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The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad Vs. K. Mahaboob Saheb - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 281 and Criminal Revn. Petn. No. 279 of 1980
Judge
Reported in1982CriLJ641
ActsAndhra Pradesh Forest Act - Sections 49; Forest Offences (Compounding and Prosecution) Rules 1969 - Rule 4
AppellantThe Public Prosecutor, High Court of Andhra Pradesh, Hyderabad
RespondentK. Mahaboob Saheb
Appellant AdvocateAdditional Public Prosecutor
Respondent AdvocateK. Parvathisam, Adv.
Excerpt:
.....to respondent illegally transporting red sandal wood was confiscated by order of divisional forest officer - in appeal before session judge order for conducting fresh inquiry was passed on ground that no opportunity was given to respondent to cross examine witnesses - revision petition preferred before high court for setting aside order of session judge - on proper appraisal of evidence adduced court observed that respondent did not apply for his willingness to compound forest offense - nor did he give any written undertaking in that regard as required by rule 5 by forest offenses rules - mere absence of lawyer to assist respondent in cross examining witnesses is no ground to order fresh inquiry - held, divisional forest officer ordered in accordance with principles of..........filed before him under s. 49 of the a.p. forest act, has set aside the order of the divisional forest officer dated 16-7-1979 confiscating the lorry apl 419 belonging to the respondent and directed fresh enquiry after giving an opportunity to the respondent to compound the offence and pay compensation therefore and the divisional forest officer was also directed to act in comliance of rule 4 of the forest offences (compounding and prosecution) rules 1969. the sessions judge also observed that as the matter is remanded and in view of the fact that a representation was made before him on behalf of the respondent that no opportunity was given to him to cross-examine the witnesses through his counsel, he considered it fit and desirable to permit the respondent's counsel to cross-examine.....
Judgment:
ORDER

1. The Sessions Judge, Cuddapah in disposing of Crl.A. No. 49/1979 filed before him under S. 49 of the A.P. Forest Act, has set aside the order of the Divisional Forest Officer dated 16-7-1979 confiscating the lorry APL 419 belonging to the respondent and directed fresh enquiry after giving an opportunity to the respondent to compound the offence and pay compensation therefore and the Divisional Forest Officer was also directed to act in comliance of Rule 4 of the Forest Offences (Compounding and Prosecution) Rules 1969. The Sessions Judge also observed that as the matter is remanded and in view of the fact that a representation was made before him on behalf of the respondent that no opportunity was given to him to cross-examine the witnesses through his counsel, he considered it fit and desirable to permit the respondent's counsel to cross-examine the witnesses if necessary.

2. The Public Prosecutor, in support of the revision has made two main submissions. His first submission is that the respondent has at no time expressed his willingness to compound the offence and being so, the Divisional Forest Officer had no obligation to compound the offence and even assuming that the Divisional Forest Officer had any such obligation, he declined to compound the offence and the directions given by the Sessions Judge to give an opportunity to the respondent for compounding the offence cannot be sustained. The second submission made by him is that if the record of enquiry is perused, the respondent was given every opportunity to cross-examine the witnesses examined by the Department and it was only after he examined some witnesses in proof of his defence and stated that he had no other question to be put to any witnesses examined by the Department, that the Divisional Forest Officer passed the order directing confiscation of the lorry and that the direction now given by the Sessions Judge to give a fresh opportunity to the respondent to cross-examine the witnesses through his counsel cannot also be sustained.

3. The material facts can be briefly noticed; The lorry in question belonged to the respondent. On the intervening night of 8-8-1978, it was found to be proceeding on the Sidhout Badvel Road. The officials of the Forest Department who had some earlier information, that some red sanders wood was being unauthorisedly transported in that lorry, were laying in wait for that lorry to come along the road. As soon as the lorry was sighted, the forest officials communicated with each other by giving torch light signals and tried to stop the lorry. The lorry picked up speed and it could ultimately be reached by the Forest Officials who chased the lorry by travelling in a jeep. As soon as the lorry was stopped the forest Officials rushed towards the lorry and caught hold of three persons. Meanwhile, six to eight persons sitting on the load, jumped down the lorry and rescued the three persons and all of them were running away. The Forest Officials chased those persons but could ultimately catch only one. A Venkat Subbaiah, the person who was transporting the red sanders wood. A total of 188 logs of red sanders wood weighing 7635 Kgs. of the value of Rs. 1,35,000/- was found being transported in the lorry by covering these logs with 32 banana bunches and leaves and overcovered with a tarpaulin. The respondent was identified as one of the persons initially apprehended by the Forest Officials and leaving the lorry. But the respondent ultimately succeeded in making good his escape.

