High Court
Case Details
WP(C) 2432/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) These three writ petitions have been heard together and are bein g disposed of by this common judgment and order as the issue involved in all the petitions is identical. However, for proper appreciation of the issue involved and adjud 2. ication of the same, facts of all the three cases may be briefly noticed at the very outset.
Legal Reasoning
WRIT PETITION (C) NO.5537/2008 In this petition, petitioner has challenged order dated 18-06 3. -2008 passed by the Authorized Officer-cum-Divisional Forest Officer, Nagaon Sou th Division directing confiscation of sawn timber as affirmed in appeal by the l earned District Judge, Nagaon vide judgment and order dated 29-11-2008. 4.
Decision
Case of the petitioner as projected in the writ petition is that he is carrying on the business of trade in timber against transit passes issued by the competent forest authorities. On 10-12-2007, he had hired a truck bearin g registration No. AS-01/AA-1103 from one Akbar Hussain. The truck was hired for the purpose of transportation of timber from M/S Sumila Saw Mill situated at Ha thikali to M/S Maa Bhageshwari Wood Industries situated at Bongaigaon. According to the petitioner, 620 pieces of sawn timber were loaded on to the said truck a gainst transit pass No.031/0028 issued by the Forest Department, North Cachar Hi lls Autonomous Council. Loading of timber was done in the presence of forest off icials at Hathikali. During transit, the truck loaded with the sawn timber passed thr 5. ough five forest check gates where the truck and the timber were thoroughly chec ked. However, the aforesaid truck carrying the consignment was detained by the f orest officials on 12-12-2007. On query, petitioner came to know that the forest officials had seized the timber and that some extra pieces of timber were found and seized. The driver and handyman of the truck were arrested and offence repo rt submitted against them. Later on, driver of the truck informed the petitioner that they were intimidated by some armed extremists to load some extra pieces o f timber while the truck was on transit from Hathikali. 6. Respondent No.3, who was the Authorized Officer, initiated confi scation proceeding and issued summon to the petitioner. During the proceeding, p etitioner informed respondent No.3 that the consignment of sawn timber was cover ed by transit pass and if there was any irregularity in the quantity, he was wil ling to pay royalty, fine etc. However, respondent No.3 passed order dated 18-06 -2008 directing confiscation of the seized materials belonging to the petitioner u/s 49(5) of the Assam Forest Regulation, 1891 (Regulation). 7. Against the aforesaid order dated 18-06-2008, petitioner preferr ed appeal before the Court of District and Sessions Judge, Nagaon, which was reg istered as Misc. Appeal Case No.07/2008. District and Sessions Judge, Nagaon by judgment and order dated 29-11-2008 dismissed the appeal filed by the petitione r. However, in the connected appeal filed by the truck owner, the truck was dire cted to be released. Aggrieved, petitioner has filed the present writ petition for qu 8. ashing of the above orders and seeking a direction to the respondents to release the 620 pieces of sawn timber. 9. Affidavit-in-opposition has been filed by the Divisional Forest Officer, Nagaon South Division, Hojai. Stand taken is that on 12-12-2007 patroll ing staff of Lanka Forest Range detected a truck bearing registration No.AS-01/A A-1103 loaded with 738 pieces of sawn timber, which did not tally with the trans it pass bearing No.31/0028 dated 10-12-2007 issued by NC Hills Autonomous Counci l which covered 620 pieces of sawn timber. The sawn timber also did not bear any hammer impression. Authorized officer after observing due procedure, confiscate d the seized materials u/s 49(4) of the Regulation. Appeal filed against such co nfiscation was dismissed by the learned District Judge. In his reply affidavit, petitioner while reaffirming the avermen 10. ts made in the writ petition, again reiterated that the consignment of sawn timb er numbering 620 pieces were loaded on to the truck in the presence of forest of ficials, who carried out physical verification. Petitioner was physically not pr esent with the truck loaded with the timber while on transit. He had no control over the truck movement and over the driver or handyman. Neither the petitioner nor his agents were present at the time of confiscation. No seizure list was fur nished to the petitioner. Petitioner did not admit commission of any offence by him during the confiscation proceeding. He had only stated that he was the owner of 620 pieces of timber and if any deviation was found in the volume of seized timber, he was ready to pay royalty, fine etc. for the same. Petitioner was summ oned to appear only as a witness in the confiscation proceeding and no opportuni ty was provided