Deputy Director, Forest Protection Force vs Ravi Singh and Another

B.L. Bhat, J.—Through the medium of petition in hand, the petitioner has sought indulgence of this Court for quashing the order recorded by

the learned Sessions Judge, Kathua dated 10-12-2001 whereby it came to release vehicle No. JKO2B-6135 on superdnama of the respondent.

The factual matrix of the case are that on 30-11-2001 a patrolling party of Forest Protection Force came to seize vehicle No. JKO2B-6135 at

Hatli Morh, Kathua along with 180 bags of Charcoal loaded in it, when on demand the driver of said vehicle and its owner Vijay Singh failed to

produce any document regarding the transportation of said charcoal loaded in the said truck. The seizure appears to have been reported to Chief

Judicial Magistrate, Kathua on 30-11-2001 and to the Divisional Forest Officer, Kathua for the confiscation of the seized property. It further

appears that on 1-12-2001 one Ravi Singh approached the learned Sessions Judge, Kathua for the release of said vehicle allegedly used in the

commission of the forest offence. The learned Sessions Judge by virtue of the impugned order came to order the release of this vehicle on

superdnama of its registered owner or duly authorised attorney after holding that he has jurisdiction to deal with the matter.

Heard the learned counsel for the parties.

Section 26 of the Jammu & Kashmir Forest Act (Act No. XI of 1987) hereinafter referred to as 'The Act' deals with the seizure of property

liable to confiscation. Under Sub-section (1) of this Section when Forest Officer which includes any member of Forest protection Force or a

concerned police officer has a reason to believe that a forest offence has been committed in respect of the forest produce, such an officer is

empowered to seize such forest produce together with all tools, arms, boats, carts, equipments, ropes, chains, machines, vehicles or any other

article used in committing such offence. Under Sub-section (2) of this section, after making such seizure he is required to place on such property a

mark indicating that the same has been seized and shall as soon as possible make report of such seizure to the concerned Divisional Forest Officer

who shall be the Authorised Officer to confiscate the said property after recording his satisfaction with respect to this property that forest offence

has been committed or that it has been used for the commission of such offence. Under Sub-section (4) of this section, such an Authorised officer

before making an order for the confiscation of such property he is required to make intimation of the confiscation proceedings to the Magistrate

having jurisdiction to try such offence and also to issue notice to the persons from whom the property has been seized or to any person having

interest, in such property as to why this property may not be confiscated. Section 26-A of the Act, empowers a Forest Officer not below the rank

of Range Officer having reason to believe that forest produce is in possession of a person in contravention of the Act may enter such place with the

object to carry out its search and its confiscation. u/s 26-B of the act, any party aggrieved by an order of confiscation passed u/s 26-A of the Act

may within 30 days of the order or if facts of the confiscation have not been communicated to him, within 30 days of knowledge of such order can

file a petition for revision to the court of Sessions Judge whereof the headquarters of authorised officer are situated. The Court of Sessions to

whom revision is preferred is empowered to confirm, reverse or modify any final order of consequential nature passed by the authorised officer

with respect to the seized property. Sub-section (1) of Section 26-C of the Act expressly bars the jurisdiction of Courts etc. under certain

circumstances. This sub-sec. Provides that :--

On receipt of report under Sub-section (4) of Section 26 about intimation of proceedings for confiscating the property by the Magistrate having

jurisdiction to try the offence on account of which the seizure of property which is subject matter of confiscation, has been made, no Court.

Tribunal or Authority (other than Authorised Officer and Court of Sessions referred to in Section 26 and (26-B) shall have jurisdiction to make

orders with regard to possession, delivery, disposal or distribution of the proceeding for confiscation are initiated u/s 26, notwithstanding to the

contrary contained in this Act, or any other law for the time being in force.

From the plain reading of this subsection, it is manifestly clear that no Court, Tribunal or Authority other than the Authorised Officer to whom

the seizure is reported u/s 26(2) and is exercising his powers under Sub-section (3) of Section 26 and the Court of Sessions before whom motion

of revision in this behalf u/s 26-B of the Act has been made have jurisdiction to make orders with regard to possession, delivery, disposal or

distribution or the property in regard to which proceedings for confiscation u/s 26 have been initiated. Having regard to this law, on examination of

the case in question, it is found that after he seizure of 180 bags of illicit charcoal and the vehicles No. JK02B-6135 in respect to which it is alleged

that this vehicle has been used for the commission of the forest offence, a report of the seizure has been made to the Magistrate and also the

authorised officer for initiation of confiscation proceedings. The Authorised Officer has yet to pass any order of confiscation and no revision under

Sub-section (1) of Section 26-B has been yet preferred by the petitioner in this behalf before the Court of Sessions, therefore, u/s 26-C the Court

of Sessions had no power to pass any order with respect to disposal of the seized property. The Court of Sessions as indicated is competent to

pass such orders only in exercise of its revisional jurisdiction u/s 26-B of the Act. This being so, the learned Sessions Judge, Kathua has patently

misinterpreted Section 26-C of the Act as a result of which he has come to pass the impugned order with respect to seized vehicle in question

when no revision u/s 26-B was pending in this behalf before him. Therefore, the order impugned is patently perverse, illegal is a clear abuse of

process of law. The citations relied by the Sessions Judge, Kathua in the impugned order are not applicable to the case.

Viewed thus, the impugned order recorded by the learned Sessions Judge, Kathua is liable to be quashed and is accordingly quashed.

Both the Courts below and the Authorised Officer i.e. Divisional Forest Officer, Kathua be intimated about this order.