Jammu & Kashmir High Court
Mohd. Ashraf Dar vs State (Now Ut) Of Jammu & Kashmir on 5 March, 2026
2026:JKLHC-JMU:691
Sr. No. 101
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 499/2014
Res Reserved on:- 05.02.2026
Pronounced on:05.03.2026
Uploaded on:- 05.03.2026
1. Mohd. Ashraf Dar, Age 52 years
S/O Mohd. Shaban Dar.
2. Ghulam Hassan Dar, Age 65 years
S/O Ali Mohd. Dar.
3. Mohd. Jabbar Dar, Age 53 years
S/O Gh. Ahmed Dar,
All residents of Dogripura,
Tehsil and District Pulwama ....Petitioners
Through :- Mr. Jagpaul Singh, Advocate.
Versus
1. State (now UT) of Jammu & Kashmir
through Commissioner/Secretary,
J&K Forest Department,
Jammu.
2. Principal Chief Conservator of Forests
(Appellate Authority), J&K, Jammu.
3. Divisional Forest Officer
(Authorized Officer), Jammu.
4. Deputy Director, Forest Protection Force,
Gamma Unit-J1, Sidhra.
....Respondent(s)
Through :- Mr. Vishal Bharti, Dy. AG.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. The petitioners, through the medium of this petition, inter alia, have
prayed for the following reliefs:
(i) Commanding the respondent no.2 & 3 to release the
trucks/vehicles No.JK013B-4498, JK03B-9023 and JK13A-
4510 in favour of petitioners subject to any condition this
Court may deem fit and proper;
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(ii) Commanding on the respondents to pay the damages to the
petitioners as compensation for keeping the aforesaid
Trucks in their custody without any right or reason;
(iii) Any other order which this Court may deem fit and proper
in the circumstances of the case may also be passed in
favour of the petitioners.”
2. Facts giving rise to the filing of this petition, briefly stated, are that
the trucks bearing Nos. JK03B-9023, JK13A-4510 & JK13B-4498 owned by
the petitioners were seized by the Forest Protection Force (FPF) Jammu on
07.02.2012 at about 8.30 PM at National Highway Bye Pass Road near Sidhra
Bridge Jammu, loaded with unfinished willow clefts, being driven without
seeking due permission as provided under Section 3 of Willow (Prohibition on
Export) Act; that Forest Protection Force (FPF), Jammu seized the said trucks
under Sections 6, 13, 16 & 39 of the J&K Forest Act (Amended), 1997 and
Sections 3 and 5 of J&K Willow (Prohibition on Export and Movement) Act,
2000, with unfinished willow clefts, loaded in the said trucks; that Deputy
Director, Forest Protection Force intimated Divisional Forest Officer, Jammu
regarding the seizure of the said trucks alongwith the un-finished willow
clefts.
3. The Divisional Forest Officer, Jammu as Authorised Officer, after
intimating the learned Chief Judicial Magistrate Jammu and Conservator of
Forests East Circle Jammu, initiated confiscation proceedings in respect of the
said trucks and willow clefts; that the authorized officer after hearing the
parties, confiscated the said vehicles alongwith willow clefts on 04.04.2012;
that the petitioners challenged the order dated 04.04.2012 of the Divisional
Forest Officer (Authorized Officer) Jammu before the Chief Conservator of
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Forests, J&K, Jammu (Appellate Authority), who vide order dated 22.08.2012
upheld the order passed by the Authorized Officer.
4. Aggrieved of both the orders passed by Authorised Officer
confiscating the vehicles and by the Appellate Authority upholding the
confiscation order, the petitioners moved this court by way of filing OWP
Nos. 1244/2012, 1245/2012 & 1246/2012, wherein, as an interim direction,
this court on 09.11.2012 directed the respondent No.3- Authorised Officer, to
file personal affidavit with regard to the averments and the grounds taken by
the petitioners in their writ petitions; that pursuant to filing of detailed
affidavit by respondent No.3, the Court vide common judgment dated
31.12.2012 directed the respondent No.3 to pass fresh orders after considering
the objections and the material placed on record; that in compliance to the
judgment dated 31.12.2012, the respondent No.3 as Authorized Officer on
13.05.2013 observed that the seized willow clefts were being transported
outside the State, in violation of the provisions of The Willow (Prohibition on
Export and Movement) Act and again ordered for the confiscation of seized
willow clefts along with trucks in question.
