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Mehta Brothers Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1980CriLJ289
AppellantMehta Brothers
RespondentState of Himachal Pradesh
Excerpt:
- .....in appeals, on 12th july, 1977 affirming the orders of forfeiture of timber passed by the learned chief judicial magistrate, simla, on 10th august, 1976 in respect of offences alleged to have been committed under section 41 read with section 42 of the indian forest act by the drivers of two different trucks. two separate challans were filed by the police against the drivers of truck nos. hps 982 and hp's 399 for the offences under section 41 read with section 42 of the indian forest act. the petitioner is the same in both these petitions and claims to be the owner of the forfeited timber. since a common question of law and facts arises in both the petitions, therefore, both these petitions can conveniently be disposed by a common judgment.2. briefly, the facts of criminal petition no......
Judgment:
ORDER

H.S. Thakur, J.

1. The petitioner has filed these petitions challenging the orders passed by the learned Sessions Judge in appeals, on 12th July, 1977 affirming the orders of forfeiture of timber passed by the learned Chief Judicial Magistrate, Simla, on 10th August, 1976 in respect of offences alleged to have been committed under Section 41 read with Section 42 of the Indian Forest Act by the drivers of two different trucks. Two separate challans were filed by the police against the drivers of truck Nos. HPS 982 and HP'S 399 for the offences under Section 41 read with Section 42 of the Indian Forest Act. The petitioner is the same in both these petitions and claims to be the owner of the forfeited timber. Since a common question of law and facts arises in both the petitions, therefore, both these petitions can conveniently be disposed by a common judgment.

2. Briefly, the facts of Criminal Petition No. 15 of 1978 are that on 5th August, 1978 the police intercepted truck No. HPS 982, which was loaded with timber and was being driven by Shri Kali Dass, the driver of the truck, who is impleaded as respondent No. 2 in this petition. On demand by the police, the said respondent produced a challan dated 5th August, 1976 issued by the petitioner-firm, which pertained to 106 logs of Deodar wood only. On actual checking by the police it was discovered that the truck was carrying 152 logs of Deodar wood. As such, 46 logs of Deodar wood were being transported by respondent No. 2 without an export permit. Respondent No. 2 was challenged under Section 41/42 of the Indian Forest Act and produced before the Chief Judicial Magistrate, Simla. The said respondent admitted his guilt and the Chief Judicial Magistrate convicted him under Section 42 of the aforesaid Act and sentenced him to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 150/-. The Chief Judicial Magistrate, however, ordered the forfeiture of 46 logs Deodar wood in favour of the State.

3. In Criminal Petition No. 16' of 1978, the facts are almost identical except for the difference in the number of logs of Deodar wood which were also being exported without a valid export permit on that very day in truck No. HPS 399. The driver of the said truck was Shri Sukh Dev, respondent No. 2. In this case also the police intercepted truck No. 399 near Sanjauli. The challan issued by the petitioner pertained to 9l logs of Deodar wood only, but actually 137 logs of Deodar wood were being carried in the truck. Thus 46 logs of Deodar wood were being exported by respondent No. 2 without any export permit. A challan was put up against the said respondent under Section 41/42 of the Indian Forest Act and the Chief Judicial Magistrate, Simla, on a confession having been made by the said respondent, convicted him under Section 42 of the aforesaid Act and sentenced him to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 150/-. The Chief Judicial Magistrate, however, ordered the forfeiture of 46 logs of Deodar wood in favour of the State.

4. Respondent No. 2, in both these petitions, could not be served and, accordingly, at the request of the learned Counsel for the petitioner, their names were ordered to be deleted. In spite of certain opportunities having been given to respondent No. l to file the reply to the petition, no reply was filed.

5. The only grouse made by the petitioner, in both these petitions, is that, the petitioner is admittedly the owner of the aforesaid forfeited logs of Deodar wood, but no opportunity was aforesaid to it to substantiate its cause before the orders of forfeiture were passed by the learned Chief Judicial Magistrate. It is further contended on behalf of the petitioner that though it filed an appeal under Section 59 of the Indian Forest Act before the learned Sessions Judge, in both the cases, but relief was not granted to it. As such, it has approached this Court for the redress of its grievance.

6. It is contended by the learned Counsel for respondent No. 1 that the petitioner should have approached the Court of the Chief Judicial Magistrate to substantiate its claim before the order of forfeiture was passed. It is further contended that an appeal under Section 59 of the aforesaid Act was not at all maintainable as filed in the Court of the learned Sessions Judge, as the petitioner was not a party before the Chief Judicial Magistrate. Lastly, it is urged by the learned Counsel for the said respondent that the remedy, if any available to the petitioner was to seek redress against respondent No. 2.

7. On the contrary, it is urged on behalf of the petitioner that the scope of Section 59 of the Indian Forest Act is wide enough and the petitioner being a party interested in the property seized had an independent right to prefer an appeal even if it had failed to approach the trial Court, who convicted the respondent No. 2. It is further contended that the learned Sessions Judge was wrong in holding that irrespective of the fact whether the timber or forest produce belongs to the accused or not, it is liable for confiscation if it is established that the forest offence has been committed in respect of such timber of forest produce. At the same time, it is urged that the observations made by the learned Sessions Judge that there is no law which requires that the Court should .hold an enquiry into the title of the case property which is liable for confiscation and to issue notice to the owner before ordering its confiscation.

