Gauhati High Court

Deep Kumar vs The State Of Assam And Anr on 30 August, 2022

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GAHC010080262022




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : Crl.Rev.P./168/2022



         DEEP KUMAR
         S/O MAHESWAR DAYAL
         R/O VILL- GHILOY
         P.O. NIGOH
         P.S. CHHIBRAMUA
         DIST. KANNAUJ
         UTTAR PRADESH.


          VERSUS

         THE STATE OF ASSAM AND ANR
         REP. BY THE PP
         ASSAM

         2:THE AUTHORISED OFFICER CUM DIVISIONAL FOREST OFFICER

         CACHAR DIVISION
         SILCHAR.
         ------------

Advocate for : MR I HAQUE Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR Page No.# 2/11

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date of hearing : 25.07.2022

Date of verdict : 30.07.2022

VERDICT (ORAL)

Legality, propriety and correctness of the judgment and order dated 07.03.2022, passed by the learned Additional Sessions Judge, FTC, at Cachar, Silchar, in Misc. Appeal No. 2/2021, and also the order dated 14.01.2020, passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, in O.R. No. LP/5 of 2019-20, DVL 63 of 2019-20, are impugned in this revision petition under Sections 397/401/482 read with Section 451 of the Code of Criminal Procedure, 1973.

2. It is to be noted here that vide impugned order dated 14.01.2020, passed in O.R. No. LP/5 of 2019-20, DVL 63 of 2019-20, the Authorized Officer-cum- Divisional Forest Officer, Cachar Division, Silchar, confiscated the vehicle of the petitioner, bearing Registration No. UP-74T-5134, to the department, and vide impugned judgment and order dated 07.03.2022, passed in Misc. Appeal No. 2/2021, the learned Additional Sessions Judge, FTC, at Cachar, Silchar, has affirmed the order of the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, dated 17.01.2020.

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3. The factual background, leading to filing of this petition, is briefly stated as under:

"On 18.09.2018, at about 5.00 AM, Shri Sachin Rajkumar, Fr-I, Beat Officer, Lailapur Beat, signaled one vehicle, bearing Registration No. UP-

74T-5134, to stop at Dholai NH-54 for checking, but the driver drove away the vehicle. Then, the Beat Officer, after prolonged chase, found the vehicle parked at Sonabarighat petrol pump, Silchar-Aizwal road, but the driver of the vehicle fled away leaving the vehicle abandoned. On searched, the said vehicle was found loaded with teak sawn timbers without any hammer impression mark. Then the vehicle and the forest produce was brought to the Range Officer, Dholai, where the sawn timbers (145 Nos.) were verified and seized. The matter was reported to Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, with a copy to the CJM, Cachar and DTO, Cachar, vide Officer Letter No. LP/8/O.R/31-32, dated 18.09.2019. Thereafter, the matter was circulated in local vernacular and one person, namely, Shri Deep Kumar, appeared at Range Office, Dholai, and produced legal document of the vehicle along with Power of Attorney, wherein, it was mentioned that the original owner of the vehicle is Shri Bhikari Das, who expired on 14.01.2019, and the said vehicle was given to Shri Deep Kumar. Thereafter, the Beat Officer issued Form No. 31(A), vide letter dated 20.09.2019, asking him to produce legal proof of origin of forest produce within 30 days. The matter was forwarded to the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, vide Letter No. LP/8/OR/37-40, dated 18.09.2019. Then Page No.# 4/11

the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, issued Form No. 31(B) to Shri Deep Kumar, Power of Attorney holder of vehicle and in his reply, Shri Deep Kumar stated that he sent the vehicle, loaded with potatoes, from Farukabad (UP) to Aizwal on 08.09.2019 and while returning from Aizwal, the driver of the vehicle loaded sawn timbers without informing him and later on, it was seized by the forest official. He also stated that he was totally unaware about the incident and requested to release the vehicle and he is ready to pay fine for the same. Then, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, issued Form No. 31(C) to Shri Deep Kumar to produce the documents of the vehicle including Insurance Certificate, Registration Certificate etc. He then produced the same and thereafter, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, has issued Form No. 31(D) to Shri Deep Kumar. In his reply, he stated that he sent the vehicle, loaded with potatoes, from Farukabad (UP) to Aizwal on 08.09.2019 and while returning from Aizwal, the driver of the vehicle loaded the sawn timber without informing him and later on, the vehicle was seized by the forest officials and he was totally unaware about the incident and requested to release the vehicle and also he is ready to pay fine for the same. Thereafter, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, having satisfied that the seized sawn timbers were brought illegally in the vehicle, bearing Registration No. UP- 74T-5134, without any valid transit document, confiscated 145 numbers of teak sawn timbers to the State of Assam. It was also found that the driver of the vehicle collected the seized sawn timbers from Mizoram and the owner of the vehicle, Shri Deep Kumar, did not exercise reasonable and Page No.# 5/11

