Deep Kumar vs The State Of Assam And Anr
2022 Latest Caselaw 3278 Gua

                                                                     Page No.# 1/12

GAHC010080262022




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

                              Case No. : Crl.Rev.P./172/2022

            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 the Petitioner   : MR I HAQUE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date of Hearing : 25.07.2022

Date of Verdict : 30.08.2022 Page No.# 2/12

VERDICT (CAV)

Heard Mr. I. Hoque, learned counsel for the petitioner and also heard Mr. D. Gogoi, learned Standing Counsel for the Forest Department.

2. In this petition, under Section 397/401/482 read with Section 451 Cr.P.C., the petitioner - Shri Deep Kumar, has challenged the legality, propriety and correctness of the impugned judgment dated 07.03.2022, passed by the learned Additional District Judge, Silchar in Misc. Appeal No.11/2020 and also the impugned order dated 14.01.2020, passed in O.R. No. LP/4 of 2019-20, DH/4 of 2019-20, DVL 51 of 2019-20 passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar, Silchar, whereby the Authorized Officer has confiscated the vehicle bearing Registration No. UP-74T-6001 belonging to the petitioner.

3. The factual background leading to filing of the present petition is briefly stated as under:-

"On 18.09.2018, at about 5.00 A.M. Shri Sachin Rajkumar, Fr-1, Beat Officer, Lailapur Beat has signaled one vehicle bearing Registration No. UP-

74T-6001, on NH-54 at Dholai to stop and but the driver fled away with the vehicle from there. The Beat Officer then chased the vehicle and found the same parked at Nagatilla BRTF Camp, Silchar-Aizwal road, but, found the driver already fled away leaving the vehicle there. On search, the Beat Officer had found the Truck loaded with Teak sawn timbers without hammer impression. Then, he took the vehicle to the Office of the Range Page No.# 3/12

Forest Officer for further investigation and the timbers were unloaded from the vehicle and after measurement the volume of the timbers were found to be 22.373m3 (A-1 Teak Sawn Timber=144 Pcs.) and seized the same preparing seizure list. Then, the matter was reported to Authorized Officer- cum-Divisional Forest Officer, Cachar, Division with a copy to the DTO, Cachar vide letter No. LP/8/O.R/37-40, dated 18.09.2019 and thereafter, the matter was circulated in the local newspaper. Thereafter, one person namely, Shri Deep Kumar, from Kannauj, Uttar Pradesh appeared at the Range Office, Dholai and produced documents of the vehicle and then the Beat Officer asked him to produce the legal documents of carrying the forest produce within 30 days. Then Mr. Deep Kumar, owner of the vehicle stated that the vehicle was sent from Farukabad (UP) to Aizwal with potatoes on 08.09.2019, and while returning from Aizwal, the driver had loaded the vehicle with sawn timbers without informing him, while returning back towards Silchar and he was totally unaware of the incident and he is not the owner of the seized timber and therefore, he had requested to release the vehicle. Thereafter, observing necessary formalities, the Authorized Officer-cum-Divisional Forest Officer, Cachar vide order dated 14.01.2020, confiscated the vehicle to the department under Section 49(4) of the Assam Frontier Regulation (Amendment) Act, 1995.

Then being aggrieved, the petitioner approached the Court of learned Sessions Judge, Cachar, Silchar challenging the correctness or otherwise of the order passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar by filing the Misc. Appeal No.11/2020. Then, after hearing both the parties the learned Additional Sessions Judge, vide Page No.# 4/12

judgment dated 07.03.2022, dismissed the appeal on the ground that the appellant had failed to make any attempt to prove or satisfy that the seized vehicle was used in commission of the offence without his knowledge or connivance or abetment and as such, confiscation of the seized vehicle is arbitrary in nature and as such, the impugned order cannot be faulted with."

4. Being highly dissatisfied and aggrieved with the impugned judgment and order, the petitioner Shri Deep Kumar approached this Court, on the ground as follows:-

I. That, the petitioner was totally unaware of the incident and he had requested to release the vehicle but, it was illegally confiscated vide order dated 14.01.2020;

II. That, the respondent No.2 had whimsically came to the finding that the petitioner did not exercise reasonable precaution against the use of the vehicle and confiscated the same, without allowing him to adduce evidence and as such the order is perverse. III. That, as per Section 49(6) of the Assam Forest Regulation 1891, if any person proves to the satisfaction of the authorized officer that such vehicle was used without his knowledge and all reasonable and due precaution has been taken against the use of the vehicle for commission of the forest offence, but, the respondent No. 2 failed to apply his judicial mind and arrived at a erroneous finding. IV. That, the petitioner had neither received any notices in Form No. Page No.# 5/12

31A, 31B, 31C and 31D nor, got any opportunity to adduced evidences for his defense. And as such, the confiscation proceeding is illegal and against the provision of Section 49(5)(b)(c) of the Assam Forest Regulation.

