Kashinath Ghoshal Vs Mukul Mallick

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IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

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Present:

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The Hon’ble Justice Ananya Bandyopadhyay

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C.R.A. 5 of 2001

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Kashinath Ghoshal -Vs-

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Mukul Mallick

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For the State : Mr. Saryati Dutta For the Respondent : Ms. Rajnandini Das (Amicus Curiae) Heard on : 12.11.2023, 19.01.2024, 23.02.2024, 03.05.2024 Judgment on : 02.07.2024

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Ananya Bandyopadhyay, J.:-

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This appeal is preferred against the judgment and order of acquittal dated

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17.12.1998 passed by the Learned Chief Judicial Magistrate, Burdwan in G.R. Case No. 362 of 1998, acquitting the accused/respondent of the offence under Section 33(1)(h) of the Indian Forest Act, 1927.

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The G.R. Case No. 362 of 1998 was initiated on the basis of a complaint filed by the complainant/appellant against the accused/respondent under Section 33(1)(h) of the Indian Forest Act, 1927, for the violation of Rule 11 of the West Bengal Forest Produce Transit Rules, 1959 for illegally removing and keeping of 13 pieces of Sishu logs which were forest produces.

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The prosecution case as made out in the complaint, inter alia, is as follows:-

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During execution of a search warrant on 10.03.1998 around 12:30 P.M. with the help of other staff, he searched the khamar bari of the accused and recovered 13 pieces of sishu logs hidden in the premises of the said accused. He seized the same under a seizure list in presence of the witnesses. Thereafter 30 days’ notice was given to the accused to produce valid document in support of the said logs. As the reply of the accused was unsatisfactory to the Divisional Forest Officer, Burdwan, he lodged the complaint against the accused for the offence under Section 33(1)(h) of the Indian Forest Act.

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On 12.08.1998, the accused/respondent was examined under Section 251 of the Code of Criminal Procedure when he pleaded not guilty to the accusation read over and explained to him and he claimed to be tried.

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In order to prove its case, prosecution examined four witnesses and certain documents were exhibited as Exhibits- 1 to 4 whereas no defence witness was in support of the defence case.

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The Learned Advocate for the appellant submitted as follows:-

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i. The Trial Court had failed to consider the evidence of the prosecution witnesses in its proper stride and this had resulted in serious prejudice to the appellant and also miscarriage of justice.

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ii. The findings of the Trial Court were not at all germane to the evidence led on behalf of the prosecution because the Trial Court had generalized the evidence on record without coming to scan the evidence of the PWs individually and this had resulted in vitiation of the judgment under appeal.

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iii. The Trial Court had although referred to the factum of examination of 4 PWs but it had failed to discuss the evidence of all those witnesses individually which was a must and this had vitiated the impugned judgment of the Court below.

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iv. The Trial Court had erred in not holding that there was no material evidence to prove that the seized logs belonged to the accused.

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v. The prosecution having established its case by leading cogent evidence, it could not be said that the prosecution had failed in this regard and accordingly the Trial Court had gone wrong in this aspect.

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vi. Section 2(4) of the Indian Forest Act, 1927 having defined Forest Produces, the onus lied on the defence to prove his illicit possession of the Forest Produces in question and the Trial Court having totally failed to consider this material legal aspect of the case, the impugned order of acquittal had been vitiated.

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vii. The prosecution having proved its case beyond all reasonable doubt, the Trial Court had gone wrong in acquitting the accused and this had resulted in perversity of the impugned order of acquittal.

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Prosecution examined four witnesses and adduced as evidence four exhibits including the search warrant, seizure list, and petition of complaint. The list of prosecution witnesses are as follows :-

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PW-1	Kashinath	Appellant/Complaint/Officer,
	Ghoshal	Forest Department/Member

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		of Raiding Team
PW-2	Krishnendu Guha	Officer, Forest
		Department/Member of
		Raiding Team
PW-3	Guru Prasad	Officer, Forest Department
	Choudhury
PW-4	Kalyan Chatterjee	Seizure List Witness

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Learned Advocate for the State/appellant further submitted as follows:-

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i. A search warrant was issued whereby PW1/appellant was authorised to conduct search at the paddy yard of the respondent. When the search warrant was executed and the respondent's paddy yard was searched, 13 Sisu logs were found there. Search was not conducted arbitrarily but under lawful authority.

