Mohd. Ashraf Dar vs State (Now Ut) Of Jammu & Kashmir on 5 March, 2026

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    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:

    SPONSORED

    (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 the

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    willow is being carried for export or attempted to be carried
    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

    OWP No. 499/2014 Page 16 of 18
    2026:JKLHC-JMU:691

    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

    OWP No. 499/2014 Page 17 of 18
    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
     



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