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Himachal Pradesh High Court · body

2000 DIGILAW 211 (HP)

SUNDER SINGH v. STATE OF HIMACHAL PRADESH

2000-08-04

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The appellants, hereinafter referred to as the plaintiffs, have preferred the present appeal against the judgment and decree dated 15.12,1999 of the learned District Judge, Nahan, affirming the judgment and decree dated 15.12.1998 of the learned Sub Judge 1st Class, Nahan, in Civil Suit No. 41/1 of 1997. 2. Briefly, the facts of the case may be thus stated. On 18.7.1991 a raid was conducted by the Enforcement Department in the cowshed of plaintiff No. 1, when he was found to be in possession of 137 scants of "Deodar. Such scants did not bear any hammer mark. Finding the plaintiff No. 1 to be in illegal possession of the timber, a case for the offences under Sections 379 and 420, Indian Penal Code, and under Sections 33, 41 and 42 of the Indian Forest Act, as applicable to Himachal Pradesh, came to be registered against plaintiff No. 1 vide FIR No. 57/91 at Police Station, (Enforcement), South Zone, Shimla. After necessary investigation, a final report under Section 173, Code of Criminal Procedure, was presented before the learned Judicial Magistrate 1st Class, Nahan, for the prosecution of plaintiff No. 1 Sunder Singh. The matter remained pending before the learned Judicial Magistrate for a period of more than five years without a formal charge having been framed, Following the dictum of the Apex Court in "Common Cause" A Registered Society through its Director v. Union of India and others [JT 1996 (4) SC 701], the learned Magistrate on 28.11.1996 dropped the proceedings against plaintiff No. 1 and ordered his discharge. While discharging the plaintiff No. 1, the learned Magistrate by raising the presumption under Section 69, Indian Forest Act, ordered the confiscation of the timber to the State. Such order was purportedly passed under Section 452, Code of Criminal Procedure. The order of confiscation was never assailed by the plaintiffs and/or proforma defendant No. 2 by way of an appeal. 3. While the case was still pending investigation, the State of Himachal Pradesh sought the auction of the seized timber while plaintiff No. 1 had sought the release thereof claiming the timber to be belonging to him. The learned Magistrate while declining the release of the timber in favour of plaintiff No. 1, ordered its sale by auction. 3. While the case was still pending investigation, the State of Himachal Pradesh sought the auction of the seized timber while plaintiff No. 1 had sought the release thereof claiming the timber to be belonging to him. The learned Magistrate while declining the release of the timber in favour of plaintiff No. 1, ordered its sale by auction. The plaintiff No. 1 assailed the order of the learned Magistrate by way of a revision petition before the learned Additional Sessions Judge. Vide order dated 29.12.1992 the learned Additional Sessions Judge set aside the order of the learned Magistrate by holding that the learned Magistrate was having no jurisdiction to order auction of the seized timber. He further observed that the parties shall be at a liberty to seek their remedies, if any, before the appropriate forum in accordance with law. 4. The plaintiff No. 1, thereafter, approached the Authorised Officer under Section 52-A, Indian Forest Act as applicable to Himachal Pradesh, hereinafter referred to as the Act, for the release of the timber in his favour. The Authorised Officer on 9. L1994 refused to exercise jurisdiction in the matter on the ground that the seized timber was not produced before him as required under Section 52-A of the Act. The matter, therefore, rested there. 5. After the discharge of the plaintiff No. 1 on 28.11.1996 by the learned Magistrate and as a result, of the order of confiscation of timber, the plaintiffs filed the suit, out of which the present appeal has arisen, seeking declaration to the effect that they alongwith proforma defendant No. 2 are owners of 137 scants of seized timber. As a consequential relief, a decree for mandatory injunction was claimed for directing defendant No. 1 to hand over the seized timber to them. In claiming ownership qua the seized timber it was averred that the same was obtained by them from the Forest Department in exercise of their T.D. rights. The scants after conversion had been kept stored by them in the cattle shed of plaintiff No.1. 6. Proforma defendant No. 2 vide his written statement supported the case of the plaintiffs. The suit was resisted and contested by defendant No. 1. The recovery and seizure of the scants was admitted. It was pleaded that since the plaintiff could not establish their ownership qua the seized timber, the same was rightly ordered to be confiscated. 