to him to furnish any evidence to substantiate his case. 11. This Court by order dated 23-12-2008 had stayed the confiscation order dated 18-06-2008. WRIT PETITION (C) NO.5539/2008 12. Like the petitioner of WP(C) No.5537/2008, in this case also, p etitioner is carrying on the business of trade in timber. On 10-12-2007, he had hired a truck bearing registration No.AS-02/C-1103 from one Akbar Hussain fo r transportation of timber to M/S G.D. Timber Depot situated at Bongaigaon. Acco rdingly, 709 pieces of sawn timber were loaded onto the said truck against trans it pass No.084/5130 issued by Forest Range Officer, Lumding following order of D ivisional Forest Officer, Nagaon South Division. The timbers were loaded onto th e truck in the presence of Forest Range Officer, Lumding. The truck carrying the consignment had to pass through three forest check gates, viz., Barlangphar che ck gate, Lankajaan check gate and Babangaon check gate. 13. Petitioner came to know that the truck carrying the consignment was detained by the forest officials on 12-12-2007. Petitioner could further com e to know that forest officials had seized his loaded timber and that some extra pieces of timber were found and seized from the truck. Later on, he could come to know from the driver that he and the handyman were intimidated by some extrem ists to load some extra pieces of timber onto the truck while on transit from Lu mding. 14. No seizure list was furnished to the petitioner in connection wi th the seizure. Both driver and handyman were arrested and an offence report was submitted against them. Petitioner was not named as an accused in the offence r eport. No criminal proceeding is pending against the petitioner. Respondent No.3 initiated confiscation proceeding. Petitioner wa 15. s summoned and examined as a witness. In the confiscation proceeding, petitioner informed respondent No.3 that the timbers were loaded onto the truck in the pre sence of forest officials and were being transported against valid transit pass. He, therefore, stated that if there were any irregularities in the quantity of timber, he was willing to pay royalty, fine etc. This cannot be termed as admiss ion of guilt. 16. Respondent No.3 as the Authorized Officer passed order dated 18- 06-2008 directing confiscation of the seized timber belonging to the petitioner u/s 49(5) of the Regulation. Against the aforesaid order of confiscation, petiti oner preferred an appeal before the Court of District Judge, Nagaon, which was r egistered and numbered as Misc. (A) No.06/08. Learned District Judge by order da ted 29-11-2008 dismissed the appeal filed by the petitioner. But in the connecte d appeal filed by the truck owner, the truck was directed to be released. 17. f the confiscation order and for release of seized timber. Aggrieved, petitioner has filed the writ petition for quashing o 18. e interim, stayed the confiscation order datd 18-06-2008. This Court by order dated 23-12-2008 had issued notice and in th 19. Divisional Forest Officer, Nagaon South Division has filed an af fidavit. It is stated that on 12-12-2007, forest staff of Lanka Forest Range had intercepted truck No.AS-02/C-1103 loaded with sawn timber. Though the driver pr oduced transit pass being TP No.84/5130 dated 11-12-2007 issued by the Lumding F orest Range, the same did not tally with the timber loaded onto the truck. On ph ysical verification, it was found that the truck was carrying 723 pieces of sawn timber though the transit pass was for 709 pieces. Moreover, only 45 pieces of timber had hammer impression. Truck owner was furnished the seizure list as at t he time of seizure, nobody claimed ownership of the seized timber. Petitioner co nfessed about committing forest offence by admitting to pay royalty, fine etc. i n case of any irregularity found in the volume of timber. While passing the conf iscation order on 18-06-2008, Authorized Officer directed the Range Forest Offic er to draw additional offence report against the petitioner. Confiscation procee ding was carried out by following the laid down procedure. Sub-Divisional Judici al Magistrate, Sankardev Nagar, Hojai was given intimation vide letter dated 03- 01-2008 about initiation of confiscation proceeding. Appeal filed by the petitio ner against the confiscation order was rejected. WRIT PETITION (C) NO.2432/2013 20. Petitioner is the registered owner of a truck bearing registrati on No.AS-23/E-9123. The truck was used by the petitioner as a public transport v ehicle and he used to maintain his family from the income earned through his tru ck. 21. On 05-01-2011, the vehicle was hired by one Shri Pranab Jyoti Go goi, whose father was an employee of the Forest Department, Government of Assam. The vehicle was taken to a log house located inside the Upper Dehing Forest Ran ge, Panbari for carrying earth to Digboi. At about 11AM, the vehicle was seized by respondent No.5. Petitioner as well as Shri Pranab Jyoti Gogoi were arrested under various provisions of the Regulation. 