1. Petitioners have been convicted by the Judicial Second Class Magistrate, Markapur in C.C. No. 735 of 1965, under Sections 35 and 36 of the Andhra Pradesh Forest Act read with Rule 10 of the Timber Transit Rules and sentenced to pay a fine of Rs. 200-00, Rs. 100-00 and Rs. 100-00 respectively, in default to suffer simple imprisonment for seven days. The trial Court also ordered confiscation of the forest produce which was seized from the accused by the forest authorities. On appeal, the Additional Sessions judge, Kurnool confirmed the conviction and sentence. Hence, this revision.
2. The case for the prosecution is as follows:
That on 24.8.1965 at about 1 A.M., at Dornal at the junction of Kurnool-Guntur and Srisailam road, the accused were found illicitly transporting green teak, roughly dressed M.Os. 1 to 394 by a lorry A.P.Q. 2245, without a valid permit, that A-1, who claimed to be the owner of the forest goods, showed a permit Ex. P-1 to P.W. 1, the Forest Range Officer, Dornal and P.Ws. 2 and 3 the Tahsildar and Forest Guard, Pedda Manthala, when questioned about the illicit transport; that Ex. P-1 was not a valid permit; that P.Ws. 1 to 3 seized the forest produce described as felloes and spokes after obtaining Exs. P-3 and P-4, the statements of the accused admitting their guilt, in the presence of P.W. 4, a landholder of Dornal and P.W. 5 the karnam of Dornal; that P.W. 6, the Assistant Commercial Tax Officer, Markapur stopped the lorry, verified the load and collected the sales-tax of Rs. 54-00 and a penalty of Rs. 270-00 from A-1 under Ex. P-11; that M.Os. 1 to 394 were not sawn and not fashioned, that they are illicit forest produce and that the accused have committed the offences charged against them.
3. The accused pleaded not guilty. It is further stated by A-1 in his statement under Section 342 Criminal P. C, that he had purchased M.Os. 1 to 394 from D.W. 2 and was bringing them from the saw mill of D.W. 1, and hence he is not liable to be punished. A-2 is the driver of the lorry and A-3 is the cleaner. Both A-2 and A-3 also pleaded not guilty.
4. The prosecution examined as many as seven witnesses and filed Exs. P-1 to P-15 in support of its case. P.W. 1 is the Range Officer, Dornal, who speaks to the fact that the goods were green and roughly dressed with axe and not fashioned, that not even a single piece was sawn, that logs would normally be sawn into pieces in the villages but not made into pieces by axe, that smugglers cut the trees and then cut the timber into pieces by axe and take then away as they do not take sawers leading to detection. P.W. 1, P.W. 2 the Thanadar of Dornal and P.W. 3 the Forest Guard support the prosecution case in its entirety. P.W. 4, a landlord of Dornal and P.W. 5, the Karnam of Dornal are panchayatdars in whose presence M.Os. 1 to 394 have been seized and Exs. P-3 and P-4 the statements of A-1 and A-2 admitting their guilt, were recorded. P.W. 6 is the Assistant Commercial Tax Officer, Markapur, who came in a jeep and stopped the lorry and after verification, collected the sales-tax and penalty as the accused were trying to carry the goods without paying the requisite Sales-tax. P.W. 7 is the Forest Range Officer, G.B.M. Velugodu, who speaks to the fact that M.Os. 1 to 394 look green and about 3 to 4 months old, that they are not sawn, that they are roughly dressed with axe, that 'Badisa' and axe would have been used to dress the M.Os. It is further stated by him in the cross-examination that the forest authorities allow only the logs to pass and not peices from the place of felling and that spokes' and 'felloes' are not allowed to be made in the forest area. The defence examined D. Ws. 1 and 2 in support of their plea. D.W. 1 is the saw mill owner at Atmarkur. He says M.Os. 1 to 394 are all dried timber and that they belong to Velugodu hills and not to Dornala hills. He did not maintain any accounts for his saw mill. But D.W. 1 concedes that M.Os. 1 to 394 appear as in forest and are not fashioned. D.W. 2 only speaks to the fact that he is the owner of the lorry, whose plea was accepted by the trial Court which released the lorry.
