Ramesh Chand vs State of Himachal Pradesh

Bhawani Singh, J.—This petition arises out of the judgment of Sub-Divisional Judicial Magistrate, Debra, in Criminal Case No. 122-HI/81 passed on 4-8-1983 and subsequently appeal dismissed there from by Additional Sessions Judge (I), Kangra Division, in Criminal Appeal No. 42 of 1983 on 30-3-1985. The grievance by this petition under Article 227 of the Constitution of India concerns the order of confiscation, in these proceedings, of truck No. HPH-545 owned by the Petitioner.

The facts, in brief, are that a police party comprising of Onkar Singh Constable No. 293, Kansi Ram Constable No. 132, Kashmir Singh Constable No. 176 along with Pancham Singh, Lambardar, ill aqua Bhadoli, and Grudialu Ram, headed by Assistant Sub-Inspector of Police Shri Babu Ram of Police Station, Jawalamukhi, while at Bhadoli Toll Tax Barrier on Nadaun-Jawalamukhi Road, stopped truck No. HPH-545 driven by accused Purim Chan. On checking it was found that the accused was transporting 400 bamboos worth Rs. 2000/-in the truck without any valid license and due to the transport of the same during night, the offence became of more serious nature under the Indian Forest Act and the Rules made there under.

Consequently, a challis was filed; trial ended in the conviction of the driver of the truck under Sections 41 and 42 of the Indian Forest Act, so punished by the trial Judge to und ergo simple imprisonment for a period of two months and to pay a fine of Rs. 500/- for illicit export of bamboos. Besides, the accused was also ordered to pay a fine of Rs. 500/- for transporting the same during night hours without lawful permit and in default of the payment of fine to further undergo simple imprisonment for a period of 15 days.

The learned trial Judge in the penultimate Para of the judgment ordered that truck No. HPH-545 used for the commission of the offence is confiscated to the State of Himachal Pradesh. Similar was the order regarding bamboos.

Accused Puran Chand moved the Court of Sessions Judge, Kangra, and assailed the judgment of trial Judge on various grounds. The relevant point called out by the learned appellate court, necessary for the purpose of this petition, is as under:

Whether the order of confiscation of the bamboos and the truck in question is not sustainable in the eye of law, if so, its effect?

The appellate court, while dealing with this point, came to the conclusion that the truck and the bamboos were confiscated u/s 55 of the Indian Forest Act. u/s 59, any person claiming to be interested in the property so seized or confiscated under Sections 55, 56 and 57, could prefer an appeal against the order of confiscation within one month irrespective of the fact whether he was a party in the trial court or not. Such a right the court held was .available only u/s 59 of the Act (ibid). The Court further found that the accused, the driver of the truck had challenged the confiscation of the truck obviously at the instance of the truck owner. Even otherwise; the court could see it in case'' any appeal had been there on behalf of the truck owner himself. Detailed reasons in support of these conclusions for rejecting this point have been given by the appellate court.

It is relevant, before I proceed to examine the'' sub -missions of the learned Counsel appearing for the Petitioner, to mention the fact that this case was detected on 25-10-1981, challis filed in the court on 23-12-1981 and was decided on 4-8-1983. Then appeal came before the learned Sections Judge on 29-8-1983 and the same was decided on 30-3-1985. During this period of about 3-1/2 years, Petitioner did nothing except enjoying the benefits out of the use of the truck he got on sporadic soon after the same was impounded by the police. It is clear that he was all along knowing every development of the case fully well and waiting for the termination of the case in favor of the accused who was his driver. It can be clearly inferred from the facts and circumstances of this case that he knew all about this case right from the beginning till 30-3-1985 but fearing that he may not be involved in the matter like his driver and truck, he kept on observing things and contesting through his driver from behind the veil. Finally when these proceedings terminated to his disadvantage, he secured copies of these orders immediately and filed this petition soon after.

