Confiscation of Private Willow Clefts Without Conviction Is Illegal, Holds J&K and Ladakh High Court
The High Court quashed confiscation of 6,150 willow clefts and a truck, holding that conviction must precede confiscation of non-government forest property under the J&K Willow Act, and that the regulatory gap left after J&K Forest Act 1987 was repealed rendered the entire confiscation procedure legally void.
The High Court of Jammu & Kashmir and Ladakh at Jammu has allowed two writ petitions filed by a sports goods manufacturer and a transport company, quashing orders that had confiscated 6,150 willow clefts and Truck No. JK-21G/9603. Justice MA Chowdhary, sitting singly, held that an Authorised Officer under the Jammu & Kashmir Willow (Prohibition on Export and Movement) Act, 2000 cannot finalise confiscation of non-government property without first securing a conviction in criminal proceedings. The court also found that the confiscation procedure itself lacked any legal basis: after the J&K Reorganisation Act, 2019 repealed the J&K Forest Act, 1987, the government never issued a fresh notification prescribing the procedure for confiscation under the Willow Act, leaving the entire chain of proceedings without statutory grounding.
The Seizure and the Confiscation Chain
On 12 December 2023, at around 6.00 AM, Truck No. JK-21G/9603 was detained at the toll plaza, Lakhanpur, by police and handed over to the Range Officer, Anti-Polythene Check Post, Lakhanpur. The truck was carrying willow clefts belonging to M/S Mymoona Sports, Chersoo, Awantipora, Pulwama, destined for Meerut, Uttar Pradesh.
On physical checking in the presence of driver Kuldip Singh, forest officials counted 6,150 willow clefts — the E-way bill (No. 3816 9855 0838 dated 10 December 2023) described the consignment as willow clefts, whereas the No Objection Certificate generated by the consignor was for 7,000 Nos. of Populus species, a different category entirely. The driver could not produce the documents required for exporting willow outside the Union Territory of J&K.
A Forest Office Report dated 12 December 2023 was registered under Sections 2(b), 3, and 4(1) of the J&K Willow (Prohibition on Export and Movement) Act, 2000, read with Sections 52(1), 2(4)(a), 2(6), 41, and 42 of the Indian Forest Act, 1927, and Rule 7(3) of S.O. 81 of 2020. The Authorised Officer intimated the Chief Judicial Magistrate, Kathua, on 13 December 2023, and on 31 January 2024 passed an initial confiscation order.
That order was challenged by way of a revision petition before the Additional Sessions Judge, Kathua. On 28 May 2024, the revisional court directed a fresh hearing with cross-examination of witnesses. After this de novo process, the Authorised Officer, Kathua Forest Division, again ordered confiscation on 14 October 2024 vide Order No. KFD/AO/245-250. Both petitioners separately appealed to the Principal Chief Conservator of Forests, J&K, Jammu, the designated appellate authority. On 28 June 2025, the appellate authority upheld the confiscation and dismissed both appeals. The two writ petitions followed and were clubbed by the High Court.
The Legal Challenge: Jurisdiction, Procedure, and the Conviction Requirement
The petitioners, through separate counsel, raised several distinct grounds.
Mr. Jagpaul Singh, appearing for M/S Mymoona Sports in WP(Crl) No. 59/2025, argued that no criminal case under the J&K Willow Act, 2000 was registered either by the police or by the forest department. He contended that under Section 55 of the Indian Forest Act, 1927, confiscation of non-government property could only follow a conviction. He also challenged the appellate authority's jurisdiction to hear appeals against an order passed under Section 52 of the Indian Forest Act, 1927.
On the procedure point, he argued that SRO 308 dated 12 September 2003 — issued under Section 8 of the Willow Act — had prescribed the confiscation procedure set out in the J&K Forest Act, 1987. After the J&K Reorganisation Act, 2019 came into force, the J&K Forest Act, 1987 was repealed and the Indian Forest Act, 1927 was extended to J&K. But no fresh notification was issued under Section 8 of the Willow Act to substitute the repealed procedure with the Indian Forest Act mechanism. The confiscation proceedings, he submitted, therefore had no valid procedural foundation.
He further argued that the willow clefts were seized within the UT of J&K and had not yet crossed the border, making the alleged act at most preparation for the offence of export, not its commission. He also contended that nothing on record showed the transport company had knowledge that the consignment was banned, an ingredient he said was necessary to confiscate the vehicle. He relied on a judgment of the High Court in Mohd. Ashraf Dar & Ors. v. State (now UT) of J&K & Ors., reported as 2026 SCC OnLine J&K 162.
