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Gauhati High Court · body

2008 DIGILAW 21 (GAU)

Rajen Choudhury v. Arjun Narzary and Ors.

2008-01-08

AMITAVA ROY

body2008
1. Under assailment is the judgment and order dated 31.8.2007, passed by the learned District Judge, Kokrajhar, in Miscellaneous Appeal No. 6/2007, under regulation 490 of the Assam Forest Regulation, 1891 (as amended), (hereafter also referred to as the 'Regulation"). 2. I have heard Mr. G. Uzir, learned counsel for the petitioner and Mr. K.P. Sarma, senior advocate assisted by Mr. H. Das, advocate for the respondents No. 1 to 11. 3. Briefly stated the pleaded case of the petitioner, is that he is presently serving as the Divisional Forest Officer, Haltugaon, Kokrajhar. On 26.6.2007, at about 6.30 p.m. Sri Jayanta Daimary, Forester-I having detected 11 buffalo carts loaded with unmarked sal logs near Parallel No. 7, on the bank of Samukha riv.er in Chirang R.F. under Haltugaon Division, arrested 16 persons suspected to be involved in the forest offence and further seized the forest produce along with the buffalo carts, 22 buffaloes and other materials. The seizure list was accordingly prepared and the statements of the arrested persons were also recorded. A criminal case was registered against the arrested persons under regulations 24, 25, 40, 41 of the Assam Forest Regulation, 1891 along with section 49(2) of the Act, the persons arrested, were produced before the learned Chief Judicial Magistrate, Kokrajhar along with the offence report and the arrested persons were remanded to judicial custody. A confiscation proceeding was also initiated by the petitioner as the authorized officer under a the Regulation. As the persons arrested/did not disclose the names and particulars of the owners of the buffaloes and the buffalo carts, the Forest Range Officer, Ultapani Range on the instruction of the petitioner published a notice on 2.7.2007. In the said public notice, the owner(s) of the seized buffalo and buffalo carts were directed to contact the office of the Forest Range Officer, Ultapani Range with all documents therefrom to prove their ownership of the seized buffaloes and carts. It was further mentioned in the notice that on the failure to do so, the seized buffaloes and buffalo carts would be confiscated in accordance with law. As no person approached the authorized officer or the Forest Range Officer, Ultapani Range, in response to the said notice claiming ownership of the seized buffaloes and the cart, the petitioner as the authorized officer confiscated the same by his order dated 9.7.2007. 4. According to the petitioner, the respondent Nos. As no person approached the authorized officer or the Forest Range Officer, Ultapani Range, in response to the said notice claiming ownership of the seized buffaloes and the cart, the petitioner as the authorized officer confiscated the same by his order dated 9.7.2007. 4. According to the petitioner, the respondent Nos. 1 to 11, thereafter preferred an appeal under regulation 49C of the Regulation before the learned District Judge, Kokrajhar, which was registered as Misc. Appeal No. 06/2007. In the appeal, the said respondents claimed to be owners of the seized buffaloes and the buffalo carts and contended that their servants had taken the buffalo carts to the jungle and as they were not personally involved in any forest offence, the order of confiscation was unsustainable in law and was liable to be interfered with, with a consequential direction to return the buffaloes and the buffalo carts to them. They pleaded that only 6 persons were arrested officially by the forest personnel and that when they (respondent No. f 1 to 11) went to the office of the Forest Range Officer, Ultapani Range, they were also arrested and then produced in the court of the learned Chief Judicial Magistrate, Kokrajhar. The petitioner, who was impleaded as the respondent No.2 in the appeal, contested the same and eventually by the impugned order dated 31.8.2007, the confiscation order dated 9.7.2007, was set aside and the custody of the seized buffaloes and buffalo carts were directed to be handed over to the respondents on execution of a bank guarantee of 2 lakh. This determination has been challenged to be flawed and untenable in law. 5. In their counter, the respondent Nos. 1 to 11, claiming themselves to be the owners of the buffaloes and the buffalo carts have contended that those had been engaged for ploughing and carrying farm products. They have maintained that on 26.6.2007, their servants/ employees were intercepted with the buffaloes and the buffalo carts by the forest officials on the allegation that they had been transporting illegally felled logs from the forest within the jurisdiction of the petitioner. According to them, the Forest Range Officer, Ultapani Range could arrest only 5 out of 11 of their employees. However, as after being informed of the incident, they (respondent Nos. According to