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2018 DIGILAW 879 (JK)

Divisional Forest Officer, Doda v. Mohd Mushtaq

2018-11-03

SANJAY KUMAR GUPTA

body2018
JUDGMENT In the instant petition, preferred under section 561-A of the Code of Criminal Procedure, the petitioners have assailed the validity of the order dated 07.05.2014 passed by the learned Additional Sessions Judge, Doda, in File No.36/Criminal Revision whereby the order passed by the petitioner No.1 dated 18.11.2013 has been quashed. 2. Feeling aggrieved of the order dated 07.05.2014 passed by the learned Additional Sessions Judge, Doda, the petitioners have filed the present petition seeking setting aside of the said order and raised the following questions of law, for.— a) Whether the learned Sessions Judge can set aside an order under Section 435 of the Code of Criminal Procedure without making a reference to the Hon’ble High Court under Section 438 of the Code of Criminal Procedure. b) Whether the Sessions Judge can re-appreciate the facts under Section 26-B of the Forest Act when owner of the vehicle to whom the notices regarding confiscation of the vehicle has failed to satisfy the authority that the vehicle has been used without his knowledge and connivance as amended in terms of sub-clause 5 of Section 26 of the Forest Act. c) Whether the conviction of the owner of Truck as a pre-requisite before passing the order of the confiscation in terms of Section 26 of the Forest Act. 3. The facts leading to filing of this petition are that; a vehicle bearing registration No. HP12-C-4131 (Truck), of which the respondent is a registered owner, was seized by the petitioner No.1; the vehicle was involved in smuggling the Nag Chatri (Trilium Govanianum), a banned Minor Forest Produce (MFP); the total quantity of the Minor Forest Produce was to the extent of 12.85 quintals. After completing the formalities, the case was framed and proceedings u/s 26 of the Forest Act were initiated; the petitioner initiated the confiscation proceedings in respect of the seized vehicle and the MFP under law. During the confiscation proceedings from the document it was clear that the vehicle was involved in smuggling of the banned MFP i.e NAG CHATRI (Trilium Govanianum). It is further contended that during the confiscation proceedings, a notice was issued to the respondent in terms of sub-Section 4 of the Section 26 of the Forest Act. During the confiscation proceedings from the document it was clear that the vehicle was involved in smuggling of the banned MFP i.e NAG CHATRI (Trilium Govanianum). It is further contended that during the confiscation proceedings, a notice was issued to the respondent in terms of sub-Section 4 of the Section 26 of the Forest Act. In pursuance of the notice issued, the respondent appeared before the petitioner through an Advocate, recorded his statement, but failed to satisfy the petitioner that the vehicle was used in smuggling of NAG CHATRI without his knowledge and connivance and even failed to show that who hired his vehicle for carrying vegetables from Himachal Pradesh to Doda. It is also stated that the petitioner after affording full opportunity to the respondent to present his case and after hearing the respondent at length came to the conclusion that the vehicle bearing registration No. HP12-C 4131 was involved in smuggling of NAG CHATRI and as such vide order dated 18.11.2013, the vehicle along with MFP was confiscated. 4. It is further contended that the findings returned by the learned Sessions Judge are neither based on the facts and law and, as such, the same cannot be sustained in the eyes of law and deserves to be set aside. The order impugned also deserves to be quashed as the Court below has not rightly interpreted the provisions of Section 26 of the Forest Act. It is further stated that the order impugned also deserves to be quashed because the same is against the statutory provisions of law and, as such, cannot be sustained in the eyes of law. Section 39 of the Forest Act raises a presumption regarding possession of Forest produce as illicit till contrary is proved and Section 26(5) also lays down that it is for the owner of the vehicle to satisfy the authority that the vehicle was used without his knowledge and connivance. The evidence led by the respondent does not satisfy the requirement of law and the respondent has not satisfied the authority. Rather the stand taken by the respondent falsifies his plea that somebody had hired his vehicle for carrying just vegetables from Himachal Pradesh to Doda. The evidence led by the respondent does not satisfy the requirement of law and the respondent has not satisfied the authority. Rather the stand taken by the respondent falsifies his plea that somebody had hired his vehicle for carrying just vegetables from Himachal Pradesh to Doda. The petitioner challenges the order on the following grounds:— i) That the order impugned is against the law and facts of the case and, as such, the same cannot be sustained in the eyes of law and deserves to be quashed. ii) That even, otherwise, also the order passed by the learned Additional Sessions Judge deserves to be quashed because the learned Additional Sessions Judge, Doda has not followed the mandate of Section 435 and 438 of the Code of Criminal Procedure inasmuch as in terms of Section 26-B sub-Section 4 for entertaining, hearing and deciding a revision, the Court has to follow the same procedure as it exercises and follows while entertaining, hearing and deciding the revision under the Code of Criminal Procedure, Samvat 1989 in terms of Section 438 of the Code of Criminal Procedure the Sessions Judge has the power only to recommend the case to the Hon’ble High Court for setting aside the order of the lower authority/Court, but in the present case the learned Sessions Judge has set aside the order without making any recommendation/reference to the Hon’ble High Court and on this also the order impugned deserved to be set aside. 