4. The concurrent findings recorded by both the Divisional Forest Officer, Flying Squad and by the Sessions Judged, Cuddapah are that the red sanders wood was in fact being transported in the lorry APL 419, the respondent was the owner of the lorry at the relevant time and the respondent was present in the lorry and the lorry was hired by Venkat Subbaiah directly from the respondent for a hire charge of Rs. 4,000/-. The Sessions Judge however, held that the Divisional Forest Officer did not comply with the provisions of S. 59 of the Andhra Pradesh Forest Act and the respondent has also not expressed his willingness to have the offence compounded and to pay compensation therefore and that therefore, the matter should be remanded to give an opportunity to the respondent to have the offence compounded. He recorded a finding that there is no force in the contention urged before him that the respondent was not given an opportunity to prosecute the proceedings diligently. The Sessions Judge has understood the decision is Ponnolu Lakshmaiah v. State of A.P., (1979) 1 Andh LT 201 as lying down the proposition that an opportunity should be given to a person accused of a Forest Offence to have the offence compounded even when he had not applied his willingness to have the offence compounded. A careful perusal of the facts of the aforesaid decision brings into prominence the following facts. In that case 440 sandal-wood billets valued at Rs. 4,550/- were being transported by the lorry owner, the cost of the lorry being Rs. 19,950/-. The lorry owner also gave a statement in that case in Form-A expressing his willingness to have the offence compounded. The Forest Officer, however, did not proceed to compound the offence but passed the order of confiscation. It was on those facts Punnayya, J. Held :

'The Forest Authorities or the learned Additional Sessions Judge is not justified in not applying the provisions of S. 59 of the Forest Act to the case of the first petitioner. Thus, I have no hesitation to hold that both the learned Addl. Sessions Judge, Cuddapah and the Divisional Forest Officer, Cuddapah committed illegality in not following the provisions of S. 59 of the Act and in ordering the vehicle to be confiscated.'

Section 59 provides for a power to the Forest Officer to compound the offences other than offences under S. 52 or S. 55. Under the Andhra Pradesh Forest Offences (Compounding and Prosecution) Rules, 1969 framed under S. 68 of the A.P. Forest Act, an enquiry into a Forest offence need not be held if the accused, who has committed or is suspected of having committed an offence other than an offence under S. 52 or S. 55, expressed his willingness to have the offence compounded and to pay compensation therefor. R. 5 of the said Rules provide that every accused who expressed his willingness to have the offence compounded as provided in R. 4 shall forthwith give a written undertaking in that regard in Form-A. The question of compounding a Forest offence, therefore, arises only if the person accused of a forest offence expressed his willingness to have the offence compounded and to pay compensation therefor and if he gave a written undertaking in that regard in Form-A. The question of compounding a forest offence does not, therefore arise if the person accused of a forest offence did not express his willingness and did not give a written undertaking in that regard in Form-A. Punnayya, J. was dealing with a case where the accused expressed such willingness and gave the written undertaking in Form-A. In the case on hand, the respondent did not express any such willingness and did not give a written undertaking in that regard in Form-A. The respondent has taken only the stand that he was not present in the vehicle and that the vehicle was used by his driver without his knowledge or connivance and that, therefore, the lorry cannot be confiscated. The concurrent findings recorded by both the Divisional Forest Officer and the Sessions Judge are that the respondent was also present in the lorry and he was actually a party in hiring the lorry for carrying the redsanders wood, the transport of which was not authorised by any permit issued in favour of Venkat Subbaiah. Having regard to the circumstances the respondent would not have expressed his willingness to have the forest offence compounded. The value of the red sanders wood was Rs. 1,35,000/-. The respondent obtained release of the lorry pursuant to a direction in that behalf in a writ petition on his executing a bond for Rs. 30,000/-. The lorry would not have costed more than the value of the forest produce which was being transported at that time. Under S. 59, the compounding cannot be for any amount less than the value of the forest produce, though the optimum could go up to four times the value of the forest produce. I have gone through the record of enquiry and at no point of time did not respondent apply his willingness to compound the forest offence and he never gave any written undertaking in that regard in Form-A as required by R. 5 of the A.P. Forest Offences (Compounding and Prosecution) Rules, 1969. In the absence of expression of such willingness and application made in Form-A, the Divisional Forest Officer could not have asked the respondent to express his willingness to have the offence compounded especially when the respondent was denying having committed the forest offence and when he was also asserting that the lorry was used by his driver without his consent or connivance. The Sessions Judge is not, therefore, correct in interfering with the order of confiscation passed by the Divisional Forest Officer.

5. On going through the record of enquiry it is abundantly clear that the respondent was given every opportunity to participate in the enquiry held by the Divisional Forest Officer. He participated in the enquiry and cross-examined the witnesses examined by the Department. He also produced his own witnesses and he has also examined himself. The record shows that to a question put to him, he stated that he did not have any further question to ask of any witness examined by the Department and did not also have any further witnesses to be examined on his behalf. The mere absence of a lawyer to assist the respondent in cross-examining the witnesses examined by the Department has not resulted in any prejudice to the respondent. The Divisional Forest Officer has conducted the enquiry keeping in view the principles of natural justice and he gave repeated opportunities to the respondent to meet the case of the Department and to adduce evidence in support of his defence. The Divisional Forest Officer has conducted the enquiry in a very objective manner. There is therefore no justification for the Sessions Judge to have directed that any fresh opportunity should be given to the respondent to cross-examine the witnesses examined by the department through his lawyer. The order of the Session Judge, Cuddapah cannot at all be sustained. It is accordingly set aside and the order of confiscation passed by the Divisional Forest Officer is restored.

6. Order accordingly.


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