This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS. This is an exhaustive article which deals with various aspects associated with Forfeiture of property arising from Illegal Hunting and Trade.

Introduction

Forfeiture of Property arises from illegal hunting and trade in The Wildlife (Protection) Amendment Act of 2002 which added a new chapter i.e Chapter VI-A. According to Section 58C, if any individual or associate of persons or trust obtains any property from illegal hunting or wildlife trade, the competent authority shall forfeit that property to the State government.

Such property may be forfeited upon the completion of all the required steps (inquiry, inspection or survey of any person, location, property, the institution of records, etc.) and after tracking and finding of any such property.

In examining and enforcing the forfeit of the property, if the competent authority determines that only a portion of the obtained property is proven to be unlawful, the authority shall issue orders to pay a penalty equivalent to the market value of that part of the property in lieu of forfeiture, giving the opportunity to the affected person.

Prohibition of holding an Illegally Acquired Property

Section 58C establishes that it shall not be permissible for any person to possess any property obtained illegally on his behalf, either by himself or by any other individual. Any property shall be liable for a forfeiture in the event of a violation of this clause. Although, no such property shall be forfeited if a person obtained such property within a period of six years from the date on which he was convicted with an offence involving illegal hunting and wildlife trade and its items. 

Competent Authority

Section 58D provides that the State Government may designate any officer not below the level of Chief Forest Conservator to perform the duties of a competent authority.

Identifying an Illegally Acquired Property

Section 58E specifies that, upon receipt of a grievance from the competent authority concerning any person having illegally obtained property, an officer not below the Deputy Inspector General of Police duly authorized by the Central Government or the Government of that particular state shall take all appropriate measures to track and identify any property illegally acquired by such person.

Such measures can include any examination, inspection, or survey of any individual, location, properties, assets, records, accounts books in any bank or financial institution or any other related actions as appropriate. 

The officer conducting the investigation may make an order for the seizure of such property and, if it is not practicable to seize such property, he may order that such property not be transferred or otherwise treated, except with the prior approval of the officer making the order or of the competent authority, and a copy of that order shall be served on the individual concerned.

Seizure or Freezing of Illegally Acquired Property

Section 58F specifies that when an officer conducting an investigation has reasons to assume that any property is an unlawfully obtained property and that such property is likely to be hidden, transferred or dealt with in some manner that could result in disturbing the procedures required for the confiscation of such property.

The officer may make an order for the seizure of such property or order that such property cannot be transferred or otherwise treated, except with the prior authorization of the officer issuing the order, or the competent authority.

Any such orders shall have no effect unless the stated order is limited within thirty days of being made by an order of the competent authority.

Management of Properties Seized or Forfeited 

Section 58G specifies that by the order issued in the Official Gazette, the Government of the State can designate as many of its officers (not below the rank of Forest Conservator) as it deems fit to carry out the functions of Administrator. 

The administrator designated pursuant to subsection has to obtain and administer the property in respect of which an order was made pursuant to Section 58F(1) or under Section 58I in such manner and subject to such conditions as may be prescribed. The Administrator has to take the steps as directed and ordered by the State Government, to dispose of the asset forfeited to the government.

Notice of Forfeiture of Property 

During the valuation of the property possessed by any person, if the officer doing investigation believes that the property, sources of income or assets are unlawfully obtained, he can report to the authority as prescribed by Section 58 E. The competent authority shall believe that all or any of the properties are unlawfully acquired as per the report by the officer. 

This may serve as a notice to that person, calling on him within the thirty-day period as specified in the notice, to show cause that why the properties should not be declared unlawfully acquired and forfeited.

In support of his argument, he has to show the sources of his income, earnings, or properties from which he or she obtained those properties and the facts on which he or she relies and other relevant details. And also if any property is possessed by any other person on behalf of that person, a copy of the notice shall also be sent to that other person as specified in Section 58H. 