5. Learned counsel for respondent has filed objections, wherein it is stated that the question of law raised by the petitioner that under Section 435 of Cr.P.C., the learned Sessions Judge cannot set aside an order without making reference to the High Court as provided in Section 438 Cr.P.C., is not acceptable as there is nothing in Section 438 Cr.P.C. which provides for the reference to be made by the learned Sessions Judge while setting aside any order. As such the question of law raised by the petitioner is not tenable under law as the petitioner is relying on outdated law which has been substituted by Act XI of 2006 dated 04.04.2006 by virtue of amendment, the Sessions Judge need not to refer the case to Hon’ble High Court while setting aside the revision petition, moreover same thing is reiterated by the Hon’ble Court in case titled Uday S. Kilachand & Ors v. Dujodwala Resins and Tarpenes Ltd., 2012(3) JKJ 280 (HC) wherein the Hon’ble Court while dealing with the same question has held that “in view of the amendment of 2006 the Sessions/additional Judge while exercising the Revisional powers is not required to make a report to the High Court. The order of Sessions/Additional Sessions Judge in exercise of Revision jurisdiction under Section 435 CrPC is to prevail without report to the High Court or concurrence to the report by the High Court. The amendment to the Criminal Procedure Code where Section 438 CrPC has been replaced renders the reference on hand infructuous.” The amendment has given absolute power to the Sessions Judge under section 435 Cr.P.C. to entertain a revision petition and finally decide it without reporting to Hon’ble High Court in case of reversal or alter. It is further stated that so far as the second question of law raised by the petitioners, it is submitted that order passed by the learned Additional Sessions Judge in its order, which is impugned in this petition, has held that respondent (petitioner herein) has passed confiscation order in perfunctory manner and learned Additional Sessions Judge while allowing the revision petition has held that order is not as per law. The learned Revisional Court has given finding on the illegality committed by the authorities during the confiscation proceedings, as such, there was no question of appreciation of evidence, the learned Additional Sessions Judge pin pointed illegality and irregularity committed by the authorized officer. There was irregularity of the proceedings in the confiscation and the respondent herein has pointed out the illegality committed by the authorities and what the proprietary demands was agitated by the respondent herein before the revisional court, the revisional Court has discussed the violation of law of natural justice at length which was not provided to the respondent. There was irregularity of the proceedings in the confiscation and the respondent herein has pointed out the illegality committed by the authorities and what the proprietary demands was agitated by the respondent herein before the revisional court, the revisional Court has discussed the violation of law of natural justice at length which was not provided to the respondent. The revisional Court has not evaluated the evidence but has given finding that petitioner is relying on the investigation report of the range officer and not on the basis of evidence adduced before the authority. However, it is submitted that under Section 26-B sub-clause 2 of the J&K Forest Act, Sessions Court has wide powers which includes the power of re-appraisal of evidence evaluated by the authorized officer. 6. I have considered the rival contentions and gone through the law on the subject and order impugned. 7. From the perusal of order dated 18.11.2013, it is evident that in A.O case No.04/2013-2014 under sections 6 of Forest, 26-Forest, 15-16 of J&K Forest Amended Act, 1997, the Divisional Forest Officer, Doda has seized the Truck bearing registration No. HP12-C-4131 and arrested six persons alongwith MFP NAG CHATHRI (Trilium Govanianum), which were collected by them illegally from forest. Then confiscation proceeding was started. Respondent/owner filed an application for release of vehicle before petitioner, who refused to release it and it was confiscated. It is apt to reproduce operative part of the order dated 18.11.2013 passed by the Divisional Forest Officer, Doda Forest Division, Doda as under:— “After hearing the parties and perusal of the records, this forum has arrived to the conclusion that the seized forest produce (MFP Nag Chatri (Trillium Govananim) 12.85 Qtls) is the property of the Government and is hereby confiscated. The seized vehicle No. HP 12 C-4131 that has been used with the knowledge of the owner of the vehicle with the sole motive of smuggling the banned forest produce outside the state thus used in committing the forest offence is also hereby confiscated under section 26 (3) of the J&K Forest Act in favour of the department. The details of confiscated items are as under: 1. MFP Nag Chatri (Trilium Govananium) =12.85 Qtls 2. Vehicle bearing registration No.HP 12C-4131 The Divisional Forest Officer, Doda will take further lawful course in disposal of confiscated property under rules.” 