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2005 DIGILAW 838 (GAU)

Jogeswar Borah v. State of Assam

2005-12-15

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. J. Deka, learned Counsel for the Petitioner and Mr. G. Soren, Learned Government Advocate, Assam appearing on behalf of the official Respondents. 2. The facts of the case, as revealed by the pleadings on record, reveal a some what depressing picture. The writ Petitioner, who is the registered owner of a truck bearing Registration No. ASN-6786, has been, for the last 6/7 years, knocking the doors of various authorities including the Courts for release of his truck, which he contends to be the only source of livelihood. Not having received any positive response, he has invoked the extra-ordinary powers of this Court under Article 226 of the Constitution essentially seeking the release of his truck, which has been under seizure/confiscation since 3.11.1998 for its alleged involvement with a forest offence. 3. The recital of the facts could begin by taking 3.11.1998, i.e., the date of the seizure of the Petitioner's truck, as the starting point. Next came an order of confiscation by the Authorized Officer acting under Regulation 49 of the Assam Forest Regulation. The Petitioner availed of the legal remedy by filing an appeal before the learned Sessions Judge, Marigaon, which was dismissed by the said Court on 15.6.1999. The Petitioner, next, filed a Criminal Revision Application, which was closed by an order dated 18.1.2002 directing the authorized officer to consider the case of the Petitioner and in accordance with the decision of this Court in the case of Nathuni Singh v. Deputy Commissioner and Anr. reported in (1999) 3 GLT 604. Thereafter, the Petitioner unsuccessfully approached the Authorized Officer with a request to release his vehicle. The request of the Petitioner not having been answered either in the affirmative or the negative, the Petitioner has instituted the present writ petition. 4. At the hearing Shri Deka, learned Counsel for the Petitioner, by placing the relevant provisions of the Assam Forest Regulation commencing from Regulation 49, has sought to draw a fundamental distinction between the confiscation order passed by the Authorized Officer under Regulation 49 and the confiscation order passed by the Criminal Court after conviction of the offender in the forest offence. Shri Deka, learned Counsel for the Petitioner has tried to make out a distinction of the confiscation under the two circumstances, by contending that it is only to the latter class of confiscation that the power of release enjoined by the provisions of the Regulation would not be applicable, inasmuch as, in case of such a confiscation, the property confiscated gets appropriated to the State. The first kind of confiscation is contended to be a little higher than a seizure, to both of which situations, the power of release under Regulation 49-A would be applicable. Pointing out the averments made in the writ petition that the Petitioner is not involved in any forest offence and no case has been registered against him, Shri Deka has contended that the refusal/failure on the part of the authority to release the truck during the long years of detention amounts to arbitrary action on the part of the State authority, which has the effect of depriving the Petitioner of his property without following the mandate of law and, therefore, the confiscation/retention of the Petitioner's truck amounts to violation of the rights of the Petitioner under Article 300-A of the Constitution. 5. That the Petitioner is not involved in any forest offence is a fact, which is not disputed. It is only the vehicle of which the Petitioner is the registered owner, that is involved in a forest offence. Admittedly and evidently, the trial of the offence in connection with which the truck of the Petitioner is involved has not come to an end, and, therefore, no order of confiscation under Regulation 51 and consequential appropriation of such property in the name of the -State have occurred. The confiscation of the property ordered by the Authorized Officer, therefore, must be understood by the Court to be confiscation under Regulation 49 of the Regulations, which is a temporary stage. In such a situation, when the truck is the source of livelihood of the Petitioner, it is difficult to visualize as to why it should have been retained beyond a reasonable time. In such a situation, when the truck is the source of livelihood of the Petitioner, it is difficult to visualize as to why it should have been retained beyond a reasonable time. In the circumstances noted above, the continued confiscation or retention of the truck of the Petitioner must be held by the Court to be wholly without authority of law and this Court must also hold that the concerned authorities at all levels have failed to exercise their quasi judicial discretion vested by the provisions of the Forest Regulations in a fair and unbiased manner. 6. The net result of the above discussion is that the Petitioner is entitled to have the truck released forthwith for which the concerned authority, whosoever he may be, in control of the vehicle is hereby directed to release the same immediately subject to execution of a bond by the Petitioner for production of the vehicle before any authority or Court, as may be required. Writ Petition is accordingly allowed in terms of the above observations and directions.