# Mangala Prasad v. The Principal Secretary through its Forest Dept. Lko & Ors

- **Citation:** (2021) 9 ILRA 1236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-18
- **Case number:** Writ C No. 16780 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mangala-prasad-v-the-principal-secretary-through-its-forest-dept-lko-ors-47373
- **Pages:** 5

## Headnote

Forest Act (16 of 1927) (as Amended By
U.P. Amendment Act 2000) - Sections 5,
26
&
52(A)
(1),
Section
69

-
Confiscation of the seized vehicle - Form
M.M.-11
recorded
total
permissible
weight as 5 cubic meters - but petitioner
illegally carrying 7.5 cubic meters of
sand
after
excavating
it
from
the
prohibited forest area, which was not
accounted for by him - Held - 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 - act of
petitioner is an offence under the Indian
Forest Act, 1927 - petitioner a repeat
offender
-
other
aggravating
circumstance was the brutal physical
assault & injuries on forest officials, by
the petitioner - vehicle was liable to be
confiscated
-
order
of
confiscation
proportionate to the offence committed
by the petitioner - Confiscation, proper
(17, 18, 19,20)

Dismissed. (E-5)

## Text

1236 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate and the State Government in the
immediately preceding paragraph, the writ
petition is liable to be dismissed and is
dismissed.

Copy of this order shall be
communicated by the Chief Standing
Counsel to:

(1) Principal Secretary Panchayat
Raj, Government of U.P., Lucknow.

(2)
Commissioner
Gorakhpur
Division, Gorakhpur.

(3) District Magistrate, Deoria.

(4) Sub Divisional Magistrate,
Bhatpar Rani, Deoria.
----------
(2021)09ILR A1236
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 16780 of 2021

Mangala Prasad ...Petitioner
Versus
The Principal Secretary through its Forest
Dept. Lko & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Yadav, Sri Jai Prakash
Prasad

Counsel for the Respondents:
C.S.C.

Forest Act (16 of 1927) (as Amended By
U.P. Amendment Act 2000) - Sections 5,
26
&
52(A)
(1),
Section
69

-
Confiscation of the seized vehicle - Form
M.M.-11
recorded
total
permissible
weight as 5 cubic meters - but petitioner
illegally carrying 7.5 cubic meters of
sand
after
excavating
it
from
the
prohibited forest area, which was not
accounted for by him - Held - 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 - act of
petitioner is an offence under the Indian
Forest Act, 1927 - petitioner a repeat
offender
-
other
aggravating
circumstance was the brutal physical
assault & injuries on forest officials, by
the petitioner - vehicle was liable to be
confiscated
-
order
of
confiscation
proportionate to the offence committed
by the petitioner - Confiscation, proper
(17, 18, 19,20)

Dismissed. (E-5)

(Delivered by Hon'ble Ajay Bhanot, J.)

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.
9 All Mangala Prasad Vs. The Principal Secretary through its Forest Dept. Lko & Ors.
1237

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
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
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 forestrights.-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-
9 All Mangala Prasad Vs. The Principal Secretary through its Forest Dept. Lko & Ors.
1239

(c) kindles, keeps or carries any
fire except at such seasons as the Forestofficer 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 forestproduce 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.
1240 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
----------
(2021)09ILR A1240
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2021

BEFORE

THE HON'BLE MANOJ MISRA , J.
THE HON'BLE JAYANT BANERJI, J.