D.P.Pandey And ANR. v. State

HIGH COURT OF CHHATTISGARH, BILASPUR Judgment reserved on: 15/03/2017 Judgment delivered on: 01/06/2017 Criminal Appeal No.2564 of 1997

1. D.P. Pandey S/o R.K. Pandey aged about 44 years, Range Officer, Dhamtari, District-Raipur, M.P.

2. J.P. Thakur S/o R.S. Thakur, aged about 50 years, Dy. Ranger, Dhamtari, District-Raipur, M.P.

---- Appellants

Versus

• State of M.P. (now Chhattisgarh) --- Respondent ---------------------------------------------------------------------------------------------- For the Appellants : Shri Shrawan Agrawal, Advocate. For the Respondent : Shri Adil Minhaj, Panel Lawyer. ---------------------------------------------------------------------------------------------- Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Judgment /06/2017

1. This appeal has been preferred against the judgment dated 29.11.1997 passed in Sessions Trial No.122/93 by the learned 2nd Additional Sessions Judge, Raipur by which the appellants were convicted under Sections 14(iv) of M.P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 (for short 'the Act, 1982') and sentenced with R.I. for a period of 2 years with a fine of Rs.5,000/- to each.

2. The prosecution case, in brief, is that Mining Officer S.K. Shrivastava (PW-13) inspected a truck No. M.P.R.-6496 on 27.9.1982 in Village-

Gokulpur loaded with murum. On enquiry, it was found that the murum was quarried from the forest area of Village-Soram and about 21 trucks of murum has already been transported by then. He further inspected the spot and saw labourer breaking metals which were stored nearby, and a record was kept about metal transported through trucks. He submitted a report Ex.P/17 dated 27.9.1982 and another report Ex.P/18 dated 28.9.1982 to the Collector alleging that the mining work was going on the spot without any approval or sanction from the Government concerned. By orders of District Collector, a further enquiry was conducted, of which report dated 24.10.1982 Ex.P/20 was submitted confirming that activities of mining of murum and metal were going on in compartment No.

144 of Village-Soram in the forest area of Dhamtari and this mining work was further done for the commercial purposes. The Collector, Raipur forwarded a letter dated 30.10.1982 to the Superintendent of Police, Raipur, on the basis of which one letter was forwarded by the Superintendent of Police, Raipur to S.D.O. Police on 8.11.1982. On the basis of the said letter, FIR Ex.P/17 was recorded in P.S.-Arjuni on 10.11.1982 for offence under Section 14(IV) of the Act, 1982 against the appellants and co-accused J.S. Thakur, who were the Forest Officers, incharge of the forest area where the mining activity was carried-on. It was alleged that such mining activity was going with the connivance of appellant and co-accused persons. Investigation was carried-on by PS-Arjuni.

On completion of investigation, the appellant and co-accused were charge-sheeted.

3. Appellants and co-accused persons were charged under Section 14(iv)

of the Act, 1982 to which they denied. Prosecution has examined as many as 16 witnesses. On examination under Section 313 of Cr.P.C. appellant and co-accused persons denied all the incriminating evidence against them brought by the prosecution and pleaded innocence and false implication. Four witnesses were examined in defence. Impugned judgment was passed by which appellants and co-accused persons were all convicted under Section 14(iv) of the Act, 1982 and sentenced with imprisonment of two years along with fine of Rs.5000/- each, with default stipulation.

4. The grounds in this appeal are that the trial Court has passed an erroneous judgment of conviction against the appellants. As per the evidence on record, it is clear that the spot of mining bearing khasra No.764/1 was not within the forest area and on the contrary, it was under the revenue area, hence, appellants could not have been held responsible for the illegal mining. Further, it is urged that for prosecution under the Act, 1982 there was a requirement of sanction as provided under Section 39 of the Act, 1982. As per the notification of the State Government under Section 39 of the Act, 1982, such sanction could have been accorded by the appointing authority only. In this case, the appointing authority of the appellants was Chief Conservator of Forest and he has not accorded any sanction for investigation and prosecution against the appellants. It is also stated that the evidence of prosecution witnesses cannot be relied upon and could not have been made the basis for conviction of the appellants. Prayer for acquittal has been made.

5. It is submitted by the counsel for appellants that trial Court has erroneously arrived at the finding of conviction against the appellants. The alleged spot of illegal mining was not a forest area which is established by the evidence. Further, the factum of illegal mining itself has not been proved by the prosecution, and that there is no sanction for investigation and prosecution against the appellants as per the provisions of Section 37 & 39 of the Act, 1982, it is submitted that a notification dated 16.09.1982 of the State Government under Section 39 of the Act, 1982 clearly mentions that in case of exercising powers under Section 39 of the Act, 1982, an officer below the rank of district level officer, the Collector of the district was mentioned as a competent authority to report and further on his report, the appointing authority of the Officer mentioned was to be consulted for according sanction for investigation and prosecution. There is no sanction for investigation and prosecution of the appellants, in accordance with the provision of Section 39 of the Act of 1982.

6. Counsel for the State has opposed the arguments submitted by the counsel for appellants. It is submitted that prosecution has proved its case beyond all reasonable doubts. There is no scope for interference in the impugned judgment.

7. Section 14(iv) of the Act of 1982 provides that, who ever, being an officer in charge for the preservation and maintenance of forest or disposal of forest produce, having jurisdiction or concern with the forest area, intentionally or knowingly permits, connives, abets, or suffers on

account of his omission to supervise, prevent or report the illegal quarrying of stones for commercial purpose shall be punished with imprisonment of either description which shall not be less than one year but which may extend to three years and shall also be liable to fine.