V. That, the petitioner has admittedly explained that the driver of the vehicle had loaded sawn timbers without informing him but, the respondent No.2 did not consider the same and without recording any reason, confiscated the vehicle.

VI. That, the learned Additional Sessions Judge whimsically dismissed the Misc. Appeal No.11/2020, without showing any reason and the respondent No.2, filed one CR Case No. 404/2019 before the learned CJM, Cachar and trial in the said case is yet to be commenced and the petitioner is innocent till the finding of the Trial Court and as such, the vehicle may be released in favour of the petitioner and that the vehicle is the only source of income of the petitioner and his family and since 19.08.2019, the vehicle is exposing to the sun and rain and getting damaged day by day and therefore, it is contended to allow the petition by setting aside the impugned order dated 14.01.2020 and judgment and order dated 07.03.2022.

5. Mr. I. Hoque, learned counsel for the petitioner submits that the impugned judgment dated 07.03.2022, passed by the learned Additional District Judge, Silchar in Misc. Appeal No.11/2020 and also the impugned order dated 14.01.2020, passed in O.R. No. LP/4 of 2019-20, DH/4 of 2019-20, DVL 51 of 2019-20 passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar, Page No.# 6/12

Silchar suffers from manifest illegality.

5.1. Mr. Hoque, further submitted that the learned Additional District Judge, Silchar and Authorized Officer-cum-Divisional Forest Officer, Cachar have failed to appreciate the fact that the driver of the vehicle carried the sawn timbers from Aizwal without his knowledge and without informing him and as such, confiscation of the same by the Authorized Officer without assigning any reason and affirming the said order by the learned Court below are perverse and therefore, it is contended to set aside the same. 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.

6. On the other hand, Mr. D. Gogoi, learned standing counsel for the Forest Department submits that the impugned order and judgment of the learned court below suffers from no illegality or infirmity requiring any interference of this Court. Mr. D. Gogoi, further submits that the before confiscation the petitioner was given opportunity by the Authorized Officer-cum-Divisional Forest Officer, Silchar for adducing the evidence and the petitioner, who is the owner of the vehicle failed to exercise reasonable and due precaution against the use of vehicle for commission of forest offence and thereafter, confiscated the same and as such, no interference of the impugned orders is warranted by this Court. And therefore, it is contended to dismiss the petition.

7. Having heard the submissions of learned Advocates of both the sides, I Page No.# 7/12

have carefully gone through the petition and the documents placed on record and also carefully gone through the LCR and the impugned order dated 14.01.2020, passed in O.R. No. LP/4 of 2019-20, DH/4 of 2019-20, DVL 51 of 2019-20, passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar, Silchar and also the impugned judgment dated 07.03.2022, passed by the learned Additional District Judge, Silchar in Misc. Appeal No.11/2020.

8. It is not in dispute that the vehicle in question, bearing Registration No. UP-74T-6001 was signaled to stop, while it was coming from Mizoram with swan teak timbers. But, the driver had fled away with the vehicle and after chasing the same, the Forest Beat Officer had found the same parked at Nagatilla BRTF Camp, Silchar-Aizwal road. But, the driver had already fled away from the spot. Then having checked the vehicle, the forest officials have found the vehicle loaded with teak sawn timbers and after measurement, the volume was found to be 22.373m3 (A-1 Teak Sawn Timber=144 Pcs.).

9. It is also not in dispute that as the driver has fled away and could not be traced out, and the matter was circulated in the local newspaper on 20.09.2019, and thereafter, the petitioner appeared before the Authorized Officer and he stated that he had send the vehicle from Farukabad (UP), loaded with potatoes to Aizwal and on return journey, the driver carried sawn timbers without informing him and without his knowledge and that he is not the owner of the seized timbers. It also appears that the Beat Officer has issued notice in Form 31(A), vide letter No. LP/4 of 2019-20/DH/4 of 2019-20/DVL No. 51 of 2019-20, asking the petitioner to produce the legal and original proof of forest produces Page No.# 8/12