5. Thereafter, the petitioners assailed the order dated 13.05.2013
passed by the respondent No.3 Authorized Officer before the Appellate
Authority i.e. respondent No.2 but much to the dismay of the petitioners, the
Appellate Authority vide its order dated 24.10.2013, upheld the confiscation
order dated 13.05.2013 passed by the respondent No.3 and dismissed the
appeal filed by the petitioners-appellants.
6. It is in this backdrop, the petitioners have approached this court by
way of filing the instant writ petition, assailing the impugned order, on the
following grounds:
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a. That the orders passed by the respondents are illegal and arbitrary in
nature as there is nothing on record to suggest that the willow clefts
in question were being transported either with knowledge or with
the consent of the owners of the vehicles;
b. that the petitioners have no knowledge about loading of the willow
clefts in their Trucks nor they know that the Trucks were proceeding
towards Kathua with Willow Cleft load;
c. that the impugned orders have been passed by the respondents in
clear violation of the relevant provisions of law i.e. Section 3 of The
Willow (Prohibition on Export and Movement) Act;
d. that the respondents have confiscated the trucks along with loaded
unfinished willow clefts in a casual and routine manner without
even bothering whether the willow clefts were being transported to
any place outside the State of J&K;
e. that the impugned orders are not passed on facts as required by law
nor are they supported by applicable law;
f. that there was no export of the willow clefts as they are seized within
the jurisdiction of State of J&K;
g. that the respondents have wrongly invoked Section 39 of the J&K
Forest Act, which pertains to presumption that the possession of the
Forest Produce is illegal but in the case of the petitioners, it is not
the forest produce rather it is willow clefts;
h. that no criminal action was initiated by the respondents against the
petitioners/drivers, at the time of alleged seizure, no FIR was lodged
against them and no criminal proceedings were initiated, therefore,
in absence of criminal proceedings, no confiscation proceedings
may have initiated.”
7. Pursuant to notices, objections on behalf of respondent nos. 1 to 3
stand filed, inter alia, contending that the petitioners have raised disputed
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questions of facts which cannot be decided in a writ petition, therefore, the
writ petition is not maintainable and deserved to be dismissed; that the seizure
of the trucks along with unfinished willow clefts illegally loaded in the
aforesaid trucks and subsequent proceedings are legal and valid and in
accordance with law; that no procedural or jurisdictional error has been
committed either of the Authorized Officer or appellate Authority, as well
reasoned order was passed by the Authorized Officer which was upheld by the
Appellate Authority; that this court cannot sit as appellate authority to decide
the settled issue raised in earlier writ petition of the petitioners when
conclusion arrived is based on sufficient and relevant material; that the
petitioners have approached this court with unclean hands and have
suppressed the material facts. Lastly, it is prayed that the writ petition be
dismissed being devoid of any merit and substance.
8. Learned counsel for the petitioners argued that no criminal
proceedings got initiated against the petitioners and therefore no case arises
for conviction; that the impugned orders have been passed by the respondents
in clear violation of the Willow (Prohibition on Export and Movement) Act,
more specifically, Section 3 of the Act; that there is nothing on record to
suggest that the willow clefts in question were being transported either with
the knowledge or with the consent of the petitioners, which is an important
ingredient required for confiscation of the trucks; that the willow clefts were
seized within the jurisdiction of State of J&K, therefore, there was no export
of the willow clefts outside the State of J&K and for the sake of argument,
even if it is assumed that the willow clefts were intended to be transported
outside the State of J&K, the alleged act of the drivers then would only
constitute preparation and not commission of the offence of exporting of the
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unfinished willows clefts in violation of the J&K Willow (Prohibition on
Export and Movement) Act, 2001. In support of his contentions, learned
counsel for the petitioners has relied upon the judgment reported as 2011 (4)
JKJ [HC].
