CRMC/57/2003 of STATE TH. DY.DIRECTOR F.P.F. Vs THAKUR MOTORS on 8 December 2011

1) |Whether approved for reportingin Press/MediaYesii)VVhnether to be reported IDi*est/JournalYes

1) |A Patrolling Party led by Inspector Jagjit Bakshi.intercepted Truck bearing Registration No.PBO8N-2860loaded with 263 cft timber In 295 Fir Planks and 330 ctt.|timber in 380 Kail Planks at Dyalachnak-Kathua. GulshanKumar- the driver of the vehicle failed to produce.aocuments supporting permission to transport timber.FINdIngprima tacie,Qq case for commission of offences|punishable under Sections 6, 15, 16 & 39 of the Jammu.and Kashmir Forest Act, the Truck was seized along with.

timber loaded therein. —

2) Deputy Director Forest Protection Force Gamma Unit J3-Kathua, informed the Divisional Forest Officer, Kathua.Forest Division Kathua, the Authorized Officer in terms of.section 26 of the Jammu and Kashmir Forest Act, 1987

(1930 A.D.) of the seizure requesting confiscation of the seized | ruck and timber.

3) |Initiating Confiscation proceedings, the Authorized Officer issued Notices to the concerned for their Response.

tnereto. —

4)

During the currency of proceedings before the Authorized Officer, the seized Truck was ordered to be released on.Superdnama. [nis order was stayed by tne learned.sessions Judge, Kathua on Deputy Director ForestProtection Force, Kathuas Criminal Revision. —

3) |

Aggrieved by learned Sessions Judges Order, the.Deputy Director approached this Court seeking settingaside of the Revisional Courts Order of November 29,|2011, invoking its inherent jurisdiction.

6) |Disposing of the Deputy Directors Petition, a directionwas issued to the Authorized Officer to pass final orders|on or before January O/7, 2002 on _ Confiscatiproceedings.

1) |The Authorized Officer issued separate Notices to the.owner of the Truck and timber for their appearance before him. The owner of the Truck did not appear and insteadaddressed Communication to the Authorized Officer to.pass appropriate orders saying that ne nad nothing more.to say In tne matter.However in its Response to the

8) |

Authorized Officers Communication, the owner of the.Timber indicatea that ne had purchased packing cases|from savera Enterprises on 095.117.2007 but had nknowledge about the seized illicit timber. According tohim, ne had not authorized anyone inciuaing the ariver to.load any other timber except the packing cases whicn.were purchased by him from Savera Enterprises. Alongwith his Reply, he annexed photocopies of the Bill ofsavera Enterprises, in terms whereof, 92 packing casesof 224.85 cft volume and 103 packing cases of 2417.31 cftvolume of timberduly nailedwere purchased for a totalamount of Rs.1,41,200/-.

Considering the owners Reply, the evidence produced.before him and the records of the case, the Authorized.Officer came to the conclusion that the seized timber was|not.out turn of C-Class timber"and would not matcn tnemeasurements and volume of timber which the owner had)purchased from Savera Enterprises, Kunjwant Talab,.Jammu, which had sold Nailed package cases and not|Raw timber which was seized by Forest Protection ForceHe, accordingly, directed confiscation of 6/75 pieces ofseized timber of Kail and Fir of 593 cft volume and Truck§bearing Registration No.PBO8N-2860 belonging to M/s.Tnakur Motors.

It was noticed by the Authorized Officer in his.Confiscation order of O/7.01.2002 that the consigner,transporter and/or consignee had not staked any claim to.ownership of the seized timber which was presumed Illicit,under Section 39 of the Jammu and Kashmir Forest Act.

9) |Aggrieved by Authorized Officers Confiscation Order,Tarlochan Singh and M/s Thakur Motors, questioned it.before the learned Sessions Judge, Kathua by theirseparate Criminal Revision Petitions.

10) |Botn the Revision Petitions were allowed by the learned.sessions Judge vide his order of April 25, 2003 settingaside Authorized Officer's order of 07.01.2002.

11) |The State of Jammu and Kashmir has Invoked inherent.jurisdiction of the Court seeking setting aside of learnedsessions Judges order,interalia, on the ground that|learned Sessions Judge had erred in holding that.confiscation proceedings before conviction under the.Forest Act were unwarranted.

12) |Heard learned counsel for the parties and perused the|records.

13) |Perusal of the Revisional Courts order reveals that the|Authorized Officers order was found unsustainable by the.learned Sessions Judge on three grounds; viz |

(1) The Authorized Officer did not indicate in his order,about Commission of offences under the Forest Act and as to whether the seized timber was Governmentproperty or its source was not private and theconfiscation was not, therefore, warranted in thecircumstances.

(2) Opportunity of hearing was not allowed to owner of,tne timber who nad staked claim tnereto.

(3) The forest produce could not be confiscated in the.absence of conviction under the provisions of therorest Act.

14) |Before considering the issue as to whether or not the.order|passed|by|the.RevisionalCourtwarrantsinterference by the Court, reference needs to be made to.

the findings returned by the Authorized Officer while.

directing confiscation of the Truck and timber. These read.

thus:-

“The discernable and established facts of the matter, therefore,are..- (a) the load carrier PBO8-N-2860 was mobile on the NationalHighway with the sawn but raw conifer Kail and Fir timberload; illegally and clandestinely being transported by itduring night hours that too without any valid documents I.e..F-25 of the Forest Department, a statutory requirement fortransportation of timber and other forest produce, thus|violating Section 6, 15 and 16 of the J & K Forest Actamended 1997. The vehicles carrying forest produce are|invariably not allowed by the Forest Department to be)mobile after sun-set and before sunrise and the condition.always forms a part of permissions issued for any such legaltransportations.

