Madhya Pradesh High Court
Jaihind Singh Thakur (Jayendra Singh) vs State Of M.P. on 29 March, 2016
1
M.Cr.C.No.9895/2012
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
MISCELLANEOUS CRIMINAL CASE NO. 9895 OF 2012
Shri Jaihind Singh Thakur (Jayendra Singh)
-Vs-
State of Madhya Pradesh
For the applicant: Shri U.K. Bohre, Advocate
For the State: Shri B.K. Sharma, Public Prosecutor.
PRESENT: HON'BLE MR. JUSTICE N.K. GUPTA, J.
ORDER
(29/03/2016) 1- Vide order dated 24-05-2010 the authorized officer of the forest department in forest crime No.6470/01 dated 06-08- 2009 directed to confiscate the tractor bearing registration No.MP32 AA-0841 along with its trolly. The appellate authority vide order dated 27-01-2012 in appeal No.20/10 confirmed the order passed by the authorized officer. The 14 th Additional Sessions Judge, Gwalior in Criminal Revision No.145/2012 vide order dated 01-10-2012 dismissed the revision and confirmed the orders passed by the appellate authority as well as authorized officer. The applicant being owner of the tractor trolly has challenged all the aforesaid orders in the present petition under Section 482 of Cr.P.C.
2- Facts of the case in short are that on 06-08-2009, Shri A.K. Dubey SDO Forest, Shri S.R. Yadav Range Officer, Datia had 2 M.Cr.C.No.9895/2012 received an intimation that in of forest block Radhapur (suit No.RF48) illegal mining operation was going on and therefore, Shri Dubey and Yadav along with Area Assistant Shri S.S. Verma , Suresh Sharma and other authorized officials went to the place and at about 11:30 pm it was found that illegal mining was being done with the help of yellow colour JCB machine. It was also found that the minor mineral was loaded in a tractor trolly, therefore, a spot memo was prepared by Beat Guard
-Amritlal Sain and noted the engine and chassis number of JCB machine because no registration number was exhibited on that machine but registration number of tractor was mentioned in the memo being MP32 AA-0841. Name of the driver was enquired but both of them had refused to tell their names and they also refused to append their signature on various memos. Thereafter, when the concerned forest officer was taking the JCB machine and tractor trolly in which muram was filled up for Datia, then some unknown persons came in a Bullero jeep, surrounded the authorized officer and thereafter they forcefully took the JCB machine as well as tractor and trolly. On 07-08- 2009 intimation was given to the SHO, Police Station Civil Lines Datia and FIR was registered. The police and officers of the forest department had recovered the JCB machine on 07-08-2009. On 07-08-2009 a detailed spot inspection was done and it was found that 85 cubic meter muram was dug on the spot. Thereafter, tractor trolly was also recovered by the concerned forest officer with the help of police provided by the police station civil lines, Datia. The matter was referred for confiscation and the authorized officer after considering the evidence 3 M.Cr.C.No.9895/2012 adduced by the parties passed an order dated 24-05-2010 and confiscated the tractor and trolly. The appeal filed by the applicant was dismissed and the revision was also dismissed. 3- I have heard learned counsel for the parties at length. 4- The learned counsel for the applicant has read out the evidence of various prosecution witnesses as well as defence witnesses to show that a false case was prepared by the forest department and tractor trolly were recovered near Mandi Gate by the police on 24-08-2009. Learned counsel for the applicant has also submitted that on 06-08-2009 Pushpendra Singh Thakur son of the applicant went with the tractor for agriculture purpose to Datia and various witnesses have supported his version. It is also pointed out that according to the provisions of Section 52 of the Forest Act no identification mark was appended either on tractor or on trolly and therefore, the procedure adopted by the officers of forest department was in contravention of the provision of Section 52 of the Forest Act. In the alternate, it is submitted that it was not proved that the tractor and trolly were used for illegal purpose and with the knowledge of the applicant, therefore, it could not be confiscated. Learned counsel for the applicant has read out the entire evidence of witnesses and challenged the procedure adopted by the authorized officer and factual position of the case. However, the main contention was that the tractor trolly was not involved in any crime and it was confiscated without any basis.
5- On the other hand, learned counsel for the State has submitted that there is concurrent finding of authorized officer, 4 M.Cr.C.No.9895/2012 appellate authority and the revisionary Court on the factual position and therefore, the factual position dependent upon evidence cannot be re- appreciated in the present matter. It is submitted that Pushpendra Singh Thakur son of the applicant was driving the tractor at the time of incident and therefore, it cannot be said that he took the tractor without consent of the applicant. On the contrary, it is established that the tractor was under the control of Pushpendra Singh Thakur and he was using the tractor. Free hand was given by the applicant to his son to use the tractor and therefore, there is no substance in the petition filed by the applicant.
6- Learned counsel for the applicant has read out the evidence given by the parties. Though there is concurrent finding of the revisionary Court and authorities below on the factual position, besides the contention, the contention advanced by learned counsel for the applicant cannot be accepted relating to affixing any identification marks on the seized property. After seizure of the property identification marks is required in the case of timber etc. When registration number of tractor was mentioned in the seizure memo prepared on 06-08-2009 then there was no need to affix any identification marks either on tractor or on trolly. According to the document of seizure, the driver of JCB and tractor had refused to append their signature on the seizure memo and seizure memo was prepared by the forest beat guard -Amritlal Sain in which the tractor number was properly written. Hence, when identity of the vehicle was fixed at the time of seizure then it makes no difference if any identification mark was not affixed on the tractor or trolly by the 5 M.Cr.C.No.9895/2012 authorized officer.