them, the Forest Range Officer, Ultapani Range could arrest only 5 out of 11 of their employees. However, as after being informed of the incident, they (respondent Nos. 1 to 11) went to the office of the District Forest Officer, Haltugaon Forest k Division, they were also arrested and produced before the Chief Judicial Magistrate, Kokrajhar. After they were released on bail, they submitted an application before the learned court below for custody of the seized 22 buffaloes and 11 buffalo carts, but the same was disposed of on 11.7.2007 on the ground that in the meantime, the same had already been confiscated. They have categorically denied the averment that the forest officials at the relevant point of time, were unaware of the ownership of the seized buffaloes and the buffalo carts. According to the answering respondents, the confiscation proceeding is vitiated by incurable illegalities, more particularly in view of blatant violations of regulation 49 of the Regulation. Defending the judgment and order impugned, they have contended that in the facts and circumstances of the case, no interference therewith, is called for, 6. In his reply affidavit, the petitioner, while substantially reiterating the pleadings in the writ petition, categorically asserted that no person ever had approached the forest officials for release of the seized buffaloes and the buffalo carts claiming to be the owners thereof. 7. Mr. Uzir, has emphatically urged that none during the pendency of the confiscation proceeding having claimed the ownership of the seized buffaloes and the buffalo carts, the plea of contravention of section 49 of the Act in the face of the public notice, is patently misconceived. The said notice having been published for the general information of all concerned so as to enable the owner(s) of the seized buffaloes and the buffalo carts to claim the same and offer his/their defence against the charge levelled in the confiscation proceedings, no challenge thereto on the ground of procedural infraction is permissible. The respondent Nos. 1 to 11 having withheld their identity as the owners of the seized buffalos and the buffalo carts and having failed to claim the ownership in time, they are estopped h from imputing violation of the procedural safeguards in section 49 of the Act, urged. The learned court below having disregarded this vital aspect of the controversy, the impugned judgment and order is liable to be interfered with. The learned court below having disregarded this vital aspect of the controversy, the impugned judgment and order is liable to be interfered with. Without prejudice to the above, Mr. Uzir, has contended that in the attending facts and circumstances, it may be at best a case of remand for a retrial of the confiscation proceedings. The learned counsel for the petitioner, on instructions has apprised this court that the buffaloes seized, would be as on date, worth on an a average at Rs. 15,000 to 20,000, each. He pressed into service the decisions of the Apex Court in State of Karnataka v. K. Krishnah, (2000) 7 SCC 80 and other court in Abu Bakkar All (MD) v. State of Assam and Ors., 1999 (1) GUT 633. 7. Mr. Sarma, in reply, while emphasizing that the respondents had at the very first instance disclosed their identity as the owners of the seized buffaloes and buffalo carts, has contended that the feigned ignorance of the said fact as sought to be projected by the petitioner, is only a desperate attempt to save the confiscation proceeding. He asserted that the petitioner as the authorized officer, was fully aware c that the respondents were the owners of the seized buffaloes and the buffalo carts, on 26.6.2007, itself when they had presented themselves before him claiming to be so. This is further evident from the averments made in the application before the learned Chief Judicial Magistrate, Kokrajhar on 27.6.2007, claiming themselves to be the owners of the seized buffaloes and the buffalo carts. The learned senior counsel, argued that the confiscation proceedings in the above premise, is non est in law, the respondents having been denied an opportunity of affording their defence and contesting the charge. Mr. Sarma, dismissed the public notice dated 2.7.2007 to be an ostentious step in the said proceedings to provide a touch of purported compliance of the procedural imperatives contained in section 49 of the Act, with no intention thereof. Further, as no finding that the seized buffaloes and the buffalo carts had been used for the commission of any forest offence as required under section 49 of f the Act, having been recorded, the stages subsequent thereto, are ineffectual, null and void, he urged. Further, as no finding that the seized buffaloes and the buffalo carts had been used for the commission of any forest offence as required under section 49 of f the Act, having been recorded, the stages subsequent thereto, are ineffectual, null and void, he urged. The learned senior counsel, asserted that in view of the illegalities invalidating the confiscation proceedings rendering it non-existent in law, no remand for retrial thereof, ought to be ordered. Mr. Sarma, has contended that the buffaloes being of local origin, they are each priced in the range of 5,000 to 7,000. To reinforce his arguments, the learned senior counsel, placed reliance on the decisions of this court in Jibon Bailoung v. State of Assam and Ors., 1998 (7) GL-J 234 and Abu Bakkar All (Md.) v. State of Assam and Ors., 1999 (1) GLT 633. 