5. The trial Court convicted the accused holding that they have committed the offence punishable under Sections 35 and 36 of the Andhra Pradesh Forest Act read with Rule 10 of the Timber Transit Rules. The appellate Court confirmed the conviction and sentence.
6. Sri E. Ayyapu Reddy, the learned Counsel for the petitioners strenuously contended:
1. that the prosecution has not proved that M.Os. 1 to 394 in the instant case are really timber within the definition of Rule 1 of the Timber Transit Rules which require a permit for transport;
2. that M.Os. 1 to 394 which were seized from his clients were 'fashioned articles' and it is the timber 'cut up and fashioned' as they are described as felloes and spokes and hence no permit is necessary to transport the same in the instant case;
3. that the prosecution has not proved that the transport of the M.Os. 1 to 394 by the lorry was in the prohibited area as per the notification and that there is no evidence with regard to the same.
7. The learned public prosecutor urged (1) that the point raised by the petitioners that the M.Os. 1 to 394 are excepted timber as they are fashioned articles is a question of fact and this plea was not raised by the accused in the course of the trial, nor was it raised by them in their statements made under Section 342 Criminal P.C. and they are not entitled to raise the same in this revision petition, (2) that the articles M.Os. I1 to 394 in the instant case are really timber within the meaning of the definition in Timber Transit Rules and the mention of felloes and spokes is only descriptive but they have been actually called 'Sadaru karralu' (original in Telugu omitted) in Ex. P-2, and (3) that no person is entitled to move any timber from, into or within the area specified in Schedule 'B' without a valid permit and that the particular area where the M.Os. 1 to 394 were seized from the lorry of the accused is admittedly in Schedule 'B' and hence there is no merit in any of the contentions raised by the petitioner.
8. For a proper appreciation of the respective contentions of the parties and the points that arise in the instant case, it is necessary to consider the provisions of Section 56 of the Andhra Pradesh Forest Act and Rules 1 (b) and 2 (b) and 3 of the Timber Transit Rules for the revenue districts and forest divisions other than Nellore, Cuddapah, Chit-toor, Palghat and Nilambur forest divisions. Section 56 of the Andhra Pradesh Forest Act reads as follows:
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 Central or State Government, such produce shall be presumed to be the property of the Central or State Government until the contrary is proved.
As per the provisions of Section 56 of the Andhra Pradesh Forest Act, there is a presumption in favour of the State, in any proceedings under the Forest Act or in consequence of anything done under the Forest Act that the forest produce is the property of the Central or State Government. That presumption no doubt is a rebuttable presumption and the person, who claims that the property does not belong to the Central or State Government, has, by independent evidence, to establish the same and prove that it belongs to him. In the instant case, the M.Os. 1 to 394 which have been seized by P.Ws. 1 to 3 in the presence of P.Ws. 5 and 4 are presumed to be forest produce belonging to the State, until the contrary is proved.
9. The Timber Transit Rules 1(b), 2(a), 2(b), 3 and 10 are as given below:
Timber Transit Rules.
1. Definition: In these rules, timber includes all classes of timber as defined in the Act, except-
(a) x x x x x x x x(b) timber cut up or fashioned otherwise than is usually done or permitted to be done before removal from the forest in which it has been felled;
(c) and (d) x x x x x x
Note : Timber found on, or on the margin of, any public road whether loaded in carts, or other vehicles or not and timber found in any river or stream whether tied into rafts or not, will for the purposes of these rules be deemed to be timber in transit.
2. No person shall-
(a) import timber into or export timber from, the area specified in schedule B (not being a town specified in Schedule C) except by the routes specified in Schedule A and unless such timber is accompanied by the permit prescribed by Rule 3; or
(b) move timber from, into or within the areas specified in Schedule B (not being a town specified in Schedule C), unless such timber is accompanied by the permit prescribed by Rule 3, or
(c) x x x x x x3. Form of permits: (i) to (iv) x x x x x (v) A way-permit in Form III shall be granted in exchange for each permit in Form I or Form II at the first checking station on the route by which the timber passes.
