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CASE NO.: Appeal (crl.)  1228 of 1997

PETITIONER: State of Himachal Pradesh

RESPONDENT: Dhanwant Singh

DATE OF JUDGMENT: 12/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

ARIJIT PASAYAT,J.

       The State of Himachal Pradesh questions legality of the  judgment rendered by learned Single Judge of the Himachal  Pradesh High Court holding that the petition filed by the  State for revision under Section 397, 401 read with Section  482 of the Code of Criminal Procedure, 1973 (for short ’the  Code’) was not maintainable.  The said petition was directed  against judgment dated 13.12.1993 of learned Additional  Sessions Judge, Solan, in an appeal under Section 59(2) of  the Indian Forest Act, 1927 (in short the ’Act’) as amended  by the Indian Forest Act (Himachal Pradesh Second Amendment)  Act, 1991, (hereinafter referred to as ’Amendment Act’) as  applicable to the State of Himachal Pradesh.  The High Court  by the impugned judgment held that the revision was not  maintainable. Additionally, it was held that whether powers  under Section 482 of the Code and Article 227 of the  Constitution of India, 1950 (in short ’the Constitution’),  could be exercised need not be gone into as this is not a  fit case where the power required to be so exercised.   

Background facts giving rise to the present dispute  essentially are as follows:                      On 12.10.1992, the Station House Officer, Nalagarh  intercepted a truck bearing No. HIA-6947 at about 7.45 a.m.  near the sale depot of Himachal Pradesh Forest Corporation  on Nalagarh Ram Shehar road. On search being carried out,  252 tins of resin were found being transported in the said  truck.  Out of the quantity found on search, 186 tins of  resin bore the mark "MR-92" while 56 tins bore the mark  "X". One Mast Ram who was traveling in the truck claimed  that the tins belonged to him.  On being required to produce  the necessary export permit with regard to the articles, he  failed to do so.  Consequently, 252 tins of resin along with  the truck were seized. Since forest offence was believed to  have been committed in respect of the seized articles, which  was considered to be the property of the State Government, a  report to the Forest Officer Nalagarh was made.  On receipt  of the report, the Authorised Officer issued notice to Mast  Ram who claimed to be the owner of articles and Harcharan  Singh, and Dhanwant Singh  driver and owner of the truck  respectively.  The owner of the truck i.e. the present  respondent submitted that no resin was carried and  transported in his truck. In view of the materials on record  and evidence led by the parties the Authorised Officer  passed an order directing confiscation of the truck.  The

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said order was assailed before the Additional Sessions  Judge, Solan by way of an appeal. The appeal was disposed of  by judgment dated 13.12.1993. It was held that order of the  Authorised Officer was without jurisdiction. For arriving at  such conclusion, learned Additional Sessions Judge was of  the view that since offence was committed in respect of  property, which according to the Appellate Judge was not  claimed to be State’s property despite the indisputable fact  that there is a statutory presumption, as to such properties  - forest produce being the properties of the State, the  Authorized Officer had no jurisdiction to pass the order.  A  revision was filed before the High Court. The respondent  took preliminary objection to the maintainability of the  revision application on the ground that the order passed by  learned Additional Sessions Judge in appeal under Section  59(2) was final in terms of the Amendment Act. It was  pointed out that by Amendment Act certain amendments were  carried out in the Act in its application to the State of  Himachal Pradesh. By virtue of the Amendment Act Sections 52  (A) and (B) were inserted in the Act, so far as its  application to the State of Himachal Pradesh are concerned  w.e.f 9.7.1991.  Section 59 of the Act was also amended by  insertion of sub-sections (2) and (3) thereto.  Two new  Sections, namely, 59 (A) and (B) were also inserted. With  reference to these provisions, more particularly, with  reference to Section 59(B) it was submitted that the  Amendment Act attached finality to the order passed by the  Sessions Judge in appeal under Section 59(2). The High Court  accepted the submission and held that the revision  application was not maintainable. An alternative plea  appears to have been advanced before the High Court which  was to the effect that even if it is conceded for the sake  of argument that revision was not maintainable, yet inherent  powers under Section 482 of the Code and/or power of  superintendence under Article 227 of the Constitution was  available.  The High Court held that these powers though  could be exercised, as no case is made out therefor there is  no scope to do so in the case. It was further held that the  order of learned Additional Sessions Judge was not wrong in  any manner and did not suffer from any material illegality  or irregularly to warrant exercise of jurisdiction under  Section 482 of the Code or Article 227 of the Constitution.                                             

In support of the appeal, learned counsel appearing for  the State of Himachal Pradesh submitted that the approach of  the High Court was wrong. The statutory presumption  regarding the ownership of the property by the State was  available in terms of Section 69 of the Act. The Trial Court  proceeded on erroneous basis as if there was no dispute or  claim made that the property belonged to the State. The  presumption available under Section 69 was completely  overlooked.  In any event, this is a matter which required  to be examined and the High Court without even indicting as  to why it did not consider this to be a fit case by exercise  of power under Section 482 of the Code or Article 227 of the  Constitution, in a summary manner held that the order of the  Trial Court did not suffer from any illegality or  irregularity.  There is no response on behalf of respondent  in spite of the service of notice.  Since learned counsel  for the appellant did not question the conclusion of the  High Court that the revision before it was not maintainable,  we need not consider this aspect, though on a reading of the  relevant provisions the view of the High Court appears to be  correct.