8. The rival submissions have been closely evaluated. The debate fundamentally centres around the compliance of the prescribed essentialities engrafted in regulation 49 of the Regulations. Indubitable, it is that any inexplicable digression from the said statutory mandates adversely affecting the rights of the respondents herein, would render the action taken under the said legal provision, invalid and non est in law. 9. That on 26.6.2007, 11 buffalo carts loaded with unmarked sal logs were intercepted by the forest officials near Parallel No. 7, on the Bank of Samukha River in Chirang Reserve Forest under Haltugaon Division, is a recorded fact. Whereas, the petitioner asserts that 16 persons were arrested along with buffalo carts and 22 buffaloes, yoked therewith and the forest produce and other materials were seized, according to the private respondents, only 5 persons, their employees were apprehended at the first instance. According to them, being the owners of the buffaloes and the buffalo carts, they having approached the Divisional Forest Officer, Haltugaon Forest Division, being aware of the said incident, were arrested and also forwarded to the Court of the learned Chief Judicial Magistrate, Kokrajhar, In all, therefore, 16 persons were arrested in connection with the episode and were eventually remanded to judicial custody. The assertion of the private respondents that on the next date, i.e., 27.7.2007, they had submitted an application before the learned court below for the custody of the buffalo and the carts and that therein, they claimed themselves to be the owners thereof, has remained uncontroverted. 10. The assertion of the private respondents that on the next date, i.e., 27.7.2007, they had submitted an application before the learned court below for the custody of the buffalo and the carts and that therein, they claimed themselves to be the owners thereof, has remained uncontroverted. 10. The records produced, revealed that the Forest Range Officer by Memo No. UR/65/75-76, dated 27.6.2007, forwarded 16 arrested persons to the court of the learned Chief Judicial Magistrate, Kokrajhar. The factual background was narrated in the said communication. The learned Chief Judicial Magistrate, Kokrajhar on the application for custody of the seized buffaloes and buffalo carts by his order dated 3.7.2007, called for a report from the Divisional Forest Officer, Haltugaon, fixing 9.7.2007. The DFO, Haltugaon on receipt of the seizure report from the Forest Range Officer, Ultapani Range on 26.6.2007, by his letter dated 28.6.2007, required the former to issue a notice for the information of all concerned to register their claim as owners of the sized 22 buffaloes and 11 carts along with the forest produce. Accordingly, the Forest Range Officer, Ultapani Range, issued notice dated 2.7.2007, mentioning about the factum of the seizure of the 22 buffaloes and 11 carts together with the forest produce and that there were reasons to doubt that the persons arrested were the owners thereof Thereby, the owners or persons interested in the seized property, were notified to present themselves before the office of the Forest Range Officer, Ultapani Range, together with adequate proof of their ownership within a period of 7 days from the of the notice. It was further disclosed therein that if within the time granted, no claim was made, the seized buffaloes and the buffalo carts along with the forest produce would be confiscated in accordance with law. A copy of the notice was forwarded a to the Divisional Forest Officer, Haltugaon with reference to his order dated 28.6.2007. 11. The records disclose that by the Memo No. UR/OR/86 W, dated 9.7.2007, the Forest Range Officer, Ultapani Range, Ultapani apprised the Divisional Forest Officer, Ultapani, Kokrajhar, that in response to the notice dated 2.7.2007, nobody had appeared before him claiming ownership of the seized buffaloes, carts and the forest produce. 11. The records disclose that by the Memo No. UR/OR/86 W, dated 9.7.2007, the Forest Range Officer, Ultapani Range, Ultapani apprised the Divisional Forest Officer, Ultapani, Kokrajhar, that in response to the notice dated 2.7.2007, nobody had appeared before him claiming ownership of the seized buffaloes, carts and the forest produce. The Divisional Forest Officer, Haltugaon Division, Kokrajhar by his reply No. B/16/8/1593-CA), dated 9.7.2007, conveyed that in absence of any claim of ownership, the seized properties including the 22 buffaloes were confiscated under regulation 49(2) of the Regulations. Thereby, the Range Officer, Ultapani Range, was directed to take full charge of the livestock and provide for medical treatment, etc., and submit report from time to time in connection therewith. 