8. The details of confiscated items are as under: 1. MFP Nag Chatri (Trilium Govananium) =12.85 Qtls 2. Vehicle bearing registration No.HP 12C-4131 The Divisional Forest Officer, Doda will take further lawful course in disposal of confiscated property under rules.” 8. Respondent /owner aggrieved of this order of confiscation filed a revision before Additional Sessions Judge, Doda in terms of section 26-B of Forest Act. Vide order 07.05.2014 learned Additional Sessions Judge, Doda, quashed the order dated 18.11.2013. 9. This Court vide order dated 27.06.2014, issued notice to other side and stayed the impugned order dated 07.05.2014. 10. In this petition, twin grounds have been taken by counsel for petitioners for setting aside the order of court below. First ground is that order of Additional Sessions Judge deserves to be quashed because Additional Sessions Judge, Doda has not followed the mandate of Section 435 and 438 of the Code of Criminal Procedure inasmuch as in terms of Section 26-B sub-Section 4 for entertaining, hearing and deciding a revision, the Court has to follow the same procedure as it exercises and follows while entertaining, hearing and deciding the revision under the Code of Criminal Procedure, Samvat 1989. In terms of Section 438 of the Code of Criminal Procedure, the Sessions Judge has the power only to recommend the case to the Hon’ble High Court for setting aside the order of the lower authority/Court, but in the present case, the learned Sessions Judge has set aside the order without making any recommendation/reference to the Hon’ble High Court and on this count also the order impugned deserves to be set aside. 11. This argument /point raised is not tenable. Perhaps counsel for petitioner is unaware of amendment made in Cr.P.C. The provision alleged by counsel is no more in statute books. Vide Amendment Act of 2006, section 438 Cr.P.C. has been amended and old section has been substituted by Act XI of 2006, which reads as under:— “438. Sessions Judge powers of revision— (1) In the case of any proceeding the record of which has been called for by him, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub Section(1) of Section 439. Sessions Judge powers of revision— (1) In the case of any proceeding the record of which has been called for by him, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub Section(1) of Section 439. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-Section(1) the provisions of sub-Sections (2), (3), (4) and (5) of Section 439 shall, so far as may be, apply to such proceedings and references in the said sub-Sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court. (4) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge.” 12. In view of above substituted section, there is now no need of reference to be made by Session Judge while setting aside order of subordinate authority in exercising the revisional power. 13. Another point raised is that whether the Sessions Judge can re-appreciate the facts under Section 26-B of the Forest Act when owner of the vehicle to whom the notices regarding confiscation of the vehicle has failed to satisfy the authority that the vehicle has been used without his knowledge and connivance as amended in terms of sub-clause 5 of Section 26 of the Forest Act. Counsel for petitioner has also argued that accused including respondent themselves have confessed during the confiscation proceeding that they have committed offence. 14. I have considered these aspects of the matter also. Section 26-B reads as under:— “26-B. Revision before Court of Sessions against order of confiscation. Counsel for petitioner has also argued that accused including respondent themselves have confessed during the confiscation proceeding that they have committed offence. 14. I have considered these aspects of the matter also. Section 26-B reads as under:— “26-B. Revision before Court of Sessions against order of confiscation. Any party aggrieved by an order of confiscation under Section 26-A may within thirty days of the order or if facts of the confiscation have not been communicated to him, within thirty days of knowledge of such order submit a petition for revision to the Court of Sessions Division whereof the headquarters of Authorized Officer are situated. Explanation I. —— Explanation II. —— For the purposes of this sub-section a party shall be deemed to have knowledge of the order of confiscation under section 26 on publication of such order in two daily newspapers having circulation in the State. The Court of Sessions may confirm, reverse or modify any final order of consequential nature passed by the Authorized Officer. (1) Copies of the order passed in revision shall be sent to the Authorized Officer for compliance or passing such further order or for taking such further orders or for taking such further action as may be directed by such Court. (2) For entertaining, hearing and deciding a revision under this section, the Court of Sessions shall, as far as may be, exercise the same powers and follow the same procedure as it exercises and follows while entertaining, hearing and deciding a revision under the Code of Criminal Procedure, Samvat 1989. Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, Samvat 1989, the order of Court of Sessions passed under this section shall be final and shall not be called in question before any Court.” 