J&K Govt Must Prescribe Procedure For Willow Act Confiscations After Forest Act Repeal: High Court

The Jammu & Kashmir and Ladakh High Court has observed that if the Government is serious about effectively enforcing the Jammu & Kashmir Willow (Prohibition of Export and Movement) Act, 2000, it must urgently bridge the legislative vacuum by prescribing a statutory procedure governing seizure and confiscation of willow and vehicles used in alleged violations.Holding that enforcement of a penal statute cannot rest on an undefined administrative mechanism, the Court directed the Forest Department to submit a proposal to the Government within eight weeks for issuance of an appropriate Notification or Standing Order prescribing the manner in which seized property is to be dealt with. While quashing the confiscation of 6,150 willow clefts and a transport vehicle, the Court held that following the repeal of the J&K Forest Act, 1987 after the J&K Reorganisation Act, 2019, the Government failed to prescribe a fresh confiscation procedure under Section 4(2) of the Willow Act, rendering the confiscation proceedings legally unsustainable. Justice M.A. Chowdhary delivered the common judgment allowing two connected writ petitions filed by Mymoona Sports and M/s Jammu Indore Roadways, challenging the confiscation of willow clefts and Truck by the Forest Department. The case arose after officials at the Anti-Polythene Check Post, Lakhanpur, intercepted a truck transporting 6,150 willow clefts from Pulwama to Meerut on 12 December 2023. According to the Forest Department, although the consignor had obtained permission relating to Populus species, the e-way bill reflected transportation of willow clefts, while the driver allegedly failed to produce documents authorising export of willow outside the Union Territory. The willow clefts and the truck were consequently seized. Confiscation proceedings were thereafter initiated under the J&K Willow (Prohibition of Export and Movement) Act, 2000 read with the Indian Forest Act, 1927. Although an earlier confiscation order was remanded by the revisional court for fresh consideration, the Authorised Officer again ordered confiscation on 14 October 2024, which was subsequently affirmed by the Principal Chief Conservator of Forests in appeal. Before the High Court, the petitioners contended that no criminal case had been registered under the Willow Act, that the confiscation proceedings lacked statutory authority after repeal of the J&K Forest Act, and that no fresh notification had been issued prescribing the confiscation procedure under Section 4(2) of the Willow Act following the enactment of the J&K Reorganisation Act, 2019. The respondents defended the confiscation, contending that the seizure was lawful and relying upon the Supreme Court's decision in State of Madhya Pradesh v. Kallo Bai, arguing that confiscation proceedings are independent of criminal prosecution. Court's ObservationsThe High Court examined the scheme of the Willow Act and observed that while Section 4(2) authorises confiscation of seized willow and the carrier, it expressly requires that confiscation be carried out "in the manner and in accordance with the procedure to be prescribed by the Government." The Court noted that prior to the constitutional reorganisation of Jammu and Kashmir, the Government had issued SRO 308 of 2003, which adopted the confiscation procedure contained in the erstwhile J&K Forest Act, 1987. However, once that statute stood repealed and replaced by the Indian Forest Act, 1927, no fresh statutory notification or standing order was issued prescribing the procedure contemplated under Section 4(2) of the Willow Act. Justice Chowdhary observed that the confiscation mechanism under the Indian Forest Act could not automatically be imported into the Willow Act in the absence of an express notification issued by the Government. The Court observed,"Though there are provisions made in the Indian Forest Act in Chapter IX for seizure, confiscation and procedure thereof, however, those provisions cannot, ipso facto, be applied to the procedure to be adopted under the J&K Willow (Prohibition on Export and Movement) Act, 2000 without any rule or standing order in this behalf." The Bench therefore held that the confiscation proceedings themselves lacked legal foundation. It observed,"...the proceedings of the confiscation of the seized Truck and the Willow Clefts was illegal, ab initio, without any legal backing with regard to the procedure." The Court also clarified the distinction between confiscation proceedings relating to Government property and private property. It held that while the Authorised Officer may independently confiscate Government forest produce pending criminal proceedings, confiscation of non-government property cannot ordinarily be finalised until the offender stands convicted by the competent criminal court. The Bench further observed that permitting confiscation merely on the basis of seizure, without trial or conviction, could unjustifiably deprive citizens of property used...

J&K Govt Must Prescribe Procedure For Willow Act Confiscations After Forest Act Repeal: High Court

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J&K Govt Must Prescribe Procedure For Willow Act Confiscations After Forest Act Repeal: High Court

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