Sanjay Kumar Gupta JUDGMENT
Sanjay Kumar Gupta, J.
1. In the instant petition, preferred under Section 561-A of the Code of Criminal Procedure, the petitioner has assailed the validity of the order dated 07.05.2014 passed by the learned Additional Sessions Judge, Doda whereby the order passed by petitioner dated 18.11.2013 in his capacity as an Authorised Officer, was quashed.
2. Petitioner feeling aggrieved of the order dated 07.05.2014 passed by the learned Additional Sessions Judge, Doda, has filed the present petition and raises the following questions of law, for setting aside the said order.
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 TATA SUMO 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 No. JK02AX-0788 (TATA SUMO) of which the respondent is a registered owner, was seized by the police; 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 175 Kgs. 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. In pursuance of the notice issued, the respondent appeared before the petitioner through advocate, recorded his statement, but failed to satisfy the petitioner that the vehicle was used in smuggling NAG CHATRI without his knowledge and connivance and even failed to show that who hired his vehicle for carrying 7 bags of feed from Basmina to Doda covering a distance of 35 km. 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 No. JK02AX-0788 was involved in smuggling of the 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 respondents 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 7 bags of cow dung (feed) from Basmina to Doda covering a distance of 35 kms. 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 Jude 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 raised by the petitioner is not tenable under law, the petitioner is relying on outdated law which has 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 has reiterated by the Hon'ble Court in case titled Uday S. Kilachand & Ors. vs. 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 Cr.P.C. 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 Cr.P.C. has been replaced renders the reference on hand in-fructuous." 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 petitioner it is submitted that order passed by the learned Additional Sessions Judge in its order which is impugned in this petitioner has held that respondent 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 respondents. 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 contention and gone through the law on the subject and order impugned.
7. From the perusal of order, it is evident that in FIR No. 146/2013 u/s. 379/109 RPC, 6 of Forest Act, SHO Police Station Doda seized a TATA SUMO No. JKO2AX/0788 and arrested respondent along with Mohd. Rafiq, Shabir Ahmed and Mohd. Amin, who were carrying forest produce NAG CHATHRI (Trilium Govaninum), 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 going through all the records & statements placed before this forum it has been found that the vehicle bearing registration No. 0788-JK02AX was illicitly carrying 175 kg of MFP Nag Chatri (Trilium Govananium) from Kastigarh towards Doda, Four parsons accompanying the vehicle were arrested by police. During the course of investigation the driver/owner of the vehicle confessed of committing the offence & stated that one unknown person hired the vehicle for lifting of bags from Bemina & they were unaware that the MFP was loaded inside these bags. The unknown person could not be arrested by police as he fled away upon sighting the police. The other accused persons stated that they are labourers by profession and they have no knowledge about what was inside the filled bags. After hearing the parties and perusal of the records this forum has arrived to conclusion that the seized forests produce (Nag Chatri Trilium Govananium) 175 kg is the property of the Government and is hereby confiscated. The seized vehicle bearing registration No. 0788-JK02AX has been used with the sole motive of smuggling the banned forest produce with the knowledge of the owner/driver of the vehicle (Zia Ur-Rasheed S/o. Abdul Rasheed r/o. Sazan Tehsil Doda) is also hereby confiscated u/Sec. 26(3) of J & K Forest Act in favour of the Department. The details of confiscated items are as under:
1. MFP Nag Chatri (Trilium Govananium)=175kg
2. Vehicle bearing registration No. JK02AX-0788
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. Learned Additional Sessions Judge, Doda, quashed the order on 07.05.2014.
9. This Court vide order dated 27.06.2014, issued notice and the order impugned was stayed.
10. Heard learned counsel for the parties and perused the case file. In this petition, twin grounds have been taken by counsel for petitioner 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 deserved 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 statue 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.
(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 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 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. 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 products 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 "Statements of the accused persons including the petitioner have reportedly been recorded on 22.10.2013 the photocopies of which are available on record and no one has appeared on behalf of respondent in the court despite repeated directions to explain the reason for withholding the original ones if actually recorded during the proceedings. In the alleged statement purportedly recorded on 22.10.2013 the petitioner is alleged to have stated that he had no knowledge that whatever was being transported in the gunny bags was forest produce.
Interestingly the so called statement recorded nowhere discloses that it was recorded on oath in the presence of authorized officer or in presence of the counsel for the petitioner. These statements including the statements of other accused persons are not even signed by the authorized officer nor there is any material on record to disclose that these statements were recorded either by or in presence of the authorized officer in accordance with law. The minutes of the proceedings recorded by the authorized officer only show the presence/absence of the parties on certain dates of hearing without disclosing as to when these statements were recorded. The authorized officer has not even 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. The authorized 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. I have seen photocopies of record produced during course of argument. This finding of Court below is not perverse in nature. It is true that when confiscation proceeding 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. 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., court does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, careful and with great caution. Once Session judge has found that order of authority is not 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.
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