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ii. Jiaur Mallik (respondent's brother) was present at the time of search and he could not produce any document to indicate that the respondent was the lawful owner of the Sisu logs. A thirty days' notice was issued to the respondent and the respondent's response thereto was found to be unsatisfactory. Hence, the instant case was registered against the respondent. The petitioner had not been implicated maliciously but upon complying with the due process of law.

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iii. 13 Sisu logs were seized in the presence of independent witnesses, i.e. one being a member of the Gram Panchayat and another being the brother of the accused respondent. Presence of independent witnesses

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at the time of search and seizure strengthened the prosecution case and established that a search warrant had indeed been issued and pursuant thereto a search was indeed conducted in the paddy yard of the respondent and violation of the law at the instance of the respondent came to light.

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iv. The appellant filed a written complaint (being C.R. Case No. 362 of 1998) before the Learned Chief Judicial Magistrate, Burdwan (hereinafter referred to as the "Learned Magistrate") against the respondent alleging therein, inter alia, that while executing a search warrant on 10.03.1998 at 12:30 PM, the appellant searched the paddy yard of the respondent and recovered therefrom 13 logs of Sisu tree. At that time, the respondent was not present at the paddy yard. The appellant seized the logs under one seizure list in the presence of witnesses, namely, Jiaur Mallik (respondent's brother) and Debi Prasad Mondal (Member of Gram Panchayat). Jiaur Mallik was requested to produce documents in support of possession of the 13 logs of Sisu tree, but he failed to produce any such document. A notice was served upon the respondent under Rule 8(1)(a) of the West Bengal Forest Produce Transit Rule, 1959, thereby calling upon the respondent to produce proof of origin of the forest produce and his title thereto within a period of 30 days. The reply thereto furnished by the respondent was found to be unsatisfactory by the Divisional Forest Officer, Burdwan. It was alleged that the respondent had violated section 33(1)(h) of the Indian Forest Act, 1927 and Rule 11 of

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the West Bengal Forest Produces Transit Rules, 1959. With the help of the officers of Galshi Police Station, the forest produces were lifted from the paddy yard of the respondent and brought to Kasba Department for safe custody. Damage was done allegedly to the extent of Rs. 15,000/- along with environmental cost.

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The Learned Amicus Curiae for the respondent submitted as follows:-

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i. According to the appellant/PW1, the search warrant was issued by the Assistant Forest Officer, Burdwan on 09.03.1998, on the strength of which the respondent's paddy yard was searched. PW2 (who accompanied PW1 in the raid) deposed that a "superior officer of the Forest Department had issued the search warrant. However, the said Assistant Forest Officer, Burdwan or superior officer had not been examined as a witness in this case and no explanation has been furnished for not examining the said officer. Moreover, prosecution had not led any evidence to establish that forest produces/ logs had gone missing or removed from the custody of the Forest Department. Non- examination of such vital witness had deprived the defence of cross- examining such officer to ascertain the source information on the basis of which the search warrant was issued and also to determine the reason for issuing the search warrant.

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ii. The appellant/PW1 admitted in his cross-examination that he had not made any prayer before the Court for issuing any search warrant and that he did not obtain any search warrant from the Court. The appellant/PW1 further admitted that he was unaware if his superior

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officer had prayed before any Court for issuing a search warrant. Therefore, the question as to whether the Assistant Forest Officer, Burdwan/superior officer had any authority under any provision of law to issue the search warrant remained a matter of controversy.

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iii. As per Rule 8(1)(a) of the West Bengal Forest Produce Transit Rules, 1959, a notice was to be served upon the respondent, thereby calling upon him to produce proof of the origin of the forest produce (i.e. the 13 logs of Sisu tree in this case) and his title thereto within a period of 30 days. As per the evidence of the appellant/PW1, the notice was served upon the respondent by registered post and PW1 purportedly deposited the postal receipt along with the acknowledgment due card to his office. In his cross-examination, the appellant/PW1 admitted that he had not filed any document to show that the notice had indeed been sent to the respondent by registered post with acknowledgment due card or by any other means. Prosecution had not adduced as evidence any such notice or acknowledgment due card or postal receipt to establish that such notice had indeed been served upon the respondent. As per the prosecution case, the reply furnished by the respondent to such notice was found to be unsatisfactory by the Divisional Forest Officer, Burdwan. However, the respondent's reply has also not been adduced as evidence to ascertain that the reply was indeed unsatisfactory, as claimed. Moreover, the Divisional Forest Officer, who allegedly found the reply

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of the respondent unsatisfactory has not been examined and no explanation has been furnished for not examining him.

