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2015 DIGILAW 1166 (GAU)

Jaminur Rahman v. State of Assam

2015-09-10

HRISHIKESH ROY

body2015
JUDGMENT : 1. Heard Mr. D.A. Kaiyum, the learned Counsel appearing for the petitioner. The Government Advocate Mr. R.K. Bora appears for the respondents in the case. 2. The petitioner is the owner of a bus bearing registering No. AS-01/S/5179 which is deployed for carrying passengers under the Self Employment Scheme of the Assam State Transport Corporation (ASTC). On 5.12.2008, during a routine check by the forest staff under the Kamrup Forest Division, firewood worth Rs.169/- was found on the bus roof and accordingly the offence report No.BG-16/08-09 for illegal carrying of firewood was given alleging infringement of Section 40, 41 & 60(1) of the Assam Forest Regulation, 1891 (hereinafter referred to as “the Forest Regulation”). As the concerned passenger who had loaded the firewood fled away and the driver and bus conductor were unable to identify him, the two were arrested and both the firewood and the bus were seized by the forest staff. 3. In the resultant CR Case No. 5942c/2008, the driver and the conductor were enlarged on bail by the C.J.M, Kamrup on 12.12.2008 and thereafter charge under Section 41 of the Forest Regulation was framed in the case against the two accused. Since offence under Section 41 is compoundable, the learned C.J.M through the order dated 22.12.2008 (Annexure-6) accepted the guilty plea of the accused and sentenced them to simple imprisonment for 5 days. But as they were incarcerated for 5 days before bail, the previous custody period was set off against the sentence passed upon conviction. The learned C.J.M. further ordered that the seized bus be released to the registered owner in due course of time. 4. The Misc. Case No.2371/2009 was then filed before the learned C.J.M. by the bus owner to apply for release of his vehicle and the order sheet of the Court shows that the Forest Range Officer failed to furnish any report to the Court despite repeated orders passed on 27.2.2009, 5.3.2009, 7.3.2009 and 18.3.2009 by the learned C.J.M. Therefore a show-cause-notice had to be issued by the Court against the Forest Range Officer, proposing to proceed against the respondent No.4, under Section 175 of the IPC. 5. 5. Subsequently the Court was informed of the confiscation order passed by the authorized officer-cum-DFO, Kamrup West Division (respondent No.3) and considering this to be an unauthorized intervention, in the backdrop of the previous order of the Magistrate recorded on 22.12.2008, the show-cause-notice was ordered to be issued on 24.3.2009 against the DFO, for initiating the confiscating proceeding without intimation to the Court, as is required under Sub-Section (5) of Section 49 of the Forest Regulation. 6. The confiscation order was passed for the bus in question by the authorized officer on 7.2.2009 (Annexure-8) by considering the same to have been used to commit the forest offence and the legality of this order of the DFO is challenged by the aggrieved bus owner. 7. Mr. D.A. Kaiyum, the learned counsel submits that direction was issued by the learned C.J.M on 22.12.2008 to release the bus to the registered owner and hence the authorized officer could not have ordered for confiscation of the bus by defying the orders of the Court. It is further contended that, due process of confiscation under Section 49(4)(5) of the Forest Regulation, was not followed by the DFO in ordering confiscation on 7.2.2009. 8. In Jogeswar Bora vs. State of Assam reported in 2006 (3) GLT 162, this Court held that order of final confiscation can be passed only under Section 51 of the Forest Regulation by the Magistrate and the confiscation of the seized property by the authorized officer under Regulation 49 is a temporary measure. In Nathuni Singh vs. Deputy Commissioner reported in 1999 (3) GLT 604, this Court while interpreting Section 51 of the Forest Regulation clarified that only when the vehicle owner is convicted for the forest offence, confiscation of the vehicle under Section 51 can be justified. 9. In the present case, the bus owner is not convicted of any forest offence and when the crime of the driver and the bus conductor was compounded by the Magistrate on 22.12.2008, clear direction was issued by the Court for release of the bus to the owner. That apart, the proceeding before the learned C.J.M, in the Misc. Case No.2371/2009 clearly shows that the Court was not kept informed about the confiscation proceeding initiated by the DFO and this certainly infringes the provisions of Sub-Section (5) of Section 49 of the Forest Regulation. That apart, the proceeding before the learned C.J.M, in the Misc. Case No.2371/2009 clearly shows that the Court was not kept informed about the confiscation proceeding initiated by the DFO and this certainly infringes the provisions of Sub-Section (5) of Section 49 of the Forest Regulation. Moreover confiscation of the bus which had no direct involvement in the forest offence of petty nature involving firewood worth Rs.169/- carried by a bus passenger, can’t logically be justified. Thus the confiscation order of the authorized officer (respondent No.3) is found to have been issued through non-application of mind, by disregarding the due process under the Forest Regulation. 10. In the above circumstances, I declare that the Forest Authorities have failed to act within their jurisdiction and have acted in violation of the Forest Regulation in ordering confiscation of the petitioner’s bus, in connection with the CR Case No. 5942c/2008. Therefore the impugned order dated 7.2.2009 (Annexure-8) of the DFO, Kamrup West Forest Division is found to be unsustainable and the same is quashed. 11. With the above order, the case stands allowed to the extent indicated. No cost.