Gauhati High Court
Faijul Hoque vs The State Of Assam And Anr on 30 August, 2022
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GAHC010080262022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./173/2022
FAIJUL HOQUE
S/O LATE SAKIR HUSSAIN
R/O VILL- SAGOLIA PART-II
P.O. SAGOLIA
P.S. GOLAKGANJ
DIST. DHUBRI
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM
2:THE AUTHORISED OFFICER CUM DIVISIONAL FOREST OFFICER
CACHAR DIVISION
SILCHAR.
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Advocate for : MR I HAQUE Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR Page No.# 2/14 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN Date of hearing : 25.07.2022 Date of verdict : 30.08.2022 VERDICT (ORAL) Legality, propriety and correctness of the judgment and order dated 07.03.2022, passed by the learned Additional Sessions Judge, FTC, at Cachar, Silchar, in Misc. Appeal No. 13/2020, and also the order dated 17.01.2020, passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, in O.R. No. DH/6 of 2018-19, DVL 65 of 2019-20, are impugned in this revision petition under Sections 397/401/482 read with Section 451 of the Code of Criminal Procedure, 1973.
2. It is to be noted here that vide impugned order dated 17.01.2020, passed in O.R. No. DH/6 of 2018-19, DVL 65 of 2019-20, the Authorized Officer-cum- Divisional Forest Officer, Cachar Division, Silchar, confiscated the vehicle of the petitioner, bearing Registration No. AS-17B-9317, to the department, and vide impugned judgment and order dated 07.03.2022, passed in Misc. Appeal No. 13/2020, the learned Additional Sessions Judge, FTC, at Cachar, Silchar, has affirmed the order of the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, dated 17.01.2020.
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3. The factual background, leading to filing of this petition, is briefly stated as under:
"On 12.08.2018, the forest official of Lailapur Beat and Assam Forest Protection Force (AFPF) personnel, while performing patrolling duty at Lailapur area on NH-54, intercepted one vehicle, bearing Registration No. AS-17-B-9317, which was coming from Mizoram, carrying teak logs with T.P. No. 0378747, dated 07.08.2018. But the logs were found unmarked and doubtful and after due verification and unloading, 132 numbers of teak logs were found in the truck. But, as per the T.P., it was 121 numbers and also there was major discrepancy in the measurement of length and girth of logs. The driver of the vehicle was present at the relevant time, but later on he was found fled away. Then, the logs were seized along with the Truck and the Seizing Officer issued Form No. 31(A), vide letter dated 14.08.2018, to (i) Shri Dilip Chandra Barua and (ii) M.U. Ahmed, asking them to produce proof of origin of forest produce within 30 (thirty) days. The matter was reported to Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, vide letter dated 14.08.2019, and the Range Forest Officer, Hawaithang Range, Dholai, also submitted one preliminary report to the Divisional Forest Officer, Cachar Division, Silchar, vide letter dated 14.08.2019, informing about the detaining of the vehicle and followed by a detail report, dated 19.08.2019. Thereafter, notice was issued to (i) Shri Dilip Chandra Barua and (ii) M.U. Ahmed, but, the same returned un-served as the addressee was not found. And thereafter, it was found that one Faijul Haque of Chagalia, Golakganj, Dhubri District, is the Page No.# 4/14 actual owner of the vehicle and then the Seizing Officer issued Form No. 31 (A), vide letter dated 14.08.2018, to (i) Faijul Haque, owner of the vehicle and (ii) Inamul Hussain, driver of the vehicle, to produce legal proof of origin of forest produce. Then, having found a prima facie case well established against (i) Faijul Haque, (ii) Inamul Hussain, and (iii) Shri Dilip Chandra Barua, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, issued Form No. 31(B) to Faijul Haque, owner of the vehicle. Then, Faijul Haque, in his reply, stated that one person of Mizoram called him and talked with him over phone and asked him to transport teak logs from Mizoram after proper verification and measurement in front of Mizoram Forest Officials along with up-to-date T.P. and GST. Then, he agreed for transportation of the same in his vehicle and gave permission to his driver, Inamul Hussain, for transportation of the same. But, on the way on 12.08.2018, the same was apprehended by the forest officials. He also stated that he was totally unaware of the Forest Rules and Regulation and assured that he will never repeat such offence in future and requested to release the vehicle. Then, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, issued Form No. 31(C) to Faijul Haque to produce the documents of the vehicle including Insurance Certificate, Registration Certificate etc. He then produced the same and thereafter, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, has issued Form No. 31(D) to Faijul Haque. In his reply, Faijul Haque stated that one person, namely, M.A. Mazumder, called him and talked with him over phone and asked him for transportation of teak logs from Mizoram after proper verification and measurement in front of Mizoram Forest officials along with up-to-date T.P. Page No.# 5/14 and GST and therefore, he agreed for transportation and permitted his driver, Inamul Hussain, to transport the same in his vehicle, but the truck was detained on the way, while returning with the loaded teak logs on 12.08.2018. Thereafter, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, having satisfied that the seized timbers were brought illegally in the vehicle, bearing No. AS-17-B-9317, with major discrepancy in the measurement of length and girth of logs, while tallying with the T.P. and also found most the logs were unmarked and indistinct numbering and as the owner of the timber did not submit reasonable ground, confiscated 132 numbers of teak logs to the State of Assam. It was also found the driver of the vehicle collected the sawn timbers from Mizoram and the owner of the vehicle, Faijul Haque, did not exercise reasonable and due precaution against the use of vehicle for commission of forest offence and therefore, the Authorized Officer-cum- Divisional Forest Officer, Cachar Division, Silchar, confiscated the vehicle, bearing Registration No. AS-17-B-9317, under Section 49(4) of the Assam Forest Regulation (Amendment) Act, 1995.
