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2009 DIGILAW 160 (JK)

Range Officer v. Nasib Raj

2009-04-09

MOHAMMAD YAQOOB MIR

body2009
1. Revision, not been provided under the Forest Act against the order of Sessions Judge, on unopposed submission is treated as a Petition under Section 561-ACr.P.C. 2. Range Officer, Doda Range along with field staff and SHO, Kud while intercepting the vehicle TATA MOBILE recovered 30 no. of Deodar Scants. Failure on the part of the driver to produce any valid document in support regarding the timber resulted in seizure of the vehicle. Consequently, Forest Officer (DFO) Udhampur has initiated the confiscation proceedings. During the pendency of the confiscation proceedings, the respondent filed an application for release of the vehicle before the Court of Sessions Judge, Udhampur. Vehicle has been ordered to be released in favour of the petitioner vide order dated 18-12-2008. Aggrieved thereof, the instant petition has been filed. 3. The sole point raised for quashing the proceedings relating to the release by the Court of Sessions Judge is that the order has been passed without jurisdiction. 4. According to the appearing counsel for the petitioner, the Ld. Sessions Judge, has no jurisdiction to release the vehicle when the confiscation proceedings were pending before the Authorized Officer, The Sessions Court has revisional powers in terms of Section 26-B, which can be exercised against the order of confiscation. Ld. Counsel has placed reliance on the judgment delivered by this Court in case captioned as Deputy Director, Forest Protection Force Vs. Ram Singh and Anr., dated 04-09-2002 passed in petition Under Section 561-A Cr. P.C No 38/2002. 5. Appearing counsel for the respondent would contend that in terms of Section 26-C, the Ld. Sessions Judge has the jurisdiction, which he has exercised properly, so there is no question of abuse of the process of law. In support of this contention has relied on the judgment reported in 2000(11) SLJ, Page 767. 6. While considering the rival submissions important question which arose for consideration is as to when the Court of Sessions can exercise power of release regarding the seized vehicle under Section 26-C of the Forest Act. 7. In support of this contention has relied on the judgment reported in 2000(11) SLJ, Page 767. 6. While considering the rival submissions important question which arose for consideration is as to when the Court of Sessions can exercise power of release regarding the seized vehicle under Section 26-C of the Forest Act. 7. The penalty and procedure relatable to the Forest offences is governed by Chapter VI of the Forest Act 1987 (hereinafter for short, referred to as "The Act" in terms of Section 26 when there is reason to believe that a forest offence has been committed, in respect of any forest produce, such produce with all tools which include the vehicle has to be seized by the forest officer or police officer. On doing so, the report of such seizure has to be submitted to the D.F.O (authorized officer). On receipt of the report and after recording satisfaction about the commission of forest offence, the authorized officer on recording reasons and after following the due procedure as prescribed under Section 26 of the Act has finally to pass the order regarding confiscation. Once the order of confiscation is passed by the authorized officer, the next course available to the aggrieved party is to invoke the revisional jurisdiction of the Court of Sessions as is provided under Section 26-B of "The Act". 8. With the object of saving the forest wealth, special procedure has been prescribed for confiscation, for release as well as forum for redressal by way of revision. Section 26-C bars the jurisdiction of the Courts under certain circumstances, i.e., when the authorized officer initiates the confiscation proceedings, intimation has to be given about the proceedings to the Magistrate having jurisdiction to try the offence and also notice to the person(s) concerned regarding the seizure of the property. To make orders with regard to possession, delivery or distribution of the property in regard to which proceedings for confiscation are initiated under Section 26, the jurisdiction of all Courts, Authority is barred, except that of the authorized officer and Court of Sessions referred to in Section 26 and Section 26-B of "The Act". Section 26-C is reproduced herein below:- "26-C: Bar to jurisdiction of Courts etc. Section 26-C is reproduced herein below:- "26-C: Bar to jurisdiction of Courts etc. under certain circumstances: (1) On receipt of report under sub-section (4) of Section 26 about intimation of proceedings for confiscation of property by the Magistrate having jurisdiction to try the offence on account of which the seizure of property which is subject matter of confiscation, has been made, no Court, Tribunal or Authority(other than Authorized Officer and Court of Sessions referred to in Section 26 and (26-B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated under section 26, notwithstanding any thing to the contrary contained in this Act, or any other law for the time being in force. Explanation.-- Where under any law for the time being in force, two or more Courts have jurisdiction to try the forest offence, then receipt of intimation under sub-section (4) of section 26 by any of the Courts shall operate as bar to exercise jurisdiction on all such other Courts. (2) Nothing in sub-section (1) shall effect the power saved under section 34 of the Act." 9. Plain reading of Section 26-C in explicit terms, provides that the order regarding the property with regard to which the confiscation proceedings have been initiated can be made by the authorized officer during the confiscation proceedings and once the order of confiscation is passed then the order for release of such property can be made by the Court of Sessions only when the revision under Section 26-B of "The Act" is filed. It means that the Court of Sessions has power to make order with regard to the possession etc., of the property regarding which confiscation order has been passed, only when the revision is filed which would mean that until the passing of the order of confiscation, the Court of Sessions has no jurisdiction to entertain the application for release of the seized property. 10. Conjoint reading of Sec. 26, 26-B & 26-C of "The Act" clearly enjoins that Sessions Court has jurisdiction to entertain application for release under Sec. 26-C of "The Act" only after revision in terms of Sec. 26-B of "The Act" is entertained against the order of confiscation, until order of confiscation is passed it is the Authorized Officer who has power to release under Sec. 26 of "The Act". Same is in keeping with the object of Chapter VI of the Act. 11. In the judgment reported in 2006 (II) SLJ Page 766, JKJ (3) HC 517 question arose as to whether the Sessions Court could release the vehicle seized and confiscated under Section 26 of "The Act". In the reported judgment, the order of confiscation passed by the authorized officer was challenged by means of revision under Section 26-B of "The Act" and it is during the pendency of the revision the vehicle was released by the Court of Sessions. It was held that the Sessions Judge has the jurisdiction to release the vehicle. This judgment has its application only when the revision has been filed and by way of an interim arrangement the vehicle is released. Therefore, this judgment is not of any help to the respondent herein because confiscation proceedings as yet are pending. 12. In another judgment passed by this Court as referred above on identical facts, it was held that the Sessions Judge has no jurisdiction to entertain the application for release of the vehicle when confiscation proceedings are pending. 13. The learned Sessions Judge has on the basis of the judgment reported in 2006(11) SLJ, Page 766 passed the order of release when the same was not applicable. The order impugned is without jurisdiction as the Court of Sessions can entertain the application only when the revision is filed against the order of confiscation. 14. It appears that the confiscation proceedings have remained pending for quite a long time, same are required to be concluded with reasonable dispatch. It shall be open for the petitioner to project his case for release as shall be permissible under Section 26-C of "The Act" before the Authorized officer and subsequently before the Court of Sessions when confiscation order is passed and revision is filed. 15. The order impugned passed by the Ld. Sessions Judge, Udhampur is without jurisdiction, so is quashed. Copy of the order along with the record be sent back to the Court of Ld. Sessions Judge, Udhampur. Copy be also sent to the authorized officer (D.F.O) concerned for information. Disposed of as above.