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iv. The appellant/PW1 admitted in his cross-examination that he had no

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information that the logs belonged to the Forest Department or that the logs had gone missing from the custody of the Forest Department. Both PW1 and PW2 admitted in their respective cross-examination that there was no identification mark on the logs to show that the logs belonged to the Forest Department. Both PW1 and PW2 also admitted that there was no document to show that the logs belonged to the Forest Department. Even the unit of measurement of each log so seized was also not mentioned by prosecution. Hence, in the absence of such information, it remains unexplained as to on what basis prosecution alleged that the logs seized from the paddy yard of the respondent belonged to the Forest Department. Hence, the prosecution allegation that the logs of Sisu tree so seized from the paddy yard of the respondent belonged to the Forest Department has no factual foundation whatsoever.

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v. The appellant/PW1 allegedly seized 13 logs of Sisu tree from the paddy yard of the respondent in the presence of Jiaur Mallik (respondent's brother) and Debi Prasad Mondal (Member of Gram Panchayat), however, neither Jiaur Mallik nor Debi Prasad Mondal has been examined during trial. PW2 deposed that about 13-14 persons were in the raiding team that searched the paddy yard of the respondent and seized the 13 logs of Sisu tree therefrom, however,

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PW4 is the only seizure witness who has been examined during trial. No explanation has been furnished for not examining the other seizure witnesses. Non-examination of such vital witnesses ought to give a benefit of doubt to the respondent and for such reason the respondent has rightly been acquitted of the charges against him.

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vi. The seized logs were not produced in court during the course of trial. Non-production of the seized logs casts a shadow of doubt on the prosecution case and the respondent ought to acquitted of the charges.

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vii. As per the complaint, with the help of the officers of Galshi Police Station, the forest produces were lifted from the paddy yard of the respondent and brought to Kasba Department for safe custody. However, PW2 stated in his cross-examination that the raiding team did not contact the local police station when they executed the search warrant. Such discrepancy in the complaint and the deposition raises question with respect to the veracity of the prosecution case.

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viii. The statement of the respondent was recorded under section 313 of the Code of Criminal Procedure, 1973. During his examination under section 313 of the Code of Criminal Procedure, 1973, the respondent was not questioned about the notice being served upon him under Rule 8(1)(a) of the West Bengal Forest Produce Transit Rules, 1959 and his reply thereto, the search warrant on the strength of which his paddy yard was searched and wherefrom the 13 logs of Sisu tree were purportedly seized, and about the identification mark on the seized

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logs. Since the above circumstances were not placed before the respondent during his examination under section 313 of the Code of Criminal Procedure, 1973, the same cannot be relied on and used against the respondent.

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ix. Prosecution had failed to prove the allegations against the respondent beyond reasonable doubt. Hence, the respondent was praying that the judgment passed by the Learned Magistrate, thereby acquitting the respondent, be upheld.

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A circumspection of evidence of the prosecution witnesses revealed as follows:-

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i. PW-1 stated in his examination-in-chief that he was D.F.O., Burdwan. At the time of deposition he was under training at Jhargram. He further stated that on 10.03.1998 he was D.F.O., Burdwan. He obtained a search warrant issued by the Assistant Forest Officer, Burdwan on 09.03.1998 for execution of the same. On 10.03.1998 he went to Village- Loa Santoshpur to execute the said search warrant. He reached there together with his staff around 11:30 a.m. He reached the khamar bari of accused Mukul Mallick around 12:30 P.M. On reaching there, he found 13 pieces of Sisu logs kept in the khamar bari of the accused. Those were concealed under the stack of straw.

