Himachal Pradesh High Court
Amar Nath vs State Of Himachal Pradesh on 27 June, 1989
Equivalent citations: 1990CRILJ506
ORDER Bhawani Singh, J.
1. This Revision Petition, under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), arises out of the order passed on 17-2-1989 by Sessions Judge Kangra Division, in Criminal appeal No. 13 of 1988, thereby dismissing the appeal of the petitioner filed under Section 454 of the Code and thereby confirming the order of Judicial Magistrate, 1st Class, Palampur, dated 23-7-1988 in Criminal Case No. 85-III/1986 whereby the case property was directed to be confiscated while acquitting the petitioner-accused. The petitioner has a grievance against this order and, therefore, he assails the same by way of this petition.
2. The facts, in brief, are that the petitioner was prosecuted for an offence under Section 33 of the Indian Forest Act, 1927 (hereinafter referred to as 'the Act'). He was accused of felling 15 Khair trees unauthorisedly from private area of Tika Kholi, Tika Sai and Gadiara. He was also accused of having uprooted stumps of 11 trees, which were marked to him, in violation of the Rules. The trying Magistrate by his judgment concluded that illicit felling of trees had taken place but the same having taken place prior to 28-3-1985, the challan having been filed in the Court on 13-3-1986, therefore, cognizance of the offence could not be taken in view of the limitation imposed under Section 468 of the Code. The trying Magistrate observed that the prosecution had not been able to prove the damage reports or to show that these reports were signed by the accused. The accused was, therefore, acquitted of the charge. While doing so, order of confiscation and forfeiture of the Katha, which was taken into possession by the police, was passed. The Court said that the order of confiscation and forfeiture of the Katha in favour of the State was being passed as it has not been proved on behalf of the defence that the case property pertains to the trees which had been marked for the accused.
3. The appellate Court held that the accused had been acquitted for the reasons that the Magistrate found himself incompetent to take cognizance of the offence for want of limitation under Section 468 of the Code. It further observed that the accused in his statement under Section 313 of the Code merely stated that he had cut only those trees which were duly marked for him. Referring to damage reports, the court held that the accused had filed an application agreeing to pay compensation in respect of the timber illicitly felled by him. Therefore, evidence on record was there to indicate that the trees were illicitly felled and thereafter seized by the Forest Department and it cannot be said that no offence in respect of Katha seized by the Forest Department was committed. The appellate court found no reason to disturb the order of the trying Magistrate and dismissed the appeal of the petitioner.
4. Shri Devinder Gupta, learned counsel for the petitioner, has very seriously contended that the judgment under appeal deserves to be set aside as the same cannot be sustained in the eye of law. Elaborating his submission, he urges that the trial Court did not hold any inquiry while passing the order under Section 452 of the Code relating to the disposal of the case property on the conclusion of the trial. I am not impressed by this submission of Shri Devinder Gupta. In my opinion, order under Section 452 of the Code is passed on the termination of the inquiry, trial or proceedings before a Court. It is passed consequent to the decision of the main case. For passing an order relating to the disposal of the case property, there is no need to examine witnesses and to hold an elaborate inquiry. For arriving at a decision, the Court looks at and examines the facts and the evidence already before it in the main case. Similar views were expressed in, 1979 Cri LJ 428 (Mad), (Govindachari v. The State).
5. Shri Devinder Gupta further contended that the trial Court having acquitted the petitioner, it was but natural that the case property seized from the petitioner is returned to him. Equally unimpressive is this submission of the learned counsel. It is a general rule that when a property is seized from a person and he is acquitted of the charge, the property should be returned to him. However, it is subject to the several exceptions depending on the circumstances of each case and no accused person can claim, as of right, that the property seized from him should be returned to him, (AIR 1965 Orissa 198 : (1965 (2) Cri LJ 659), Arjun Padhy v. State of Orissa).
6. In AIR 1958 Madh Pra 270: (1958 Cri LJ 1189) (Prakash Chandra Jain v: Jagdish), the Court said in paras 5 and 6 of the judgment as under:
"(5) Ordinarily when no offence has been committed, in respect of any property in its custody, the Court should restore it to the person from whose possession it was seized. But in exceptional case, where circumstances so warrant and the evidence so indicates that it would be inequitable to restore it to the possession of the person from whom it was seized, the Court may in the proper exercise of its judicial discretion restore it to a person who in its opinion is the person best entitled to its possession.