8. The charge levelled against the appellants by the prosecution is that illegal mining activities were carried on in the forest area under the supervision and control of the appellants. The evidence on record that illegal mining activities were carried on in the spot and the broken metal was found, is not under dispute. Whether this area of mining was within forest area, is to be determined in this case.

9. D.C. Pandey (PW-10) was Sub-Divisional Magistrate (Revenue) at the relevant time. He has stated that khasra No.764/1 of Village-Soram had been transferred to forest department and this land was in possession of forest department. He was informed by Patwari that illegal mining was done from this land and on inspection of spot, he found the illegal mining activity. In cross-examination, he denied knowledge as to when the mining area in question was transferred to the forest department. Regarding the procedure of transfer, he has stated that the Collector of the district has to pass orders for transfer of land to forest department. Anthoni Tirki(PW-11) was Additional Tahsildar at the relevant time. He also visited the spot and found the illegal mining activity. He has not given any statement about the land being a forest land or a revenue land. Ramsingh (PW-12) was Patwari at the relevant time. He has stated that land bearing khasra No.764/1 of Village-Soram is

mentioned in khasra panchsala "bade jhad ka jangal" and copy of khasra panchsala 'bade jhad ka jangal' Ex.P/4 has been proved and map Ex.P/3 also has been proved. He further stated that the said land was transferred to the forest department which is mentioned in the revenue records. As per the evidence of these witnesses, the land where illegal mining activity was carried on, was within the forest area and the land was transferred to the forest department. These witnesses also found on inspection that illegal mining activity was carried on the said land.

10. R.M. Bhogal (DW-3) has stated that at the relevant time, he was working as a clerk in mining section of Collector Office, Raipur. On the basis of office records, he has stated that a temporary permit for mining was issued in the year 1981, for mining on land bearing khasra No.764/1 and this temporary permit was for a period upto 1984. Copy of temporary permit Ex.D/1-A has been produced on record. Kripa Ram Sahu (DW-4) has stated that, he was one of the beneficiary of the temporary permit and the mining activity was carried on in accordance with the official order passed by the Collector. Further, he has stated that this mining activity was permitted for the relief work. In crossexamination, he denied knowledge that the area where the mining activity was going on, is revenue area or forest area.

11. The evidence with regard to identity of the spot of mining activity is contradictory, as per the prosecution. The said land bearing khasra No.764/1 of Village-Soram belonged to forest area as it was transferred to forest department by revenue department sometime before the date

of illegal mining in question, whereas according to defence evidence temporary permit was issued to the concerned for mining of metal on the same land. This raises sufficient doubt. Even if it is argued that the land stood transferred to the forest department, looking to this fact that a permit was issued by the Collector Office, Raipur for carrying on mining activity from the same land, the requirement of the Section 14(iv) of the Act, 1982 that such activity was being carried on in connivance with the appellants, cannot be held to be proved in any manner. Hence, this ground in this appeal is found to have succeeded.

12. Another ground raised is that no proper sanction has been granted for prosecution against the appellants in this case is also material and in this regard the appellants have placed reliance upon the judgment of Madhya Pradesh High Court in the case of The State Vs. Harishankar Goyal and another reported in 1984 STPL 360 MP and S.P. Kori Vs. State reported in 2001 STPL 1269 MP, wherein it has been held that the compliance of provision under Section 39 of the Act of 1982 is mandatory, in the absence of which the proceedings get vitiated.

13. M. Rout (PW-1) was Mining Officer at the relevant time. He reported about the incident vide his report Ex.P/2 to Collector, Raipur. S.K. Shrivastava (PW-13) further submitted a report Ex.P/17 and later on, another report Ex.P/18 to Collector, Raipur. The letter addressed to Superintendent of Police by Collector, Raipur is not exhibited in record. Circle Inspector D.S. (PW-14) has stated that a letter was received from the officer S.D.O. Police dated 08.11.1982 along with letter of

District Magistrate, Raipur. On the basis of which FIR Ex.P/19 was lodged and the offence was registered by him. This is the only evidence of prosecution regarding the authorization and sanction for investigation and prosecution against the appellants in this case. Section 39 of the Act, 1982 provides that a police officer can not investigate an offence under this Act except by the direction of a prescribed authority not below the rank of Commissioner of Division on a report submitted to him by such authority. The copy of notification dated 16.09.1982 published in the M.P. Gazette has been produced.

The judicial notice can be taken of this notification which clearly provides that in case an officer below rank of district level officer on the report of the Collector regarding an offence committed, the appointing authority of such officer was empowered to accord required sanction for investigation and prosecution. Nothing has been brought in evidence by the prosecution in this case whether any such report was made by the Collector to the appointing authority of the appellants in this case. Appellant No.1 had been Range Officer and appellant No.2 had been Deputy Range Officer at the relevant point of time, as stated in argument on behalf of appellant, the appointing authority of such forest officers is the Chief Conservator of forest and this argument has not been opposed by the State.

Under these circumstances and the state of things, it is evident and apparent that no legal sanction was accorded by the prescribed authority as per the notification in this respect to conduct an investigation and prosecution by the police against the appellants, who were the forest officers. This is clearly violation of the mandatory

provision of Section 39 of the Act of 1982 and the ground urged by the appellants on this point also succeeds.

14. On the basis of finding arrived at in this appeal and for the reason mentioned herein above, this appeal deserves to be allowed.

15. In view of the above discussions, this appeal is allowed, the impugned judgment is set aside. Appellants are acquitted of the charge framed against them. The appellants are on bail. They need not surrender. Their bail bonds shall remain operative for a period of six months in terms of Section 437-A Cr. P.C.

Sd/- (Rajendra Chandra Singh Samant) Judge Nisha