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The accused was not present at that time. After some time, the accused appeared there. Being asked, he failed to produce any sort of valid document for the said Sisu logs. He told that the said logs belonged to him. But he could not give any satisfactory account from

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where he collected the same. PW-1 identified the search warrant received by him from the Assistant Forest Officer, Burdwan. Two witnesses signed the said search warrant in his presence. The seizure list was marked as Exhibit-1. He accordingly seized the said Sisu logs under a seizure list prepared and signed by him in presence of the witnesses. At the time of search and seizure accused Mukul Mallick was not present there. Witnesses signed the seizure list. The said seizure list prepared and signed by him was marked Exhibit-2. Accused Mukul Mallick came to the spot after search and seizure. Then they returned to the office with the seized logs. On the very date of search and seizure, the accused was not found present. PW-1 kept the logs in official custody of the forest. Subsequently he served the accused with a notice to produce valid document for the said Sisu logs. The original notice was filled up and signed by him. He sent the notice by registered post to the accused. PW-1 deposited the postal receipt and AD card to the office. The accused replied the notice but as the reply was not correct PW-1 informed it to the D.F.O., Burdwan Division. The D.F.O., Burdwan Range, advised to file the case. Accordingly, he filed this case against the accused. The petition of complaint filed and written by him which was marked as Exhibit-3. When they were taking possession of the logs, accused Mukul Mallick resisted on the very date of execution of search warrant. On completion of the enquiry, he submitted P.R. against the accused. They did not produce the logs before the Court that day.

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ii. During cross-examination, PW-1 deposed that he did not submit any prayer before the Court for issuance of search warrant and that he did not obtain any such search warrant from the Court. He could not say whether his superior authority submitted any prayer for issuance of search warrant before the Court. He was not acquainted with this accused before the date of execution of the search warrant. He did not verify any sort of document regarding the title and possession of the said khamar bari. It was not mentioned in the seizure list that he recovered the logs under the stack of straw. There was no information to him that the logs seized by him belonged to the Forest Department. There was no information whether any such logs were theft or missing from the custody of the Forest Department. He filed no document to show that the notice was sent to the accused by registered post with A.D. or by any other means. They filed original notice in Court at the time of filing of this case. It was not mentioned in the original notice that the copy was sent to the accused by registered post or by messenger. There was no document or evidence at present to show that the notice was duly served upon the accused. He had not filed the reply in this case submitted by the accused. He did not take any attempt to arrest the accused. He did not verify the reply given by the accused from any member of the Panchayat or any local respectable persons. There was no marking on the logs that the same belonged to the Forest Department. Even there was no document to show that the logs belonged to the Forest Department.

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iii. PW-2 deposed in his evidence that he was a Range Officer of Forest Department posted at Panagarh. On 10.03.1998 he was attached to the same station in the same capacity. On that date, he and other personnels of the Forest Department accompanied by PW-1 to VillageLoa Santoshpur to the house of one Mukul Mallick to execute the search warrant issued by the superior officer of the Forest Deparment. They reached there around 11:30 a.m. From the khamar bari of Mukul Mallick, they recovered 13 pieces of Sisu logs. Those were concealed under the straw. At the time of execution of search warrant, Mukul Mallick was not present there. In his absence, they called his brother to execute the search warrant and executed the same. When they were loading the logs for taking to the Forest Office, the accused appeared there and resisted them. Being asked, Mulul Mallick told that the logs were of his garden. The accused also told that it was not possible for him to show the stamp of the said logs. They took the logs and kept the same at their office.

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iv. PW-2 during cross-examination stated that they did not contact the local P.S. when they went for execution of the search warrant. About 13-14 members were there in the raid party. There was no marking on the logs which were seized from the khamar bari of the accused to show that the logs belonged to the Forest Authority. There was no document to show that the logs belonged to the Forest Department. The fact that general public of the country were entitled to plantation of Sisu trees. They did not meet the Panchayet Pradhan. The fact that

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the accused had his brothers. PW-2 could not say the plot number of the khamar bari and he did not see any document regarding the title and possession of the said khamar bari.

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v. PW-3 deposed in this examination-in-chief that he was Deputy Ranger Forester attached to Panagarh. On 10.03.1998 he was attached to the same station in the same capacity.