6. Proforma defendant No. 2 vide his written statement supported the case of the plaintiffs. The suit was resisted and contested by defendant No. 1. The recovery and seizure of the scants was admitted. It was pleaded that since the plaintiff could not establish their ownership qua the seized timber, the same was rightly ordered to be confiscated. It was further pleaded that T.D. permits were granted to the plaintiffs in 1982-83 and under such permits the timber granted has to be utilised within six months. The seized timber did not bear any hammer mark and under Section 69 of the Act such timber is presumed to be belonging to the State. 7. Following issues were framed by the learned trial Court on the basis of the pleadings of the parties:— 1. Whether the plaintiffs/proforma defendant are owners of 137 Deodar sleeper/scants 290. 31 C.F.T.? OPP. 2. Whether the plaintiffs and proforma defendant are entitled for the relief of mandatory injunction as prayed? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD. 5. Relief. 8. The learned trial Court decided issues No. 1 and 2 against the plaintiffs and issues No. 3 and 4 against the defendant No. 1. As a result of such findings, the suit of the plaintiffs was dismissed vide judgment and decree dated 15.12.1998. The appeal carried by the plaintiffs before the learned District Judge was also dismissed on 15.12.1999. 9. The present second appeal at the instance of the plaintiffs was admitted for hearing on the following substantial questions of law:— 1. Whether the presumption under Section 69 of the Indian Forest Act, 1927 is a rule of evidence or of substantive law and whether in a Civil Suit filed by the plaintiffs for declaration of ownership etc. of 137 scants in question presumption of ownership of 137 scants is available in favour of the State and if so to what extent. 2. Whether in view of Section 69 of the Indian Forest Act, 1927 the State is required to lead evidence to establish its ownership of 137 scants in question. 3. of 137 scants in question presumption of ownership of 137 scants is available in favour of the State and if so to what extent. 2. Whether in view of Section 69 of the Indian Forest Act, 1927 the State is required to lead evidence to establish its ownership of 137 scants in question. 3. Whether once the plaintiffs asserted their ownership of 137 scants in question in Civil Suit that" is enough to rebut the presumption available in favour of the State under Section 69 of the Indian Forest Act, 1927. 4. Whether once Authorised Officer declined to confiscate 137 scants under Section 52-A of the Indian Forest Act, 1927, as applicable in Himachal Pradesh, the Judicial Magistrate, 1st Class, Nahan, could order confiscation of the same timber vide order dated 28.11.1996 in a criminal case. 10. I have heard the learned Counsel for the parties and have also gone through the record of the case. 11. The seized timber has been ordered to be confiscated by raising the presumption under Section 69 of the Act. Section 69 reads:— "69. Presumption that forest produce 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." 12. A Division Bench of this Court in State of H.P. v. Laxmi Nand and others, 1992 Cri LJ 3226, has held that Section 69 of the Act which provides for presumption being raised in favour of the State where there is dispute in any proceedings relating to any forest produce with respect to which an offence is alleged to have been committed to be belonging to the State is a rule of evidence. Such presumption is a rebuttable one which has to be rebutted by the person claiming the forest produce. In order to claim seized timber, it is necessary for the person claiming it to bring on record sufficient material for rebutting the presumption. Acquittal of an accused of a forest offence on the ground that the prosecution had failed to bring home the charge for want of sufficient evidence will not ipso facto sufficient to rebut the presumption required to be drawn under Section 69 of the Act. 13. Acquittal of an accused of a forest offence on the ground that the prosecution had failed to bring home the charge for want of sufficient evidence will not ipso facto sufficient to rebut the presumption required to be drawn under Section 69 of the Act. 13. In order to enable the raising of the presumption the State is only required to show that the forest produce in question is the one in respect of which some proceedings under the Act has been taken. No further evidence is required to be led to establish the ownership by the State. The onus is on the person claiming the forest produce to rebut the presumption. Mere assertion of ownership in a Civil Court, in the absence of any other evidence in support of such assertion, would not be sufficient to rebut the presumption available under Section 69 of the Act in favour of the State. 