9. Learned counsel for the respondents, ex adverso, has strongly
opposed the plea raised in the petition by the petitioners; that the petitioners
have raised disputed questions of fact, which cannot be decided in a writ
petition; that the respondent No.3 conducted a detailed inquiry in compliance
with the directions issued by this Court in OWP No.1244/2012 C/W OWP
No.1243/2012, OWP No.1245/2012, OWP No.1245/2012 and OWP
No.1246/2012 and filed an affidavit in which it was, inter alia, stated that
seized willow clefts, in question, were being transported illegally outside the
State of J&K in contravention of the provisions of the Jammu & Kashmir
Willow (Prohibition on Export and Movement) Act, 2000; that the said trucks
were without documents with regard to the goods contained in them; that the
respondent No.3, in compliance to the directions passed by this Court in
earlier writ petitions filed by the writ petitioners, passed fresh orders, after
following due procedure and after giving adequate opportunity to the
petitioners, but the petitioners failed to prove that the willow clefts were being
transported in accordance with law and there was no contravention of the
provisions of the J&K Willow (Prohibition on Export and Movement) Act,
2000.
10. Mr. Bharti relying upon the judgment of the Apex Court in a case
‘State of Madhya Pradesh & Ors. Versus Kallo Bai’ reported as (2017) 14
SCC 502 further argued that the criminal proceedings and confiscatory
proceedings are independent and parallel to each other, as such, confiscatory
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proceedings as conducted in the case, not being dependent on registration,
prosecution or conviction in a criminal case, cannot be questioned, particularly
in an admitted case that semi finished willow clefts were being transported,
without any transit permit from Kashmir valley towards Punjab, in
contravention of the Willow Act. Finally, it is prayed that the writ petition be
dismissed and the impugned orders be upheld.
11. Section 3 of the Jammu & Kashmir Willow (Prohibition of Export
and Movement) Act, 2000 provides for prohibition on the carriage and export
of willow. It will be convenient to extract the same for reference as under:
3. Prohibition on the carriage and export of willow-
Notwithstanding any provisions to the contrary contained in any
other law for the time being in force in the State and also
notwithstanding any order, decree and judgment of any Court and
any contract, practice or usage to the contrary, willow of any
species in any form shall not be carried or exported to [except
any place outside the State under general or specific orders of the
Government or of an authority designated by it for the purpose
and subject to such conditions as the Government may specify].
Section 4 of the Act deals with seizure and confiscation, which is also
reproduced for ready reference as under:
4. Seizure and confiscation.
(1) Any forest officer as defined, as such, in the Jammu and
Kashmir Forest Act, Samvat 1987, any police officer not
below the rank of Assistant Sub-Inspector and any officer not
below the rank of Manager of the District Industries Centre
designated for the purpose by the prescribed authority or any
other person specially empowered in this behalf by the
government may seize the willow and the carrier in which it is
being carried, if he finds or has reasons to believe that theOWP No. 499/2014 Page 7 of 18
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for export in violation of the provisions of Section 3 of this
Act.
(2) The willow and the carrier seized under sub-section (1) shall
be liable to confiscation, in the manner and in accordance
with the procedure to be prescribed by the Government.
12. As per section 3 of the Willow (Prohibition on Export) Act, it is
provided that the willow of any species in any form shall not be carried or
exported to, except any place outside the State under general or specific orders
of the Government or of an authority designated by it for the purpose and
subject to such conditions as the Government may specify. And as per Section
4 of the Act, it has been provided that any forest officer as defined as such in
the Jammu and Kashmir Forest Act, Samvat 1987, any police officer not
below the rank of Assistant Sub-Inspector and any officer not below the rank
of the Manager of the District Industries Centre designated for the purpose by
the prescribed authority or any other person or any other person specially
empowered in this behalf by the Government may seize the willow and the
carrier in which it is being carried, if he finds or has reasons to believe that the
willow is being carried for export or attempted to be carried for export in
violation of the provisions of Section 3 of this Act.
