1. The proceedings under Section 52 of the Indian Forest Act, 1927 (Uttar Pradesh Amendment Act, 2000) read with Section 5/26 and Section 69 of the Indian Forest Act, 1927 were instituted against the petitioner. By the impugned order dated 15.07.2020, the prescribed authority/Divisional Forest Officer, Obra, Forest Division, Obra, Sonebhadra in proceedings by exercise of powers under Section 52(A)(1) of the Indian Forest Act, 1927 has directed the confiscation of the seized vehicle called 'Tipper' in popular parlance having registration No.UP64AT6465.
2. The cause of action under the aforesaid proceedings against the petitioner arose upon registration of a complaint as Range Case No.52/Dala/2019-20 by a forest official. The complaint was registered by one Sudarshan Prasad, Forest Guard.
3. The case in brief of the forest authority as set out in the said complaint is this. On 02.03.2020, information was received from an informer that a vehicle/Tipper having registration No.UP64AT6465 was illegally transporting sand which was excavated from the forest area. The vehicle was intercepted at Markundi. The driver of the vehicle produced documents which authorized carriage of 5 cubic meter of sand. However, the offending vehicle was loaded with a far excess quantity of the sand. The driver on being asked to accompany the officials to the Chopan Range declined to do so and instead called his adherents, namely, Mangala Prasad Maurya, Ajay Kumar Pathak and others. Ajay Kumar Pathak and Mangala Prasad Maurya are hardened criminals, who brutally assaulted the forest officials. Under physical assault the officials sent a request for reinforcement. The police reinforcement promptly arrived. In the presence of the police force, the complainant/Sudarshan Kumar and his associate/Shiv Kumar proceeded to seize the vehicle. After the inspection, an additional police force was called and with their assistance the offending vehicle was taken to the police station. The quantity of the sand loaded on the vehicle was found to be 12.5 cubic meters after measurements were made. The vehicle was illegally carrying 7.5 cubic meters of sand after excavating it from the prohibited forest area. The recovery memo was created on 03.03.2020. On the aforesaid complaint, the criminal prosecution as well as the proceedings under the Indian Forest Act, 1927 (which are the subject matter of controversy in this writ petition) were set on foot.
4. A show cause notice was issued repeatedly to the petitioner on 13.04.2020, 22.05.2020, 08.06.2020 and 15.07.2020. The petitioner appeared before the noticing authority on 29.06.2020 and submitted his explanation.
5. Principally, the following defence was taken by the noticee/petitioner. The petitioner had a valid lease and had deposited over weight charges. The petitioner was falsely implicated. Simultaneous continuance of criminal prosecution as well as the proceedings under the Act simultaneously is contrary to law.
6. The same arguments are reiterated before this Court by the learned counsel for the petitioner.
7. In response the forest officials refuted the defence of the petitioner. Form M.M.-11 recorded total permissible weight as 5 cubic meters. The form/permit was taken out at 9.38 a.m. at Tehsil-Nagawa, Duddhi. However, the receipt depicting payment of vehicle charges was issued at 6.45 a.m. as per the case of the petitioner. This rendered defence contradictory. The source of 7.50 cubic meters of additional and illegal sand was not disclosed. The sand was illegally excavated on 02.03.2020 from Arazi Gata No.1767Kha/10 in the reserved forest area. The depression created by the excavation of the sand was duly inspected by the forest officials. The credibility of the recovery memo has not been disputed even by the petitioner, and its recitals are consistent with the case of the petitioner. The petitioner was given an opportunity of hearing.
8. On the foot of the preceding discussion, the prescribed authority made these findings. The petitioner was carrying an excess and illegal quantity of 7.50 cubic meters which was not accounted for by him. No documents to justify the aforesaid sand quantity produced by him. The sand was excavated on 02.03.2020 from the reserved forest area. Excess sand of 7.50 cubic meter sand, which was loaded on the offending vehicle is the property of the State. The said quantity of the sand was being transported in the vehicle/Tipper having registration No.UP64AT6465 in the offending vehicle. This act is an offence under the Indian Forest Act, 1927 (hereinafter referred to as the Act).
9. The authority has also found that the petitioner is a repeat offender. He has been constantly deploying his vehicle for illegal excavation from the forest areas. The other aggravating circumstance was the brutal physical assault and consequent injuries on the person of the forest officials, by the petitioner and his adherents. The vehicle was liable to be confiscated.