9. x x x x x x x10. Penalties: Whoever infringes any of 'the provisions of these rules shall be punished with imprisonment which may extend to one month or with fine which may extend to two hundred rupees or with both.
10. The contention of Sri Ayyapu Reddy, the counsel for the accused that M.Os. 1 to 394 are timber 'cut up or fashioned 'otherwise' than is usually done' within the meaning of Rule 1(b) of the Timber Transit Rules, is devoid of any merit. The evidence of the prosecution witnesses 1 and 7 clearly discloses that the M.Os. 1 to 394 are not fashioned articles and they were not even sawn but they have been roughly dressed with axes and '(Badisa)'. It is also revealed from their evidence that M.Os. 1 to 394 were described as felloes and spokes' but they were mentioned as 'Karralu' in Ex. P-2 and they were green in colour and fresh from forest whose age appears to be about 3 or 4 months. Both the Courts below Jiave accepted the evidence of P. Ws. 1 and 7 in toto and I do not see any reason to disagree with the conclusion of the Courts below on this aspect of the case. In the circumstances, I hold that M.Os. 1 to 394 are not fashioned articles within the definition of Rule 1 (b) of the Timber Transit Rules. Rule 3 of the Timber Transit Rules prescribes the form of permits required by the persons either to import or move or transport the timber as per the rules.
11. That apart, whether M.Os. 1 to 394 are fashioned articles or timber, as defined by the Timber Transit Rules, for whose movement or transport a valid permit as required by the Rules is necessary, is a question of fact. The accused have not taken that stand specifically in the trial Court nor was it mentioned in the statement under Section 342 of the Criminal Procedure Code. The presumption as per the provisions of Section 56 of the Forest Act that the timber belongs to the State prevails, unless the accused establish by independant evidence that it belongs to them or it does not belong to the Government. There is considerable force in the objection raised by the learned Public Prosecutor that further investigation of the facts is necessary to decide that question whether articles M.Os. 1 to 394 are really fashioned articles or not and the petitioners are not permitted to raise the same in this revision petition. The contention of the learned Counsel for the accused that no further evidence is necessary as they have been described as felloes and spokes by the prosecution and the accused can take advantage of that description, cannot be accepted in view of the fact that they have been described in Ex. P-2 as (words in Telugu omitted). In any event, there is no positive evidence on record in the instant case to arrive at a conclusion that the M.Os. 1 to 394 are fashioned articles and they are exempted timber which do not require any valid permit for being transported.
12. If the contention of the learned Counsel for the accused has to be accepted, it amounts to this; that any one unauthorisedly and stealthily enter the Government Forest and cut and fashion timber into articles and can as well take away the same, to whichever place he likes, without any valid permit being obtained from the concerned authorities. Even for cutting timber in the forest or to fashion the articles of timber in the forest, a valid requisite permit is necessary from the concerned authorities. For transporting or moving the timber also, a valid permit is necessary.
13. From the Notification made by the State, it is clear that the area where the lorry of the accused transporting M.Os. 1 to 394 was seized, was within the area mentioned in Schedule B. The place where the lorry was seized is admittedly within a few furlongs from the check post and the forest area. Hence, there is no substance in the contention of the petitioners that it is not proved that the transport of the M.Os. 1 to 394 by the lorry was in the prohibited area as per the Notification applicable to Kurnool district.
14. The conduct of the accused No. 1 in showing Ex. P-l, an invalid permit, and the statements Exs. P-3 and P-4 given by A-1 and A-2 to P.Ws. 1 to 3 in the presence of P.Ws. 4 and 5 would also support the finding that the accused were aware that the M.Os. 1 to 394 were timber which require a valid permit to transport. I do not see any merit in any of the contentions raised by the petitioners.
15. In the facts and circumstances of the case and for the reasons stated above, I hold that the conviction of the petitioners for the offences punishable under Sections 35 and 36 of the Andhra Pradesh Forest Act read with Rule 10 of the Timber Transit Rules is correct. There is no illegality, impropriety or irregularity in the orders of the Magistrate confirmed by the lower appellate Court. In the result, the conviction and the sentences imposed by the Courts below are confirmed. The revision petition fails and is dismissed.