Jammu & Kashmir High Court
Authorised Officer Forst (Dfo) Kathua ... vs Mohd. Sadiq Ganai on 21 December, 2018
Equivalent citations: AIRONLINE 2018 J AND K 804
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
CRMC No.124/2009 & IA No.155/2009
Date of order:21.12.2018
Authorised Officer Forest (DFO) Kathua and anr. Vs Mohd. Sadiq Ganai
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner (s) : Mr. S. K. Anand, Advocate
For respondent(s) : Mr. S. S. Ahmed, Advocate.
1. The instant petition has been filed under Section 561-A of the Code of Criminal Procedure against the judgment/order dated 23.05.2009 passed by the learned Principal Sessions Judge, Kathua in File No.25/Criminal Revision titled 'Mohd. Sadiq Ganai Vs. Authorised Officer (DFO) Kathua', by virtue of which the order passed by the petitioner No.1 dated 24.12.2002, has been quashed.
2. The petitioners feeling aggrieved of the order 23.05.2009, have 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 learned Sessions Judge has any jurisdiction to entertain and decide a Revision against the order passed under the Jammu & Kashmir Willow (Prohibition on Export and Movement) Act, 2000.
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 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 clause 5 of Section 26 of the Forest Act.CRMC No.124/2009 Page 1 of 5
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.JK01A- 4580 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 consignment of fresh fruits produced at the Excise Toll Post. Since the vehicle was carrying Willow Clefts, as such, the Excise Authorities handed over the Truck and the items contained therein to the petitioner No.2 on 05.10.2002, for necessary action 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; that during the confiscation proceedings from the documents it was clear that the vehicle was involved in smuggling of the willow clefts outside the State of Jammu and Kashmir. 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; that during 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 Willow Clefts is not confiscated. In pursuance of the notice issued, the respondent appeared before the petitioner No.1 through his attorney namely Mohd. Amin Guru. Thereafter, neither the Attorney appeared nor recorded his statement and has not taken any CRMC No.124/2009 Page 2 of 5 step to satisfy the authority that the vehicle was used without his knowledge and connivance. It is further stated that the petitioner No.1 after satisfying himself about the commission of the offences, passed an order, thereby confiscating the vehicle as the same was involved in the smuggling of the willow clefts. The petitioners also confiscated the willow clefts vide order dated 24.12.2002. Against this order, respondent filed a revision petition before learned Principal Sessions Judge, Kathua, who quashed the order passed by petitioner No.1, vide order dated 23.05.2009.
4. The petitioners challenged the said order dated 23.05.2009 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 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.
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.JK01A-4580 of which the respondent is a registered owner was CRMC No.124/2009 Page 3 of 5 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 consignment of fresh fruits produced at the Excise Toll Post. Since the vehicle was carrying Willow Clefts, as such, the Excise Authorities handed over the Truck and the items contained therein to the petitioner No.2 on 05.10.2002, for necessary action 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; that during the confiscation proceedings from the documents it was clear that the vehicle was involved in smuggling of the willow clefts outside the State of Jammu and Kashmir. The expot of the willow clefts is prohibited in terms of the provisions of Jammu and Kashmir Willow (Prohibition on Export and Movement) Act, 2000; that during 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 Willow Clefts is not confiscated. In pursuance of the notice issued, the respondent appeared before the petitioner No.1 through his attorney namely Mohd. Amin Guru. 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 his knowledge and connivance. It is further stated that the petitioner No.1 after satisfying himself about the commission of the offences, passed an CRMC No.124/2009 Page 4 of 5 order, thereby confiscating the vehicle as the same was involved in the smuggling of the willow clefts. The petitioners also confiscated the willow clefts vide order dated 24.12.2002. Against this order, respondent filed a revision petition before learned Principal Sessions Judge, Kathua, who quashed the order passed by petitioner No.1, vide order dated 23.05.2009.
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.
(Sanjay Kumar Gupta) Judge Jammu:
21.12.2018 Narinder CRMC No.124/2009 Page 5 of 5