Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 128 (HP)

ALAF DEEN v. STATE OF HIMACHAL PRADESH

2000-05-31

R.L.KHURANA

body2000
JUDGMENT (R.L. Khurana, J.): The present petition under Section 397/401, Code of Criminal Procedure, has been directed against the order dated 26.6.2998 of the learned Sessions Judge, Una affirming the order dated 19.9.1995 of the learned Additional Chief Judicial Magistrate, Amb, ordering the confiscation of the truck bearing No. HIU-1837 under Section 55 of the Indian Forest Act, 1927 (for short: the Act) as applicable to the State of Himachal Pradesh. 2. The facts of the case leading to the present petition may be briefly stated thus. The petitioner is the owner of the truck HIU-1837. One Tufail Mohammad, brother of the petitioner was the driver of the said truck. On 23.9.1989 at about 3.30 AM this truck was intercepted by the then Station House Officer of Police Station, Amb on Kalruhi-Lohara Saloi road, when 97 tins of resin were found being transported without any valid export permit. The truck and the tins of resin being carried therein were seized and taken into possession of the truck, and one Sat Pal were sent up for trial for the offences under Section 41/42, Forest Act and under Section 379, read with section 34, Indian Penal code. Both Tufail Mohammad and Sat Pal were convicted for the offence under section 41/42 of the Act read with Section 34, Indian Penal Code. Each one of them upon such conviction was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 1000/- by the learned Sub Divisional Judicial Magistrate, Amb, vide judgment dated 31.3.1993. 3. While convicting and sentencing the two accused Tufail Mohammad and Sat Pal, the learned Magistrate, directed the issuance of a notice to the present petitioner under Section 55 of the Act as amended by H.P. Act No. 25 of 1968 to show cause as to why the truck HIU-1837 owned by him and used in the commission of a forest offence be not confiscated. 4. Be it stated that the conviction of S/Sh. Tufail Mohammad and Sat Pal as recorded by the learned Magistrate was affirmed by the learned Sessions Judge in appeal on 29.4.1995. The sentence imposed was, however, modified and each one of them was sentenced to fine of Rs. 1000/-. 4. Be it stated that the conviction of S/Sh. Tufail Mohammad and Sat Pal as recorded by the learned Magistrate was affirmed by the learned Sessions Judge in appeal on 29.4.1995. The sentence imposed was, however, modified and each one of them was sentenced to fine of Rs. 1000/-. While no further challenge was laid by Tufail Mohammad, the criminal revision carried before this court by Sat Pal against the judgment of learned Sessions Judge was dismissed by a learned Single Judge of this Court on 24.9.1998. 5. In response to the notice issued, the petitioner filed his reply on 17.6.1993 wherein it was pleaded in the following terms: "That the respondent is the owner of the truck Regn. No. HIU-1837. The respondent never authorised the driver Shri Tufail Mohammad to carry any illegal resin or other forest produce. The respondent is quite innocent and is not aware of the illegal act committed by the Driver. The fact of the matter is that the driver had taken the truck to Mubarakpur on 22.9.89 to fill diesel in the tank of the vehicle and when coming back, on the way, he met one Sat Pal with whom he went to the house of one Rukman Deen Pradhan of village Saloi in connection with the Congress Rally which was going to held at Kangra on 23.9.1989 for carrying Congress workers, in order to fix the time of departure. That the alleged offence committed by the driver is not within the knowledge of the answering respondent nor the answering respondent ever authorised the driver to carry any unauthorised goods. That the respondent has no knowledge of the offence and it was neither committed with/in connivance with the respondent." 6. Opportunity was thereafter given to the petitioner to lead evidence in support of his case as set out in his reply, quoted above. Evidence was led by the petitioner. He himself appeared as RW. 1. He also examined RW.2 Rukman Deen and RW. 3 Rajpal Singh. One witness, namely, AW.l Head Constable Beant Singh was examined by the State in rebuttal to the/evidence led by the petitioner. 7. The learned Magistrate, upon consideration of the evidence led before him, was not satisfied with the explanation put forth by the petitioner. He, therefore, vide order dated 19.9.1995 ordered the confiscation of the truck under section 55 of the Act. 8. 7. The learned Magistrate, upon consideration of the evidence led before him, was not satisfied with the explanation put forth by the petitioner. He, therefore, vide order dated 19.9.1995 ordered the confiscation of the truck under section 55 of the Act. 8. The matter was carried in appeal before the learned Sessions Judge under section 59 of the Act. Vide the impugned order dated 26.6.1998; the learned Sessions Judge dismissed the appeal of the petitioner and affirmed the order dated 19.9.1995 of the learned Magistrate confiscating the truck. Hence, the present revision petition by the petitioner. 9. The learned Assistant Advocate General at the very out set has raised an objection as to the maintainability of the present revision petition. It has been contended that an order passed in appeal under section 59 of the Act is final and is not open to challenge under section 397 or section 401, Code of Criminal Procedure. 10. The learned counsel for the petitioner, on the other hand, has contended that section 59 of the Act does not exclude the ordinary revisional powers of the High Court over a Subordinate Tribunal in the exercise of its criminal jurisdiction where there has been material error in judicial proceedings. The High Court is competent to revise an order passed by the Sessions Judge under section 59 of the Act in appeal from the order of the Magistrate confiscating the property in question under section 55 of the Act. 11. Section 59 of the Act, as in force at the relevant time, read: "The officer who made the seizure under section 52, or any of hi s official superiors, or any person claiming to be interested in the property so seized, may, within one month from the date of any order passed under section 55, section 56, or section 57, appeal there from to the court to which orders made by such Magistrate are .ordinarily appeal able, and the order passed on such appeal shall be final." [Emphasis supplied] 12. Vide H.P. Act No. 15 of 1991 a number of amendments was carried out in the Act. Such amendments included insertion of section 52-A and 59-A in the Act as applicable to Himachal Pradesh. Vide H.P. Act No. 15 of 1991 a number of amendments was carried out in the Act. Such amendments included insertion of section 52-A and 59-A in the Act as applicable to Himachal Pradesh. Vide Section 52-A powers were conferred on Forest Officers to be called as "Authorised Officers" to order confiscation of the forest produce in respect of which a forest offence has been committed, together with all-tools, ropes, chains, boats or vehicles used in committing such offences. 