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2001 DIGILAW 184 (JK)

State Of J. &K. v. Farooq Ahmad

2001-09-03

MUZAFFAR JAN

body2001
JUDGEMENT Per Muzaffar Jan J 1. Revision petition has been filed to set aside the order dated 06.12.1994 and 09.09.1994, passed by learned Judicial Magistrate (City Judge), Srinagar in FIR No. 49/94. 2. It appears that challan was presented before City Judge Srinagar u/s 379 read with section 109 and 34 RFC and offence u/s 6 of Forest Act and 5 of Kuth Act on 10.10.1994. Accused appeared and while considering the allegations against the accused persons, for existence of grounds to prima facie charge the accused or not, trial court after hearing the arguments, came to the conclusion that there were no grounds to prima-facie charge the accused u/s 379 RFC or 6 Forest Act or 5 Kuth Act. The accused persons were accordingly discharged vide order dated 06.12.1994. It is the validity of this order, which has been challenged in the present proceedings. 3. On allegations that the accused were found in possession of forest produce in the form of Kuth, Diascorea, Herculeum, Sazmool and Artiumsia, FIR No. 49/94 was filed u/s 379 RPC, 6 of Forest Act and 5 of Kuth Act in Police Station Nishat. On further investigation as the accused were not found in possession of any valid document to justify the possession of seized forest produce, the charge report under Section 379 read with Section 109 and 34 RPC and 6 Forest Act and 5 Kuth Act was filed in the Court of learned City Judge. 4. From the perusal of record of the trial court, it is manifestly clear that the trial court after considering the documents produced with the charge report to ascertain the existence of prima facie charge, also considered some documents produced by the accused persons to establish that the accused were acting on behalf of Khurshid Ahmad, an authorized contractor, who deals in the forest produce. 5. On perusal of the official correspondence produced by prosecution alongwith the challan, it is manifestly clear that accused Khurshid Ahmad had been a dealer in forest produce even before the date of the initiation of present complaint. The trial court while considering the existence or otherwise of the allegations to frame prima facie charge against accused has observed as under: "...Now the question is whether the petitioners on knowingly in receipt of or in possession of illicit forest produce i.e. the seized items including the Kuth etc. The trial court while considering the existence or otherwise of the allegations to frame prima facie charge against accused has observed as under: "...Now the question is whether the petitioners on knowingly in receipt of or in possession of illicit forest produce i.e. the seized items including the Kuth etc. A per son can be said to be in possession of illicit forest produce when he is not authorized or licensed to deal in such items. In this regard the petitioners have produced a photocopy of certificate of registration No. 480-C valid upto 3/95 issued by the Principal Chief Conservator of Forests under Rule II (c). According to the certificate the petitioner Khurshid Ahmad is authorized to execute the works of Forest Department. The dealing of the Contractor has also been explained by the certificate...." 6. The genuineness of this certificate was not disputed before the Trial Court at the stage of arguments on prima facie charge. 7. In the instant case, not only this certificate but also the photocopies of the official correspondence placed on the file, sufficiently show that Khurshid Ahmad is authorized dealer of forest produce and as such possession of the seized items cannot be presumed as offence under Section 6 of forest Act or U/S 379 RPC. It may be kept on record that there is no pending or existing FIR alleging theft of any store of the Forest Department where from the seized items could have been removed or any details of the demarcated forest where from forest produce could have been extracted, submitted and shown in the file. In the absence of the allegations that the theft of any forest produce has been committed or extraction of any forest material has been made merely by possession which is legally explained of the forest produce as in present case, no presumption can be drawn that the allegations on record are sufficient to charge the accused u/s 379 read with section 109 and 34 RFC and 6 of Forest Act and 5 of Kuth Act. 8. 8. There is nothing on the file to show even at this stage either to dispute the genuineness of the official documents which prima facie reveal that Khurshid Ahmad, one of the accused, was a dealer, of the forest produce or that the certificate issued by Principal Chief Conservator of Forests under No. 480/C dated 23.08.1994 indicating Khurshid Ahmad as registered contractor is not genuine. In any case it is settled position of law that the documents which can substantially assist the Court in arriving at truth can be allowed to be taken on record, even if produced by the accused at the initial stage of the trial, as held in AIR 1995 SC 2411 titled Teja Singh vs. Mukhtiar Singh & Others. 9. The impugned order passed by the learned City Magistrate seems to have been based on correct appreciation of facts and law and does not justify any interference. The order impugned is accordingly upheld. Revision petition dismissed.