JUDGMENT :

1. The petitioner seeks indulgence of this Court under Section 561-A Cr.PC, to quash the criminal proceedings in case titled State v. Tenzin Dorjee and Ors., pending before the Court of Chief Judicial Magistrate, Leh, (for brevity “Trial Court”) in case FIR No. 11/2009, registered against him at Police Station, Leh, for the commission of offences punishable under Sections 15, 16/46, 39-A of J&K Forest Act, Sections 3/7/55 of Biological Diversity Act, 2002 (for short “Act of 2002”) and Sections 60, 60-A of J&K Wild Life (Protection) Act (for short “WLPA”).

2. The allegations are that petitioner has procured a “forest produce” (Yarsa Gumboo), which was seized at Leh. Consequent to the seizure, two sets of legal proceedings were initiated against the petitioner and other co-accused. One set of proceedings initiated were under the provisions of Forest Act, including Section 26 and other allied Sections, for seizure/confiscation of the “forest produce”. The Authorized Officer passed an order against the petitioner. Aggrieved thereof, a Revision was filed before the Sessions Judge, Leh. Revision was dismissed, against which petition has been filed before this court, which is pending consideration. The other set of proceedings initiated against the petitioner are that after the “forest produce” was seized, a case FIR No.11/2009, came to be registered in Police Station, Leh and upon completion of investigation, challan was presented before the Trial Court, in which the order for framing of charges has been passed against the petitioner and the prosecution has been directed to produce evidence.

3. The petitioner questions the pendency of the Criminal Challan against him and submits that same be quashed, inter alia, on the grounds that neither he has committed any offence nor his action constitutes any offence; that Forest Act, defines “forest produce” and according to respondent, the ‘forest produce’ seized is “Yarsa Gumboo”, but no such produce is found in the forests of the entire State of Jammu and Kashmir; that the provisions of Forest Act, apply only to such “forest produce” as are defined therein and are available in the forests of Jammu and Kashmir; that even the Rules framed under the Act, relating to transportation of “forest produce” do not apply to the seized “forest produce”; that the “forest produce” is available in Nepal and one of the co-accused Atuk Lama, lawfully purchased the said produce and paid all the taxes on it; that this material is reported to have medicinal value and is used by Buddhists in Leh; that it is not the case of the prosecution that the seized “forest produce” is available anywhere in the State of Jammu and Kashmir; that the provisions of Forest Act, will not apply to the seized product. This issue is also involved in other petition being OWP No. 1117/2012.

4. Learned senior appearing counsel for petitioner contends that assuming that the seized material is a “forest produce”, but the same is found in Nepal and in some other states of India where it is auctioned openly. There is no ban on acquiring the said “forest produce’ and can be transported to any part of country. Once a product is not a “forest produce” within the State of Jammu and Kashmir, the provisions of Forest Act, WLPA or Act of 2002, will not apply. It is also stated that for purpose of Forest Act, it is essential that the product must qualify to be “forest produce” under the provisions of Section 2(g)(a)(b) of the Act. The provisions of Section 15/16, 39A, 46 Forest Act, have no application to the seized “forest produce”. Similarly, the provisions of WLPA, in particular Section 60 and 60-A, have no application to the “forest produce”. For the same reason, Sections 3, 7/55 of the Act of 2002, also have no application to the “forest produce”. No charge under Sections 379/34 RPC has been framed. The petitioner has also been charged under Sections 379/34 RPC. It is also contended that there was no allegation that the petitioner re