Jammu & Kashmir High Court
Authorised Officer (Divisional Forest ... vs Mohd. Yusuf War on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. 125/2009
MP No.153/2009
Date of decision:- 12.10.2017
Authorized Officer (Divisional Forest Officer) V. Mohd Yusuf War
Kathua and anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. S. K. Anand, Advocate.
For the respondent(s) None.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners invoke inherent jurisdiction of this Court under Section 561-A Cr.P.C seeking setting aside the order/judgment dated 27.06.2009 passed by the learned Principal Sessions Judge, Kathua in File No.26/Criminal Revision titled "Mohd Yusuf War vs Authorized Officer (DFO) Kathua"
whereby the order passed by the petitioner No.1 dated 24.12.2002 has been quashed.
2. The petitioners feeling aggrieved of the order passed by the learned Principal Sessions Judge, Kathua dated 27.06.2009 filed the present petition for setting aside the same on 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 High Court under Section 438 of the Code of Criminal Procedure.
(ii) Whether the learned Sessions Judge has any jurisdiction to entertain and decide a Revision against the order passed under the Jammu and Kashmir Willow (Prohibition on Export and Movement) Act, 2000.561-A Cr.P.C. No.125 of 2009 Page 1 of 6
(iii) 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 been issued has failed to respond to the said notices and has not even appeared before the official in order to satisfy the authority that the vehicle has been used without his knowledge and connivance as mandated in terms of Sub Section 5 of Section 26 of the Forest Act.
3. In the petition, it is stated that a Truck bearing No.JK09/0483 of which the respondent is a registered owner was detained at the Excise Toll Post Lakhanpur by the Excise Department on 04.10.2002 as the same was found loaded with Timber Willow Species in the form of Clefts hidden under fruit boxes packed with rotten fruits, though in the challan it was shown to be a consignment of fresh fruits produced at the Excise Toll Post. Since the vehicle was carrying the willow clefts as such, the Excise Authority handed over the Truck and the items contained therein to the petitioner No.2 on 05.10.2002 for necessary action under law. After completing the formalities, the case was produced before petitioner No.1 for taking appropriate action in terms of law. The petitioner initiated the confiscation proceedings in respect of the seized vehicle and the Timber under law. During the confiscation proceedings from the documents it was cleared that the vehicle was involved in smuggling of the Willow Clefts outside the State. The export of the Willow Clefts is prohibited in terms of the Provisions of Jammu and Kashmir Willow (Prohibition on Export and Movement) Act 2000. It is further stated that during the confiscation proceedings a notice was issued to the respondent interms of sub clause 4 of Section 26 of the Forest Act to show as to why the vehicle which is involved in the smuggling of the willow clefts is not confiscated. In pursuance of the notice, respondent appeared before petitioner No.1 through his attorney namely Mohd Amin Guru and also moved an application release of the vehicle. Thereafter neither the attorney appeared nor recorded his statement and has not taken any step to satisfy the authority that the vehicle was used without the knowledge and connivance 561-A Cr.P.C. No.125 of 2009 Page 2 of 6 and as such petitioner No.1 after satisfying himself about the commission of offence, passed an order, thereby confiscating the vehicle as the same was involved in the smuggling of the willow clefts. The petitioner also confiscated the willow clefts vide order dated 24.12.2002. It is also contended that against the order passed by petitioner No.1, respondent filed a revision petition before the learned Principal Sessions Judge Kathua and the learned Judge has quashed the order passed by petitioner No.1 vide order dated 27.06.2009.
4. The petitioners challenge the impugned order on the following grounds:
a) 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.
b) That the order impugned also deserves to be quashed because the same has been passed without going through the Provisions of the Jammu and Kashmir Willow (Prohibition on Export and Movement) Act 2000. The order confiscating the Willow and the vehicle was passed under the aforesaid Act and in terms of Section 6 of the Jammu and Kashmir Willow (Prohibition on Export and Movement) Act 2000 and appeal is provided which lies before the Principal Chief Conservator of Forests. Relevant provisions are quoted here in below:-
"Section 4(1) Seizure and Confiscation:
Any Forest Officer as such in the Jammu and Kashmir Forest Act Samvat, any police officer not below the rank of Assistant Sub Inspector and any officer not below the rank of the Manager of the District Industries Centre designated for the purpose by the prescribed authority or any other person specially empowered in this behalf by the Government may seize the Willow and the carrier in which it is being carried, if he finds or has reason to believe that the Willow is being carried for export of Section 3 of the Act. Section (2):
The willow and the carrier seized under sub section (1) shall be liable to confiscation in the manner and in accordance with the procedure to be prescribed by the Government.
