OWP/1244/2012 of MOHAMMAD ASHRAF DAR Vs STATE TH.FOREST DEPTT.AND ORS. on 31 December 2012

HIGH COURT OF JAMMU AND KASHMIRAT JAMMU.

OwWP No. 1244/2012 CMA No. 1728/2012&

OwWPRP No. 1243/2012 CMA No. 1727/20OwWPRP No. 1245/2012 CMA No. 1729/20OwWPRP No. 1246/2012 CMA No. 1730/20

Date of Decision: 31.12.2012

Mohd. Ashraf Dar.\V.State of J&K & ors.(shulam Hassan Dar.VV.State of J&K & ors.Mohd. Jabar Dar. \V.State of J&K & ors.Shams —ud-din..\V.State of J&K & ors.

CORAM:

Hon’ble Mr. Justice J. P.SINGH, Judge.

Appearing counsel:ForPetitioner(s) 2Mr. Rizwan-ul-Zaman, Advocate.Hor Res*ondent"S#: Mr. G. S. Thakur(Advocate Finished and unfinished Willow Clefts belonging toShams-ud-Din proprietor of M/s Shah Hamdan Willow,Clefts and Cricket Bat, Dogripora Pulwama, loaded 1n)Truck Nos. JK13A/4510, JK13B/4498 and JKO0O3B/902belonging to Mohd. Jabar Dar, Mohd. Ashraf Dar andGhulam Hassan Dar respectively, were intercepted byDeputy Director Forest Protection Force, Jammu, atSidhra-Jammu.

Finding that the Willow Clefts were being transportedfor their export out of State, the Deputy Director, ForestProtection Force, Jammu, informed the Divisional Forest)Officer, Forest Division Jammu of the seizure of WillowClefts and Trucks.

The Divisional Forest Officer, Forest DivisionJammu, the authorized officer under the Willow(Prohibition on Export and Movement) Act 2000, held|confiscation proceedings on the seizure report of Deputy,Director Forest Protection Force and vide his orders dated|04. 04.2012 ordered confiscation of the Trucks along withfinished and unfinished Willow Clefts finding that thesewere being exported out of the Jammu and Kashmir State,an act forbidden under Willow (Prohibition on Export andManufacture) Act, 2000.

Appeals preferred against the orders of theAuthorized Officer having been dismissed by the PrincipalChief Conservator of Forests, J&K Srinagar, the AppellateAuthority, vide its order dated 22.08.2012, the owners ofthe Willow Clefts and the Trucks, invoked Extra OrdinaryWrit Jurisdiction of this Court to question the confiscation|orders passed by the Authorized Officer as also the orderspassed by the Appellate Authority. |

To examine the veracity of pleadings of thepetitioners in all these Petitions, this Court vide its orderdated November 9, 2012 issued following directions to theAuthorized Officer:-|

“Divisional Forest Officer (Authorized Officer), Jammu is directed to personally enquire and certify: (a). As to whether Zahoor Ahmad Dar S/o Gh. Ahmad Daris running business of manufacturing cricket bats in hisfactory situated at Hathlimore, Kathua and when he hasestablished thefactory at the said place; (b). In case answer to (a) is in affirmative, then theDivisional Forest Officer (Authorized Officer), Jammu tolook into records of said Zahoor Ahmad Dar to find out as’to whether in Ledgers/record, which is/are maintained by him in the course of conducting his business, anytransaction in respect of the purchase of semi finishedwillow clefts is recorded in such books;

(c) The Divisional Forest Officer (Authorized Officer),Jammu to personally inspect the record with reference tothe pleadings of the Writ Petition and prepare a memothereof, (dq) The said Authority to further obtain necessarydocuments from the Industries Department and concernedauthorities; ”

In Response to the directions, the Authorized Officer has filed Affidavit concluding as under:- “CONCLUSION:- From the above quoted details and theperusal of record provided by the different agencies thefollowing conclusions have been drawn.