14. In the present case, the two courts below on the basis of evidence coming on record have concurrently held that the plaintiffs have not been able to rebut the presumption and establish their ownership qua the seized timber. Such findings being on a pure question of fact cannot be gone into in the present second appeal. 15. Under Section 52-A of the Act, powers have been given to the Authorised Officer to confiscate the forest produce belonging to the State and in respect of which a forest offence is believed to have been committed. In the present case, the Authorised Officer, admittedly, had refused to take cognizance of the case and exercise the jurisdiction under Section 52-A of the Act since the Forest Produce, namely, the timber was never produced before him. 16. In the present case, the Authorised Officer, admittedly, had refused to take cognizance of the case and exercise the jurisdiction under Section 52-A of the Act since the Forest Produce, namely, the timber was never produced before him. 16. Section 52-A of the Act, insofar as it is relevant for the purpose of this case reads :— "(1) Notwithstanding anything contained in this Chapter, where a forest offence is believed to have been committed in respect of timber (excluding fuelwood), resin, khair wood and katha, which is the property of the State Government, the Officer seizing the property under sub-section (1) of Section 52 shall without any unreasonable delay produce it, together with all tools, ropes, chains, boats or vehicles used in committing such offence before an Officer, authorised by the State Government in this behalf, by notification published in the official Gazette, not below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer). (2) Where an authorised officer seizes under sub-section (1) of Section 52 any timber (excluding fuelwood) resin, khair wood and katha, which is the property of the State Gov ernment, or where any such property is produced before an authorised officer under sub-section (1), once he is satisfied that a forest offence has been committed in respect of such property-, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of the property so seized together with all tools, ropes, chains, boats or vehicles used in committing such offence. (3)(a)................................................... (b)......................................................" (Emphasis supplied) 17. A plain reading of the above provisions would show that the Authorised Officer would derive the jurisdiction and power to confiscate the forest produce only when the same is produced before him by the Officer seizing the same. 18. In the present case the seized timber was never produced before the Authorised Officer. Therefore, he rightly declined to take cognizance of the matter. It is not that the Authorised Officer having taken the cognizance had declined to confiscate the timber by holding that no forest offence was committed in respect of such timber. 19. The seized timber in the present case, which was the case property in case FIR No. 57/1991, was ordered t^ be confiscated by the learned Magistrate exercising the powers under Section 452, Code of Criminal Procedure. 20. 19. The seized timber in the present case, which was the case property in case FIR No. 57/1991, was ordered t^ be confiscated by the learned Magistrate exercising the powers under Section 452, Code of Criminal Procedure. 20. A Magistrate after the conclusion of the inquiry or trial has the power under Section 452, Code of Criminal Procedure, to order the disposal of the case property either by destruction thereof or by confiscation thereof or by delivery thereof to a person claiming to be entitled to possession thereof. 21. The plaintiffs in the present case have not assailed the said order dated 28.1.1996 of the learned Magistrate. No declaration has been sought for the setting aside or declaring such order as null and void. Once the Magistrate is held to have the jurisdiction to pass the order of confiscation under Section 452, Code of Criminal Procedure, the plaintiffs cannot be delivered the timber unless they are able to avoid the order dated 28.11.1996. 22. There is yet another aspect of the case. Once the seized timber under Section 69 of the Act is presumed to be the property of the State and the plaintiffs have failed to rebut such presumption, there would be no need to order its confiscation since under Section 69 of the Act the same is presumed to be the property of the State. 23. The questions on which the present appeal was admitted are answered accordingly in the above terms against the plaintiffs. 24. As a result, there being no merits in the present appeal, the same is dismissed leaving the parties to bear their own costs. Interim order dated 11.2.2000 shall stand vacated. Appeal dismissed.