Forfeiture of Property in Certain Cases

If the person concerned owns any property mentioned in the notice by some other person, the court will give him a chance to be heard. The competent authority after acknowledging the description of the show cause notice given pursuant to Section 58H may also give the other person a fair opportunity to be heard. The authority has to clear if some or all of the properties concerned are unlawfully acquired or not. 

If the person concerned (and in the event that the person concerned owns any property listed in the notice by some other individual, that other individual as well) does not appear before the competent authority or represent his case before the competent authority within the span of thirty days stated in the notice of the show cause, the competent authority may proceed to record a finding under this subsection ex parte on the basis of the evidence which is available before it. 

When the covered entity is confident that some of the properties pointed to in the show cause notice are unlawfully obtained properties but cannot clearly classify those properties, the competent authority shall be entitled to define those properties which, to the best of its discretion, are acquired illegally and has to record a finding accordingly within a period of ninety days. 

And if it is reported by the competent authority that any property is unlawfully obtained. The authority shall declare the property to be forfeited by the state government. And it will be free from all restrictions and limitations. 

If the person concerned establishes that the property stated in the notice given under section 58H is not an illegally obtained property, then the said notice shall be removed and the property shall be released immediately. 

The Section further mentions that if any share of a business is forfeited by the State government, the business shall immediately register the government as the transferee of such shares, notwithstanding anything found in the Companies Act, 1956 (1 of 1956) or the company’s article of association.

Burden of Proof

The burden of proof that any property provided for in a notice served pursuant to section 58H is not unlawfully obtained shall be on the individual concerned.

Fine in lieu of Forfeiture 

The competent authority determines that any property which is forfeited by the State government pursuant to Section 58I and if the source of only a part of the unlawfully obtained property has not been proved to the satisfaction of the competent authority, the competent authority shall make an order giving the individual concerned the option to pay, instead of forfeiture, a penalty which is equal to that of the market.

The person impacted shall be provided with a fair chance to be heard before making a decision which is to impose a fine and after the person concerned pays the fine, the competent authority may, by order, revoke the declaration of forfeiture pursuant to Section 58I.

Procedure in Relation to Certain Trust Properties 

On the grounds of the evidence and materials available to it,  if the competent authority finds that any property kept in the trust is unlawfully gained, it may notify the trustee or, as the case may be, the owner of the property from or by which the trust obtained that property. The trustees have to specify, within the span of thirty days stated in the notice, the source of money or other assets from which such assets were acquired. They have to state the source of money or other assets donated to the trust for the acquisition of such assets as mentioned in section 58H.

Certain Transfers to be Null and Void 

When a property is ultimately forfeited by the government as mentioned in Section 58-I, the transfer of such property shall be deemed null and void.

Constitution of Appellate Tribunal 

Section 58N states that the State Government may appoint an Appellate Tribunal to be known as the Appellate Tribunal for Forfeited Property. It will consist of a chairman and as many other members as the state government considers appropriate. But the members appointed in this tribunal should not be below the level of the government’s chief secretary. 

The Chairman of the Appellate Tribunal shall be a person who is, or has been eligible to be a judge of a high court. The Committee may hear, as the case may be, complaints against the seizure, forfeiture, or fine orders.

Appeals 

Any individual aggrieved by an order of the relevant authority may prefer appealing to the Appellate Tribunal within forty-five days, pursuant to Section 58O. However, after the said duration of forty-five days, the Appellate Tribunal may entertain an appeal, if it is satisfied that the appellant was prevented from filing the appeal in due time by reason of reasonable cause.  But the same cannot be entertained after sixty days. 

After giving the appellant an opportunity to be heard, the Appellate Tribunal may uphold, amend, or set aside the order against which it has been appealed. The Court of Appeal may, upon payment of the prescribed fee,  may allow a party to any appeal or any person allowed by that party in that name to inspect any relevant records and registers of the Court of Appeal at any time during office hours.  