7- Learned counsel for the applicant has raised the objection that no timely FIR was lodged. Various officers have stated that none of them could chase the culprits, therefore, in the morning they followed the tyre marks of JCB machine as well as tractor and thereafter on intimation given to the SHO Civil Lines Datia JCB machine could be recovered which was kept at the village Bhitora and after few days tractor trolly was recovered when it was being taken to Mandi at Datia. It would be apparent that on 07-08-2009 i.e. on the next day of incident an FIR was lodged by the authorized officer at police station, civil lines Datia. In the night they saw that JCB machine was digging the muram and one tractor and trolly filled up with muram were found then without inspection, the forest officer could not state before the police positively that what was the offence done by the culprit and who took the tractor, trolly and JCB machine forcefully and therefore, if trace of JCB machine is given by the concerned forest officer to the police of Police Station Civil Lines Datia and thereafter the same was recovered then it cannot be said that FIR was delayed. Secondly, the forest officers were also entitled to get the matter investigated. After seizure of the tractor, trolly and JCB machine if same were taken by the culprits forcefully then the concerned forest officer could have investigated for the tractor trolly, if it could be taken back without intervention of the police but when it was found that the police has to be involved in the second crime of robbery done by the culprits in taking the seized JCB machine and tractor trolly, thus, it was for them to lodge the FIR and to get the 6 M.Cr.C.No.9895/2012 help of police. Under such circumstances, it cannot be said that any deliberate delay was done by the concerned forest officer in lodging the FIR. It is on record that JCB machine as well as tractor trolly were again recovered due to intervention of police and if there was no FIR lodged by the forest officer then such intervention could not be done by the police officers of Police Station Civil Lines, Datia. Under these circumstances, it cannot be said that FIR was delayed.
8- If the evidence of defence is considered then Pushpendra Singh initially has stated before the forest officer that he went to take muram and he did not know that muram was dug from the forest land and thereafter before the authorized officer he told that he went with tractor to Datia on 24-08-2009 accompanying with Ramkishore Shrivastava and Bahadur Singh which was seized but he did not give any explanation as to whether he went to Datia on 06-08-2009 with the tractor or not. Ramprkash Shrivastava, Jayendra Singh Thakur and Bahadur Singh were examined as defence witnesses and they have stated about the seizure that took place on 24-08- 2009 but the witnesses including Pushpendra Singh Thakur are silent about the activities done by him with the tractor on 06-08- 2009. If Pushpendra had not used that tractor for illicit mining then he could state and produce the witness that he did not visit the spot of crime on 06-08-2009 with the tractor trolly and presence of the tractor with trolly could be shown at the different place. No defence witness has stated about the whereabouts of the tractor trolly dated 06-08-2009 whereas the seizure memo and various memos were prepared by the forest 7 M.Cr.C.No.9895/2012 officers in which registration number of tractor was noted. 9- It is alleged by learned counsel for the applicant that a false case has been prepared against the applicant however no enmity is either pleaded or suggested with the forest officers so that the tractor of the applicant was seized by them and when it was taken from the spot it was re-seized by the police. When the defence witnesses including Pushpendra Singh Thakur could not tell about his activities with the tractor dated 06-08-2009 then testimony of forest officers can not be discarded that tractor was seized by the forest officer with trolly filled up with muram which was illegally dug by JCB machine, hence it is not a case in which tractor of the applicant is falsely implicated. In absence of any enmity, there was no reason to disbelieve the evidence of forest officer. In this connection, the statement given by Pushpendra Singh Thakur dated 25-08-2009 cannot be discarded. Such statement is given for the purpose of compromise, he accepted his guilt and prayed that some fine may be imposed and he was ready to deposit the same. It was not alleged by Pushpendra Singh Thakur before the authorized officer that the statement recorded by the forest officer at the time of compromise was not given by him or that written statement was not signed by him. Looking to that statement whereas the driver Pushpendra Singh Thakur could not state about his activities with tractor dated 06-08-2009 to prove that the tractor was not taken to the spot for taking unauthorized muram, hence the testimony of forest officers is again confirmed by the statement of Pushpendra Singh Thakur. Such statement is not barred under Section 24 of the Evidence Act.
8 M.Cr.C.No.9895/201210- On the basis of evidence, the revisionary Court as well as the authorities below have rightly found that the driver Pushpendra Singh Thakur took the aforesaid tractor at the spot to fill up the trolly with illegally dug muram. So far as the connivance or knowledge of the applicant is concerned, he has specifically accepted that he gave the entire control of the tractor to his son Pushpendra Singh Thakur who was driver and plying the tractor and therefore, if Pushpendra Singh Thakur took the tractor for transporting muram obtained by illicit mining then certainly implied consent of the applicant was there with his son Pushpendra Singh Thakur and therefore, it cannot be said that the applicant had no knowledge that forest crime was committed with the help of his tractor.
11- On the basis of aforesaid discussions, no illegality or perversity is visible in the orders passed by the revisionary Court and the authorities below. The factual position as decided by the authorities below is not required to be interfered with and there is no reason to invoke the inherent power of this Court vested under Section 482 of Cr.P.C. in favour of the applicant. Consequently , the petition under Section 482 of Cr.P.C. filed by the applicant -Shri Jaihind Singh Thakur (Jayendra Singh) is hereby dismissed at motion stage. 12- When the petition has been dismissed then there is no need to pass any order on I.A.No.4207/2015, an application for stay.
(N.K. Gupta) Judge 29/03/2016 Anil* 9 M.Cr.C.No.9895/2012