J&K Forest Act | Confiscation Of Vehicle Carrying Non-Government Forest Produce Cannot Be Ordered Without Conviction Of Offender: High Court

The Jammu and Kashmir and Ladakh High Court has held that where seized forest produce is not Government property, confiscation of the carrier cannot be finalized unless the offender is first convicted in criminal proceedings. The Court has clarified that independent confiscatory jurisdiction without conviction is permissible only when the offence relates to Government property.The Bench of Justice M. A. Chowdhary observed that “Authorized Officer is not competent to pass confiscation order with regard to reported seized property in respect of a forest offence, in case of a non-government property, until and unless conviction of the offender is recorded by the Magistrate.”The Court was hearing a writ petition challenging orders passed by the Authorized Officer and the Appellate Authority under the Jammu & Kashmir Forest Act and the Jammu & Kashmir Willow (Prohibition on Export and Movement) Act, whereby trucks belonging to the petitioners were confiscated on the allegation that unfinished willow clefts were being transported without permission.Background:The petitioners challenged orders confiscating three trucks allegedly seized by the Forest Protection Force near Sidhra, Jammu, while carrying unfinished willow clefts without permission under the Jammu & Kashmir Willow (Prohibition on Export and Movement) Act, 2000. The vehicles were seized and confiscation proceedings were initiated by the Divisional Forest Officer acting as Authorized Officer.The Authorized Officer ordered confiscation of the trucks along with the willow clefts. The appeal before the Chief Conservator of Forests was dismissed. Earlier writ petitions resulted in remand of the matter for fresh consideration, after which confiscation was again ordered and upheld in appeal, leading to the present writ petition.The petitioners contended that no criminal case had been registered, no conviction had been recorded, and the confiscation of vehicles without establishing guilt was contrary to the statutory scheme.Court's Observation:The Court examined the scheme of the Jammu & Kashmir Willow (Prohibition on Export and Movement) Act, 2000 along with Sections 26 and 28 of the Jammu & Kashmir Forest Act, Samvat 1987, which govern seizure and confiscation of forest produce and vehicles used in committing forest offences.The Court noted that Section 3 of the Willow Act prohibits carriage or export of willow except with permission, while Section 4 permits seizure of willow and the carrier if there is reason to believe that it is being transported in violation of the Act. The confiscation procedure, however, is governed by the Forest Act as made applicable by SRO 308 of 2003, the court noted. Referring to Section 26 of the Forest Act, the Court observed that the Authorized Officer may confiscate forest produce and the carrier if satisfied that a forest offence has been committed, but this power is subject to the limitations contained in Section 28.The Court held that Section 28 makes a distinction between Government property and non-government property. Where the seized produce is not Government property, confiscation of the carrier can be ordered only upon conviction of the offender for the forest offence. It reasoned, “… Even otherwise, if the confiscation proceedings are treated to be final before the criminal proceedings then the confiscated vehicle is if auctioned in the interregnum period (between confiscation and completion of trial) then how the property of the acquitted person in the criminal trial would be returned back or compensated would be the question”The Court relied on the decision in State of J&K v. Thakur Motors, which held that confiscation prior to conviction is permissible only where Government property is involved, and on the judgment of the Supreme Court in Principal Chief Conservator of Forests v. J. K. Johnson, holding that final confiscation should not be ordered before conclusion of criminal proceedings.The Court rejected the reliance placed by the respondents on State of Madhya Pradesh v. Kallo Bai, observing that the statute considered in that case contained a specific provision permitting independent confiscation, which is absent in the J&K Forest Act in respect of non-government property.The Court further observed that in the present case no FIR had been registered, no criminal prosecution had been launched, and no conviction had been recorded, yet confiscation proceedings had been finalized. In such circumstances, the confiscation of the petitioners' vehicles could not be sustained, the Court underscored. The Court summarized the legal position by holding that confiscation may proceed independently only when the offence relates to Government property, but in cases involving private property, conviction of the offender is a pre-condition for final confiscation.Concluding that since the seized willow clefts were not Government property and no criminal case had been registered or conviction recorded, the court maintained that...

J&K Forest Act | Confiscation Of Vehicle Carrying Non-Government Forest Produce Cannot Be Ordered Without Conviction Of Offender: High Court

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