13. Under the newly inserted section 59-A suo moto revisional powers have been conferred on Conservator of Forests to examine the record of the order passed by an "Authorised Officer" under section 52-A. 14. The order passed by an Authorised Officer under section 52-A and the one passed by the Revising Authority under section 59-A^as been made appeal able under sub-section (2) of Section 59 as inserted by the H.P. Act No. 15 of 1991 and under sub-section (3) it has been provided that the order of the Sessions Judge passed on appeal under sub-section (2) shall be final and shall not be questioned in any court of law. 15. The scope and ambit of sub-sections (2) and (3) of section 59 as amended by H.P. Act No. 15 of 1991 came up for consideration before this court in State v. Dhanwant Singh, 1998(2) Crimes 544 and it was held that no revision lies against an order passed by the Sessions Judge on appeal under section 59(2) of the Act. 16. Since section 59 of the Act as was in force at the relevant time and now section 59(1) as applicable in Himachal Pradesh vide H.P. Act No. 15 of 1991 also gives finality to the order passed by the Sessions Judge in appeal filed against the order of a Magistrate directing confiscation of the property, the ratio laid down in State v. Dhanwant Singh would equally apply teethe orders passed by the Sessions Judge on appeal under sub-section (1) of section 59 of the Act. Resultantly, no revision would be maintainable against such an order. The present revision petition is, therefore, liable to be dismissed on this short ground alone. 17. Resultantly, no revision would be maintainable against such an order. The present revision petition is, therefore, liable to be dismissed on this short ground alone. 17. A contention was raised on behalf of the petitioner that even if a revision petition against the impugned order be held to be not maintainable, this court in exercise of its inherent powers under section 482, Code of Criminal Procedure, can go into the legality or otherwise of the impugned order. 18. No doubt, this court in exercise of its inherent powers under section 482, Code of Criminal Procedure, or in exercise of its power of superintendence under Article 227, Constitution of India, can go into and examine the legality or otherwise of the impugned order, such a power has to be exercised and invoked only if a case is made out therefore. 19. . It is well settled that the High Court cannot make a reappraisal of evidence in a petition under section 482, Code of Criminal Procedure by meticulously examining the statement of witnesses. The principles governing the exercise of inherent powers are: (i) The High Court possesses the inherent power to be exercise "EX DEBITO JUSTITIAE" to do real and substantial justice. But such power do not confer any arbitrary jurisdiction on the High Court to act according to its whims or caprice (ii) It should be exercised sparingly to prevent abuse of process of any court or otherwise to secure ends of justice; (iii) The power is not to be resorted to if there is specific provision in the Code for redress of grievance of aggrieved party; and (iv) It should not be exercised as against the express bar of law engrafted in any other provision of the Code. 20. In the present case, nothing has been brought on the record to show that the jurisdiction was exercised by the two courts below in the wrong manner or that the impugned orders otherwise suffer from any material illegality or irregularity or that there has been any abuse of process of the court. 21. The stand taken by the petitioner in this reply to the show cause notice and during the course of evidence is self contradictory. Therefore, the two courts below have rightly rejected the case of the petitioner. 22. 21. The stand taken by the petitioner in this reply to the show cause notice and during the course of evidence is self contradictory. Therefore, the two courts below have rightly rejected the case of the petitioner. 22. The law as contained in Section 55 of the Act provides that the vehicles which are found to be involved in the commission of forest offences are liable to be confiscated to the State, the rationale behind this statutory provision is to deter the owners thereof, as far possible, to involve their vehicles so as to facilitate the commission of forest offences. Due to the connivance and participation of truck owners and drives with persons involved in the illicit felling of trees in the State, forests worth crores of rupees in the State have been finished for personal economic gains at the costs of the State and the Nation. Immense damage to the ecology has also been due to mass forest offences and in case these truck operators do not facilitate the forest rnafia, forest wealth finished by them by this time would not have happened at all. [See: Ramesh Chand v. State of Himachal Pradesh ILR, (1989). H.P. 211. 23. The case of set up by the petitioner that the forest offence was committed by his driver without his knowledge or connivance is false to the knowledge of the petitioner. Admittedly, the driver is the real brother of the petitioner. The registration certificate of the truck was got released by the said driver Tuffail Mohammad on "sapurdari" during the course of the trial. Was such release not to the knowledge of the petitioner? Had he not been a party be would have certainly objected to such release of registration certificate in favour of his driver. No grievance -whatsoever was made by him at any time. Besides, the petitioner while appearing as RW.l has admitted that he is involved in a number of cases pertaining to forest offences though he has claimed that he stands acquitted in such cases. 24. The two courts below have rightly ordered the confiscation of the j truck under Section 55 of the Act. No interference is called for in such order. J Resultantly, the present petition is dismissed. 24. The two courts below have rightly ordered the confiscation of the j truck under Section 55 of the Act. No interference is called for in such order. J Resultantly, the present petition is dismissed. The petitioner to whom the truck was ordered to be released on supardari under the orders dated 28.9.1995 of the learned Sessions Judge shall produce and surrender the truck before the learned Magistrate within a period of four weeks from today, failing which the learned Magistrate shall proceed against the petitioner in accordance with law. Petition Dismissed