State Of Jammu & Kashmir And Others vs Sushma Devi

MA Chowdhary, J

The petitioners, through the medium of this writ petition under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu & Kashmir, have assailed an order dated 07.05.2007 (impugned order) passed by learned Sessions Judge Udhampur (hereinafter called ‘revisional court’) whereby in Criminal Revision No.15/2006 titled Sushma Devi v. State & Anr. quashed the order dated 19.12.2006 passed by petitioner no.2-Divisional Forest Officer, Udhampur Forest Division in terms of which vehicle No.JK02W-7382 (Tipper) owned by the respondent Sushma Devi was confiscated under Section 26 of the Jammu & Kashmir Forest Act, 1987 for having been used in the commission of offences under the Forest Act as the vehicle was found having been used for transporting Resin Tins from Panchari Range illegally.

The impugned order has been assailed on the ground that the Revisional Court had passed the order on some presumptions of not having served notice of confiscation to the registered owner of the vehicle even though notice issued had been published in two leading daily newspapers but the respondent chose not to appear before the authorized officer i.e. DFO, Udhampur Forest Division on the appointed dates; that once the vehicle was confiscated by the authorized officer, the respondent emerged on the scene and put up a case that she was totally unaware of the confiscation proceedings, whereas fact of the matter was that she had no answer to the question, as to why she did not appear before the authorized officer after the publication of the news item; that even if something wrong was found by the Revisional Court, the order was required to be quashed but by virtue of the impugned order the Revisional Court had also released the Tipper in question, thereby barging into the exclusive domain of the authorized officer.

Pursuant to notice, the counter affidavit was filed by the respondent raising a legal objection to the filing of this petition by a quasi judicial authority and without having been authorized by the government, as an authority cannot maintain a writ petition in view of law laid down by Hon’ble the Apex Court in 2007 (8) SCC 254. It has also been pleaded that no summons or notice had been issued to the respondent as owner of the seized vehicle as she had no role in any offence committed by one Govind Ram who had hired the vehicle from respondent; that the proceedings initiated and conducted by the authorized officer were at the back of the respondent, as such, she had no knowledge of the confiscation proceedings; that the notice purported to have been issued in newspaper, on a bare look cannot be termed as a notice, as it was only a news item. Moreover, the respondent was not conversant with English language and can neither read nor understand the same; that the confiscation proceedings conducted at the back of the respondent were violative of the principles of natural justice besides being violative of statutory protection available to an owner of vehicle under Forest Act. It was finally prayed that the petition be dismissed.

Mr. Vishal Bharti, learned Deputy Advocate General appearing for the petitioners vehemently argued that the Revisional Court by passing the impugned order has not followed the law inasmuch as it had overlooked the notice published in the two newspapers to which the respondent as registered owner of the vehicle had not responded and held that there was no service of notice on the registered owner. He further argued that the Revisional Court has committed a grave error in law by saying that the notice published in the two newspapers was not a notice in its true sense to which the respondent could have responded. He finally argued that even if the order passed by the authorized officer was not tenable, the course available to the Revisional Court was to set aside the order and remand the case for fresh consideration after proper service of the notice on the registered owner of the vehicle. He has prayed that the order impugned passed by the Revisional Court be set aside and the order passed by the authorized officer be maintained.

Mr. L K Sharma, learned senior counsel appearing for the respondent, on the other hand, vehemently argued that the impugned order has been passed by the Revisional Court, perfectly in consonance with law and does not warrant any interference by this court while exercising writ jurisdiction. He has further argued that the Revisional Court has rightly decided the case holding that the notice was not served upon the registered owner of the vehicle, as such, the confiscation in absence of right of being heard could not be sustained and has rightly been quashed. Without disputing the preposition that in view of the order having been passed by the authorized officer in absence of service of notice upon the respondent as owner of the confiscated vehicle for the revisional court to remand the case to the authorized officer for passing an order after affording opportunity of being heard to the respondent. However, he further stated that the vehicle in question now having been seized in 2006 was now more than 15 years of age and such a vehicle would have become scrap as it had outlived its age, therefore, even this court holds that the revisional court was not proper in not remanding the case, the same is not now practicable.

Heard, perused and considered

Factual matrix of the case is that Tipper No.JK02W-7382 having been registered in the name of respondent Sushma Devi was hired by one Govind Ram on monthly charges and he was driving the Tipper himself; that during the night patrolling on 24.08.2006 on Kainthgali Mongri road, the said Tipper was found carrying 466 tins filled with resin by Range Officer Anil Magotra and other forest officials Mohd. Ashrif Chandel and Mr. Amar Nath Bhagat. The vehicle was seized and reported to Divisional Forest Officer who as authorized officer under the Forest Act informed Chief Judicial Magistrate, Udhampur as required under Section 26(4-A) of the Forest (Amended) Act, 1997 with regard to his intention for confiscation proceedings so that the vehicle is not released by the court; that after completing the inquiry, the vehicle in question was confiscated by the authorized officer vide order dated 19.12.2006 when nobody claiming as owner or having interested in the vehicle appeared before him.

After confiscation of the vehicle by the authorized officer, the respondent Sushma Devi, moved criminal revision petition before the Sessions Court Udhampur and vide impugned order dated 07.05.2007, the order passed by the authorized officer was not only quashed but the vehicle in question was also ordered to be released in favour of the owner along with seized documents if any.

In Criminal Revision Petition No.15/2006, the respondent as petitioner had raised many issues but the main point of consideration was that no notice of confiscation proceedings had been served upon her before confiscating her vehicle. The petitioners herein took a plea that the notice shall be deemed to have been served upon the respondent having been published in two daily newspapers, as such, this plea cannot be raised. The revisional court, however, did not agree with the submission made on behalf of the forest department and the order impugned passed by the authorized officer was set-aside.

It is an admitted case that no notice was issued or served personally upon the respondent who was the registered owner of the seized vehicle before its confiscation. The assertion of the petitioners that the notice published in two daily newspapers should have been deemed to have been served upon the respondent is also not a correct position in view of the fact that on perusal of the cutting of the newspapers placed across the file, it appears that some news items have been published. The notice even if to be published in a newspaper should be directed to the name of a person when it is known and in view of vehicle having been seized it was incumbent upon the authorized officer to verify about its registered owner and the notice should have been directed to the registered owner firstly through ordinary mode and in case of not responding, the same could have been issued through publication in a newspaper which could be stated to have been served on her.

The authorized officer has not followed the procedure as recognized by law for service of process, therefore, the revisional court had rightly set aside the order passed by the authorized officer. The only question is whether after setting aside the confiscation order what could be the future course of action required to be adopted by the revisional court. Legally the matter should have been remanded to the authorized officer to pass fresh orders after serving notice upon the registered owner and affording her of a reasonable opportunity of being heard which has not been resorted to by the revisional court, however, in view of the fact that the confiscation order was passed in 2006 and the revisional court had quashed the same in the year 2007 with regard to the vehicle which may have been purchased much earlier by the registered owner, therefore, now the age of the vehicle would have been such that the same was not to be plied on roads under Motor Vehicle Act. Therefore, resorting to that option by this court is also not remotely possible now.

Having regard to the afore-stated discussion and the reasons stated hereinabove, the petition is found to be without any merit and substance and is hereby dismissed along with connected application(s). Interim direction, if any, shall stand vacated. Confiscation proceedings file received from DFO, Udhampur be returned to him through learned Dy. AG.

Petition along with pending application(s) is thus disposed of as dismissed.