12. It appears from the records that a proceeding being No. UR/1, was drawn up by the authorized officer/Divisional Forest Officer, Haltugaon Division, wherein, the order dated 28.6.2007, had been passed requiring the Range Officer, Ultapani Range to issue the notice. On receipt of the report of the Range Officer, Ultapani Range, on 9.7.2007, as above, the Divisional Forest Officer, Haltugaon, Kokrajhar/authorized officer on the same date, i.e., 9.7.2007, recorded in the said proceeding that as the buffaloes were used for commission of illegal felling and transportation of timber and no claimant had appeared claiming the ownership of the same within the time notified, those were to be confiscated as per the Regulation along with seized timber, cart, etc. The following order was thereafter passed on the same date. "Seen all the records. Since no person has submitted claim over the seized 22 buffaloes and 11 Nos. of carts all the seized property, are confiscated to the Government as Government property. Since the confiscated properties are livestock, these are to be disposed of as per rule at the earliest possible." He by his Memo No. B/Court Case/06-07, dated 9.7.2007, also submitted a report before the learned Chief Judicial Magistrate, as asked for. Therein, he categorically mentioned that all the seized articles including the buffaloes and the carts, had been confiscated by the Government under section 49 (2) of the Assam Forest Regulation (Amendment) Act, 1995. The learned court below on a perusal of the said report closed the application for custody. 13. Therein, he categorically mentioned that all the seized articles including the buffaloes and the carts, had been confiscated by the Government under section 49 (2) of the Assam Forest Regulation (Amendment) Act, 1995. The learned court below on a perusal of the said report closed the application for custody. 13. Under regulation 49 of the Regulations any forest produce together with tools, vessels, vehicles, etc., used in the commission of any forest offence, may be seized by authorized officer not below the rank of Forester or any Police Officer not below the rank of Sub-Inspector of Police only if the authority concerned has reason to belief that such an offence has been committed, the authorized officer on production before him of such property or upon receipt of a report of such seizure, may confiscate the same, if on his personal inspection and verification as he may deem fit and necessary, he is satisfied that the forest offence has been committed in respect thereof. The said authority, however, under section 49(4), subject to the conditions enumerated therein, may order the confiscation in writing and record reasons in support thereof. 14. Section 49(5) predicates that before confiscating any property, the authorized officer would send an intimation in the prescribed form about the initiation of the proceeding for confiscation of the property to the Magistrate, having jurisdiction to try the offence on account of which the seizure has been made. He is further required to issue a notice in writing to the person from whom the property is seized and to any other person, who may appear to him to have such interest in the property and in case of motorized boats, vessels, vehicles, trucks, etc., having a registration number to the registered owner thereof. The authorized officer is also obliged to afford to such persons a reasonable opportunity of making a representation within such reasonable time, as may be specified in the notice against the proposed confiscation. A reasonable opportunity of being heard is also to be accorded to the officer effecting the seizure. These statutory enjoinments are incorporated in sub-regulation 5 of regulation 49 of the Regulations and are peremptory prerequisites of a valid order of confiscation. A reasonable opportunity of being heard is also to be accorded to the officer effecting the seizure. These statutory enjoinments are incorporated in sub-regulation 5 of regulation 49 of the Regulations and are peremptory prerequisites of a valid order of confiscation. Sub-regulation 6 of the regulation 49 provides that if any person responding to the notice proves to the satisfaction of the authorized officer that such tools, vehicles, machinery, etc., were used without his knowledge or connivance or abetment or as the case may be or without the knowledge or connivance of his servant or agent and that all reasonable and due precautions had been taken against the use of the object aforesaid for the commission of forest offence, no order of confiscation would be made. 15. A cumulative reading of the various sub-regulations of Regulation 