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2010 DIGILAW 636 (JK)

State Of J&K v. Bashir Ahmad Lone

2010-12-22

Sunil Hali

body2010
1. A complaint under Section 51 of the Wildlife Act was filed before the Forest Magistrate, Srinagar whereby the accused persons were convicted. On similar set of facts, FIR came to be registered against the accused persons under Section 379, 109 RPC read with 6 Forest Act. 2. On presentation of the challan before the Judicial Magistrate, 1st Class, Pampore preliminary objection was taken by the accused that they cannot be convicted for the same offence twice. What is being stated is that on 25.03.2001 police of Police Chowki, Khrew intercepted one tipper bearing registration No.4355/JKB and on search found ten logs of illicit timer loaded in it. The said property is stated to have been stolen by the petitioners from the area, which was under the administrative control of the Jammu and Kashmir Wild Life Department. On filing of the complaint under Section 36(2) of Wild Life Act, before the Magistrate concerned, the accused persons came to be convicted. The learned Judicial Magistrate, Pampore after hearing the parties, discharged the accused persons on the ground that since the accused persons have already been dealt for the offence prescribed under Section 36(2) of the Wild Life Act, therefore, they cannot be tried again for the same set of offence. It is under these circumstances, the present petition has been filed for quashment of order dated 26.02.2004. 3. The contention of the petitioner is that the act of accused persons constituted different offences under different enactments and it cannot be said to be a case of double jeopardy if a person is convicted for the one and the same act under different laws. Reliance has also been placed under Section 59 of the Wild Life Act which provides as under: - 59. "Operation of other laws not barred." Nothing in this Act, shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for an act, or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act: Provided that no person shall be punished twice for the same offence". 4. I have heard learned counsel for the parties and perused the record. 4. I have heard learned counsel for the parties and perused the record. The act of the accused persons relates to pilferage of timber from the area, which is under the administrative control of the Wild Life Department and they were rightly challaned under Section 36(2) of the Wild Life Act and consequently punished under Section 51 of the Wild Life Act. On the same set of facts, offence under Sections 379, 109 RPC, 6- Forest Act was also committed by the accused persons. The question that arises for consideration is as to whether on the same set of facts, which constitutes different offences under different enactments can be a ground for displacing the principle of double jeopardy. 5. In order to appreciate this fact, it is important to record Section 59 of the Wild Life Act which permits that a person can be tried on the same set of facts if it constitutes different offences under different enactments provided the punishment contemplated in other act carries higher punishment. 6. What is contended is that in case under Wild Life Act if lessor punishment is provided than accused can be tried under Section 379/109, RPC read with Section 6 of the Forest Act, provided punishment is higher than the earlier. Punishment under Section 51(1) of the Wild Life Act carries three years and for offences under Sections 379/109 RPC read with Section 6 of the Forest Act also carries upto three years. What clearly emerges is that both the provisions/enactments provide the same set of punishment, as such, the accused persons cannot be tried twice for the same act which constitutes two different offences under different enactments. As such, filing of challan before the trial court for offences under Section 379, 109, RPC and 6 of the Forest Act would tantamount violation of the principle of double jeopardy. It is also provided under proviso to Section 59 of the Wild Life Act that a person cannot be tried twice for the same offence. 7. In view of the above, I find no force in this petition. The same is, accordingly, dismissed. 8. Record of the trial court be sent back.