15. From bare perusal of this section, it is evident that under the Forest Act, Sessions Judge shall, as far as may be, exercise the same powers and follow the same procedure as it exercises and follows while entertaining, hearing and deciding a revision under the Code of Criminal Procedure, Samvat 1989. 16. From bare perusal of this section, it is evident that under the Forest Act, Sessions Judge shall, as far as may be, exercise the same powers and follow the same procedure as it exercises and follows while entertaining, hearing and deciding a revision under the Code of Criminal Procedure, Samvat 1989. 16. In present case, court of Additional Sessions Judge, Doda has held that as per section 26(3) of Forest Act, the authorised officer has power to confiscate the forest produce along with vehicle; but section 26(5) of Act prohibits the officer to confiscate the vehicle used for commission of offence under this Act, if it is proved by owner that vehicle was used without his knowledge. The satisfaction of officer should be based upon defence taken by owner after providing him opportunity of being heard. 17. Further, from the perusal of order of Additional Sessions Judge Doda, it is evident that he has categorically held in concluding para that “there is nothing in the statement of the petitioner on the file which would indicate complicity of the petitioner in the illegal trade. The impugned order at page 2 reflects that it is on the basis of evidence collected by the Range Officer and not adduced before the authorized officer which has found established the involvement of the owner of the vehicle in the illicit trade. The statement of the petitioner is shown to have been recorded on 04.11.2013 but there are no minutes of the proceedings recorded by the Authorised Officer showing recording of the said statement on the said date. Even in his statement the petitioner has denied that he had any knowledge about the illegal use of this vehicle by its driver for any illegal purposes. The conclusions drawn by the respondent are entirely based on the investigation report of the Range officer Siraj and not on the basis of evidence adduced before him. The accused has not been confronted with the material collected by the Range Officer nor the authorised officer has taken pains to procure the presence of complainant before it to record his statement to verify the allegations levelled against the petitioner and other accused persons and give an opportunity to petitioner to cross-examine him. It appears that the respondent has abdicated his authority and function. It appears that the respondent has abdicated his authority and function. The authorised officer appears to be quite oblivious to the minimum requirements of law which were required to be followed during the so called confiscation proceedings. The minutes of the proceedings maintained by the respondent speaks volumes about the ignorance of the authorized officer about the requirement of law and his non-application of mind. In view of my above discussions as well as the legal position noticed above, I am of the opinion that the order impugned so far it relates to the confiscation of the vehicle of the petitioner suffers from serious legal infirmities and non-application of mind and requires interference by this court in exercise of its revisional jurisdiction. The order impugned is accordingly set aside to the extent of the confiscation of the vehicle of the petitioner and stands modified accordingly. The respondent is directed to release the seized vehicle of the petitioner forthwith. A copy of this order along with the record of the respondent is sent back forthwith.” 18. This finding of Court below is not perverse in nature. It is true that when confiscation proceedings are pending, Criminal Court cannot release the vehicle. However, once a confiscation proceeding has been completed and vehicle is ordered to be confiscated, then order is revisable in terms of section 26-B of Forest Act. The object of the revision is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury and hardship to individuals. The purpose of revision is to enable the revision court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal court. Sessions Judge may call for and examine the record of any proceeding in terms of section 26-B of Act for the purpose of satisfying itself or himself as to the correctness, legality or propriety of order of authority under forest Act. It is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by any subordinate authority. It is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the mis-conception of law or irregularity of procedure committed by any subordinate authority. In the Forest Act, revision power has been given to Session Judge on the analogy that being senior and being head of subordinate judiciary, would have sufficient knowledge to correct miscarriage of justice arising from misconception of law, irregularity of procedure, committed by subordinate officer, which may affect substantial right of any parties. 19. This court, while exercising the jurisdiction under section 561-A Cr.P.C., can only quash the order of a court below to prevent abuse of process of law or to otherwise secure the ends of justice. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. Once Session judge has found that order of authority is not in accordance with law, then that order cannot be quashed. 20. In view of above, this petition is dismissed as order of court below does not suffer from any infirmities of laws and facts. Petition dismissed.