8. Under Section 52 of the Indian Forest Act, any Forest Officer or Police Officer is competent to seize any forest produce in respect of which a forest offence is believed to have been committed. For the purpose of deciding these petitions the relevant provisions of the Indian Forest Act are contained in Sections 55 and 59 of the said Act. The same are reproduced as under:

55(1). All timber or forest produce which is not the property of, Government and in respect of which a forest offence has been committed, and all tools, boats, carts and cattle used in committing any forest offence, shall be liable to confiscation.

(2) Such confiscation may be in addition to any other punishment prescribed for such offence.

59. The officer who made the seizure under Section 52, or any of his official superiors, or any person, claiming to be interested in the property so seized, may, within one month from the date of any order passed under Section 55, Section 56 or Section 57, appeal therefrom to the Court to which orders made by such Magistrate are ordinarily appealable, and the order passed on such appeal shall be final.

9. There is no dispute between the parties that the forfeited logs of Deodar wood, in both the cases, are owned by the petitioner. It is also not disputed that the petitioner did not extend its claim to the said property before the Chief Judicial Magistrate. It is also not disputed that respondent No. 2 did not claim the property as his own. The only offence alleged against respondent No. 2 was that the excess logs of Deodar wood were being exported without a valid permit. No doubt, the timber or forest produce i respect of which a forest offence has been committed is liable to confiscation, but the question is whether any opportunity is to be afforded to an owner whose property is intended to be forfeited. The principle of natural justice requires that a person cannot be adversely affected without affording him a reasonable opportunity to substantiate his cause. Under Section 59 of the Indian Forest Act an interested party has been given a substantive right to prefer an appeal against the order of forfeiture, passed by a Magistrate. No bar has been created under Section 59 of the said Act that no person would be entitled to prefer an appeal who has not extended his claim before a Magistrate. As such, I am of the opinion, that the petitioner was competent to seek redress in the Court of the learned Sessions Judge. In that eventuality it was open to the learned Sessions Judge either to hold some enquiry about the claim of the petitioner himself or to send back the case to the Chief Judicial Magistrate for the purpose. I am of the view that the phrase 'any person claiming to be interested in the property seized' is wide enough to include even a person who was not a party before the trial Court. Moreover, under Section 55 of the Indian Forest Act the phrase 'shall be liable for confiscation' does not mean that the property stands automatically confiscated. On the contrary, it is presupposed that an opportunity is to be given to the person affected before the property is actually ordered to be confiscated. The contention, raised on behalf of the respondent No. 1 that the remedy, if any, of the petitioner lies against respondent No. 2, who had illegally exported the timber, is not relevant in the circumstances of the case. It is not disputed by the parties that the timber, in dispute, is still in the custody of the police at Police Station, Chhota Simla. This fact was admitted by the learned Counsel, for respondent No. 1 as recorded in the order, dated Oct. It, 1979- As such, the only question is whether the timber, in dispute, b to be returned to the petitioner or is to be forfeited. The further contention of the respondent that the petitioner had no right to prefer an appeal as W failed to approach the Chief Judicial Magistrate to seek relief is also not maintainable. After the Chief Judicial Magistrate had passed the order of forfeiture the petitioner was fully entitled to file an appeal in the Court of the learned Sessions Judge. As observed by me earlier above, the petitioner claiming to be interested in the property was entitled to prefer an appeal in the Court of the learned Sessions Judge.

10. In view of my aforesaid observations, I hold that the petitioner had every legitimate right to be heard by the Courts below before the orders of forfeiture were passed. Even if the petitioner did not make his claim before the trial Court it was necessary for the Appellate Court to decide the claim of the petitioner himself or to send back the matter to the trial Court for determination. I further hold' that the view taken by the learned Sessions Judge that in view of the fact that an offence had been committed in respect of the property, in dispute, by respondent No. 2, the property automatically stood forfeited, cannot be sustained. Accordingly, the matter must go back to the learned Sessions Judge for determination of the question according to law in the face of my aforesaid observations. It is, however, open to the learned Sessions Judge either to decide the matter himself or to refer the same for determination by the Chief Judicial Magistrate, The learned Sessions Judge shall afford a proper opportunity to the petitioner as also to respondent No. 1 to substantiate their respective claims before determining the matter in dispute. In case the learned Sessions Judge decides to send back the case to the Chief Judicial Magistrate for determination the same course would be followed by the Chief Judicial Magistrate. Th learned Sessions Judge is at liberty to make an appropriate order for the custody or disposal of the timber, in dispute, till the adjudication of the matter. In case it is deemed proper by the learned'' Sessions Judge that the property is liable to depreciate in value if kept in the custody of the police, it shall be also open to him t6 have the timber sold at the highest available price in the market. In that case if the petitioner succeeds in establishing its claim to the timber, either the seize timber or the price thereof so fetched shall be paid to the petitioner on such terms as considered legal and equitable The timber shall not, however, be disposed of till an appropriate order as indicated above is passed by the learned Sessions Judge.

11. The petitions are allowed to the aforesaid extent.


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