State of H.P. and Others vs Brij Lal

Kuldip Chand Sood, J.—The Petitioner, State of Himachal Pradesh, aggrieved by the orders of the learned Sessions Judge, Kullu, dated 1st January, 2003, has filed the present petition under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure, challenging the legality of the orders passed by the learned Sessions Judge, Kullu, dated 1st January, 2003 in Criminal Appeal No. 11/2002.

It appears, Respondent Brij Lal was tried for offences punishable under Sections 3, 4(b), 12(a)(b) of the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982 read with Section 69 of the Indian Forest Act. According to the prosecution case, accused was found in possession of 331 gunny bags of "Rakhal" (Taxus baccata) a herb also known as "Brahmi Buti" and 41 gunny bags of "Dandasa" (Walnut bark) which were stored in one of the rooms of one Shakuhtla Devi near Bhuntar. The learned trial Magistrate acquitted the accused holding that so far Dandasa (Walnut bark) was concerned, it was purchased by the accused from the Forest Department and Rakhal (Taxus baccata) a herb known as "Brahmi Buti" was not proved to have brought from the Government Forest or found in the Forest and therefore, accused-Respondent cannot be saddled with the liability. However, he directed the confiscation of Rakhal (Taxus baccata).

Dis-satisfied with the orders of the confiscation made by the learned Chief Judicial Magistrate, Respondent carried an appeal before the learned Sessions Judge who by the impugned orders directed the release of the Rakhal (Taxus Baccata) to the accused-Respondent on the grounds that Taxus baccata was not a forest produce.

Having heard Mr. Chaudhary, learned Additional Advocate General and Mr. Khanna, learned Counsel for the Respondent, I find that the impugned orders made by the learned Sessions Judge cannot be sustained being illegal.

It was not the case of the Respondent-accused during the course of trial either in the cross-examination of the any of the witnesses or his statement u/s 313 of the Code of Criminal Procedure that this property belongs to him. His definite case was that he was not present when the premises were searched. Question No. 2 was put to the accused-Respondent asking him to explain that on 15th June, 1996,331 bags of Rakhal (Taxus baccata) and 41 bags of Dandasa (Walnut bark) were recovered from his possession, which he had stored in a room of Shakuntla Devi. He merely stated that he was not on the spot. He did not say anything about his possession or ownership. He became wise after the acquittal was recorded. He claimed the ownership of Taxus baccata for the first time in the appeal before the learned Sessions Judge.

In my view, learned trial Magistrate was right in confiscating the property in question to the State, as at no point of time accused-Respondent claimed this property during the course of trial. He did not even whisper that the property in question belonged to him. In the circumstances, irrespective of the fact whether or not the property in question was forest produce within the meaning of Section 2(d) of the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982, the property could not have been released to the Respondent-accused.

To be fair to Mr. Khanna he, relying upon Nanda Kishore Vs. State of Karnataka and Others, contends that where the prosecution fails to prove that the property seized from the accused was stolen property, in such an eventuality the property in question should be released to the accused.

In Nanda Kishore indeed the finding of the trial Court was that the prosecution failed to prove that properties seized from the accused were stolen properties and therefore, it was held that the accused was not required to give the explanation of his possession. In the present case the prosecution case was not that the case property was stolen property. The prosecution case was that it was possessed by the accused in violation to the provisions of the Act. Accused never claimed this property. Ratio of Nanda Kishore is not applicable to the facts of this case.

To conclude learned Sessions Judge erred in releasing the property to the Respondent-accused.

In result, the petition is allowed. The impugned orders of the learned Sessions Judge are set aside and that of the learned trial Court are restored.