due precaution against the use of vehicle for commission of forest offence and therefore, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, confiscated the vehicle, bearing Registration No. UP-74T- 5134, under Section 49(4) of the Assam Forest Regulation (Amendment) Act, 1995.

Being aggrieved, the petitioner approached the Court of learned Additional Sessions Judge, FTC, Cachar, Silchar, by filing an appeal, being Misc. Appeal No. 02/2021. But, after hearing both sides, the learned Court below, vide impugned judgment and order dated 07.03.2022, dismissed the appeal and upheld the order passed by the Authorized Officer-cum- Divisional Forest Officer, Cachar Division, Silchar.

4. Being highly aggrieved, the petitioner approached this Court by filing the present petition on the following grounds:

(i) That, the petitioner sent his vehicle loaded with potatoes from Farukabad (UP) to Aizwal, and while returning, the driver of the vehicle loaded the teak logs without informing him and as such, he is totally unaware of the incident;

(ii) That, the petitioner was not having any knowledge regarding the commission of offence by his Truck and that the respondent had illegally confiscated the vehicle, which is to contrary to the provision Page No.# 6/11

of Section 49(6) of the Assam Forest Regulation;

(iii) That, the petitioner had neither received any notices in Form No. 31A, 31B, 31C and 31D nor got an opportunity to adduce evidence for his defence and the vehicle was illegally confiscated, which is against Section 49(5)(b)(c) of the Assam Forest Regulation 1891;

(iv) That, the respondent failed to apply judicial mind and the respondent No. 2 had confiscated the vehicle without giving any reason;

(v) That, the learned Additional Sessions Judge, Cachar, illegally dismissed the Misc Appeal No. 02/2021 and that the vehicle is the only source of sustenance of the petitioner and his family and the respondent No. 2 failed to appreciate the said fact and the vehicle is exposing to sun and rain since the date of its seizure on 19.08.2019; and therefore, it is contended to allow the petition by setting aside the impugned judgment and orders.

5. I have heard Mr. I. Haque, learned counsel for the petitioner and also heard Mr. D. Gogoi, learned Standing Counsel for the Forest Department.

6. Mr. I. Haque, learned counsel for the petitioner, submits that the impugned order dated 14.01.2020, passed by the Authorized Officer-cum-Divisional Forest Page No.# 7/11

Officer, Cachar Division, Silchar, in confiscating the vehicle and the impugned judgment and order dated 07.03.2022, passed by the learned Additional Sessions Judge, FTC, at Cachar, Silchar, by affirming the impugned order dated 1714.01.2020, suffers from manifest illegality due to non-application of mind and also due to non-consideration of some vital facts. Mr. Haque further submits that the procedure prescribed in the Assam Forest Regulation, especially in Sub- Section 5 to Section 49 of the Regulation and Section 49(4) of the Regulation have not been followed and as such, the petitioner got no opportunity to defend himself properly and therefore, it is contended to set aside both the impugned order and judgment. Mr. Haque also referred following case laws - Abu Bakkar Ali (Md.) Vs. State of Assam & Ors., reported in 1999 (1) GLT 633, and Jogeswar Borah Vs. State of Assam & Ors., reported in 2006 (3) GLT 162, to bolster his submissions.

7. On the other hand, Mr. D. Gogoi, learned Standing Counsel for the Forest Department, submits that the impugned order and judgment suffers from no infirmity and illegality requiring any interference of this Court. Mr. Gogoi further submits that the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, has confiscated the vehicle as the petitioner, who is the Attorney Holder of the vehicle, has failed to exercise reasonable and due precaution against use of the vehicle for commission of the forest offence and therefore, exercising the power under Section 49(4) of the Assam Forest Regulation, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, has confiscated the same.

