Amar Nath vs State of H.P.

Bhawani Singh J.

This Revision Petition u/s 397 of the Code of Criminal Procedure (Hereinafter to be referred to as ''the Code''), arises out of the order passed on 17-2-1989 by the Sessions Judge, Kangra "Division, in Criminal Appeal No. 14 of 1988 thereby dismissing the appeal of the Petitioner filed u/s 354 of the Code and thus confirming the order of Judicial Magistrate 1st Class, Palampur, dated 23-7-1988 in Criminal Case No. 85-IH of 1986 directing the confiscation of the case property while acquitting the accused. The Petitioner has a grievance against this order, therefore, prefers this petition to challenge the same.

The Petitioner was prosecuted u/s 33 of the Indian Forest Act, 1927 (hereinafter to be referred to as ''the Act'') for felling 19 trees in March 1985 and after investigation the Challan was filed in the Court on 31-3-1986. The trial Magistrate came to the conclusion that the cognizance of the offence stood barred under the provisions of Section 468 of the Code as the offence had taken place before 31-3-1985. While forming this opinion, the Court touched the merits of the case as well and observed that the Damage Report (Ex. P-W/5/A) had not been proved by the prosecution though the same contained the signatures of the Petitioner. As a result thereof, the accused was acquitted and while dealing with the disposal of the Katha seized by the Forest Department in connection with the case, the property was ordered to be confiscated and forfeited in favour of the State as it had not been proved on behalf of the defense that the case property in question pertained to the trees which were duly marked by the Forest officials for felling in favour of the Petitioner nor the Petitioner had been able to prove any permit to the effect that he had felling order qua the alleged trees.

This order of the Magistrate was challenged before the Sessions Judge, Kangra Division, and while dismissing the same, the Court came to the conclusion that the order of the trial Magistrate relating to the property in question was within the power of the Court and the Petitioner also failed to produce the felling permit in respect of the trees from which this Katha had been extracted. On the other hand, there was overwhelming evidence to show that this Katha was extracted from illicitly felled trees. It is against this judgment that the present petition has been filed by the Petitioner.

Sh. Devinder Gupta, learned Counsel for the Petitioner, has very strenuously 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 u/s 452 of the Code relating to the disposal of the case property on the conclusion of the trial. Jam not impressed by this submission of Sh. Devinder Gupta. In my opinion, an order u/s 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 Govindachari Vs. The State and Another, .

Sh. 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 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 Arjun Padhy and Others Vs. State of Orissa and Another,

In Prakash Chandra Jain Vs. Jagdish and Another, the Court said in pares 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 AIR 1949 17 (Nagpur) 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 property which was the subject matter of the theft and he is not, therefore, entitled to recover the property u/s 517 Criminal Procedure Code.

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."

In view of the similar conclusions of the courts below, it is not necessary to re-appreciate the evidence again. However, I have examined the same, in the interest of justice, to see whether there is justification to release the produce-case property-in favour of the Petitioner and whether the judgments of the court below are legally justifiable.

A perusal of the statements of Forest Ranger, Lalit Chand and Pinja Ram, establish that there is illicit felling, damage reports relating to same were filled and the same was signed by the accused. He further states that the accused had admitted having felled the trees and was prepared to pay the compensation for that. The damage report (Ex. P. W-5/A) is proved by Pritam Chand, Forest Guard, who states that on the information of illicit felling of Khair trees he looked into the matter and found 14 Khair and 4 Kaimbal trees having been felled by the Petitioner. He further states that he went to the Bhatti of the Petitioner. The Petitioner admitted felling of trees and signed the Damage report (Ex. P. W.-5/A). It contains the signatures of the Petitioner. Although an attempt has been made by the Petitioner to show that the signatures on the document were not his, but a bare comparison of the same with his signatures on other documents on the file of this case as well as Cr. Revision No. 16 of 1989 shows that they are of the Petitioner. However, this aspect of the matter is not very relevant as on the merits of the case the Petitioner has already been acquitted and no appeal against acquittal appears to have been filed by the State. There is enough evidence on the file to indicate the involvement of the Petitioner in the illicit felling of these trees in addition to the document Ex. P.W.-2/B where by the Petitioner has not only made an offer but also requested the Forest Department to take compensation from him in respect of the illicitly felled trees and as per the statements of the prosecution witnesses, the same could not be done as per the Policy of the Government to proceed against the Forest Contractors involved in illicit felling of trees in a Court of law instead of receiving compensation from them by compounding the offences. In case the Petitioner was not involved in the illicit felling of trees, there was no reason for him to have offered to pay compensation to the Forest Department.

There is enough evidence on the record of this case for the purpose of deciding the application u/s 452 of the Code in the manner the Courts below have proceeded. The Petitioner is a Katha contractor. He has his own Katha Bhatti. These facts further strengthen the prosecution version against the Petitioner that it is very common with these forest contractors to cut a large number of trees illicitly along with those trees which are usually sanctioned in their favour and the timber is mixed up which makes it difficult to decipher both the kinds of timber involved in such an act. From the statements of the prosecution witnesses, it can be safely concluded that the Katha in question has been extracted out of the trees illicitly felled.

The trying Magistrate has needlessly touched the merits of the case, that too, casually, when there was no necessity of 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 conclusion of the trial court as well as that of the appellate Court relating to the disposal of the case property are correct.

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 what so ever, 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, a 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, Sh. M.S. Guleria, learned Asstt. 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.

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.

Article 48A of the Constitution envisages as under:

48A. Protection and improvement of environment and safeguarding of forests and wildlife.-The State shall Endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.S

Further, by the Constitution (Forty-Second Amendment) Act, 1976, Part I VI-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:

51A. Fundamental duties.-it shall be the duty of every citizen of India.

xx xx xx xx xx xx (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures ;

xx xx xx XX XX 16. In view of the aforesaid discussion, there is no merit in this revision petition and the same is accordingly dismissed.