JUDGMENT
Muzaffer Jan, J.
1. Petition has been submitted under Section 561- Cr.P.C. praying for quashing the order passed by learned Sessions Judge, Budgam, dated 24.1.2002.
2. Perusal of the record reveals that on 23.10.98 Matador No. JK-01 6330 was found carrying illicit timber and was seized by the officials, of the Forest Department. In inquiry before the authority under the Forest Act, it was stated that the vehicle was stolen by some unknown persons and, as such, the owner did not have the knowledge of the involvement of the vehicle in transportation of the illicit timber. This defence of the owner of the vehicle was not accepted by the Authority and, as such, the vehicle was ordered to be confiscated vide order dated 26.9.2001.
3. Revision petition was filed against this order in the court of learned Sessions Judge Budgam by the non-applicant. The learned Sessions Judge, Budgam, allowed the revision petition and modified the order of confiscation of the vehicle by imposing a penalty of Rs. 15,000/- as fine vide order dated 24-01-2002. Present petition under Section 561-A Cr.P.C. has been filed to quash this order dated 24.01.2002 of the learned Sessions Judge, Budgam.
4. Main submissions made in the petition are that the vehicle was found carrying illicit timber in violation of Forest Act. In the enquiry, respondent could not make out a case, to establish that the illicit timber was being carried without his knowledge and connivance, before enquiring authority, and, as such the vehicle carrying timber was confiscated Under Section 26 of Forest Act. The trial Court, by mis-interpretation of Section 26 of Forest Act, held that the order of confiscation is very harsh, modified the order and virtually annulled Section 26 of the Forest Act. As the impugned order has caused abuse of process of law, the petitioner prays that the impugned order be quashed.
5. Heard learned counsel for the petitioner. Respondent despite service is not present.
6. The submission, which may be considered, is whether the Divisional Forest Officer is competent to file the petition Under Section 561-A Cr.P.C. This aspect was considered by the Apex Court and the view given by the Apex Court in AIR 1963 SC 786 is reproduced as under :-
“In a writ of not only the tribunal or authority, whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either, suo motu or on the application of a party to the writ or an application filed at the instance of such proper party.”
7. Thus, there is no disqualification for an authority, whose order is under challenge to authority associate with the proceedings and to defend his order as a party.
8. The learned Sessions Judge, while discussing his power to modify the order of confiscation Under Section 26(1) of the Forest Act, has not given any acceptable, legal and persuasive reason to justify the modification of the order of confiscation dated 30.06.2001 passed by the competent authority of the Forest Department. It seems that the respondent pleaded before the learned Sessions Judge, that he would not be able to pay the loan, and public exchequer would suffer, because of the seizure of his Matador on this ground appears to have been accepted by the learned Sessions Judge, to modify the order in object disregard of the settled position of law under revisional jurisdiction. The relevant portion of the order is reproduced as under:–
“I am of the view that this court can modify the order and can impose penalty, because easily it can be assessed what is the value of the vehicle which has been confiscated. If the penalty is imposed and vehicle is released, that will also amount to preventing the commission of crime otherwise the owner will be forced to commit any other offence because he is not in a position to liquidate the loan and, earn of livelihood and thereby the purpose of the Act will be frustrated.”
9. The Supreme Court has deprecated the casual approach of courts in disposal of offences relating to forest produce and confiscation of vehicle, as reported in (2000) 7 SCC 80. The relevant portion is reproduced as under:–
“The provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the authorised officer or the appellate authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately.”
10. The discretion exercised to modify the order would be held proper, if it advances the cause of justice and in case the purpose for which stern preventive measures have been incorporated in the Act, are diluted, then, in such circumstances, exercise of discretion would not be proper, judicious and rationale.
11. It is the legality, propriety and correctness of the impugned order, which is to be scrutinized in revisional jurisdiction, and not the suffering of the alleged smuggler of timber. The scope and powers to be exercised in revision are discussed in the judgments of the Apex Court reported in AIR 1998 SC 1422 and 1997 (7) SCC 622 wherein it has been clearly held that powers under revision can be exercised where it is found that the impugned order has been passed, on error of law to cause miscarriage of justice or by exercising powers which are not vested to cause, violation of statutory rights or breach of rules or by not exercising powers to prevent failure of justice, so on and so forth. The learned Sessions Judge while disposing of the revision petition filed by the respondent, praying for release of his confiscated vehicle, has observed as under;-
“In the given circumstances, I deem it proper to hold that the petitioner has failed to prove that the vehicle was used for the said commission of offence without his knowledge or connivance in terms of Section 26(5) of Forest Act. However, it shall not be a ground for the trial court to convict the accused who is facing or has to face the trial before the competent court because this is a summary preventive action and is independent of the said penal action.”
12. From plain perusal of the above order, it is manifestly clear that there was nothing before the learned Sessions Judge, to show that the vehicle was used without the knowledge or connivance of the present respondent. The order of confiscation was justified on this finding of the learned Sessions Judge. The learned Sessions Judge, fully aware of the preventive nature of the Section 26 of Forest Act, and involvement of the confiscated vehicle, has held the confiscation “harsh” thereby virtually annuling the provision of confiscation.
13. The impugned order, in these circumstances, obviously constitutes abuse of process of law and has caused mis-carriage of justice and is liable to be set aside. The petition is, accordingly, allowed and the order of learned Sessions Judge, Budgam, dated 24.1.2002, is set aside.