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2018 DIGILAW 931 (JK)

Authorised Officer Forest v. Surjeet Kour

2018-11-30

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. The instant petition has been filed under Section 561-A of the Code of Criminal Procedure against the judgment/order dated 26.06.2009 passed by the learned Principal Sessions Judge, Kathua in File No.27/Criminal Revision, by virtue of which the order passed by the petitioner No.1 dated 21.01.1999, has been quashed. 2. The petitioner feeling aggrieved of the order 26.06.2009, has filed the present petition raising the following important questions of law: (i) 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 Court under Section 438 of the Code of Criminal Procedure. (ii) 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 her knowledge and connivance as amended in terms of sub clause 5 of Section 26 of the Forest Act. (iii) Whether the conviction of the owner of truck as a pre-requisite before passing the order of confiscation in terms of Section 26 of the Forest Act. 3. Before coming to the grounds of challenge to the order which is impugned in the present petition, it is necessary to place on record the brief facts of the case, these are; that a truck bearing No.JK02C-7123 of which the respondent is a registered owner was seized by the I/C Police Post, Lakhanpur after a long chase at Dina Nagar (Punjab). The truck was involved in smuggling the khairwood from J&K State to Punjab. The Incharge Police Post, Lakhanpur later-on handed over the truck and the khairwood to the Range Officer, Lakhanpur for taking action as required under law. It is further stated that after completing the formalities, the case was produced before the petitioner No.1 by petitioner No.2 for taking appropriate action in terms of law. The petitioner No.1 initiated the confiscation proceedings in respect of the seized vehicle and the timber under law and during the confiscation proceedings a notice was issued to the respondent in terms of sub section 4 of Section 26 of the Forest Act to show as to why the vehicle which is involved in the smuggling of the khairwood is not confiscated. In pursuance of the notice issued, the respondent appeared before the petitioner No.1 through her attorney. The respondent also filed objections and other documents, but failed to satisfy the petitioner No.1 that the vehicle was used in smuggling the khairwood without her knowledge and connivance. It is further stated that the petitioner No.1 after affording full opportunity of being heard to the respondent came to the conclusion that the truck No.JK02C-7123 involved in the smuggling of the khairwood on previous occasions also many a time was involved in illegal transportation of forest product, as such vide order dated 21.01.1999 the vehicle was confiscated. It is further stated that against the said order passed by the petitioner No.1, the respondent filed a revision petition before the learned Principal Sessions Judge, Kathua and the said learned Judge has quashed the order passed by the petitioner No.1 vide order dated 26.06.2009. 4. The petitioner challenged the said 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 Principal Judge deserves to be quashed because the learned Principal Sessions Judge, Kathua 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. 5. Heard learned counsel for the parties and perused the record. 5. Heard learned counsel for the parties and perused the record. The counsel for petitioners has not pressed the point with regard to reference of revisional order by Sessions Judge to High Court, as now law has been amended and there is no need of making of reference by Sessions Judge to High Court, in case revision is accepted. Rest he has reiterated other grounds. Whereas counsel for respondent has supported the order impugned. 6. From the perusal of record, it is evident that a truck bearing No.JK02C-7123 of which the respondent is a registered owner was seized by the I/C Police Post, Lakhanpur for smuggling the khairwood from J&K State to Punjab. The Incharge Police Post, Lakhanpur, later on handed over the truck and the khairwood to the Range Officer, Lakhanpur for taking action as required under law. The petitioner No.1 initiated the confiscation proceedings in respect of the seized vehicle and the timber under law and during the confiscation proceedings a notice was issued to the respondent in terms of sub section 4 of Section 26 of the Forest Act to show as to why the vehicle which is involved in the smuggling of the khairwood be not confiscated. The respondent herein appeared before the petitioner No.1 through her attorney. The respondent also filed objections and other documents, but petitioner no.1 came to the conclusion that the truck No.JK02C-7123 involved in the smuggling of the khairwood on previous occasions also many a time was involved in illegal transportation of forest product, such vide order dated 21.01.1999 the vehicle was confiscated. Against the order passed by the petitioner No.1, the respondent filed a revision petition before the learned Principal Sessions Judge, Kathua and the learned Judge quashed the order passed by the petitioner No.1 vide order dated 26.06.2009 on the ground that vehicle can be confiscated after conviction in terms of section 28 of Forest Act. 7. I have given my thoughtful consideration to whole aspects of the matter. Section 28 of Forest Act reads as under:- “Section 28 Forest produce, tools, etc., when liable to confiscation. 7. I have given my thoughtful consideration to whole aspects of the matter. Section 28 of Forest Act reads as under:- “Section 28 Forest produce, tools, etc., when liable to confiscation. All timber or forest produce which in either case is not the property of the Government and in respect of which a forest offence has been committed and all tools, boats, carts, motor vehicles, machines, ropes, chains, equipments, arms, cattle or any other articles in each case used in committing any forest offence shall, subject to the provision of section 26, 26-B and 26-C, be liable to confiscation upon conviction of the offender for such offence.] Such confiscation may be in addition to any other punishment prescribed for such offence.” 8. From bare perusal of this section, it is evident that all tools, boats, carts, motor vehicles, machines, ropes, chains, equipments, arms, cattle or any other articles in each case used in committing any forest offence shall be liable for confiscation upon conviction of offender. In present case, it is admitted fact that no conviction was recorded, when vehicle was confiscated. So order of court below is correct and legal. It does not require any interference. This petition is dismissed accordingly.