Excelsior Correspondent
SRINAGAR, Dec 31: High Court today said that the confiscation of property cannot be done unless the intimation in writing is issued to the persons from whom the property is seized.
Justice Sanjay Dhar set aside the orders of the authorized officers as well as the Revisional court whereby the movable property of the aggrieved persons was ordered to be confiscated and observed these orders 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”, Justice Dhar said.
Court said 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.
Court said the impugned notice in the opinion of the Court does not fulfil the requirements of Section 26(4)(b) of the J&K Forest Act. Though 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”, Justice Dhar said.
Dealing in the instant case, court added that no doubt petitioner had filed an application before the Authorized Officer seeking release of seized vehicle and 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. 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”, read the judgment.
Petitioner Abdul Salam Bhat had approached the court challenging the order of Authorized Officer of Forest Department, whereby his vehicle and the timber found therein was confiscated which was later upheld by the Principal Sessions Judge, Budgam.
The facts of the case is that the vehicle belonging to the petitioner was seized by the staff of the Forest Department as the said vehicle was found carrying illicit timber and the petitioner approached the Authorized Officer through the medium of an application seeking release of the seized vehicle and the timber. The Authorized Officer directed for initiation of confiscation proceedings under Section 26 of the Forest Act to Chief Judicial Magistrate, Budgam.
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