a.The unit M/s Gateway Sports Industries, G. T. Road|Hatlimore Kathua is duly registered with the District|Industries Centre.Kathua.with.RegistrationNo.|0705037009 dated 24.07.1997 in the name of Sh. Zahoor|Ahmed Dar S/o Ghulam Ahmed Dar with annual|assessment of 1O8O00 Nos of unfinished willow clefts for|the manufacture/processing of Cricket Bats, Cane Handlesand Cricket Stumps.

b,The unit holder has neither cooperated nor provided|relevant records for the procurement of willow clefts for|the year 2011-12 despite repeated attempts by the|undersigned. As such, the transaction in respect of|purchase of semi finished willow clefts by the M/s|Gateway Sports Industries, G. T. Road Hatlimore Kathua|for the year 2011-12 could not be ascertained. The unit|holder, however, has admitted non availability of records|on pretext of being lying with the Chartered Accountant|and lawyer for Income Tax purpose.

C.As mentioned is para (b), above since the unit holder did|not provided the required records, the undersigned could|not prepare the memo with respect to the writ petitions|filed..

qd(1) From the records provided by the District Industries|Centre Kahtua, it 1s concluded that unit holder had_purchased and transported 105000 Nos of unfinished|willow clefts from Kashmir Valley to his unit M/s|Gateway Sports Industries, G. T. Road Hatlimore Kathua|during 2011-12 as per the different permits issued by the|competent authority of the District Industries Centre|Kathua and subsequently under Divisional Forest Officer,Lidder Forest Division (Bijbihera) order for issuance ofForm 25. The receipt of entire consignment of|semi/unfinished willow clefts to the tune of 10SOO0O Noshas also been further verified by the District Industries|

Centre Kathua in the premises of the unit holder at|Kathua.

It can be safely concluded that the semi/unfinished willowclefts to the tune of 13340 Nos seized on 07.02.2012 by|the Forest Protection Force and subsequently confiscated|by the Authorized Officer (Divisional Forest Officer|Jammu) as the prescribed authority under law, were not|meant for the M/s Gateway Sports Industries, G. T. Road|Hatlimore Kathua. The Unit M/s Gateway Sports|Industries, G. T. Road Hatlimore Kathua had already|procured 10500 Nos of semi/unfinished willow clefts for|the year 2011-12 and addition of the 13340 Nos of seized|willow clefts would have crossed the sanctioned annual|capacity of 108000 Nos of willow clefts for the unit|holder by the District Industries Centre Katua.

(11) There 1s no permit issue by the District Industries|Centre Kathua for the procurement of 13340 Nos. seized|semi/unfinished willow clefts as it has been proved from|the records obtained from the District Industries Centre|Kathua.

(111) Further, the perusal of the Excise and Taxation|Ofticer Commercial Taxes Department Lower Muna,|Kashmir letter No:- 349-50/LM/CT dated 07.12.2012)clearly speaks of the facts that the vehicles bearing|registration Nos. JK13A/4510 and Jk03B/9023 have not|approached his office for clearance of the documents with|regard to the goods contained in the vehicles and the|stamp appended on the invoice bearing Nos 93 & 95 dated|06.12.2012 1s fake which clearly shows that the willow|cleft supplier attempted to transport 13340 Nos'semi/unfinished willow clefts illegally.

(iv) The seized semi/unfinished willow clefts were loaded|and transported in the trucks concealed under apples|boxescontainingrotten|applesgivingadequatecamouflage to the illegally transported sem1/unfinished|willow clefts, in an attempt to transport the same out sidethe State of J&K and said consignment of willow clefts|seized and confiscated was not meant for/doest not!belongs to the M/s Gateway Sports Industries, G. T. Road|Hatlimore Kathua.”|

The conclusions reached at by the Authorized Officer has brought to fore such facts which were not there beforehim when he initially passed confiscation orders. The newconclusions reached at, on fresh facts, according to theAuthorized Officer, indicate that the petitioners were.carrying Finished and unfinished Willow Clefts for their export out of the State. This conclusion of the AuthorizedOfficer 1s in essence, ex-parte, on the basis of facts whichwere already before him and those which were collected byhim pursuant to Court directions.