10. The authority specifically finds on the back of the preceding narrative that a lighter sentence will not subserve the interest of justice and will subvert the legislative intent and would also encourage the petitioner and demoralize the forest officials who perform their duties in most difficult circumstances.
11. Finally, the authority in the impugned order concluded that the vehicle in view of the aforesaid reasons was liable to be confiscated and directed its confiscation under Section 52(A)(1) of the Act.
12. Humanity has long been alerted to the dangerous and reckless destruction of natural wealth including fragile ecology of the forests. Natural resources are the biggest assets of any nation and indeed whole of humanity. However, ecological assets like forests and forest produce are most vulnerable to reckless exploitation by unscrupulous persons. The depletion of such resources is causing irreversible damage to the ecology and the future of all life on earth. Seized with the aforesaid danger the national forest policy was created in the year 1998. Some of the relevant extracts of the national forest policy will guide the interpretation of the statutory provision and also a decision on this controversy.
13. Section 5/26 of the Act create offences and the provisions which are relevant and same are reproduced as under:
"5. Bar of accrual of forest-rights.-After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf."
26. Acts prohibited in such forests.-(1) Any person who-
(a) makes any fresh clearing prohibited by section 5, or
(b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest; or who, in a reserved forest-
(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf,
(d) trespasses or pastures cattle, or permits cattle to trespass;
(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;
(f) fells, girdles, lops, or bums any tree or strips off the bark or leaves from, or otherwise damages, the same;
(g) quarries stone, bums lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;
(h) clears or breaks up any land for cultivation or any other purpose;
(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares; or
(j) in any area in which the Elephants' Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.
(2) Nothing in this section shall be deemed to prohibit
(a) any act done by permission in writing of the Forest-officer, or under any rule made by the state Government; or
(b) the exercise of any right continued under clause (c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.
(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the State Government may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion there of the exercise of all rights of pasture or to forest produce shall be suspended for such period as it thinks fit."
14. Section 69 of the Act creates a presumption in his favour of the ownership of the government of all forest produce. For ease of reference, Section 69 of the Act is extracted hereunder:
"69. Presumption that forest-produce belongs to Government.-When in any proceedings taken under this Act, or in consequence of anything done under this Act, a question arises as to whether any forest-produce is the property of the Government, such produce shall be presumed to be the property of the Government until the contrary is proved."
15. The legislature equipped the forest authorities with various powers to effectively check the menace of illegal activities, including poaching and excavation of sand and other activities that deplete and destroy the forest resources without due authority of law.
16. For ease of reference, the provision of Section 52-A of the Act is extracted hereunder:
"52-A. Procedure on seizure.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force where a forest offence is believed to have been committed in respect of any forest produce, which is the property of the State Government, the officer seizing the property under sub-section (1) of Section 52 shall, without unreasonable delay, produce it together with all the tools, boats, vehicles, cattle, ropes, chains and other articles used in committing the offence, before an officer, not below the rank of a Divisional Forest Officer, authorised by the State Government in this behalf, who may, for reasons to be recorded, make an order in writing with regard to custody, possession, delivery, disposal or distribution of such property, and in case of tools, boats, vehicles, cattle, ropes, chains and other articles, may also confiscate them."
17. The order impugned has been passed while observing full procedural propriety. The petitioner was given ample opportunity of hearing to tender his defence. The impugned order has also considered the defence of the petitioner in detail. The recovery memo has been found to be credible. Sand was far in excess of the permissible quantity. There was excavation of sand from a prohibited area are of the forest. The defence of the petitioner was considered and disbelieved. The guilt of the petitioner is established on the applicable standard of evidence. The conclusions of the impugned order in the facts of the case are reasonable. No perversity in the order has been shown by the pleadings or any other material in the record nor made out from the arguments.
18. The prerequisites for exercise of the powers under confiscation have been duly established. There are aggravating circumstances which are also undisputed from the records. The petitioner had physically resisted and had grievously assaulted the government servants who were performing their lawful duties from the petitioner and his adherents.
19. The petitioner has not disputed the finding that he is a repeat offender against forest laws.
20. In the wake of this discussion, I find that the order of confiscation of the vehicle was just and proper. Such chronic offenders of law and persons, who recklessly destroy the environment without any care for the future generations have to be dissuaded by the deterrence of lawful penalties. The order of confiscation was proportionate to the offence committed by the petitioner and duly established by law.
21. The writ petition is dismissed.
22. In the facts of this case, it will not be in the interest of justice to compound the aforesaid offence. The deterrent effect of the punishment has to take its course in this case.
Order Date :- 18.8.2021 Ashish Tripathi