Mr. K Nirmal Kotwal, Senior Advocate appearing for M/S Jammu Indore Roadways in WP(C) No. 1985/2025, argued that the transport company had no knowledge that the consignment was contraband and had issued clear instructions to the driver not to carry any prohibited goods. The truck owner, he submitted, had acted in good faith.
Ms. Meenakshi Salathia, Deputy Advocate General, opposed both petitions. She argued that the petitioners had raised disputed questions of fact not amenable to writ jurisdiction, and that no procedural or jurisdictional error vitiated the impugned orders. She relied on the Supreme Court's judgment in State of Madhya Pradesh v. Kallo Bai, (2017) 14 SCC 502, to contend that confiscation proceedings are independent of criminal prosecution and need not await conviction.
How the Court Reasoned
Justice Chowdhary began with the statutory framework. Section 3 of the J&K Willow Act, 2000 prohibits the carriage or export of willow of any species in any form outside the State except under government orders. Section 4 provides for seizure and confiscation, mandating that the procedure for confiscation be prescribed by the Government.
The court noted that SRO 308 of 2003, issued under Section 8 of the Willow Act, had cross-referenced the J&K Forest Act, 1987 for the confiscation procedure. When the J&K Reorganisation Act, 2019 repealed the J&K Forest Act, 1987 and extended the Indian Forest Act, 1927 to J&K, no corresponding notification was issued by the UT Government to replace SRO 308 or to designate the Indian Forest Act procedure as the applicable mechanism. The court held that Chapter IX of the Indian Forest Act — which deals with seizure, confiscation, and procedure — could not be applied automatically to the Willow Act without a specific rule or standing order issued by the government under Section 4(2) of the Willow Act. The confiscation proceedings were therefore illegal ab initio.
On the conviction question, the court drew a sharp distinction between government and non-government property. On a harmonious reading of Sections 3 and 4 of the Willow Act with SRO 308/2003 and Sections 26 and 28 of the J&K Forest Act, 1987, the court concluded that for non-government property, confiscation can only be ordered after conviction of the offender. For government forest produce, an Authorised Officer may proceed independently and in parallel with criminal proceedings, without awaiting the trial's conclusion.
The court reasoned that allowing confiscation of private property merely on the basis of seizure — before any finding of guilt — would deprive a person of property used in trade, profession, or occupation without proof of guilt. It described this as “a serious encroachment on the fundamental right of a citizen under Article 19(1)(g).” The court also observed the practical absurdity that would follow if a vehicle were auctioned during the interregnum between confiscation and the conclusion of criminal trial, and the accused were ultimately acquitted.
The court invoked the Supreme Court's ruling in State of M.P. v. Madhukar Rao and Principal Chief Conservator of Forests v. J.K. Johnson, AIR 2012 SC 61, both of which affirmed that “the provisions of Act do not permit Specified Officer to deal with the property seized for commission of the offence until and unless final decision in the criminal proceedings are not taken.”
The court distinguished the State's reliance on Kallo Bai. In that case, the Supreme Court had upheld pre-conviction confiscation under the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969, which — unlike the J&K Forest Act — expressly granted independent confiscation power under Section 15 even before a criminal finding. No equivalent provision existed in the J&K Forest Act for private property.
The Regulatory Gap and a Direction to the Forest Department
Beyond deciding the petitions, the court made pointed observations about the legislative void left after the 2019 reorganisation. It observed that in the absence of any prescribed procedure to deal with seized willow — whether government or private — confiscation proceedings cannot be lawfully carried out by any officer of the Forest Department, Industries Department, or Police.
The court directed the Forest Department of the J&K Government to submit a proposal to the Government for the issuance of a Notification or Standing Order prescribing the manner and procedure for dealing with seized property under the Willow Act, within eight weeks from the date of the judgment. A copy of the order was directed to be forwarded to the Administrative Secretary of the Forest Department, Civil Secretariat, Srinagar, for compliance.
The judgment was marked reportable.
Order
Both writ petitions were allowed. The confiscation order dated 14 October 2024 passed by the Authorised Officer, Kathua Forest Division, and the appellate order dated 28 June 2025 passed by the Principal Chief Conservator of Forests, J&K, were quashed. The 6,150 willow clefts of M/S Mymoona Sports and Truck No. JK-21G/9603 of M/S Jammu Indore Roadways were directed to be released in favour of the respective petitioners. All pending applications were disposed of.