Section (6) Appeal:
Any person aggrieved of any order of confiscation passed under Sub section 2 of Section 4 may prefer an appeal to the Principal Chief Conservator of Forests or such authorities as may be prescribed within a period of 30 days from the date of passing such order."561-A Cr.P.C. No.125 of 2009 Page 3 of 6
So in view of the aforesaid provisions of law, only an appeal is maintainable before the Principal Chief Conservator of Forests and no revision is maintainable before the Principal Sessions Judge, therefore, the order passed by the learned Sessions Judge Kathua is without jurisdiction and as such deserves to be quashed. Even otherwise also assuming that a revision was maintainable before the learned Sessions Judge even then the order passed by the learned Sessions Judge deserves to be quashed because the learned Judge 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 a revision under the Code of Criminal Procedure, Samvat 1989 and in terms of Section 438 of the Code 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 High Court and on this count also the order impugned deserves to be set aside.
5. This Court vide order dated 30.09.2009 issued notice to respondent, upon which, he puts in appearance through Mr. I. H. Bhat, Advocate and thereafter went unrepresented. Despite several opportunities for filing objections, the same have not been filed till date.
6. Heard learned counsel for the parties and perused the record file.
7. From the perusal of facts of case, it reveals that on 4.10.2002, a truck bearing no. JKO9/0483 was seized by Excise department Lakhanpur with allegations that driver of vehicle was carrying 3700 willow clefts under the 130 boxes of rotten fresh fruit; a case for violation of section 6/15/16 of Forest Act and Jammu and Kashmir willow clefts (Prohibition of Export and movement ) Act was found to have been committed; truck along with contraband given to Divisional Forest officer for confiscation proceeding u/s 26 of Forest Act; Accordingly a notice was given to registered owner 561-A Cr.P.C. No.125 of 2009 Page 4 of 6 Mr. Mohd Yusuf Dar on 8.10.2002; he filed an application for release of vehicle through attorney before authorized officer. But he refused to release the same vide order dated 24.12.2002 on the ground that it has been involved in smuggling of forest produce; he also passed the order of confiscation of vehicle as timber (willow clefts ) were being carried in violation of section 6/15 of Forest Act.
8. A revision was filed before Sessions Judge, Kathua who on 27.6.2009 allowed the petition and set aside the order of confiscation on the ground that vehicle can be confiscated after conviction of offender as per section 28 of Forest Act.
9. I have given my thoughtful consideration to whole aspects of the matter.
10. The only argument of counsel for petitioner is that the order impugned has been passed without going through the Provisions of the Jammu and Kashmir Willow (Prohibition on Export and Movement) Act 2000; that the order confiscating the Willow and the vehicle was passed under the aforesaid Act and in terms of Section 6 the order was appealable before the Principal Chief Conservator of Forests. So order passed by Sessions Judge Kathua in revision, is liable to set aside. This argument is at all not tenable, because perusal of order dated 24.12.2002 passed by Authorized officer would reveal that it has been passed u/s section 26 of Forest Act and not under Jammu and Kashmir Willow (Prohibition on Export and Movement) Act 2000.
11. In terms of section 26-B of Forest Act, any order passed under section 26 of Act is revisable by Court of Sessions.
12. Another argument of learned counsel for petitioners is that Sessions Judge has not followed the mandate of Sections 435 and 438 of the Code of Criminal Procedure, as in terms of Section 438 of the Code, the Sessions 561-A Cr.P.C. No.125 of 2009 Page 5 of 6 Judge has the power only to recommend the case to the High Court for setting aside the order of the lower authority/court.
13. This argument is also not tenable, because the order has been passed on 27.6.2009 and at that time section 438 Cr.P.C. was already amended vide amendment Act 2006 dated 4.4.2006 and as per amended Act, there was no need to make reference of order of reversal to High Court. Procedural law has always retrospective effect.
14. In view of above, there is no merit in this petition, it is dismissed.
(Sanjay Kumar Gupta) Judge Jammu 12.10.2017 Vijay 561-A Cr.P.C. No.125 of 2009 Page 6 of 6