Before taking final decision in the matter as towhether or not the petitioners had any intention to exportFinished and unfinished Willow Clefts or they were meantto be carried to M/S Gateway Sports Industries, G.T.Road,Hatlhi Morh, Kathua, which 1s stated by the petitioners tohave purchased it, the petitioners, M/S Gateway Sports|Industries, G.T.Road, Hath Morh, Kathua, and such otherperson(s) whose presence may be necessary to arrive atany final conclusion, need to be heard, in that, anyconclusion reached at without hearing them may not be.permissible because this would amount to violation of the)Principles of Natural Justice. This apart, the statutoryrequirement of Section 26 of the Forest Act, 1987, made)applicable to seizures under Willow (Prohibition on Exportand Manufacture) Act 2000 would also require hearing ofthese persons before attaching finality to the confiscationproceedings particularly when new facts have beencollected by the Authorized Officer and there was noeffective response thereto by the interested parties who hadprojected that Willow Clefts were not being exported outof State...

Even otherwise, what comes out from the earlierproceedings pursuant whereto confiscation orders were issued by the Authorized Officer is that requisiteopportunity of hearing does not appear to have beenprovided to the petitioners as also to M/S Gateway Sports|Industries, G.T.Road, Hath Morh, Kathua to project their,view point against confiscation proposal, before issuance|of the confiscation orders. |

Before ruling on the validity or otherwise of theconfiscation proceedings, it need to be ascertained as towhether or not the seized Willow Clefts had to be carried|for export out of the State. The issue 1s both factual as well as legal. The legal aspect of the issue as to whether thepetitioners could be said involved in the commission ofany offence or was it permissible for them to carry WillowClefts, can be considered only if 1t was ascertained on)facts, as to whether Willow Clefts had to be carried forexport out of the State or for their use in M/S Gateway,Sports Industries, Hatli Morh, Kathua, a location within the State.

It may not be permissible for this Court to enter intothe arena of determining facts in exercise of its extraordinary writ jurisdiction and in this view of the matter, thelegal issues projected by the parties for and against thepermissibility of carriage of Willow Clefts, cannot bedetermined, unless finding on facts as indicated above wasreturned. |

This apart, it 1s the statutory duty of the AuthorizedOfficer alone to determine the issue both factual and legal after informing in writing the persons from whom theproperty was seized and any other person who may appearto have some interest in the seized property, before taking,final decision on confiscation or otherwise of the seized|property.

In view of the facts and circumstances of the case,when new facts have been brought on records by theAuthorized Officer with his conclusions thereon, whichcannot be treated to be the final conclusions, for, thesewere taken without hearing the parties in the matter and)affording them requisite opportunity of hearing, And tocomply with the provisions of Section 26(4) of the ForestAct, the Authorized Officer is required to pass fresh orderson confiscation or otherwise of the seized material after|considering the objections, material and evidence that thepetitioners, M/S Gateway Sports Industries, Hath Morh,|Kathua or any other person, who may appear to him tohave some interest in the seized property, may file orproduce before him, notwithstanding the orders passed bythe Authorized Officer and the Appellate Authority.

These Petitions are, accordingly, disposed of withdirections to the Authorized Officer to hear the petitioners,M/S Gateway Sports Industries, Hatli Morh, Kathua andany other person whose presence he may considernecessary, on the existing material and on the material thathas come to light pursuant to the orders of this Court datedNovember 9, 2012 and thereafter take fresh decision in the matter expeditiously in terms of Section 26 of the ForestAct dealing with all those pleas, material and evidence thatthe above persons/concern may project before him)uninfluenced by his earlier orders and the orders of the.Appellate Authority, ©

¢J.P. Singh) |Judge

JAMMU:Sunita31.12.2012