follows:
"Tree" includes palms, bamboos, skumps, brush-wood and canes.
From the combined reading of the aforesaid definitions of "forest produce" "timber" and "tree" it is clear that the definition of forest produce is of wide amplitude. Meda tree found in or from forest and timber and bark whether found, in or brought from forest or not are forest produce.
7. So far as the reserved forest is concerned, once by a notification issued under Section 20 of the Act, the State Government declares any land as reserved forest, then any person engaged in any of the activities prohibited under Section 26 of the Act will be liable for prosecution under the said Section. For the purpose of this case, Sub-section (1)(f) and (g) of Section 26 of the Act are relevant, which runs as follows:
26 (1) Any person who-
(f) fells, girdles, lops, tops, or burns any tree or strips off the bark or leaves from, or otherwise damages the same;
(g) quarries stone burns lime or charcoal, or collects; subject to any manufacturing process or removes any forest-produce.
Thus, from the said provisions it is clear that any person who strips off the bark of forest produce, or removes any forest produce which includes Meda Tree and its bark, as stated above, shall be punished under Section 26 of the Act.
8. Section 29 of the Act empowers the State Government to declare any forest land and waste land as protected forest. Section 30 of the Act empowers the State Government to issue notification reserving trees and prohibiting certain acts in the protected forest. The said Section runs as follows:
The State Government may by notification in the Official Gazette-
(a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification;
(b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks, fit, and the rights of private persons, if any, over such portion shall be suspended during such term provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or
(c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process or removal of, any forest-produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.
Thus, it is evident that the State Government may by notification reserve any tree or class of trees from a date fixed in the notification, close any portion of forest for a specified period not exceeding thirty years and prohibit from a date fixed in the notification, removal of any forest-produce or other acts as stated in the said-section.
9. Section 32 of the Act empowers the State Government to make rules for protected forest with regard to the matters incorporated in the aforesaid section. Section 33 of the Act provides punishment for Acts in contravention of notification under Section 30 of the Act and the Rules-framed under Section 32 of the Act.
10. Section 41 of the Act empowers the State Government to regulate transit of forest produce and Section 42 provides punishment for violation of rules framed under Section 41 of the Act.
11. The learned Counsel for the State did not bring to my notice any transit rules framed under Section 41 of the Act prohibiting the transit of Meda tree or its Chall. Transit Rules known as the Bihar Timber and other Forest Produce Regulation of Transit Rules, 1973, do not apply to Meda tree or its Chhal, as neither the Meda tree is included in the scheduled nor Meda Chhal is included in the definition of Chhal as defined under the said Rules. Similarly, nothing has been brought on the record on behalf of the State that Meda tree has been notified as reserved tree under Section 30 of the Act. However, it was brought to my notice that a notification has been issued prohibiting removal of forest produce from the protected forest in the district. It is also stated that in the present case the accused have removed the forest produce from the protected forest in contravention of the notification issued under Section 30 (c) of the Act and, as such, his prosecution is permissible under Section 33 of the Act.
12. Section 30 of the Act empowers the Government to issue notifications with regard to the matters covered by three Clauses of the section. The violation of any of the provisions as contained in (a), (b) and (c) is punishable under Section 33 of the Act.
13. Even if, there is no notification reserving a tree under Section 30 (a) of the Act, if a notification has been issued in terms of Section 30 (c) of the Act prohibiting removal of forest produce from the protected area, an offence under Section 33 of the Act is made out. A tree may not be reserved under Section 30 (a) of the Act even then removal of forest produce prohibited by notification under Section 30 (c) is punishable. The Meda tree and its bark is a forest produce and its removal by the petitioner and other against the prohibition is an offence under Section 33 of the Act.
14. It has to be seen at the trial as to whether the Meda Chhal, a forest produce, has been removed from the reserved forest or from protected forest. In any case, if the petitioner and his companions are found to have removed Meda Chhal illegally from reserved forest without any valid papers, then they will be liable under Section 26 of the Act. In case they are found to have removed the forest produce from protected forest against the prohibition, as stated above, they will be liable under Section 33 of the Act. This apart, the cognizance is taken of the offence and not of a particular section. Even assuming that no offence is made out under Sections 41 and 42 of the Act, a prima facie case is made out under the aforesaid section against the petitioner and others.
15. Before parting with this judgment, I may mention that the learned Counsel for the petitioner relied upon a judgment of learned Single Judge of this Court in C.W.J.C. No. 164/91 (R) disposed of on 12-4-1994 in support of the submission that Meda tree or its Chhal is not a forest produce. From perusal of the aforesaid materials, it is clear that this point has not been decided. On the other hand, in absense of the counter-affidavit or any notification under Section 30 of the Act produced on the record. His Lordship quashed the seizure of the articles and released the articles. However, he did not quash the prosecution and directed that the petitioner may raise the point in question at the time of framing of charge. Thus, the aforesaid judgment is of no help to me petitioner.
16. Thus, in my view, no case for interference is made out by this Court. Accordingly, the application is dismissed.