State of J. and K. vs Darshan Singh and Others

Abdul Qadir Parray, J.—This criminal reference has been made by learned Sessions Judge, Anantnag for passing proper and appropriate

orders in the matter as is required under law.

The facts in brief which have given rise to the present reference are that the Police Station Qazigund filed an FIR No. 25 of 1995 against the

person of Darshan Singh, Mushtaq Ahmad and Abdul Majid and while conducting investigation of the case, police seized property viz. forest

produce like Discoria 43 bags and 72 fruit boxes containing Discoria, Dhoop 45 bags, Koklipoot 9 bags, Kour 64 bags etc. and same was seized

by the police.

Two applications seem to have been moved before the Judicial Magistrate, Dooru. One by Haji Ghulam Qadir and the other by Range Officer

Qazigund. It seems that one more application was presented by Advocate Mohammad Yosuf Naik on behalf of Block Forest Officer, Qazigund.

All these applicants have prayed for release of the seized property in their favour.

Learned Judicial Magistrate, while disposing of the application of Haji Ghulam Qadir, learned Magistrate has observed :

...No satisfactory proof, by now, documentary or otherwise has been laid before this Court by the applicant Ghulam Qadir Khan, for the release

of the seized property which is now for all practical purposes presumed to be in the custody of this Court as the final police report (Challan) has

been presented in this Court and the matter is proceeding on trial....

Further it seems that the learned Magistrate on the submissions made by Public Prosecutor, Anantnag who was also representing the Forest

Department had submitted that the seized property viz. forest produce be not released in favour of any of the party/claimant in the matter, but be

entrusted to some impartial and respected person for the purposes of preservation. The learned Magistrate has also declined to entertain the

application on behalf of Block Forest Officer, Qazigund on the pretext that the matter was finally being heard and as such, he need not to be heard

now through his counsel. The learned Magistrate has also observed that the statement given by Public Prosecutor amounts virtually to giving of his

claim for the release of the property in favour of the Forest Department. So it seems that the learned Magistrate has entrusted the property as per

his averments to a third independent person namely Abdul Ahad Wani S/O Fateh Joo Wani R/ O Qazigund, as Superdar and the said superdar

has been made to execute a bond to the tune of Rs. 1.50 lacs for preservation and procurement of the property entrusted, as and when required

and so on.

Aggrieved by the order of learned Judicial Magistrate, Dooru, a revision petition seems to have been preferred by the State in the Court of

Sessions Judge, Anantnag who after summoning the parties and having heard learned counsel at length and considered the objections which were

projected, has made the present reference.

The main objection projected before the learned Sessions Judge by the counsel for the, petitioner Ghulam Qadir Wani, who was one of the

claimants was that the revision was not maintainable and entertainable as it was hit by the provisions of Sub-section (4-a) of Section 435 Cr. P.C.

It was also argued that the property as on date was in custodia legis entrusted by the trial Court. So the revisional Court had no jurisdiction to

entertain the revision or to appreciate the same. It was also pointed out that the person of Public Prosecutor who was appearing on behalf of the

Forest Department but later on seems to have been replaced by a private counsel namely law Officer of the Forest Department, and she has

represented the matter before the learned Sessions Judge, Anantnag.

It has also been argued before learned Sessions Judge that the revision being barred in the matter in view of the statutory provisions and in view

of the judgment of this Court reported as 1981 SLJ 205. The learned SPO who has also argued the matter before the learned Sessions Judge and

has projected that the order passed by the learned Magistrate and impugned in the revision petition is not an interlocutory order, but is a final order

as because the rights of one of the petitioners i.e. Ghulam Qadir Khan have been determined. He could not lay any claim or any proof before the

Court. So the order has taken final shape, as such, can be looked into and examined, and has cited at the bar 1980 CriLJ 6 (Gauhati) and Joshy

Vs. The State, .

Ld. Sessions Judge after appreciating the matter and arguments projected before him had rightly observed and concluded that the order

impugned in the matter, even if, to be taken as interlocutory order, but powers which have been exercised by the learned Judicial Magistrate

amounts to abuse of the powers arid misused by him and has categorised the order impugned to be clear abuse of the powers and process of law,

as because per his reasons, the order is without jurisdiction on the following counts:

Firstly the learned Magistrate having held in the impugned order that the claimant Ghulam Qadir Khan could not substantiate his right,

accordingly learned Magistrate was to reject his claim for the time being. But on the concession of learned Public Prosecutor, he has released the

property in favour of a third person party and has failed to decide the claim of the Forest Department. The order, as such, is against the mandates

of Forest Act and the law of the land. He has projected that as per provisions of Section 39 of the Forest Act, which reads :

Presumption that the possession of forest produce is illicit: When in any proceedings taken under this Act or in consequence of any thing done

Under this Act, a question arises as to whether the possession of forest produce of a person is illicit or not such possession shall be presumed to

be illicit until contrary is proved.