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The only question which needs to be adjudicated is  whether the High Court could have exercised power under  Section 482 of the Code or Article 227 of the Constitution.   It is to be noted that the High Court did not specifically  examine whether it could exercise the powers under the  aforesaid provisions, but did not do so on the ground that  case for interference was not made out. Though in the light  of the specific stipulation in Section 59 (3), not only mere  finality has been accorded to the order passed under Section  59(2) but the legislative mandate also further stated that  "shall not be questioned in any Court of Law", it may not  be permissible to invoke Section 482 of the Code, the same  cannot be an impediment to deal with the revision as one  under Article 227 of the Constitution of India.    

In so far as the statutes providing for finality of the  order or decision passed or rendered in accordance with the  provisions of the statutes are concerned, it may be stated  that it is well settled that such a statutory provision  cannot take away the constitutional right given by Articles  32, 226 and 227 of the Constitution. In this connection,  reference may be made to what was observed in para 10 of  Lila Vati v. State of Bombay (AIR 1957 SC 521). After  referring to the provision in Sections 5 and 6 of the  concerned Act stating that the determination in question by  the State Government shall be conclusive evidence of the  declaration so made, it was stated that it did not mean that  the jurisdiction of the High Court under Article 226 or of  the Supreme Court under Article 32 or on appeal had been  impaired. It was also pointed out that in a proper case  these Courts in the exercise of their special jurisdiction  under the Constitution have the power to determine how far  the provisions of the statutes have or have not been  complied with in arriving at the determination in question.

The following view expressed in Union of India v. A.V.  Narasimhalu (1969 (2) SCC 658 at p. 662) may also be noted:       

"But the exclusion of the jurisdiction of  the civil court to entertain a suit does not  exclude the jurisdiction of the High Court  to issue high prerogative writs against  illegal exercise of authority by  administrative or quasi judicial tribunals.   The finality which may be declared by the  statute qua certain liability either by  express exclusion of the jurisdiction of the  civil court or by clear implication does not  affect the jurisdiction of the High Court to  issue high prerogative writs."   

The High Court did not examine the various submissions  made, more particularly, with regard to the presumption  available to be drawn under Section 69 of the Act. The  omission on the part of the Appellate Judge under the Act is  a serious error at least necessitating the High Court to  consider the correctness or otherwise of the stand taken for  the department on merits.  The Trial Court proceeded on the  basis that there was no claim that the property belonged to  the State.  On a bare reading of the judgment itself shows  that when the articles were seized, the person who  accompanied the goods and was traveling in the truck was  required to produce permit to show legitimacy of his  possession.  He could not do it. In that background, the

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question which was required to be adjudicated was whether  the presumption under Section 69 was to be pressed into  service. The very action of the Department is on the  hypothesis of the property belonging to the Government, in  view of the statutory presumptions and there is no need for  making any separate claim or claims petition separately.  This certainly is not a frivolous question and the High  Court was required to consider the issue in the proper  perspective. The High Court was not justified in its  conclusion that no case for examination was made out.

Accordingly, we set aside the judgment of the High  Court so far as it relates to non-exercise of powers  available under Article 227 of the Constitution. The High  Court shall entertain the proceedings as a petition under  Article 227 of the Constitution of India and consider the  question in the background of stand taken by the State about  applicability of Section 69 of the Act, and record its  findings objectively on merits and in accordance with law  after hearing both parties.

Appeal is partly allowed to the aforesaid extent.                                                                  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.217 OF 2004 ( Arising Out of S.L.P. (Crl.) No. 1716 of 1998                 State of Himachal Pradesh               ...Appellant

Versus

Mohinder Singh                          ...Respondent

J U D G M E N T

ARIJIT PASAYAT,J.          Leave granted.

The judgment delivered in Criminal Appeal No. 1228 of  1997 shall govern this appeal also and the directions  therein shall operate so far as this appeal is concerned.

Appeal is disposed of accordingly.  

(DORAISWAMY RAJU)

(ARIJIT PASAYAT)

February 12, 2004