The Petitioner assails the orders of both the trial Judge as well as the appellate Judge and argues through his counsel Shri R.K. Sharma that this Court may exercise powers under Article 227 of the Constitution of India to quash these orders, being in violation of the principles of natural justice. The learned Counsel argues that the order of confiscation of his client''s truck could not be passed by the Court without giving him opportunity of being heard. More so, the Petitioner was not a party before the trial court.

Now, the question to be examined is whether there is really any violation of the principles of natural justice. The simple answer to this submission of the learned Counsel for the Petitioner is that there is no such violation. Ten view of the observations made above, it is utmost difficult to believe that the Petitioner did not know anything about the commission of the offence, initiation of tie proceedings against his driver, involvcnent of his truck, continuance of the proceedings in the trial court and its termination in the two courts below especially, as said above, it was he who executed surety bond dated October 29, 1981 (copy on the record; worth Rs. 50,000/- for the release of this truck.

u/s 59 of the Indian Forest Act, 1927, any person claiming to be interested in the property so seized, jean within one month from the date of any order passed u/s 55, Section 56 or Section 57, appeal there from to the Court to which orders made by such Magistrate are ordinarily appeasable. Here, the Petitioner had a right to move the appellate court which he did not do. Besides, the Remedy discussed i above, the Petitioner had remedy u/s 452 of the Code of Criminal Procedure where he could lay his claim for the possession of the truck, when once he had approached the court of lithe trial Judge for the release of the truck in his favor u/s 451 of the Code (Chapter-XXXTV).

Now, the question is whether the order cuff confiscation passed by the trial Judge and confirmed by the appellate court is legally justified. Section 55 of the Indian Forest Act, 1927 envisages such a power. The same is quoted below for the facility of reference:

(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.

The assertion of the learned Counsel for the Petitioner that his client did not know about the decision of the trial Judge as the order was never conveyed to him by the accused is, in my opinion, a mere pretence and an afterthought. This assertion cannot be believed in the background of the case already-discussed above.

Shri R.K. Sharma, learned Counsel for the Petitioner, seeks assistance from a judgment of this Court reported in Mehta Brothers Vs. State of Himachal Pradesh, This judgment does not apply to the facts of this case. It is suffice to say that the facts in this case are entirely different. Moreover, the owner of the timber had, in fact, filed an appeal before the appellate court against the order of forfeiture passed by the trial Judge. In the present case, the Petitioner did not take any such step.

Another case is State Bank of India Vs. Rajendra Kumar Singh and Others, There is no dispute so far as the basic principles enunciated in this judgment are concerned; but on facts this judgment is not relevant.

On the other hand, Shri M.S. Guleria, learned Counsel for the State, brought to my notice AIR 1938 Nag 365 (Emperor v. Mohammad Khan and Ors.) and submitted that confiscation of property u/s 55 can also be there from a person other than the owner if the same is involved in the commission of the offence. In this judgment, the learned Judge Grille, has very pointedly and clearly defined the difference between confiscation and forfeiture.

In view of the facts and circumstances as narrated at places above, I am of confirmed view that there is no violation of the principles of natural justice and grievance of the Petitioner on this ground is completely untenable. In case the Petitioner had any genuine grievance, he could have come forward straightaway to lay his grievance before the trial court as well as before the appellate court in view of his knowledge about case proceedings.

The powers of this Court under Article 227 of the Constitution cannot be exercised in any or every case. The same can be done where there is grave miscarriage of justice which cannot be set right except by resorting to these provisions. Looking to the facts of this case, the conduct of the Petitioner and the discussion as above, I do not see any reason to invoke the jurisdiction of this Court under Article 227 of the Constitution of India, More so, where the trial court as well as the appellate court have come to an apt and judicious conclusions.

Shri M.S. Guleria, learned Assistant Advocate General, has rightly contended that due to the connivance and participation of truck owners and drivers with persons involved in the illicit felling of trees in the State, forests worth cores of rupees in the State have been finished for personal economic gains at the cost of the State and the natty on. Immense damage to the ecology has also been due to the mass illicit felling of trees and in case these truck operators do not facilitate the forest mafia, forest wealth finished by them by this time would not have happened at all.

The result is, there is no force in this petition and the same is accordingly dismissed.