Sanjay Kumar Gupta JUDGMENT
Sanjay Kumar Gupta, J.
1. In the instant petition, preferred under Section 561-A of the Code of Criminal Procedure, the petitioner has assailed the validity of the order dated 07.05.2014 passed by the learned Additional Sessions Judge, Doda whereby the order passed by petitioner dated 18.11.2013 in his capacity as an Authorised Officer, was quashed.
2. Petitioner feeling aggrieved of the order dated 07.05.2014 passed by the learned Additional Sessions Judge, Doda, has filed the present petition and raises the following questions of law, for setting aside the said order.
a) Whether the learned Sessions Judge can set aside an order under Section 435 of the Code of Criminal Procedure without making a reference to the Hon'ble High Court under Section 438 of the Code of Criminal Procedure.
b) Whether the Sessions Judge can re-appreciate the facts under Section 26-B of the Forest Act when owner of the vehicle to whom the notices regarding confiscation of the vehicle has failed to satisfy the authority that the vehicle has been used without his knowledge and connivance as amended in terms of sub-clause 5 of Section 26 of the Forest Act.
c) Whether the conviction of the owner of TATA SUMO as a pre-requisite before passing the order of the confiscation in terms of Section 26 of the Forest Act.
3. The facts leading to filing of this petition are that; a vehicle bearing No. JK02AX-0788 (TATA SUMO) of which the respondent is a registered owner, was seized by the police; the vehicle was involved in smuggling the Nag Chatri (Trilium Govanianum), a banned Minor Forest Produce (MFP); the total quantity of the Minor Forest Produce was to the extent of 175 Kgs. After completing the formalities, the case was framed and proceedings u/s. 26 of the Forest Act were initiated; the petitioner initiated the confiscation proceedings in respect of the seized vehicle and the MFP under law. During the confiscation proceedings from the document, it was clear that the vehicle was involved in smuggling of the banned MFP i.e. NAG CHATRI (Trilium Govanianum). It is further contended that during the confiscation proceedings, a notice was issued to the respondent in terms of sub-Section 4 of the Section 26 of the Forest Act. In pursuance of the notice issued, the respondent appeared before the petitioner through advocate, recorded his statement, but failed to satisfy the petitioner that the vehicle was used in smuggling NAG CHATRI without his knowledge and connivance and even failed to show that who hired his vehicle for carrying 7 bags of feed from Basmina to Doda covering a distance of 35 km. It is also stated that the petitioner after affording full opportunity to the respondent to present his case and after hearing the respondent at length came to the conclusion that the vehicle bearing No. JK02AX-0788 was involved in smuggling of the NAG CHATRI and as such vide order dated 18.11.2013 the vehicle along with MFP was confiscated.
4. It is further contended that the findings returned by the learned Sessions Judge are neither based on the facts and law and, as such, the same cannot be sustained in the eyes of law and deserves to be set aside. The order impugned also deserves to be quashed as the Court below has not rightly interpreted the provisions of Section 26 of the Forest Act. It is further stated that the order impugned also deserves to be quashed because the same is against the statutory provisions of law and, as such, cannot be sustained in the eyes of law. Section 39 of the Forest Act raises a presumption regarding possession of Forest produce as illicit till contrary is proved and Section 26(5) also lays down that it is for the owner of the vehicle to satisfy the authority that the vehicle was used without his knowledge and connivance. The evidence led by the respondents does not satisfy the requirement of law and the respondent has not satisfied the authority. Rather the stand taken by the respondent falsifies his plea that somebody had hired his vehicle for carrying just 7 bags of cow dung (feed) from Basmina to Doda covering a distance of 35 kms. The petitioner challenges the order on ........