Gauhati High Court
Munush Daimari @ Munush Kumar Daimari vs The State Of Assam And 4 Ors on 30 September, 2024
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010033712022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1436/2022
MUNUSH DAIMARI @ MUNUSH KUMAR DAIMARI
S/O. LT. MAHENDRA DAIMARI, VILL. MAZKHUTI, P.S. AND P.O. ROWTA,
DIST. UDALGURI (BTAD), ASSAM, PIN-784509.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, FOREST DEPTT.
2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST ASSAM
ARANYA BHAWAN
PANJABARI
GUWAHATI
KAMRUP
GUWAHATI-781037.
3:DIVISIONAL FOREST OFFICER
SONITPUR EAST DIVISION
BISWANATH
ASSAM
PIN-784025.
4:ASSTT. CONSERVATOR OF FOREST
O/O. DIVISIONAL FOREST OFFICER
SONITPUR EAST DIVISION
BISWANATH
ASSAM
PIN-784025.
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5:THE FOREST RANGE OFFICER
BORGANG RANGE
SONITPUR EAST DIVISION
PIN-784025
Advocate for the Petitioner : MR G KAKOTI, MR K J SAIKIA,MR. K BORUAH,MR. P J
SAIKIA, SR. ADV,MR. D KHAKHALARY,MR. P THAKURIA
Advocate for the Respondent : SC, FOREST,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
30.09.2024
Heard Mr. P. Thakuria, learned counsel for the petitioner. Also heard Mr. D.
Gogoi, learned Standing Counsel, Forest Department.
2. The petitioner has prayed for a direction to be issued to the respondent
authorities for release of the seized Kobelco Excavator SK 210 HDLC-8 (Pokland
Vehicle).
3. The petitioner's case is that on 07.12.2019, the Forest Range Officer,
Sonitpur East Division, Biswanath Chariali registered a case bearing No.BG/08 of
2019-2020 dated 07.12.2019 and arrested two persons namely Sri Gobinda Ray
and Sanjit Ray for violation of Sections 24, 25, 40, 41, 60 & 61 of the Assam
Forest Regulation, 1891 (hereinafter referred to as the '1891 Regulation'), as the
petitioner's excavator was being used for construction of a new road under the
Bihali Reserve Forest near the Assam-Arunachal Border. In this regard, an
offence report was drawn up by the Forest Range Officer, i.e., respondent No.5
bearing O.R. No.BG/08 of 2019-20 dated 07.12.2019. On 24.08.2020, the
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respondent No.3 initiated confiscation proceedings of the seized excavator. On
24.08.2020, the Divisional Forest Officer, Sonitpur East Division held that the
seized vehicle was involved in the illegal felling of trees and clearing of jungle
and construction of roads inside the Bihali Reserve, which was in violation of
Sections 24 and 25 of the 1891 Regulation.
4. Being aggrieved against the order dated 24.08.2020 passed by the
Divisional Forest Officer, Sonitpur East Division, the petitioner preferred an
appeal under Section 49(C) of the 1891 Regulation in the Court of the Addl.
Sessions Judge (FTC), Biswanath Chariali being Misc. Appeal No.03/2020 and by
judgment dated 27.01.2022, the said appellate Court upheld the temporary
confiscation order dated 24.08.2020 passed by the DFO, Sonitpur East Division,
Biswanath Chariali. The petitioner thus preferred the present writ petition for
release of his vehicle under Article 226 of the Constitution.
5. During the pendency of the present writ petition, the trial of the persons
who were detained in pursuance to the forest case and the question with regard
to final confiscation of the seized vehicle was taken up by the Court of the
Judicial Magistrate First Class, Biswanath in C.R. Case No.59/2020. The Court of
learned J.M.F.C., vide order dated 04.03.2023, allowed Petition No.686/2023
under Section 321 Cr.P.C. submitted by the prosecution, praying for withdrawing
the prosecution of the detained persons as per the SOP issued vide Notification
No. E.2/7405/52 dated 21.10.2022. The learned Trial Court, i.e., J.M.F.C.
allowed Petition No.686/2023 by discharging the detained persons and the
seized articles, if any, were to be disposed of as per law in due course of time.
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6. The order dated 04.03.2023 passed by the learned J.M.F.C., Biswanath in
C.R. Case No.59/2020 is reproduced hereinbelow as follows:-
"04.03.2023
Accused persons namely Sri Gobinda Ray and Sri Sanjit Ray are absent
without steps.
Further Learned Assistant Public Prosecutor, Smti Binita Upadhyaya has
filed a petition bearing vide petition no. 686/23 under Section 321 of Cr.P.C.
stating that as per SOP issued vide Notification No. E.2/7405/52 dated
21.10.2022, she withdraws from prosecution In this case.
Heard the Learned APP and the Learned Defense Counsel. Perused the
petition.
On perusal of the case record it appears that the case is under Section
24/25/40/41/60/61 of AFR Act.
Hence, considering all the facts and materials on record, this Court finds
it fit to allow the petition No. 686/23 In view of provisions of Section 321 of
Cr.P.C.
Thus the Petition No. 686/23 is hereby allowed and disposed of.
The accused persons are hereby discharged.
The bail bonds for the accused persons shall be in force for the next six
(6) months as per Section 437A of Cr.P.C.
Let the seized articles if any be disposed of as per Law in due course of
time.
Inform all concerned. B/A shall take necessary steps.
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The case is disposed of on withdrawal by the prosecution."
7. The petitioner's counsel submits that in view of the withdrawal of the case
by the prosecution, there is no ground for keeping the seized excavator in the
custody of the respondents and the same should be released to the petitioner,
who is the owner of the vehicle.
8. Mr. D. Gogoi, learned Standing Counsel, Forest Department submits that
the Forest Department did not give any permission to the Prosecutor to
withdraw the prosecution before the Court of the learned J.M.F.C. and as such,
the learned Court erred in withdrawing the prosecution of the case. He also
submits that unless the proceedings in C.R. Case No.59/2020 were allowed to
culminate, there was no question of releasing the excavator to the petitioner.
9. I have heard the learned counsels for the parties.
10. The earlier order dated 24.08.2020 issued by the D.F.O., Sonitupur East
Division, Biswanath Chariali and the judgment dated 27.01.2022 passed by the
learned Additional Sessions Judge (FTC), Biswanath Chariali in Misc. Appeal
No.3/2020, regarding the confiscation of the seized excavator, shows that the
confiscation in terms of the 1891 Regulation was only temporary in nature,
which had to be finally decided by the learned Trial Court. However, as can be
seen from the order dated 04.03.2023 passed by the learned Court of the
J.M.F.C. in C.R. Case No.59/2020, the criminal case has been disposed of on
withdrawal of the prosecution. It is also noticed that while the prosecution had
been withdrawn from the case on 04.03.2023, no subsequent action has been
taken by the respondent authorities till date against the said order. As such, as
on date, the order dated 04.03.2023 passed by the Court of learned J.M.F.C.,
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Biswanath in C.R. Case No. 59/2020 has attained finality.
11. In view of the fact that there is no case against the petitioner with regard
to the seizure of the excavator or against the petitioner, this Court is of the view
that the very basis for keeping an excavator in the custody of the Forest
Department does not survive. Accordingly, in view of the reasons stated above,
the respondents, especially the respondent No.3, is directed to release the
excavator to the petitioner.
10. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
