2005 Supreme(Bom) 1326

IN THE HIGH COURT OF BOMBAY
Pandurang Laxman Naik
Versus
State of Goa
Decided On : (SEPTEMBER 29, 2005) 2006

Headnote:Constitution of India - Articles 226 and 227 - Indian Forest Act, 1927, Section 61(A), (B), (C) and (D) - Criminal writ petition - Challenging judgment and order on ground that Additional Sessions Judge had no jurisdiction to decide appeal - Petitioner owner as well as driver at a Canter Pick- up - Said vehicle carrying wood logs seized by Range Forest Officer on 25.6.1999 - Petitioner prosecuted under Forest Act - Acquitted - A show-cause notice issued to petitioner under Section 61(A) of Act by Conservator of Forest on 12.8.1999 - Petitioner filed reply on 20.8.1999 - On 31.10.2003 said vehicle confiscated - Appeal against, to Sessions Judge - Decided by Additional Sessions Judge on 6.1.2005 - Confiscation of property involves civil liability - Appellate powers confer- red on a Sessions Judge as a persona designata - Not as a Judge presiding over Court of Sessions - Sessions Judge as a persona designata ought to have disposed of appeal himself - Cannot allot case to Additional Sessions Judge without jurisdiction - Set aside - Sessions Judge directed to hear and dispose of appeal on merits. - A proceedings for confiscation can be initiated irrespective of the fact as to whether prosecution for commission of a forest offence has been lodged or not. A confiscation proceeding, therefore, is independent of a criminal proceeding. A confiscation envisages a civil liability whereas an order of forfeiture of the forest produce must be preceded by a judgment of conviction. If the order of confiscation passed by the authorised officer involves civil liability on the part of the petitioner it does not sound to reason that the legislature would have provided an appeal to be filed against such order to the Court of Session presided over by the Sessions Judge which is a Criminal Court as distinguished from the Sessions Judge in person. The very fact that Section 61(D) of the Act provides the procedure to be followed by the Sessions Judge, that is to say the procedure which enjoins him to give an opportunity to be heard to an appellant as well as the authorised officer and thereafter to confirm, modify or annul the order passed by the authorised officer also shows that the appellate powers were conferred on the Sessions Judge as a designated officer and not as a Judge presiding over the Court of Sessions. In other words powers of appeal were conferred on him not as a Court but as a persona designata. In Court’s view, in case the legislature intended to confer the appellate powers against the orders passed by authorised officers then the legislature would have specifically provided that an appeal against an order made under Section 61(C) would lie to the Sessions Court. To repeat, since confiscation of property involves civil liability and as the very procedure to the followed by the Sessions Judge is specifically indicated in Section 61(D) of the Act, in Court’s view, the appellate powers against the order of the authorised officer were conferred on the Sessions Judge as a persona designata and not as a Judge presiding over the Court of Session. Only in the event the appellate powers were conferred on the sessions Judge as Court of Sess ions then only the Sessions Judge would have been in a position to follow the provisions of the Code and allot the case to the Additional Sessions Judge to be decided by him. In Court’s view, therefore, the Sessions Judge as a persona designata ought to have disposed of the appeal by himself and should not have allotted the same either under Section 10 as contended, or under the powers given to the Sessions Judge under Section 194 of the Code. The impugned order is clearly without jurisdiction.

       In the above view of the matter, the petition deserves to succeed. As a result, the judgment/order of the Addit ional Sessions Judge, Margao is hereby set aside and the Sessions Judge, Margao, is hereby directed to hear and dispose of the appeal on merits and in accordance with law.

       Forest Act, 1927 - Sections 61-A and 61-D - Cr PC, 1973, Sections 10(3), 194 and 482 - Certiorari jurisdiction - Confiscation of vehicle - Writ jurisdiction invoked - Contention - Order passed by ASJ without jurisdiction - Appellate power conferred on ASJ under Sections 10(3) and 194 of Cr PC - Order impugned without jurisdiction - Order set aside. - The appellate powers against the order of the authorised officer were conferred on the Sessions Judge as a persona designata and not as a Judge presiding over the Court of Session. Only in the event the appellate powers were conferred on the Sessions Judge as a Court of Sessions then only the Sessions Judge would have been in a position to follow the provisions of the Code and allot the case to the Additional Sessions Judge to be decided by him. Therefore, the Sessions Judge as a persona designata ought to have disposed of the appeal by himself and should not have allotted the same either under Section 10 as contended, or under the powers given to the Sessions Judge under Section 194 of the Code. The impugned order dated 6.1.2005 is clearly without jurisdiction.