Being aggrieved, the petitioner approached the Court of learned Additional Sessions Judge, FTC, Cachar, Silchar, by filing an appeal, being Misc. Appeal No. 13/2020. But, after hearing both sides, the learned Court below, vide impugned judgment and order dated 07.03.2022, dismissed the appeal and upheld the order passed by the Authorized Officer-cum- Divisional Forest Officer, Cachar Division, Silchar.
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4. Being highly aggrieved, the petitioner approached this Court by filing the present petition on the following major grounds, amongst others :-
(i) That, the ground of detaining the Truck and seizing of the timbers and the vehicle by finding that 132 numbers of teak logs were loaded, but as per T.P. it was 129 Nos., is false and fabricated;
(ii) That, no forest offence is committed by the vehicle No. AS-17B-9317 as the teak logs were carried under valid transit pass and that for convenience of transportation, 3 (three) logs were cut into pieces and as such, the number increases from 129 to 132 and the respondent No. 2 without considering that aspect of the matter arrived at a perverse finding;
(iii) That, the petitioner neither received any notices in Form No. 31A, 31B, 31C and 31D nor got an opportunity to adduce evidence for his defence and without the notices in Form No. 31A, 31B, 31C and 31D being served upon him, illegally confiscated the vehicle, which is against Section 49(5)(b)(c) of the Assam Forest Regulation 1891;
(iv) That, the respondent No. 2 had confiscated the vehicle without giving any reason and that the petitioner had sent his vehicle by loading potatoes from Coochbehar, West Bengal, and while returning, the driver of the vehicle loaded the teak logs without informing him and as Page No.# 7/14 such, he is totally unaware of the incident;
(v) That, the respondent No. 2 has filed a complaint case before the learned Chief Judicial Magistrate, Cachar, against the petitioner with the alleged allegation of commission of forest offence and trial is yet to commence and the learned Additional Sessions Judge, Cachar, illegally dismissed the Misc Appeal No. 13/2020, and that he purchased the vehicle on hire-purchased and he has to make payment of monthly installment and the respondent No. 2 failed to appreciate the said fact and the vehicle is exposing to sun and rain since the date of its seizure on 19.08.2019; and therefore, it is contended to allow the petition.
5. I have heard Mr. I. Haque, learned counsel for the petitioner and also heard Mr. D. Gogoi, learned Standing Counsel for the Forest Department.
6. Mr. I. Haque, learned counsel for the petitioner, submits that the impugned order dated 17.01.2020, passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, in confiscating the vehicle and the impugned judgment and order dated 07.03.2022, passed by the learned Additional Sessions Judge, FTC, at Cachar, Silchar, by affirming the impugned order dated 17.01.2020, suffers from manifest illegality due to non-application of mind and also due to non-consideration of some vital facts. Mr. Haque further submits that the procedure prescribed in the Assam Forest Regulation, especially in Sub- Section 5 to Section 49 of the Regulation and Section 49(4) of the Regulation have not been followed and as such, the petitioner got no opportunity to defend Page No.# 8/14 himself properly and therefore, it is contended to set aside both the impugned order and judgment. Mr. Haque also referred following case laws - Abu Bakkar Ali (Md.) Vs. State of Assam & Ors., reported in 1999 (1) GLT 633, and Jogeswar Borah Vs. State of Assam & Ors., reported in 2006 (3) GLT 162, to bolster his submissions.