(bo) the quantity, quality, dimensions and the descriptions ofsawn but raw conifer timber, the out turn, - as it is, of thetimber scants (sleepers) and being transported hence|seized from the load carrier in question is completely|different from the Stuff i.e. packing cases indicated in the|accompanying Bill No. 118 dated 6.11.2001 of Savera|Enterprises Kunjwani Talab and the receipt No. 2021 dated6.11.01 issued by KGC Private Limited Jammu.(c) Shri Tarlochan Singh, Consigner in his Written Statement inresponse to the queries has submitted before the AuthorizedOfficer that he had purchased the following packing cases|for M/s Karan Singh and Sons Single Bridge Jullandhar from savera Enterprises Kunjwani Talab, Jammu_ in_ finalltinisned and Nailed form.KallQO/7 No=9294 85 ct! All210 MM x[5MMxX22 MM.Flr103 pcs.= 941.31 ctt.!Total 200 pcs= 466.16 Cubic feet.

He further submits that the Stuff was the out turn of C-Class timber and had been verified by the Timber |ransport.Officer (Range Officer) Sh. A.K.Bhat and is accordingly|mentioned in the Bill No. 118 aated 6.11.2001 Issued bysavera Enterprises Kunjwani Talab, Jammu and further|acknowledged by Karter Goods Carriers Pvt. Ltd. Jammu|vide their transportation receipt No. 2021 dated 6.11.2001.However, as per enquiry of Forest Protection Force, M/sKaran Singh and Sons Single Bridge Jullandhar in theirWritten Statement has denied to have placed any such)order for any type of goods.

In contrast, the Sawn but raw conifer timber beingtransported and seized from the vehicle which has beeninspected by the undersigned as well and is definitely not!the out turn of C-Class Timber as a whole, and bears theundermentioned dimensions (as per seizure memo).Flr80 pcs10’ x 5’ x2 %’219 PCs|10 x8x1™%Total: 295 pcs.= 263 Cubic feet.

Kalil 323 Nos10 x8’ x1™% |23 pcs.10 x8’ x1™% |29 pcs.10 x3°x1™% |380330 cubic feet.

G.Total 675 pcs.= 593 cubic feet|

sh. Tarlochan Singh who claims to have requisitioned theVehicle for transportation of the packing cases so purchasedfor M/s Karan Singh & Sons Jullandar, has denied any|Knowleage about the timber actually seizedq while beingunder transportation by the x seized vehicle and further has|not staked any claims for its ownership even; thus)disassociating himself from the seized material and its illegal|transportation.

15) |Perusal of above findings indicates Authorised Officers.

satisfaction that the seized timber would not tally with the Nalled packing cases which were stated to nave been.purchased by Tarlochan Singh from Savera Enterprises.|It further comes out from his findings that movement of,timber without there being any document in support thereof was in violation of Penal provisions of the Forest, Act.

16) |The findings of the learned Sessions Judge that theAuthorised Officers order no where tndicated that the|timber was Government property, therefore, appears to.nave been recorded without going through tne records.and appreciating that in the absence of any claim made.by Tarlochan Singh to the seized property, specifications|and condition whereof would not tally with the timberpurchased by the owner, the seized timber could not be.said to be property other than Government property. In.the absence of any Claim by the owner to the seized.property coupled with his plea in writing that he was.unaware as to how the seized property was recovered.from the Truck when he had ensured at the time of.loading that It was sawn packing cases whicn were.purchased from Savera Enterprises, the seized propertycould not but be treated as Government property.

17) |Learned Sessions Judge has recorded findings withoutconsidering the detailed findings of the Authorized Officerbased on facts Indicating that the property which was.purchased from Savera Enterprises was.Nailea timberwith different specifications whereas the seized propertyWasRaw timberwith specifications which would not.

matcnWItn|tnetimper.purcnasedfromSavera.

Enterprises.

18) |Finding of the learned Sessions Judge that opportunity ofhearing was not allowed to the owner of timber who had.staked ciaim to the timber too appears to have been.recorded without going through the records of the.Authorized Officer which do not indicate the owner to.nave staked any claim to tne seized timber.

19) |The view taken by the learned Sessions Judge thatconfiscation of timber was_ permissible only afterconviction for offences under the Forest Act, is on the.face of it, erroneous, in that, the provisions of Section 28.of the Forest Act, referred to by the learned Judge, are.subject to the provisions of Section 26 of the Act, in terms.whereof confiscation of Government property in respectwhereof offences under the Forest Act|appealto navebeen committed,is open to Confiscation, even beforeconviction under the Forest Acct.

20) The learned Sessions Judge was required to deal with thefactual findings recorded by the Authorised Officer, in thelight of the material on records, before recording his.findings and opinion on the issues projected before him In.the Revision Petition. He has, nowever, omitted to do.what he was required so to do before exercising jurisdiction to pass appropriate orders under Section 26.

(b) of the Act.

21) |For all what has been said above, the findings recorded.by the learned Sessions Judge in two Revision Petitions|cannot, therefore, be sustained as he has omitted to.exercise Revisional Jurisdiction in the manner ne was|

required so to do under law.

22) This ts a= fit case where exercise of power ofSuperintendence under Section 104 of the Constitution ofJammu and Kashmir ts called for requiring the learned.sessions Judge to decide afresh the respondents|Revision Petitions In accordance with law.

23) The orders passed by the learned Sessions Judge,Kathua on 25.4.2003 In Criminal Revision Nos. 19-A and)14 are, therefore, quashed reviving the Revision Petitions|for their consideration afresh by the learned Sessions.Judge, In accordance witn law.

Jammu:08.12.7011Pawan Chopra

(J.P.Singh) |

Judge|