22. Thereafter, a case was registered, being CR No.02C/2011, in the Court of Sub-Divisional Judicial Magistrate, Margherita. On 17-01-2011, petit ioner and the other accused person were released on bail. 23. On 14-02-2011, petitioner filed an application before respondent No.5 for release of vehicle. Said application was forwarded to the respondent N o.3 with a note that on investigation, owner of the vehicle seemed to be innocen t. 24. Thereafter, respondent No.3 issued show-cause notice to the peti tioner on 11-03-2011, pursuant to which petitioner submitted his reply. Authoriz ed Officer-cum-Divisional Forest Officer, Digboi Division passed order dated 02- 07-2011 confiscating the vehicle u/s 49(4) of the Regulation. Though petitioner filed a review petition, the same was rejected giving liberty to the petitioner to approach the appellate authority. 25. Petitioner then preferred statutory appeal u/s 49C of the Regula tion before the District and Sessions Judge, Tinsukia, which was registered and numbered as Criminal Appeal No.19(C)/2011. However, the said appeal was dismisse d vide judgment and order dated 25-11-2011. 26. Trial of CR No.02C/2011 has just started and proceedings are on. 27. Contention of the petitioner is that when trial has not yet conc luded resulting in conviction of the petitioner, confiscation of his vehicle u/s 49(4) of the Regulation for an indefinite period is not justified. 28. Divisional Forest Officer, Digboi Division has filed affidavit. It is stated that an offence was registered under Digboi Forest Range as DG/9 da ted 05-01-2011 and the accused persons were remanded to the Sub-Divisional Judic ial Magistrate, Margherita for trial. Accordingly, CR Case No.2C/2011 was regist ered in the Court of Sub-Divisional Judicial Magistrate, Margherita. On 18-01-20 11, the Seizing Officer i.e. Beat Forest Officer, Kherjan Beat had served a noti ce u/s 49 of the Regulation on the petitioner to show cause as to why the seized truck should not be confiscated. In his reply, petitioner accepted his guilt, w hich was forwarded to the Authorized Officer. It is stated that CR Case No.2C/20 11 is still pending in the Court of Sub-Divisional Judicial Magistrate, Margheri ta. SUBMISSIONS 29. Heard Mr. D.A. Kayum, learned Counsel for the petitioner in WP(C ) No.2432/2013 and Mr. A.K. Bhuyan, learned Counsel for the petitioners in WP(C) Nos.5537 and 5539/2008. Also heard Mrs. M.Goswami, learned Government Advocate, Assam for the respondents in all the cases. 30. Learned Counsel for the petitioners submits that there is a fund amental difference between confiscation u/s 49(5) of the Regulation and u/s 51 t hereof. While in the later, confiscation is final on the basis of conviction in the criminal trial, in the case of the former, confiscation is temporary and sub ject to final determination in the criminal proceeding. In all the three cases, learned Counsel for the petitioners submit that criminal proceedings have not ye t concluded. In such circumstances, confiscation u/s 49(5) cannot be continued f or an indefinite period. Such prolonged and indefinite confiscation would be arb itrary. Learned Counsel for the petitioners have also pointed out various proced ural flaws while conducting the confiscation proceedings under sections 49(4) an d 49(5) of the Regulation. In that view of the matter, confiscation orders are l iable to be appropriately interfered with, they submit. 31. Learned Government Advocate on the other hand relies on the coun ter affidavits filed by the respondents and contends that confiscation orders as affirmed by the learned District Judges do not suffer from any infirmity or ill egality. Involvement of the petitioners in the commission of forest offences are clearly discernible and, therefore, confiscations are justified. No case for re lease of the vehicle or sawn timber is made out, she submits. DISCUSSIONS AND CONCLUSION 32. Submissions made have been considered. 33. Before proceeding further, relevant provisions of the Regulation may be briefly noticed. Chapter VIII of the Regulation deals with penalties and procedur 34. es. Section 49 provides for seizure of property liable to confiscation. Under Su b-section (1), when there is reason to believe that a forest offence has been co mmitted in respect of any forest produce, such produce together with all tools, motorized boats, vessels, cattle, carts, rafts, machinery, vehicles, trucks, rop es, chains or any other implements, articles or materials used in the commission of such offence, may be seized by a forest officer not below the rank of a Fore ster or by a Police Officer not below the rank of Sub-Inspector of Police. Under Sub-section (2), once any property is seized, identifiable mark shall be placed on such property. Authorized Officer shall be informed about such seizure. Wher e it is intended to launch prosecution against the offender, report