It was therefore held by Hemeon J. in Joharilal v. King Emperor, ILR (1948) Nag 948 : AIR 1949 Nag 17: (1949 (50) Cri LJ 104) (B) that:
'When an accused is given the benefit of doubt and acquitted of theft, it cannot be said that he was necessarily in lawful possession of the property which was the subject-matter of the theft and he is not, therefore, entitled to recover the property under Section 517, Criminal Procedure Code.'
6. In the instant case, even though the non-applicant has been acquitted, due to incomplete evidence, it would not be proper exercise of discretion to hand over the property back to the accused because the confession recorded in the memo. Ex. P. 16 though not admissible in the criminal trial would be admissible for the purpose of determining who would be the person best entitled to the possession of the seized property."
Although in view of the concurrent judgments of the Courts below, it is not necessary for this Court to look into the further aspect as to the merit of the case, however, I examine the same as well in the interest of justice to see whether there is any justification to release the produce, case property, in favour of the petitioner.
7. Shri Pritam Chand (P.W. 6) is the Forest Guard. He came to know about the illicit felling on 30-3-1985. He conducted the inquiry and found that the illicit felling was done by the petitioner. He has stated that the Rakha reported to him that on 31-3-1985, the labour of the accused had illicitly felled Khair trees. He visited the spot on 1-4-1985 along-with Rakha Pinja Ram and one Choli Ram and found that five trees had been cut which did not have any mark. Thereafter he visited Tika Sai and found eight trees cut in that area. In tika Gadiara, he found 13 trees having been cut. He found that all these trees were illegally felled by the accused who took these trees to his still and prepared Katha. he prepared the damage reports (Ex. P.W. 6/A to Ex. P.W. 6/C). He visited the shop of the accused and told him that his labour had illegally felled the trees. On this, the accused agreed to pay compensation and when he went to the accused alongwith the Deputy Ranger, the accused asked them to adjust the sum from his security. The accused did not pay the compensation although he admitted his guilt vide damage reports (Ex. P.W. 6/A to Ex. P.W. 6/ C). It appears, for the purpose of deciding the application under Section 452 of the Code, that there is enough evidence on the record to indicate that certain trees had been marked in favour of the accused. The accused is a Katha Contractor. He has his own Katha Bhathi. The trees in question are in the same area in which permitted trees also are there. The Labour of the accused appears to have cut the trees and they were mixed up with the other similar trees. From the statement of this prosecution witness, it can be safely concluded that the Katha in question has also been extracted out of the trees illicitly felled.
8. The trying Magistrate has needlessly touched the merits of the case casually when there was no necessity for doing so when once he had come to the conclusion that the cognizance of the offence could not be taken due to the bar imposed by Section 468 of the Code. However, the conclusions of the trial Court as well as of the appellate Court relating to the disposal of the case property are correct.
9. The petitioner has been primarily acquitted as aforesaid due to the bar imposed by Section 468 of the Code. Simply because the accused has been acquitted, for any reason whatsoever, the property even if seized from him need not be returned to him in view of the evidence to the contrary on this aspect.
Section 69 of the Act reads as under:
"When in any proceedings taken under this Act, or in consequence of anything done under this Act, question arises as to whether any forest-produce is the property of the Government, such produce shall be presumed to be the property of the Government until the contrary is proved."
Referring to the above provision, Shri M.S. Guleria, learned Assistant Advocate General, submits that there is presumption that the forest produce belongs to the Government and the accused has failed to rebut this presumption. He further contends that Forest Contractors, like the accused, have played havoc to the forests in the State of Himachal Pradesh. It is very common, he asserts, that the Forest Contractors cut large number of trees illicitly along with the permitted trees and thereby cause not only loss to the State revenue but finish the forests leading to global ecological problems.
10. There is force in these submissions of the learned Assistant Advocate General. Such a conduct on the part of the people concerned with forest offences is very common and forests have to be very carefully looked after and guarded from such like activities of these unscrupulous people.
11. Article 48-A of the Constitution envisages as under:
"48A. Protection and improvement of environment and safeguarding of forests and wild life.-- The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
12. Further, by the Constitution (Forty-second Amendment) Act, 1976, part IV A relating to Fundamental Duties of every citizen of India has been inserted to the Constitution of India. The relevant part of the same envisages as under :
"51 A. Fundamental duties.-- It shall be the duty of every citizen of India--
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(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
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13. In view of the aforesaid discussion, there is no merit in this revision petition and the same is accordingly dismissed.