HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CRMC No. 305/2015

Reserved on: 13.08.2021

Pronounced on: 17.09.2021

Tenzin Dorjee

…..Petitioner(s)

Through: Mr. Z. A. Shah, Sr. Advocate with

Mr. A. Hanan, Advocate

V/s

State of J&K through SHO P/S Leh, Ladakh

….. Respondent(s)

Through: Mr. T. M. Shamsi, ASGI

CORAM:

HON9BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

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

2 CRMC No. 305/2015

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 8forest produce9 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.

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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 auctio