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2021 DIGILAW 701 (JK)

Abdul Salam Bhat v. State Of J&K

2021-12-31

SANJAY DHAR

body2021
JUDGMENT : 1. Petitioner has challenged order dated 07.11.2006 passed by respondent No.2(Authorized Officer), whereby vehicle bearing No.JKC-8937 and the timber found therein have been confiscated. Petitioner has also challenged order dated 31.10.2007 passed by Principal Sessions Judge, Budgam, whereby the aforesaid order of the Authorized Officer has been upheld. 2. The facts emerging from the record are that on 05.07.2006, vehicle bearing No.JKC-8937 belonging to the petitioner was seized by the staff of the Forest Department at Gusoo as the said vehicle was found carrying illicit timber (Deodar 20 Nos.=13.11 Cfts). Petitioner approached the Authorized Officer through the medium of an application dated 05.07.2006 seeking release of the seized vehicle and the timber. The Authorized Officer vide his communication dated 10.07.2006 submitted his report with regard to initiation of confiscation proceedings under Section 26 of the Forest Act to Chief Judicial Magistrate, Budgam. 3. It appears that the Authorized Officer published notices on a couple of occasions in daily newspapers inviting objections from the interested persons and informing the public about the date of hearing. When nobody appeared before the Authorized Officer, the order of confiscation of seized vehicle and the timber was passed by the said Authority on 07.11.2006. 4. The aforesaid order came to be challenged by the petitioner through the medium of a revision petition before the Principal Sessions Judge, Budgam. The principal grievance urged by the petitioner before the Revisional Court was that he was not given an opportunity of hearing nor he was informed about the date of hearing by the Authorized Officer and, as such, he was deprived of his right to prove his case before the Authorized Officer. The learned Sessions Judge, after perusal of the record, came to the conclusion that petitioner was in know of the proceedings before the Authorized Officer as he had made an application for release of the vehicle and the timber and besides this, public notice notifying date of hearing had been published in local dailies, as such, petitioner cannot have a grievance that he was deprived of his right to contest the confiscation proceedings. 5. Petitioner through the medium instant petition has urged similar same grounds which he had urged before the Revisional Court to assail the impugned orders. 6. I have heard learned counsel for the parties and perused the material on record including record of the Authorized Officer. 7. 5. Petitioner through the medium instant petition has urged similar same grounds which he had urged before the Revisional Court to assail the impugned orders. 6. I have heard learned counsel for the parties and perused the material on record including record of the Authorized Officer. 7. Before proceeding to discuss the facts and the issues involved in this case, it would be apt to refer to the relevant provisions as regards procedure for confiscation of seized forest produce and the vehicles carrying forest produce. Section 26 of the J&K Forest Act, which is applicable to the instant proceedings, deals with this aspect of the matter. It reads as under: “26. Seizure of property liable to confiscation (1) When there is a reason to believe that a forest offence has been committed in respect of any forest produce, such produce together with all tools, arms, boats, carts, equipment, ropes, chains, machines, vehicles, cattle or any other article used in committing any such offence may be seized by a Forest Officer or Police Officer. (2) Any officer seizing any property under this section shall place .on such property a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure before an officer not below the rank of the Divisional Forest Officer (hereinafter referred to as 'authorised officer'): Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of the Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. (3) Subject to sub-section (5), where the authorised officer upon receipt of report about seizure, is satisfied that a forest offence has been committed in respect thereof, he may, by order in writing and for reasons to be recorded, confiscate forest produce so seized together with all tools, arms, boats, carts, equipment, ropes, chains, machines, vehicles or any other articles used in committing such offence. Copy of the order of confiscation shall be forwarded without any undue delay to the person from whom the property is seized and to the Conservator of Forest Circle in which the timber or forest produce, as the case may be, has been seized. Copy of the order of confiscation shall be forwarded without any undue delay to the person from whom the property is seized and to the Conservator of Forest Circle in which the timber or forest produce, as the case may be, has been seized. (4) No order confiscating any property shall be made under Sub-section (3) unless the Authorised Officer: (a) sends an intimation in writing about the proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made but no order to be passed; (b) issue a notice in writing to the person from whom the property is seized and to any other person who may appear to the authorised officer to have some interest in such property; (c) gives to the officer effecting the seizure and the person or persons to whom notice issued under clause (b) a hearing on date to be fixed for such purpose. (5) No order of confiscation under sub-section (3) of any tools, arms, boats, carts, equipment, ropes, chains, machines, vehicles or any other article (other than timber or forest produce seized) shall be made if any person referred to in clause (b) of sub-section (4) proves to the satisfaction of authorised officer that any such tools, arms, boats, carts, equipment, ropes, chains, machines, vehicles, cattle or any other articles were used without his knowledge or connivance or, as the case may be, without the knowledge or connivance of his servant or agent and that all reasonable and necessary precautions had been taken against the use of objects aforesaid or commission of forest offence. (6) Where the cattle are involved in the commission of a forest offence, the same after seizure by any officer, as the case may be, shall be entrusted to any responsible person under a proper receipt on an undertaking to produce the same when required in case there is no cattle pound within a radius of five kilometers from the place of such offence: Provided that notwithstanding anything contained in Section 30, in case of unclaimed cattle a Forest Officer not below the rank of Range Officer, after giving sufficient publicity in the vicinity of the place of offence for the owner to come forward to claim the cattle within seven days from the date when such publicity has been given, may dispose them of by public auction. The provisions of the Cattle Trespass Act, Samvat 1977, shall apply in respect of the charges to be levied for the upkeep and fee of the cattle.” 