13. In Sub Section (2) of Section 4 of the Act, it has been provided that
the willow and the carrier seized under Sub Section (1) of Section 4 shall be
liable to confiscation, in the manner and in accordance with the procedure to
be prescribed by the Government. In exercise of powers conferred by Section
8 of the Act, the Govt. of Jammu & Kashmir vide SRO 308 dated 12.09.2003
in terms of sub-section (i) of Section 4 of Willow (Prohibition on Export) Act,
directed that the manner and procedure prescribed for confiscation, under
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Jammu & Kashmir Forest Act Samvat 1987 and the Rules made thereunder,
shall mutandis apply for purposes of sub-section (2) of Section 4 of the said
Act dealing with confiscation. Therefore, it is apparent on perusal of Section 4
of the J&K Willow Act that local Divisional Forest Officer as authorized
officer had powers to confiscate the willow and the carrier seized under sub
section (1) of Section 4. For the purpose of confiscation, the Govt. of J&K had
made the provisions of the J&K Forest Act, 1987 applicable, for confiscation
of the willow as well as carrier thereof.
14. There is a complete ban on movement and export of willow in any
form, from the State except with the permission of the Authority and a permit
for the purpose of export of willow clefts in semi finished form from the State
which can be issued by the competent authority and in view of the fact that
when the unfinished willow clefts, in all types of willows sawn, unsawn and
unfinished cleft form, except finished end products, cannot be carried or
exported. It is an admitted case that on 07.02.2012, willow clefts were
recovered from three vehicles JK013-B/4498, JK03B/9093 & JK13A/4510
owned by the petitioners, on National Highway near Sidhra Bridge Jammu
which were seized by Deputy Director, Forest Protection Force, who intimated
the same to Divisional Forest Officer, Jammu regarding the seizure of the said
trucks along with the unfinished willow clefts.
15. The Divisional Forest Officer, Jammu on receipt of the aforestated
information, being an authorized officer under the J&K Forest Act proceeded
to undertake the confiscation proceedings and vide order dated 04.04.2012
confiscated the vehicles owned by the petitioners who challenged the same in
statutory appeal before the Chief Conservator of Forests, J&K, Jammu, who
dismissed the appeal vide order dated 22.08.2012 upholding the order passed
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by the authorized officer which was challenged before this Court in three writ
petitions filed by the petitioners in the year 2012 and this court vide order
dated 09.11.2012 directed authorized officer to file personal affidavits and
later on, vide common judgment passed in all the petitions on 31.12.2012
authorized officer was directed to pass fresh orders, after considering the
objections and the material placed on record. The authorized officer after
consideration of the matter, again ordered the confiscation in terms of order
dated 13.05.2013, which on being assailed before appellate authority was
upheld vide order dated 24.10.2013.
16. The procedure for confiscation which has been made applicable to
the J&K Willow (Prohibition on Export and Movement) Act, 2000 with regard
to confiscation is Section 26 of the Forest Act, being relevant for the
convenience of reference is extracted 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
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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.
(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.
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17. The procedure provided under Section 26 of the Forest Act with
regard to confiscation is also subject to Section 28 of the Act, which provides
as to how seized forest produce, tools, etc. which are not government property
are to be dealt with.
Section 28 of the Forest Act reads as under:
“28. Forest produce, tools, etc, when liable to confiscation.-
All timber or forest produce which in either case is not the
property of the Government and in respect of which a forest
offence has been committed and all tools, boats, carts motor
vehicles, machines, ropes, chains, equipments, arms, cattle or any
other articles in each case used in committing any forest offence
shall, subject to the provision of Sections 26, 26-B and 26-C, be
liable to confiscation upon conviction of the offender for such
offence.
Such confiscation may be in addition to any other
punishment prescribed for such offence.
18. The government property in respect whereof offences under the
Forest Act alleged to have been committed, is open to confiscation even
before conviction under the Forest Act, has been held by this Court in the case
titled ‘State of J&K v. Thakur Motors & Anr‘, (2011 (4) JKJHC). Para 19 of
the aforesaid decision being relevant is reproduced here under:
“19. The view taken by the learned Sessions Judge that
confiscation of timber was permissible only after
conviction for offences under the Forest Act, is on the face
of it, erroneous, in that, the provisions of Section 28 of the
Forest Act, referred to by the learned Judge, are subject to
the provisions of Section 26 of the Act, in terms whereof
confiscation of Government Property in respect whereof
offences under the Forest Act appear to have been
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committed, is open to confiscation, even before conviction
under the Forest Act.”