49, therefore, demonstrates that an objective inquiry has to be undertaken by the authorized officer, wherein, all reasonable opportunities have to he extended to the person from whom the property has been seized and to any other person who may appear to him to have some interest therein or in case of vehicles, having a registration a number to the registered owner thereof. It is also obligatory for the authorized officer to send an intimation in the prescribed form about the initiation of the proceeding of confiscation to the Magistrate having jurisdiction to try the offence on account of which the seizure had been made. 16. This court in Jibon Bailoung (supra), while dilating on the scope and content of regulation 49, had held that the prescriptions incorporated in sub-regulation 5(a) to 5(d) to the Regulation, are mandatory and no order of confiscation is permissible without a compliance therewith. It further held, the satisfaction of the authorized officer about the commission of the forest offence to be an essential sine qua non for valid confiscation of the seized property. That the exercise is to be made on objective consideration by the authorized officer before passing the order of confiscation of any property by strictly adhering to the procedural sanctions was emphasized in categorical terms. It propounded the requirement of recording a reason in support of the order of confiscation as a mandate of the principles of audi alteram partem and that the Legislature thereby intended a rigorous observance of the procedure prescribed and not a mere pretension of compliance thereof. It propounded the requirement of recording a reason in support of the order of confiscation as a mandate of the principles of audi alteram partem and that the Legislature thereby intended a rigorous observance of the procedure prescribed and not a mere pretension of compliance thereof. The same view was reiterated in Abu Bakkar Alt (Md.) (supra). 17. The revelations from the record do not demonstrate that the Divisional Forest Officer, Haltugaon, Kokrajhar had sent an intimation in the prescribed form about the initiation of proceeding of the confiscation of property to any Magistrate having jurisdiction to try the offence on account of seizure had been made. It is unlikely that though, the private respondents herein, had claimed to be the owners of the seized buffaloes and carts in their application for custody filed before the learned Chief Judicial Magistrate, Kokrajhar, on which a report was called for on 3.7.2007, the authorized officer, was unaware « about this stand of theirs till 9.7.2007. Apart from the notice dated 2.7.2007, issued by the authorized Range Officer, Ultapani Range, the manner of publication whereof, is also obscure, no other endeavour whatsoever, had been made by the authorized officer to either intimate them (private respondents) about the initiation of the confiscation proceeding or to accord them an opportunity of hearing against the proposed decision of confiscation. Instead immediately on the expiry of 7 days of such notice, the authorized officer confiscated the seized buffaloes and buffalo carts together with the forest produce, etc., on the purported ground that no claim therefor, had been made. Neither the endorsement in the records nor the order passed to the said effect disclose any reason for the conclusion as to why the buffaloes and the buffalo carts, were taken to have been used for the commission of a forest offence. There, no discussion of any material whatsoever, supportive of that inference. The records, even do not disclose any order initiating the confiscation proceeding. The disclosures as above, impels this court to deduce that the impugned confiscation proceedings do not accord with the statutorily ordained edicts to be obligatorily adhered to. The finding of the learned court below that the impugned order of confiscation suffers from non-compliance of the provisions of regulation 49Q(a) to (d), being corroborated by the records, thus, does not call for any interference. 18. The finding of the learned court below that the impugned order of confiscation suffers from non-compliance of the provisions of regulation 49Q(a) to (d), being corroborated by the records, thus, does not call for any interference. 18. The decision of Apex Court in K. Krishnan (supra), disapproving a liberal approach in the matter of release of property seized and liable for confiscation being involved in the commission of a forest offence, is of no avail to the petitioner in the face of the pronounced legal infirmities that incurably afflicts the confiscation proceedings. The learned court below, noticeably has outlined the conditions to be fulfilled by the private respondents to receive the custody of the seized buffaloes and the carts, which in the attending facts and circumstances of the case, does not require any modification as well. The petition, thus, being without any merit is dismissed. No costs.