Confiscation Of Property Under Forest Act: Authorized Officer Has To Ensure That Parties Are Given Opportunity to Cross Examine Witnesses: J&K&L HC

The bench comprising Justice Sanjay Dhar was hearing a plea on behalf of the UT Administration against the order of the Principal District Session Judge Kupwara who had allowed the revision petition u/s 52-A of the said act on the similar ground and observed that the order passed by the Authorized Officer is illegal and perverse and, as such, the same deserves to be reversed.

The court observed that the perusal of record revealed that in May 2019 Range officer Sopore seized illicit timber from a truck and the same was communicated to the authorised officer as mandated under law . The Ranger Officer further submitted the seizure memo of the illicit timber and seized vehicle that was prepared on spot in presence of the witnesses. The record further revealed that the accused persons including the prosecution had appeared before the Authorized Officer and recorded their statements. After consideration of the material on record, the Authorized Officer had recorded a satisfaction that the seized vehicle has been used in commission of a forest offence and, accordingly, an order of confiscation.

The moot question for adjudication before the bench was whether the requirement of law is simply to record the statements of the witnesses or is it the requirement of law that parties should be afforded an opportunity to cross-examine each other's witnesses. The court while deliberating on this issue recorded that Sec 52 of the Forest Act provides for issuance of notice in writing to the affected persons. This in turn creates an opportunity for such person to make a representation against the proposed confiscation as also confers a right of hearing. In the case of seizure of vehicles, Section 52(5) of the Forest Act provides that the owner has a right to prove before the Authorized Officer that the vehicle was used without his knowledge or connivance. In case an affected person, against whom order of confiscation is proposed to be made, is not given a right to cross-examine the witnesses of the opposite party, the very spirit of the provisions contained in Section 52 of the Forest Act would get defeated and decimated, the court underscored.

The bench in its orders also placed reliance on the Supreme Court Judgement in New India Assurance Co. Ltd. vs. Nusli Neville Wadia &Anr, (2008) wherein it was held that the Authorized Officer was obliged to afford an opportunity to the parties to cross-examine the witnesses. In the aforesaid judgment, the Supreme Court has held that right to cross-examine a witness though may not be provided under any statute but it is the part of the principle of natural justice .

The court also relied heavily on the constitutional bench Judgement of supreme court in State of Madhya Pradesh Vs. Chintaman Sadashiva Waishampayan, AIR 1961 where Supreme Court held that rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice.

The bench after applying the provisions of sec 52 of the Forest Act and relying heavily on the ratio of the aforementioned judgements recorded ..

"It is clear from the record of the Authorized Officer, none of the parties has been given an opportunity to cross-examine each other's witnesses. By not affording such an opportunity to the parties, the Authorized Officer has not adhered to the principles of natural justice which are intrinsic in the provisions contained in Section 52 of the Forest Act, as quoted hereinabove.".

Delving further on the subject the court observed that the Authorized Officer, while passing order had not assigned any reason for discarding the statements of the accused and accepting the version given by the prosecution witnesses. Simply narrating the facts of case and reproducing the evidence led by parties without giving any reasoning in support of the conclusion, does not meet the requirements of a reasoned order. A quasi-judicial authority like an Authorized Officer under the Forest Act, is obliged to pass a well-reasoned order while directing confiscation of the seized property/vehicle. An order of confiscation deprives the owner of his property, as such, reasoning is a sine qua non of such a harsh order, the bench noted.

Parting ways the bench set aside the order of the Authorized Officer and remanded back the case to the Authorized Officer with the direction to the parties to appear before the said Officer. The Authorized Officer shall, after issuing notice to the parties, afford them an opportunity to cross-examine each other's witnesses, whereafter he shall decide the matter afresh in accordance with law, by passing a reasoned order, the court ordered.

Case Title : Range Officer Kandi Range Sopore Vs Altaf Malla

Citation: 2022 LiveLaw (JKL) 34

Click Here To Read/Download Judgment