of seizure s hould be immediately made before the Magistrate having jurisdiction to try the o ffence. Sub-section (3) empowers any Forest Officer or Police Officer if they ha ve reason to believe that a vehicle has been used for transportation of any fore st produce in respect of which any forest offence has been committed, to stop an d detain the vehicle to verify contents of the vehicle and inspect all records r elating to the goods carried. Sub-section (4) provides that where the authorized officer is satisfied that a forest offence has been committed in respect thereo f, he may by order in writing and for reasons to be recorded therein confiscate the forest produce so seized together with all tools, vehicles, trucks, boats et c. used in committing such offence. Copy of the confiscation order should be for warded to the concerned Chief Conservator of Forest and the Magistrate having ju risdiction to try the offence. Sub-section (5) provides that no order confiscati ng any property u/s 49 shall be made unless the Authorized Officer sends an inti mation in prescribed form about initiation of confiscation proceeding to the jur isdictional Magistrate, issues a notice to the person from whom the property was seized and to any other person who may appear to the Authorized Officer to have some interest in the seized property including the registered owner of vehicle, affords to such person a reasonable opportunity of making a representation agai nst proposed confiscation and gives such person as well as the officer effecting such seizure, a reasonable opportunity of being heard. 35. Section 49 A of the Regulation empowers any forest officer not b elow the rank of Forest Ranger to release the property seized u/s 49 on executio n of bond by the owner or person in-charge for production of the property before the jurisdictional Magistrate as and when required. 36. While Section 49 B and 49 C provides for review and appeal again st confiscation order u/s 49(4), Section 51 deals with confiscation upon convict ion. It provides that when any person is convicted of a forest offence, all fore st produce which is not the property of the Government and in respect of which s uch offence was committed and all tools, boats, carts and cattle used in commiss ion of such offence shall be liable to confiscation by order of the convicting C ourt. Such confiscation may be in addition to any other punishment prescribed fo r such offence. Once criminal trial is concluded ending in conviction and confis cation has been ordered, such property shall be disposed of in such manner as th e Court may order (Section 52). 37. A careful reading of the above provisions would show that though the word confiscation has been used in Section 49 of the Regulation, it is real ly seizure or retention of the seized property till conclusion of criminal proce edings whereafter Section 51 would come into play in case prosecution ends in co nviction and confiscation is ordered. 38. This Court in the case of Jogeswar Bora -Vs- State of Assam and others reported in 2006 (3) GLT 162 held that confiscation of property ordered b y the Authorized Officer under Section 49 is a temporary stage and should not be beyond a reasonable period when there is no order of confiscation under Section 51. In Rajen Choudhury -Vs- Arjun Narzary and others reported in (20 39. 08) 3 GLR 86, this Court after elaborately noticing the procedural requirements before confiscating any property u/s 49(5) held that an objective inquiry has to be undertaken by the Authorized Officer wherein all reasonable opportunities ha ve to be extended to the person from whom the property has been seized and to an y other person having an interest in the property including owner of the vehicle . It is also obligatory for the Authorized Officer to send intimation in the pre scribed form to the jurisdictional Magistrate about initiation of confiscation p roceeding. The requirements of Section 49(5) are mandatory and no order of confi scation is permissible without complying with such requirements. 40. Having noticed the legal requirements as broadly outlined above, we may now turn to the facts of the present cases. Admittedly, in none of the t hree cases, criminal trial has concluded. In such circumstances and having regar d to the discussions made above, continued confiscation/retention of the truck a nd sawn timber under Section 49 of the Regulation for such a long and indetermin ate period would not be justified. 41. Accordingly, the respondents are directed to release the sawn ti mber covered by the respective transit passes in WP(C) Nos. 5537/2008 and 5539/2 008 and the truck bearing registration No.AS-23/E-9123 in WP(C) No.2432/2013 to the petitioners subject to execution of bond for production of the vehicle befor e any authority or Court as and when required and furnishing of adequate surety in respect of sawn timber. 42. All the writ petitions are accordingly allowed. No cost.