within 30 days. Then O.R. No. LP/4 of 2019-20/DH/4 of 2019-20/DVL No. 51 of 2019-20 forwarded to the Authorized Officer. Then the Authorized Officer-cum- Divisional Forest Officer, Cachar, Silchar, had issued Form No. 31(B) vide latter No. B/13(OR)/9876 dtd. 22-11-2019, to the petitioner. The petitioner then submitted his reply that he had send the vehicle from Farukabad (UP), loaded with potatoes to Aizwal and on return journey, the driver carried sawn timbers without informing him and without his knowledge and that he is not the owner of the seized timbers and he is ready to pay fine etc. for the same. Then the Authorized Officer-cum- Divisional Forest Officer, Cachar, had issued Form 31(C) vide letter No. B/13(OR)/9838, dated 21.11.2019 to the petitioner to produce (1) Registration Certificate of the vehicle, (2) Road permit, (3) Insurance Certificate, (4) Fitness Certificate and the petitioner then produced aforementioned documents. Then the Authorized Officer-cum- Divisional Forest Officer, Cachar, had issued Form 31(D) vide letter No. B/13(OR)/9951, dated 25.11.2019 to the petitioner and then the petitioner had submitted his reply.

10. In the said reply he stated that the vehicle was sent from Farukabad (UP) to Aizwal with potatoes on 08.09.2019, and while returning from Aizwal, the driver had loaded the vehicle with sawn timbers without informing him, while returning back towards Silchar and he was totally unaware of the incident and he is not the owner of the seized timber and therefore, he had requested to release the vehicle. Thereafter, the Authorized Officer, after the investigation, found that the driver of the vehicle collected the sawn timbers from Mizoram and the owner of the vehicle- Shri Deep Kumar, did not exercise reasonable and due precaution against the use of vehicle for commission of forest offence and confiscated the same. Therefore, it cannot be said that without issuing notice to Page No.# 9/12

the petitioner and without recording any evidences, the Forest Officer has confiscated the vehicle.

11. 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 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."

12. Further, from the impugned judgment dated 07.03.2022, passed by the learned Additional District Judge, Silchar in Misc. Appeal No.11/2020, reveals that the learned Court below has observed that as required under Section 49(6) of the Assam Frontier Regulation, the petitioner has failed to prove to the Page No.# 10/12

satisfaction of the Forest Officials that the vehicle was used in commission of the forest offence i.e., carrying the teak sawn timbers without valid documents. And as the appellant had failed to prove to the satisfaction of the Forest Officials that the vehicle in question was used in commission of forest offence without his knowledge, connivance or abetment, the Authorized Officer was justified in confiscating the seized vehicle. And as such, no fault can be found with the impugned orders and judgment.

13. Thus, having examined the impugned orders in the light of facts and circumstances on the record and also in the light of relevant provisions of law, this Court finds that the same suffers from no illegality or infirmity, requiring any interference of this Court by exercising its revisional jurisdiction. Also I have 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. In view of above, I find the submission so advanced by Mr. I. Hoque, learned counsel for the petitioner is devoid of any substance. As the vehicle has already been confiscated, the question of releasing the same in interim custody does not arise at this stage.

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14. 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.

15. 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".

16. In the case of State of Madhya Pradesh & Ors. Vs. Kallo Bai, (2017) 14 SCC 502, Hon'ble Supreme Court has held that:-

"Section 15 gives independent power to the authority concerned, but confiscation of the article as mentioned there under, even before the guilt is completely established. This power can be exercised by the officer concerned if he is satisfied that the said object was utilized during the commission of a forest offence, and protection is provided for the owners of the vehicle/articles if they are able to prove that they took reasonable care and precaution as envisaged under Section 5 of Section 15 of the 'Adhiniyam' and said offence was committed without their knowledge and connivance.

It is also held that criminal prosecution is distinct from confiscation Page No.# 12/12

proceeding. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding it to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of 'Adhiniyam' prescribed an independent procedure for confiscation. The intention of separate proceeding is to provide a deterrent mechanism and to stop further misuse of the vehicle."

17. 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".

18. In view of above, no fault can be found with the impugned order dated 14.01.2020, passed in O.R. No. LP/4 of 2019-20, DH/4 of 2019-20, DVL 51 of 2019-20, passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar, Silchar and the impugned judgment dated 07.03.2022, passed by the learned Additional District Judge, Silchar in Misc. Appeal No.11/2020.

19. In the result, I find no merit in this criminal revision petition and accordingly, the same stands dismissed. The parties have to bear their own costs.

JUDGE

Comparing Assistant