Notice or Order not to be invalid for error in the Description

No notice given or served, no declaration made and no order passed shall be deemed null on account of any mistake in the specification of the property or individual referred, only if such property or individual is identifiable from the description. 

Bar of Jurisdiction 

Section 58Q states that no civil court shall have jurisdiction over any matter to be decided by or under Chapter VI-A by the Appellate Tribunal or other competent authority. And also, no injunction shall be issued by any court or authority in respect of any action to be taken or to be taken pursuant to any power conferred under Chapter VI-A.

Powers of Competent Authority and Appellate Tribunal 

In compliance with Section 58R, the competent authority and the Appellate court shall have all the powers of the Civil Court in the proceedings pursuant to the Code of Civil Procedure with respect to the following matters:

• Summoning and imposing the presence of any person and questioning him on oath;
• Requiring the collection and processing of documents; 
• Obtaining evidence on affidavits;
• Requesting, from any court or office, any public record or copy thereof;
• Granting commissions to investigate witnesses or documents; 
• Any other prescribable matter.

Information to the Competent Authority 

Section 58S provides that, notwithstanding anything embodied in any other legislation in force, for the time being, the competent authority shall have the power to compel any officer or authority of the Central Government or of a State or local authority. This is to provide information on such individuals, on points or matters as the competent authority considers to be useful for, or applicable to, Chapter VI-A of the Act. 

Police officers, State Forest Departments, the Central Economic Intelligence Bureau, the Revenue Intelligence Directorate, and any other officers as may be defined by the State Government may provide suo moto with any information available to the competent authority if such information would be useful to the competent authority in their opinion.

Officers to assist Administrator, Competent Authority and Appellate Tribunal  

For the purposes of any proceedings under this Section, the following officers shall provide the required assistance to the Administrator appointed pursuant to section 58 G, the competent authority and the Court of Appeal, namely:  

1. Police officers;
2. Officers of State Forest Departments; 
3. Officers of the Central Bureau of Economic Intelligence; 
4. Officers of the Directorate of Revenue intelligence etc.

                   

Power to take Possession

When any property has been held forfeited to the State government or if the person concerned has refused to pay the fine due under Section 58K(1) within the prescribed time, the competent authority may order the surrender of the property both to the person concerned and to any other person who may be in possession of the property. 

When any person fails or refuses to cooperate with an order rendered, the Administrator may take custody of the asset and may use such action as may be appropriate for that reason. For the purposes of taking possession of any property, the administrator may request the assistance of any police officer and it is the obligation of that officer to cooperate and comply with that request.

Rectification of Mistakes

In an attempt to rectify any obvious error, the appropriate body or the Court of Appeal may amend any order it has made within a period of one year from the date of the order. Provided that, if any such alteration is likely to affect any individual in a prejudicial manner and the error is not of a clerical nature, it shall not be made without giving that person a chance to be heard.

Punishment

Any person who knowingly acquires by any means the property in respect of which proceedings are pending shall be punished with imprisonment for a term of up to five years and with a fine of up to fifty thousand rupees as mentioned in Section 58Y.

Conclusion

This new provision discussed above was introduced into the Wildlife Amendment Act of 2002 i.e. Provision (VIA) which states that the approved officer must forfeit the property if any individual or any group of persons or any trust gained that property from unlawful hunting or unauthorized trade in wild animals under this Act. 

Forfeiture of the property may be achieved by the process laid down by law and by taking appropriate steps such as investigating, inspecting, or surveying any house, location, individual, or record. If it was found that only a portion of the property was unlawfully purchased, the person would have a chance to pay the fine equal to the market value. 

Section 51(2) of the 1972 Act provides for the confiscation of the property on conviction; it states, inter-alia, that if any person is convicted of an offence against the Act, Any domestic animal, wild animal, etc. for which the crime has been committed and the vehicle, vessel or weapon, etc. used in the execution of the offence may be required by the court to prosecute the offence.

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