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vi. PW-4 deposed in his evidence that he was a resident of Village- Loa Santoshpur under P.S- Galsi. On 10.03.1998 the employees of Forest Department visited their village around 12:30 p.m. They came near the house of the accused. Out of curiosity, PW-4 went there. There were some Sisu logs in the kharmar bari of the accused. The employees of the Forest Department claimed that the Sisu logs belonged to them. At that time the accused was not present there. After some time, the accused came to the spot to claimt he logs as his own. PW-1 seized the said logs under a seizure list in their presence and PW-4 signed the seizure list as one of the witnesses. His signature on the seizure list was marked as Exhibit-2/1. The officer and the employees of the Forest Department took the logs in their custody.

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vii. During cross-examination, PW-4 stated that he signed the seizure list being requested by the officers of the Forest Department. Besides that, he knew nothing about the incident.

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The following sections of The Indian Forest Act, 1927 have been reproduced

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below:-

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32. Power to make rules for protected forests .—The [State Government] may make rules to regulate the following matters, namely:—

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(a) the cutting, sawing, conversion and removal of trees and timber, and the collection, manufacture and removal of forest-produce, from protected forests;

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(b) the granting of licenses to the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber or other forestproduce for their own use, and the production and return of such licenses by such persons;

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(c) the granting of licenses to persons felling or removing trees or timber or other forest-produce from such forests for the purposes of trade, and the production and return of such licenses by such persons;

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(d) the payments, if any, to be made by the persons mentioned in clauses (b) and (c) for permission to cut such trees, or to collect and remove such timber or other forest-produce;

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(e) the other payments, if any, to be made by them in respect of such trees, timber and produce, and the places where such payment shall be made;

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(f) the examination of forest-produce passing out of such forests;

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(g) the clearing and breaking up of land for cultivation or other purposes in such forests;

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(h) the protection from fire of timber laying in such forests and of trees reserved under section 30;

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(i) the cutting of grass and pasturing of cattle in such forests;

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(j) hunting, shooting, fishing, poisoning water and setting traps or snares in such forests, and the killing or catching of elephants in such forests in areas in which the Elephants Preservation Act, 1879 (6 of 1879), is not in force;

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(k) the protection and management of any portion of a forest closed under section 30; and

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(l) the exercise of rights referred to in section 29.

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33. Penalties for acts in contravention of notification under

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section 30 or of rules under section 32 .—

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(1) Any person who commits any of the following offences, namely:—

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(a) fells, girdles, lops, taps or burns any tree reserved under section 30, or strips off the bark or leaves from, or otherwise damages,any such tree;

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(b) contrary to any prohibition under section 30, quarries any stone, or burns any lime or charcoal, or collects, subjects to any manufacturing process, or removes any forest-produce;

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(c) contrary to any prohibition under section 30, breaks up or clears for cultivation or any other purpose any land in any protected forest;

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(d) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30, whether standing, fallen or felled, or to any closed portion of such forest;

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(e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion;

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(f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid;

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(g) permits cattle to damage any such tree;

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(h) infringes any rule made under section 32; 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.

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(2) Whenever fire is caused wilfully or by gross negligence in a protected forest, the State Government may, notwithstanding that any penalty has been inflicted under this section, direct that in such forest or any portion thereof the exercise of any right of pasture or to forest-produce shall be suspended for such period as it thinks fit.

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Apart from the official witnesses, the prosecution did not cite any independent witness. The pieces of logs of sishu wood did not bear any

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mark to prove the same to be the forest produce. PW- 1 during cross examination stated that the original notice was filed in the Court and had been sent to the respondent, however no such documentary evidence could be produced before the Court to substantiate that notice was duly served upon the accused/respondent. PW-1 further stated that he did not submit any prayer before the Court for issuance of search warrant and he did not obtain any such search warrant from the Court. He further did not verify any sort of document regarding the title and possession of the said Khamarbari. It was not mentioned in the seizure list that PW-1 recovered the logs beneath the stack of straw. Moreover, he did not receive any information that the seized logs belonged to the forest department and the same were either stolen or missing from the custody of the forest department. The logs did not depict any marking to be possessed by the forest department duly endorsed through any document. Local police and panchayat members were not contacted. PW-2 corroborated the evidence of PW-1.

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In absence of any evidence oral or documentary against the respondent to have wrongfully possessed the logs of wood claimed to be the forest produce cannot be sustained.

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