19. The seized Willow clefts in the case on hand were not Government
property, as such, the confiscation proceedings U/S 26 of the Forest Act are to
be subject to Section 28 of the Forest Act, which provides the mechanism as
to how seized property including the carrier are to be dealt with, while
exercising confiscatory jurisdiction by the Authorized Officer. Section 28 of
the Forest Act, explicitly provides that the seized property and the carrier are
to be confiscated, upon conviction of the offender for such offence.
20. As is borne out of the pleadings and the submissions made, the
factual background of the case is that willow clefts in semi-finished form
were found to be transported in the vehicles of the petitioners, without any
permission or transit transportation permit from the competent authority,
which were seized on 07.02.2012 loaded in petitioners’ trucks at Sidhra
Jammu on National Highway on way to Punjab by Forest Protection Force
and the matter was reported to Authorized Officer. The Authorized Officer,
on his part, informed learned Chief Judicial Magistrate Jammu, regarding his
intent to initiate confiscation proceedings. It is an admitted case that the
matter was not reported to Police for investigation, as such, no criminal case
was registered.
21. On a harmonious construction of Sections 3 and 4 of the Willow
(Prohibition on Export) Act 2000 read with SRO 308/2003 dated 12.09.2003
and Sections 26 and 28 of the J&K Forest Act, it crystallizes that the
confiscatory jurisdiction can be exercised by the Authorized Officer, upon
conviction of the offender and not earlier to it or without it. The Apex Court
in a case titled ‘Principal Chief Conservator of Forests Vs. J. K. Johnson‘,
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reported as AIR 2012 SC 61 has been pleased to hold that the provisions of
the Act do not permit Specified Officer to deal with the property seized for
commission of the offence until and unless final decision in the criminal
proceedings are not taken. The legislative intent must have been to confiscate
the vehicle after trial in respect of offence committed under the Act is over.
Before that confiscation may prejudicially affect the property and its owner. If
as contended in the impugned order, seizure of property merely on accusation
would make the property confiscated, it would have the result of depriving an
accused of his property without proof of his guilt. This interpretation would
mean that a specified officer under the Act merely be seizure of property of an
accused would deprive him of his property which he might be using for his
trade, profession or occupation. This would be a serious encroachment on the
fundamental right of a citizen under Article 19(1)(g) of the Constitution to
carry on his trade, occupation or business.
22. 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. Same is the case with the vehicle being
decayed and got rusted after confiscation, if subsequently, the accused is
acquitted from the allegations of forest offence in the criminal trial. Therefore,
the legislative intent is clear that the confiscation proceedings can only be held
and culminated after criminal trial for commission of forest offence is over.
Initially a Full Bench of Hon’ble Madhya Pradesh High Court in the case of
Madhukar Rao laid down the principle, that once the criminal case was
pending, confiscation proceedings should not be held and finalized. The
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judgment rendered by the Full Bench was affirmed by the Supreme Court in
the case of ‘State of M.P. V. Madhukar Rao‘ holding that the provisions of
Section 50 of the Wild Life (Protection) Act, and the amendment made to the
said Act [Section 39 (1) (d)] do not in any way affect the powers of the
Magistrate to pass interim order with regard to release of the vehicle and it is
further held that when the criminal case is pending, final order with regard to
confiscation, of the vehicle should not be passed. This principle laid down in
the case of Madhukar Rao was again reiterated and affirmed by the Supreme
Court in the case of ‘Principal Chief Conservator of Forests Vs. J. K.
Johnson‘, AIR 2012 SC 61 holding that the provisions of Act do not permit
Specified Officer to deal with the property seized for commission of the
offence until and unless final decision in the criminal proceedings are not
taken.
