MD. SIMRAN SULTAN v. THE STATE OF ASSAM AND ANR

passed by the learned Addl. Chief Judicial Magistrate First Class, Morigaon, in C.R. Case No. 765/2020, is put to challenge in this Criminal Petition, under Section 482 Cr.P.C. read with Article 227 of the Constitution of India.

2. It is to be noted here that vide impugned order, the learned Court below has dismissed the petition filed by the petitioner namely, Md. Simran Sultan, seeking custody of one seized Swift Desire LDI car, bearing Registration No. AS 01/ AN-4274, being the registered owner of the same.

3. The factual background leading to the filing of this present Revision Petition is briefly stated as under:- “On 17.09.2020, at about 05.30 PM, Shri Dulal Bora, Dy, R. Forest Officer, Nakula Beat, Jagiroad, acting on a tip off apprehended one Md. Simran Sultan and Niranjan Mandal, and Dipon Malakar, while they were carrying one Pangolin, a Schedule -1 species, in a Swift Dezire vehicle bearing registration No. AS-01-AN 4274 illegally. Accordingly, the Forest Beat Officer has seized the vehicle and the Pangolin and arrested the accused persons and forwarded them to the court and reported the matter to the learned Chief Judicial Magistrate, Morigaon, as well as the Divisional Forest Officer, Nagaon. Thereafter, on

08.10.2020, the wife of the present petitioner namely Rumi Begum had filed Page No.# 3/10 one petition before the learned Addl. Chief Judicial Magistrate, Morigaon, seeking custody of the seized Swift Dezire vehicle bearing Registration No. AS- 01-AN 4274. But, the learned Addl. Chief Judicial Magistrate, having called for a report from the I.O. and after perusing the case record and also perusing the report of the I.O., had rejected the petition.

4. Being highly aggrieved, the petitioner approached this Court challenging the impugned order passed by the learned Court below on the ground that: - (i) The learned court has committed error by rejecting the petition, without there being a categorical finding to the effect that the vehicle in question was used in commission of the forest offence, (ii) The learned court below has dismissed the petition without considering the provision of section 50(1)(c) of the Wild Life protection Act, (iii) The learned court below has failed to take into account the factual aspect of the case and also failed to take into account that mandatory provision of section 49(5) of the Assam Forest Regulation in respect of confiscation of vehicle has not been followed and also the provision of Rule 50 and 51 of Assam Forest Regulation has not been followed, and therefore, it is contended to allow the petition.

5. Heard Mr. M.P. Choudhary, learned counsel for the petitioner and also heard Mr. P.N. Goswami, learned Addl. Advocate General, Assam. Page No.# 4/10

6. Mr. Choudhury, the learned counsel for the petitioner submits that since the seizure of the vehicle on 17.09.2020, and the same has been lying unattended in the Forest Beat Office and exposing to the sun and rain, and its value is diminishing day by day. Mr. Choudhury further submits that the petitioner has been seeking only interim custody of the vehicle and it was seized without complying the relevant provisions of law, and the petitioner is entitled to the same and that he will produce the same before the Court as and when necessary. Mr. Choudhury, therefore, contended to allow the petition. Mr. Choudhury also referred following case laws in support of his submission:- (i) Enquiry Officer- Forest Range Officer, vs. Md. Saheb reported in 2016 SCC OnLine Cal 528; (ii) State of Karnataka vs. K. Krishnan reported in (2000) 7 SCC 80, (iii) Principal Chief Conservator of Forest and Another vs. J.K. Johnson and Others, reported in (2011) 10 SCC 794, (iv) Jogeswar Borah vs. State of Assam and Ors. reported in 2003 (3) GLT 162

7. On the other hand, Mr. P.N. Goswami, learned Addl. Advocate General. Gogoi, has vehemently opposed the prayer being made by the petitioner and submits that the Authorized Officer has already started confiscation proceeding of the seized vehicle after observing all the formalities. Mr. Goswami further submits that after enquiry, Offence Report No. W/10/O.R./2020/350 dated 10.10.2020, has been laid against the petitioner and two other accused persons and use of the vehicle in committing the offences under Wild Life Protection Act is well established and therefore, it is contended to dismiss the petition. Page No.# 5/10

8. Having heard the submissions of the learned advocates of both the sides, I have carefully gone through the petition and the documents paced on record and also perused the case laws, referred by the learned counsel for the petition.

9. It appears that acting on a tip off Shri Dulal Bora, Dy, R. Forest Officer, Nakula Beat, Jagiroad had apprehended present petitioner and one Niranjan Mandal and Dipon Malakar, while they were carrying one Pangolin, a Schedule -1 species, in a Swift Dezire vehicle, bearing registration No. AS-01-AN 4274, illegally, on 17.09.2020, at about

05.30 PM. The vehicle in question was seized by the Forest Beat Officer along with the Pangolin and arrested the three accused persons and forwarded them to the court, and thereafter, reported the matter to the learned Chief Judicial Magistrate, Morigaon and also to the Authorized Officer -cum- Divisional Forest Officer, Nagaon. Further it appears that after completion of investigation the Range Forest Officer has laid Offence Report No. W/10/O.R./2020/350, dated 10.10.2020, against the aforementioned accused persons, to stand trial under section 9, 39, 43, 48(A), 50 punishable under section 51 of the Wild Life protection Act. Now, what left to be seen is whether a seized vehicle, in respect of which a confiscation proceeding has already been started, can be released in the custody of the petitioner, pending such proceeding. Page No.# 6/10

10. While dealing with similar issues Hon’ble Supreme Court in the case of State of Madhya Pradesh Vs. Uday Singh, (2020) 12 SCC 733, held that:- “The jurisdiction under Section 451 of the Cr.P.C., was not available to the Magistrate, once the confiscation Authorized Officer proceedings”. initiated

11. Herein this case it appears that the Authorized Officer –cum - Divisional Forest Officer, Nagaon has already started confiscation proceeding and issued show case notice to the petitioner in prescribed Form, vide letter dated 31.12.2020, Memo No. FNGT/B/53/O.R./2020/8171-72, complying the provision of Sub-section 5(6) of Section 49 of the Assam Forest Regulation.

12. It is to be mentioned here that 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 Page No.# 7/10 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.”

13. In the case in hand there is prima-facie materials to show that the vehicle in question was used in commission of offences under Wild Life Protection Act. The Authorized Officer -cum-DFO , Nagaon, has issued show cause Notice to the petitioner and intimation thereof was given to the jurisdictional Magistrate and also to the officer effecting seizure. 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.

14. I have carefully gone through the case laws, referred by learned Page No.# 8/10 counsel for the petitioner and I find that the ratios laid down therein are not applicable in all force to the facts and circumstances here in this case. Moreover, in the case of Jogeswar Borah (supra) direction was issued by a co-ordinate Bench of this Court, to release the seized vehicle while exercising writ jurisdiction under Article 226 of the Constitution. But, 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 confiscation proceeding of the seized vehicle has already been started, the question of releasing the same in interim custody does not arise at this stage.

15. 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.

16. 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:- Page No.# 9/10 “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”.

17. 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 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.”

18. In view of above, no fault can be found with the impugned order dated 14.10.2020, passed by the learned Addl. Chief Judicial Magistrate First Class, Morigaon, in C.R. Case No. 765/2020, Page No.# 10/10

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