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8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the case laws referred by learned counsel for the petitioner and I find that the above mentioned ratio are laid down by a co- ordinate Bench of this Court while exercising writ jurisdiction under Article 226 of the Constitution of India and in the instant case, the jurisdiction being exercised by this court is the revisional jurisdiction, under Sections 401/397/482 of the Code of Criminal Procedure, which is only limited to examination of the legality, propriety and correctness of the impugned order and as such, I afraid the ratio laid down in the aforesaid cases would come into aid of the petitioner.

9. It appears from the impugned order, dated 14.01.2020, that before confiscation proceeding, the required notices in Forms 31(A), 31(B), 31(C) & 31(D) were issued to the petitioner and further it appears that opportunity of being heard is also afforded to the petitioner before confiscating the vehicle and it also appears that the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, during investigation, found that driver of the vehicle was carrying the seized sawn timbers in the said vehicle and the owner of the vehicle did not exercise reasonable and due precaution against use of the vehicle for commission of forest offence.

10. Also, having carefully gone through the impugned order passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, I find that the provision of Sub-Section 5 to Section 49 of the Assam Forest Regulation is duly been followed here in this case. In Sub-Section 5 to Section 49 of the Page No.# 9/11

Assam Forest Regulation, it is provided as under:

"(5) No order confiscating any property shall be made under the preceding provisions unless the authorized officer-

(a) sends an intimation in the prescribed form about the initiation of the proceeding for confiscation of property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made;

(b) issue a notice in writing to the person from whom the property is seized, and to any other person who may appear to the authorized officer to have some interest in such property and in cases of motorized boats, vessels, vehicles, trucks, etc., having a registered number to the registered owner thereof;

(c) affords to the persons referred to in Clause (b) above a reasonable opportunity of making a representation within such reasonable time as may be specified in the notice, against the proposed confiscation; and

(d) gives to the officer effecting the seizure and the person or persons referred to in Clause (b) or (c) above, a reasonable opportunity of being heard on a date or dates to be fixed for the purpose."

11. It is to be noted here that the petitioner, in his petition, categorically stated that a complaint case has been filed against him before the Court of learned Chief Judicial Magistrate, Cachar, in connection with the aforesaid offence and trial of the same is yet to commence. Therefore, there is no doubt that forest offence is committed by the petitioner and a case is pending against him before the Court of learned Chief Judicial Magistrate, Cachar. It also appears from the impugned judgment and order, dated 07.03.2022, that the learned Additional Sessions Judge, FTC, at Cachar, Silchar, arrived at a finding that the appellant could not prove to the satisfaction of the Authorized Officer that the vehicle in question was used in commission of forest offence without his knowledge or connivance or abetment as the case may be and as such, the Authorized Officer was fully justified in passing the order of confiscation of the seized vehicle, Page No.# 10/11

bearing Registration No. UP-74T-5134, and therefore, dismissed the appeal.

12. Having carefully gone through the impugned order of the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar and impugned judgment and order of the learned Additional Sessions Judge, FTC, at Cachar, Silchar, I find that the same suffers from no infirmity or illegality requiring any interference of this Court.

13. It is to be noted here that in the case of State of Karnataka Vs. K. Krishnan, (2000) 7 SCC 80, Hon'ble Supreme Court has held that any forest produce and the tools, boats, vehicles, cattle, etc. used in commission of the offence, which are liable to be forfeiture, should not be released, and the provision law are to be strictly complied with and followed for the purpose of achieving the object for which the Act was enacted and liberal approach is uncalled for.

14. Thereafter, in the case of State of West Bengal & Ors. Sujit Kumar Rana, (AIR) (2004) SC 1851, the Hon'ble Supreme Court has held that:-

"Vehicle seized for committing forest offence was not normally to be released to the party till culmination of all proceedings in respect of the forest offence as the particular approach in the matter would perpetuate commission of more offence with respect to the forest and its produce which, if not prevented is bound to affect the mother earth and the atmosphere surrounding it".