23. The contention of the learned State counsel and reliance on the
judgment of State of Madhya Pradesh & Ors. Versus Kallo Bai [2017 (4) SCC
502] that confiscation of vehicle prior to conviction in criminal trial is
permissible, seems to be misplaced, for the reason that the aforestated
enunciation has been in view of the provisions of Madhya Pradesh Van Upaj
(Vyapar Viniyam) Adhiniyam, 1969, wherein independent power of
confiscation to authorized officer even prior to establishment of guilt by the
criminal court has been given by Section 15. There is no such provision in the
J&K Forest Act, for a non-governmental property, seized as in the case on
hand, as provided in Section 28 of J&K Forests Act 1987. In the cases, where
seized forest produce, is a government property, the confiscation can be
ordered by the authorised officer, in independent or parallel confiscatory
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proceedings to criminal proceedings, even before culmination of criminal trial
or recording of conviction of the offender.
24. The criminal prosecution is distinct from confiscation proceedings.
The two proceedings are different and parallel, each having a distinct purpose.
The object of confiscation proceeding is to enable speedy and effective
adjudication with regard to confiscation of the produce and the means used for
committing the offence while the object of the prosecution is to punish the
offender. The scheme of the J&K Forest Act prescribes an independent
procedure for confiscation, in case, the seized produce is a government
property, while as after conviction in the criminal case in case of a private
property, regarding which, the offence may have been committed. The
intention of prescribing separate proceedings is to provide a deterrent
mechanism and to stop further misuse of the vehicle etc.
25. Protection of forests against depredation is a constitutionally
mandated goal exemplified by Article 48-A of the Constitution of India, which
provides that ‘the State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country’. Besides,
the aforesaid Directive Principle of State Policy, a fundamental duty upon
every citizen is cast which is incorporated in sub-clause (g) of Article 51-A of
the Constitution of India, which provides ‘it shall be the duty of every citizen of
India to protect and improve the natural environment including forests, lakes,
rivers and wildlife, and to have compassion for living creatures’. The avarice
of humankind through the ages has resulted in an alarming depletion of the
natural environment. The consequences of climate change are bearing down on
every day of our existence. Statutory interpretation must remain eternally
vigilant to the daily assaults on the environment. By isolating the confiscation
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of forests produce and the instruments utilized for the commission of an
offence from criminal trials, the legislature intended to ensure that confiscation
is an effective deterrent. The absence of effective deterrence was considered by
the legislature to be a deficiency in the legal regime, therefore, the provisions
with regard to confiscation are an effective tool for protecting and preserving
environment and these provisions must receive a purposive interpretation. For,
it is only when the interpretation of law keeps pace with the object of the
legislature that the grave evils which pose a danger to our natural environment
can be suppressed.
26. Having regard to the foregoing reasons and observations made in the
discussion hereinabove, this court, on its considered view, draws following
conclusion:
(i) Authorized Officer is competent to pass order of confiscation
with regard to seized forest property, implements and its carrier,
in independent and parallel proceedings to the criminal
proceedings, without waiting for the conclusion of trial or
conviction of the offender by the court of Magistrate, when forest
offence is in respect of government property.
(ii) 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.
27. In the aforesaid backdrop, it is held that in the case of non-
governmental property as the Willow clefts in the case on hand, confiscation
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2026:JKLHC-JMU:691
proceedings cannot be finalized or confiscation order passed, until the
conviction of the offenders in the case.
28. Viewed thus, as there was admittedly neither registration of
criminal case, nor conviction of the offenders, as such, the confiscatory
proceedings finalized by the Authorized Officer vide impugned orders with
regard to petitioners’ vehicles being confiscated, were not legal or sustainable,
without recording of conviction of the offenders.
29. As a result, the petition is allowed and the impugned orders passed
by the Authorized Officer as well as Appellate Authority are hereby quashed
and the petitioners’ vehicle Nos. JK03B-9023, JK13A-4510 and JK13B-4498
are ordered to be finally released in their favour. The petition is, accordingly,
disposed of, alongwith application(s).
( ) (M.A. Chowdhary)
Jammu: Judge
05.03.2026
Raj Kumar
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
OWP No. 499/2014 Page 18 of 18