So while analysing and appreciating the above provision of law, it is crystal clear and Unambiguous that presumption is to be drawn that the

forest produce seized from the possession of any person is illicit, unless contrary is proved. The seized articles under question are Dhoop, Discoria

etc. etc. All these things are forest produce and have been recovered from the truck which was parked in a suspicious circumstances at Qazigund

and was seized by the police, because the truck was ready to leave outside the State along with contraband articles. The material which was

seized, was found sufficient to have been removed from the forests of the State and was being smuggled outside the State.. As per assessment; the

goods in the truck were found worth Rs. 1.50 lacs and the case seems to have been registered under FIR No. 25 of 1995 Police Station Qazigund

u/s 379, RPC read with Section 6 Forest Act and 13 K. Act and was being investigated. Thus in view of the statutory provisions, as rightly

observed by learned Sessions Judge, the Magistrate should have entrusted and handed over the property to the Forest Department rather than to a

third independent person, as per his averments, because law presumes the property to belong to the Forest Department and was seized from the

possession of accused persons. The accused or any other claimant could not prove their claim before the Court, therefore, presumption of the law

was to come into play that this is illicit produce, unless otherwise proved. The possession of this forest produce was illicit and that of the forest

Department regarding produce, it was legal one. So it was to be handed over to the Forest Department rather-than to a private person.

The learned Sessions Judge while appreciating the matter before him has given cogent reasons that the order passed by the learned Magistrate

in such circumstances amounts to the abuse of process of the Court, and process of law. So the order, as such, is not a simpliciter order of

entrustment of the property seized by the police and that too regarding forest produce, which is presumed to be the property of the Forest

Department and anybody having possession of the same is to be deemed, is having illicit unless contrary is proved.

The learned Sessions Judge while appreciated the arguments has also stated that the citation which has been made at the bar by the learned

SPO viz. 1980 CriLJ 6 (Gauhati) and Joshy Vs. The State, it is laid down that their Lordships approved the 2nd finding but did not approve the

first and held that even though revision u/s 397(2) Cr.P.C. would be barred, but the Court could revise an order in exercise of its inherent powers

in case impugned order has resulted in the abuse of process of the Court or it otherwise required to be set aside in the interests of justice. This in

their Lordship's opinion was manifestly borne out from the words ""Nothing contained in this code shall be deemed to limit or affect the inherent

power of the High Court"" occurring in Section 482. The learned District Judge has concluded that if an order is an abuse of the process of Court

and otherwise requires to be set aside, the High Court can pass appropriate orders.

It may be noted that this Court had earlier also examined such matters which have come before it. Though orders in those cases were also

passed under the provisions of Section 516-A Cr.P.C. regarding entrustment of property during pendency of the cases. This Court had examined

the matter and held that when the matter is brought to the notice of the Court or the records come before it, the Court is not debarred for satisfying

itself as to correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of

such inferior Court. Not only under the provisions of Section 435 Cr.P.C. even under the provisions of Section 439 Cr.P.C. High Court has

inherent jurisdiction, and in exercise of such powers vested in the Court, in the case of any proceeding, records of which have been called for by

itself or which has been reported for orders or which otherwise comes to its knowledge, the High Court may in its discretion, exercise any of the

powers. It is not only these two provisions of law, but even Section 561A Cr.P.C. provides that:

561-A. Saving of inherent power of High Court : Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to

make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise

to secure the ends of justice.

So under the provisions of statutory law itself and under the inherent powers of the High Court, High Court can interfere in the orders when the

Court feels that order has resulted in miscarriage of justice or is abuse of the process of the Court. Thus for the reasons given by learned Sessions

Judge and in view of the observations made by this Court, order impugned, despite the fact that it comes in the narrow compass of interlocutory

order, but the fact remains that it has resulted in miscarriage of justice and is clear abuse of process of the Court, because the order is against

statutory provisions as envisaged u/s 39 of the Forest Act of the State, requires to interference. So I accept the reference and set aside the order

passed by learned Magistrate, and it is directed that let seized property be recovered from the Superdar and be entrusted to the Forest

Department with the further direction that they will preserve the same and the challan which has already been produced before the Court be

expedited by giving shorter dates by the learned Judicial Magistrate, 1st Class Dooru, so that the matter is clinched in the shortest possible time

and the prosecution and the Forest Department will pursue the matter to its logical conclusion.

Before parting with the file, I want to place it on record that when the reference was made and the records had been received by this Court,

notices were issued to the parties. They caused their appearance before the Registrar and subsequently nobody appeared before the Court as is

evident from the minutes of the file and the records. Therefore, the order is passed accordingly.