7. On the other hand, Mr. D. Gogoi, learned Standing Counsel for the Forest Department, submits that the impugned order and judgment suffers from no infirmity and illegality requiring any interference of this Court. Mr. Gogoi further submits that the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, has confiscated the vehicle as the petitioner, who is the owner of the vehicle, has failed to exercise reasonable and due precaution against use of the vehicle for commission of the forest offence and therefore, exercising the power under Section 49(4) of the Assam Forest Regulation, the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, has confiscated the same.
8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also carefully gone through the relevant provisions of law and the case laws referred by learned counsel for the petitioner.
9. It appears from the impugned order, dated 17.01.2020, that before confiscation proceeding, the required notices in Forms 31(A), 31(B), 31(C) & 31(D) were issued to the petitioner and further it appears that opportunity of Page No.# 9/14 being heard is also afforded to the petitioner before confiscating the vehicle and it also appears that the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, during investigation, found that driver of the vehicle collected the seized sawn timbers from Mizoram and the owner of the vehicle did not exercise reasonable and due precaution against use of the vehicle for commission of forest offence.
10. It is to be noted here that the petitioner, in his petition, categorically stated that a complaint case has been filed against him before the Court of learned Chief Judicial Magistrate, Cachar, in connection with the aforesaid offence and trial of the same is yet to commence. Therefore, there is no doubt that forest offence is committed by the petitioner and a case is pending against him before the Court of learned Chief Judicial Magistrate, Cachar.
11. It also appears from the impugned judgment and order, dated 07.03.2022, that the learned Additional Sessions Judge, FTC, at Cachar, Silchar, arrived at a finding that the appellant could not prove to the satisfaction of the Authorized Officer that the vehicle in question was used in commission of forest offence without his knowledge or connivance or abetment as the case may be and as such, the Authorized Officer was fully justified in passing the order of confiscation of the seized vehicle, bearing Registration No. AS-17B-9317, and therefore, dismissed the appeal.
12. Having carefully gone through the impugned order of the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar and impugned Page No.# 10/14 judgment and order of the learned Additional Sessions Judge, FTC, at Cachar, Silchar, I find that the same suffers from no infirmity or illegality requiring any interference of this Court.
13. As already discussed, notices under Sections 31(A), 31(B), 31(C) & 31(D) were issued by the authorities of the Forest Department and the petitioner appeared before the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, and he had taken a plea that he is an illiterate person and it is not possible for him to verify the genuinely of the pass/permit given to him and he is completely unaware about the forest rules and regulation and he is ready to pay fine/compensation whatever is imposed upon him. However, it appears that the stand taken by him before the Authorized Officer and also before this Court appears to be inconsistent. In ground No. VIII of paragraph No. 14 of the petition, he stated that he sent the vehicle loaded with potatoes from Coochbehar, West Bengal to Aizwal of Mizoram and on the way, the driver of the vehicle loaded teak logs without informing him. Whereas, the stand he had taken before the Authorized Officer is that one person from Mizoram called him and talked with him over phone and asked him for transportation of teak logs from Mizoram after proper verification and measurement in front of Mizoram Forest Official along with up-to-date T.P. and GST, to which he agreed for transportation and gave permission to his driver, Inamul Hussain, for transportation of the same, but on the way the vehicle was apprehended on 12.08.2018, loaded with the teak timbers. Thus, it appears that the petitioner has not approached this Court with clean hand.
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14. Also, having carefully gone through the impugned order passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar Division, Silchar, I find that the provision of 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 authorised officer-
(a) sends an intimation in the prescribed form about the initiation of the proceeding for confiscation of 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."
15. 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. Also, I have carefully gone through the case laws, referred by learned counsel for the petitioner and I find that the above mentioned ratio are laid down by a co- ordinate Bench of this Court while exercising writ jurisdiction under Article 226 of the Constitution of India and in the instant case, the jurisdiction being Page No.# 12/14 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 vehicle has already been confiscated, the question of releasing the same in interim custody does not arise at this stage.
16. 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.
17. 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:-
"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".
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18. 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."
19. 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:-
"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".
20. In view of above, no fault can be found with the impugned order dated 14.01.2020, passed in O.R. No. LP/4 of 2019-20, DH/4 of 2019-20, DVL 51 of 2019-20, passed by the Authorized Officer-cum-Divisional Forest Officer, Cachar, Page No.# 14/14 Silchar and the impugned judgment dated 07.03.2022, passed by the learned Additional District Judge, Silchar in Misc. Appeal No.11/2020.
21. 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