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2002 DIGILAW 257 (JK)

Range Officer v. Hans Raj

2002-08-09

S.K.GUPTA

body2002
Per S.K. Gupta, J. This is a reference made by the learned Sessions Judge, Udhampur recommending the quashment of the order dated 04.9.1999, passed by the Judicial Magistrate, Chenani on miscellaneous application entitled Hans Raj v. Range Officer, Dudu. By the aforesaid order, the Judicial Magistrate has released deodar and kail timber measuring 407.99 cft. stated to have been seized from the house of Hans Raj. 2. The facts relevant for the disposal of this reference, shorn of details may be stated. The Range Officer, Mohd. Din Banday received an information that Hans Raj is in possession of forest produce (timber) and a raid was conducted by him alongwith staff and police officials of Police Station, Chenani in the premises of accused Hans Raj and seized the timber of different size from the possession of the accused detailed in para-2 of the complaint. Since the accused failed to produce any evidence in regard to the ownership of the timber, the same was seized by the Forest Department from his possession. When the enquiry was still being conducted by the Forest Department with regard to the timber and also ascertaining the claim of the accused that the said timber has been obtained by the father of the accused from the Forest Department for construction of his house, an application came to be initiated before the Judicial Magistrate, Chenani for the release of the timber. The Judicial Magistrate held the enquiry and thereafter released the timber in favour of the accused, Hans Raj. The Forest Department, aggrieved by the order passed by the Judicial Magistrate, Chenani in releasing the timber in favour of accused, Hans Raj, impugned its correctness before the learned Sessions, Judge, Udhampur in revision. The Learned Sessions Judge, Udhampur, however, found the order propounded by the Judicial Magistrate to be not in accordance with the, mandate of law and made a reference on 4.7.2001 for its quashment. 3. I have heard the learned counsel appearing for the respective parties, considered their rival contentions and perused the record meticulously. 4. Chapter VI of the Forest Act, 1987 provides for penalties and Procedure. Section 26 of the Forest Act envisages that the Forest Officer or the Police Officer may seize any forest produce, such produce, together with all tools, boats, carts (motor vehicles) and cattle used in committing any such offence in respect of any forest produce. 4. Chapter VI of the Forest Act, 1987 provides for penalties and Procedure. Section 26 of the Forest Act envisages that the Forest Officer or the Police Officer may seize any forest produce, such produce, together with all tools, boats, carts (motor vehicles) and cattle used in committing any such offence in respect of any forest produce. The officer seizing the forest produce, under this section shall as soon as may be make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Section 26-A of the Act gives power to specified Forest Officer on conditions provided therein to enter a premises, make search for the forest produce and order its confiscations provided the contravention of the provisions of the Act relates to forest produce. Sections 27 and 29 of the Act give power to the Judicial Magistrate for disposal of the property during pendency or at the conclusion of the trial in respect of forest offence. 5. A plenary reading of the aforesaid provisions makes it abundantly clear that the power of the Judicial Magistrate to release the property (forest produce), is subject to the condition that property sought to be released, has been seized or confiscated in respect of forest offence or offence in respect of forest produce and that the property/articles having been seized in respect of offence triable under the provisions of the Forest Act. 6. In the instant case, the Forest Officer is stated to have seized 407.99 cft. deodar and kail timber from the house of the accused, Hans Raj at Srar Tehsil Chenani on 16.4.1997 . In an application, before the Judicial Magistrate for the release of the timber, enquiry was conducted. After recording the evidence, Judicial Magistrate found that the accused has not been able to prima facie prove the ownership with regard to 270.49 Cft of timber. About the remaining timber 137.50 cft., a valid permit was produced by Hans Raj to which even the Forest Officer also admitted to be covered by the said permit. He ordered the release of timber 137.50 cft in favour of the accused and for the balance timber, 270.49 cft. About the remaining timber 137.50 cft., a valid permit was produced by Hans Raj to which even the Forest Officer also admitted to be covered by the said permit. He ordered the release of timber 137.50 cft in favour of the accused and for the balance timber, 270.49 cft. it was ordered that on filing of an undertaking by Hans Raj that in the event of prosecution filed against him for possessing illicit timber which if proved in the case, cost of such timber shall be deposited in the court. 7. It is not disputed that the timber is alleged to have been seized from the house of the accused, Hans Raj on 16-04-1997. Application for its release was made before the Judicial Magistrate, Chenani on 28-05-1997. Seizure of the timber was effected by the Forest Officer under Section 27 of the Forest Act, 1987. Section 26 of the Forest Act, 1987 authorises the Judicial Magistrate to deal with the application made before him for the release of the forest produce (timber), seized from the possession of the accused in accordance with procedure provided under sections 27 and 29 of the Forest Act, 1987. 8. The learned Sessions Judge, Udhampur seems to have decided the revision under the provisions of the Jammu and Kashmir Forest (Amendment ) Act,1997. This Amended Act of 1997, however, received the assent of the Governor on 29-09-1997 and published in the Government Gazette on 01-10-1997. The Sessions Judge, Udhampur seems to have not dealt with the revision seriously at any point of time but in a casual and cavalier manner. When the offence is stated to have been committed under the Forest Act, 1987 against the accused on account of seizure of alleged illicit timber from his possession on 16.04.1997, it is not understandable how the J&K Forest ( Amendment) Act, 1997 could be made applicable which had not yet come into force at the relevant time. This clearly exhibits the non-application of mind and lack of judicial impropriety on part of the Sessions Judge. It is settled proposition of law that the case is to be dealt with under the provisions of law, which exist at the time when the offence alleged to have been committed. This clearly exhibits the non-application of mind and lack of judicial impropriety on part of the Sessions Judge. It is settled proposition of law that the case is to be dealt with under the provisions of law, which exist at the time when the offence alleged to have been committed. The Judicial Magistrate wan well within the power under the Forest Act, 1987 to deal with the application relating to the disposal of propetry in respect of forest offence. It was the Forest Act, 1987 applicable at the time when the offence alleged to have been committed by the accused and not the J&K Forest (Amendment) Act, 1997. 9. I do not find infirmity in the order dated 4.9.1999 with regard to the disposal/release of property under the Forest Act, 1987, formulated by the Judicial Magistrate, Chenani, inviting interference in this reference. 10. Having considered the facts and circumstances of the case discussed above, in its cumulative, the inevitable conclusion is that the reference made by the Sessions Judge, Udhampur is misconceived and accordingly rejected. The record shall be remitted back-to the trial court forthwith, where the parties through their counsel are directed to cause their appearance on 26.8.2002.