8. From a perusal of the aforesaid provision, it is clear that an order of confiscation against any property cannot be made unless the Authorized Officer sends an intimation in writing about the proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence and unless a notice in writing is issued to the person from whom the property is seized and to any other person who may appear to have some interest in the said property and after hearing the officer effecting the seizure as well as the person from whom property has been seized and the person who appear to be having interest in the property. For the purpose of such hearing, a date has to be fixed. 9. In the instant case, no doubt petitioner had filed an application before the Authorized Officer on 05.07.2006 seeking release of seized vehicle and the seized timber, yet the record of the Authorized Officer does not even remotely suggest that any notice in writing has been issued to the petitioner or any other person interested in the seized property. Merely because petitioner had filed an application seeking release of the seized property does not absolve the Authorized Officer of his duty to issue a notice in writing to the person from whom the property is seized or any other interest person. Merely because petitioner had filed an application seeking release of the seized property does not absolve the Authorized Officer of his duty to issue a notice in writing to the person from whom the property is seized or any other interest person. The notice has to be as regards the date of hearing of the confiscation proceedings so that the interested person or owner of the seized property has an opportunity of presenting his case before the Authorized Officer at the time of such hearing. 10. A perusal of the minutes of the proceedings recorded by the Authorized Officer shows that after the petitioner had filed an application for released of the seized property on 05.07.2006. The confiscation proceedings were initiated on 10.07.2006. No dates were fixed in the proceedings until 20.09.2006. On the said date it was recorded that a notice has been published in a local newspaper but nobody has come forward. Thereafter the matter came to be adjourned from time to time and on 11.10.2006, it was recorded that despite publication of notice in two newspapers, no person has come forward. Even thereafter the matter came to be adjourned from time to time and ultimately impugned order came to be passed on 07.11.2006. The minutes of proceedings do not even remotely suggest that any written notice was issued to the petitioner or any other interested person informing them about the date of hearing. Merely because petitioner had filed an application for release of the seized property does not mean that he was aware of the proceedings. The proceedings were, admittedly, initiated after the filing of the said application. Without any written information with regard to date of hearing of the confiscation proceedings, the petitioner could not be expected to have knowledge about the same. 11. So far as the publication of notices in newspapers is concerned, the same in the opinion of the Court does not fulfill the requirements of Section 26(4)(b) of the J&K Forest Act. Though Explanation-II to Section 26-B of the J&K Forest Act provides that by publication of the order of confiscation passed under Section 26 of the Act, a party is deemed to have the knowledge of the said order, yet there is no similar provision in Section 26 of the Act which relates to the confiscation proceedings of the seized property. Though Explanation-II to Section 26-B of the J&K Forest Act provides that by publication of the order of confiscation passed under Section 26 of the Act, a party is deemed to have the knowledge of the said order, yet there is no similar provision in Section 26 of the Act which relates to the confiscation proceedings of the seized property. Thus, while publication of a confiscation order is sufficient to impute knowledge of the same to the public, yet the knowledge of date of hearing of confiscation proceedings cannot be imputed to a person on the basis of publication of notice. For imputing such knowledge, provisions of Section 26(4)(b) of the Act are required to be followed. Mere publication of notice regarding date of hearing would not be sufficient enough to impute knowledge of the proceedings to the petitioner. 12. Apart from the above, the petitioner had staked his claim to the seized property by producing documents before the Authorized Officer. However, the Authorized Officer, without making any enquiry as regards the veracity of the claim of the petitioner and the veracity of the documents produced by him, has passed the impugned order of confiscation of the property in question. The Authorized Officer while making the order of confiscation has not even noticed this aspect of the matter. Opportunity of proving his claim was not allowed to the petitioner. All these factors have not been addressed by the learned Sessions Judge while confirming the order of confiscation in exercise of his revisional powers. 13. For the foregoing reasons, the impugned order of the Authorized Officer and the Revisional court cannot be sustained. The petition is, accordingly, allowed and the impugned orders passed by the Authorized Officer as well as by the Revisional Court are set aside. The case is remanded back to the Authorized Officer, who shall, after hearing the petitioner as well as the officer who has seized the property in question, pass orders in accordance with law. 14. The record of the Authorized Officer along with a copy of this order be sent back.