The Jammu and Kashmir High Court recently upheld the revisional court's order that had set aside the order of the Authorized Officer of the Forest Division for seizure of an offending vehicle, while observing that both prosecution and accused parties need to be given opportunity to cross examine each other's witness.
Justice Sanjay Dhar observed that it is incumbent on the authorized officer to pass a well reasoned order:
"Simply narrating the facts of case and reproducing the evidence led by parties without giving any reasoning in support of the conclusion, does not meet the requirements of a reasoned order. The reasoning assigned in an order forms its heart and soul, without which the same becomes arbitrary in nature. A quasi-judicial authority like an Authorized Officer under the Forest Act, is obliged to pass a well-reasoned order while directing confiscation of the seized property/vehicle. An order of confiscation deprives the owner of his property, as such, reasoning is a sine qua non of such a harsh order."
The petitioner had challenged order dated 12 October, 2021 passed by Principal Sessions Judge, Kupwara, whereby learned Sessions Judge has allowed the revision petition filed against the order dated 29 January, 2021 passed by the Authorized Officer (DFO, Kamraj Forest Division Zangli Range Kupwara) and set aside the said order. The Authorised officer had confiscated the vehicle of the persons apprehended for carrying illicit timber of deodar sawn.
It seems that the accused persons including the respondent appeared before the Authorized Officer who recorded their statements. The Authorized Officer also recorded the statements of the prosecution witnesses. After consideration of the material on record, the Authorized Officer recorded a satisfaction that the seized vehicle has been used in commission of a forest offence and, accordingly, an order of confiscation of the seized articles/property was passed by the Authorized Officer on 29 January, 2021.
The aforesaid order was challenged by way of a revision petition before the Court of Sessions Judge, Kupwara, who observed that the order is illegal and perverse and needs to be set aside.
Petitioner submitted that the impugned order has been passed by the Revisional Court in a hot haste manner without proper application of mind. That the Revisional Court has misdirected itself by setting aside the order of confiscation on the ground that the police has filed a closure report in respect of the FIR which was lodged regarding the incident. Further, that the Revisional Court has failed to appreciate that the proceedings before the Authorized Officer are independent and separate from the proceedings before the court of law.
The Court, after hearing the submissions made by the petitioner and perusing the records and the provisions involved, observed that prior to passing of an order of confiscation, a duty has been cast upon the Authorized Officer to not only issue notice to the person from whom the property has been seized or the person who is interested in such property but also to afford such person an opportunity of making a representation against the proposed confiscation and to give him a right of hearing. Court said that in the case of confiscation proceedings relating to a vehicle, confiscation cannot be made if such person establishes before the Authorized Officer that the vehicle was used in commission of offence without his knowledge or connivance.
Another question before the court was that whether requirement of law is simply to record the statements of the witnesses or is it the requirement of law that parties should be afforded an opportunity to cross-examine each other's witnesses.
In the present case, after perusal of records it was clear that the Authorized Officer, none of the parties has been given an opportunity to cross-examine each other's witnesses:
"By not affording such an opportunity to the parties, the Authorized Officer has not adhered to the principles of natural justice which are intrinsic in the provisions contained in Section 52 of the Forest Act, as quoted hereinabove. In the case of seizure of vehicles, Section 52(5) of the Forest Act provides that the owner has a right to prove before the Authorized Officer that the vehicle was used without his knowledge or connivance. In case an affected person, against whom order of confiscation is proposed to be made, is not given a right to cross-examine the witnesses of the opposite party, the very spirit of the provisions contained in Section 52 of the Forest Act would get defeated and decimated," Court said.
On the basis of this ground, the court observed that the order of Authorized Officer becomes unsustainable in law.
Apart from the above, the Court also noted that the order of the Authorized Officer in the instant case is devoid of any reason and, as such, the same become unsustainable in law on this ground also.
Keeping in view the above, the court did not find any infirmity in the order passed by the revisional court. And passed an order upholding the revisional court's order while remanding the matter back to the authorized officer with the direction to the parties to appear before him.
"Accordingly, while upholding the order of the Revisional Court to the extent it has set aside the order of the Authorized Officer, the case is remanded back to the Authorized Officer with the direction to the parties to appear before the said Officer. The Authorized Officer shall, after issuing notice to the parties, afford them an opportunity to cross-examine each other's witnesses, whereafter he shall decide the matter afresh in accordance with law, by passing a reasoned order."
Case Title: RANGE OFFICER KANDI RANGE SOPORE Vs. ALTAF HUSSAIN MALLA
Citation: 2022 LiveLaw (JK) 34