Gauhati High Court
Ratneswar Gogoi vs The State Of Assam And Anr on 24 June, 2022
Author: Robin Phukan
Bench: Robin Phukan
Page No.# 1/8
GAHC010000572022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./24/2022
RATNESWAR GOGOI
S/O SISURAM GOGOI
R/O NO. 3 SIMALUGURI
P.S. NARRAYANPUR
DIST. LAKHIMPUR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:ABDUL MATIN
FOREST BEAT OFFICER
PALTHALIPAM FOREST BEAT
PATHALIPAM
LAKHIMPUR
DIST. LAKHIMPUR
ASSA
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
Page No.# 2/8 :::BEFORE:::
HON'BLE MR. JUSTICE ROBIN PHUKAN Date of hearing : 06.06.2022 Date of verdict : 24.06.2022 VERDICT (CAV) This revision petition, under Sections 401/397 of the Code of Criminal Procedure, is directed against the order dated 02.09.2021, passed by the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur, in C.R. (Forest) Case No. 04/2021. It is to be noted here that vide impugned order, the learned Court below has rejected the petition filed by the petitioner
- Shri Ratneswar Gogoi, seeking custody of his elephant, seized in connection with the aforementioned case.
2. The factual background, leading to filing of the present petition, is briefly stated as under:
"On 04.08.2021, the Forest Beat Officer, Pathalipam Forest Beat, Lakhimpur, along with staffs, were attending patrolling duty at Dukhuti Mukh, situated at Dulung Reserve Forest. Then, they have noticed one Kusheswar Gogoi, Bikash Gogoi and Raju Das carrying one Nahor log through their captive elephant, towards Arunachal Pradesh from Dukhuti Mukh. Immediately, they have apprehended the said 3 (three) persons and arrested them for violating Sections 24/25/40/41/49/60 of Assam Forest Regulation, 1891, and also seized the female elephant preparing seizure list. Thereafter, the petitioner preferred one application before the Court of learned Chief Page No.# 3/8 Judicial Magistrate, Lakhimpur, but, vides impugned order, dated 02.09.2021, in CR (Forest) Case No. 04/2021, the learned Court below has dismissed the same as releasing the seized elephant in the custody will cause hindrance in the smooth investigation of the case. Being highly aggrieved, the petitioner approached this court by filing the present petition."
3. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. D. Gogoi, learned Standing Counsel for the Forest Department.
4. Mr. Ahmed, learned counsel for the petitioner, submits that the petitioner is the owner of the seized elephant and he had all the relevant documents in that regard and it was purchased at a price of Rs. 3,100/- in the year 1965. At that time, the Wild Life Protection Act was not in force as the same was enacted in the year 1972. Thereafter, vide Annexure-II, required declaration was made as per Wild Life Protection Act and also obtained grazing permit, which is annexed with the petition as Annexure-III, and while the elephant was seized by respondent authority, then the permit was in force and there was no complain from the Wild Life Authority and the petitioner has informed the Wild Life Authority and also the Wild Life Warden as per requirement of Sections 42 & 43 of Wild Life Protection, Act. Further, Mr. Ahmed, submits that microchip was also installed pursuant to the notice 07.09.2021, and therefore, Mr. Ahmed contended to set aside the impugned order of the learned court below and to release the seized elephant in the custody of the petitioner.
5. On the other hand, Mr. D. Gogoi, learned Standing Counsel for the Forest Department, submits that this revision is not maintainable inasmuch as confiscation proceeding has already been started and the petitioner has alternate remedy before the authorized officer under Section 49(4) of the Assam Forest Regulation, 1891. And as alternate remedy is available as per Sub-Section 4 of Section 49 of the Assam Forest Regulation, 1891, and as notice was issued to the petitioner to that effect under section 51 and he can agitate the matter before the authorized officer, and as such this petition is not maintainable.
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6. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record.
7. It appears that the elephant was seized on 04.08.2021, by the Forest Beat Officer while the elephant was used in carrying one Nahor log. Further, it appears that the petitioner is the owner of the seized elephant, which was purchased by paying a sum of Rs. 3,100/-, in the year 1965. It also appears that the petitioner has Grazing Permit and also the Transit Pass of the said elephant. Further it appears that while the elephant was purchased, then the Wild Life Protection Act, 1972, was not in force and after coming into force of the said Act, relevant formalities have been observed by the petitioner as per Guidelines for Care and Management of Captive Animals and the petitioner has produced one Certificate of Gaon Bura also.
8. Thus, from a careful perusal of the documents placed on record and also from the submission of the learned counsel for the petitioner, this Court is of the view that the petitioner is the owner of the aforesaid elephant, which was seized on 04.08.2021, by the Forest Beat Officer, Pathalipam Forest Beat, Lakhimpur, while they were attending patrolling duty at Dukhuti Mukh, situated at Dulung Reserve Forest and found one Kusheswar Gogoi, Bikash Gogoi and Raju Das carrying one Nahor log through their elephant. Accordingly, they have been apprehended and the elephant was also seized preparing seizure list, for commission of offence under section 24/25/40/41/49/60 of Assam Forest Regulation, 1891. Further it appears that confiscation proceeding has already been started by the authorized officer under section 49(4) of the Assam Forest Regulation. Now, it is to be seen whether the seized elephant can be released in the custody of the petitioner while the confiscation proceeding has already been initiated by the authorized officer.
9. In the case of State of Karnataka vs. K.A. Kunchindammed, reported in (2002) 9 SCC 90, which while dealing with somewhat similar provisions under the Karnataka Forest Page No.# 5/8 Act, held as under :-
"23..........The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.
24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis."
10. Again in the case of State of West Bengal & Ors. Vs. Sujit Kumar Rana, (AIR) (2004) SC 1851, 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.
11. Further, in the case of The State of Madhya Pradesh & Ors. Vs. Kallo Bai, Page No.# 6/8 (2017) 14SCC 502, Hon'ble Supreme Court has observed that it is apparent 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 is 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.
12. Thereafter, in the case of State of Madhya Pradesh Vs. Uday Singh, (2020) 12 SCC 733, Hon'ble Supreme Court again held that:
"29. Our analysis of the amendments brought by MP Act 25 of 1983 to the Indian Forest Act 1927 leads to the conclusion that specific provisions have been made for the seizure and confiscation of forest produce and of tools, boats, vehicles and articles used in the commission of offences.
29.1. Upon a seizure under Section 52(1), the officer effecting the seizure has to either produce the property 27 Writ Petition No 18818 of 2017 decided on 15 February 2018 before the Authorized Officer or to make a report of the seizure under sub-section (2) of Section 52. Upon being satisfied that a forest offence has been committed, the Authorized Officer is empowered, for reasons to be recorded, to confiscate the forest produce together with the tools, vehicles, boats and articles used in its commission. Before confiscating any property under sub-section (3), the Authorized Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. Where it is intended to Page No.# 7/8 immediately launch a criminal proceeding, a report of the seizure is made to the Magistrate having jurisdiction to try the offence.
29.2. The order of confiscation under Section 52(3) is subject to an appeal under Section 52-A and a revision under Section 52-B. Sub- section (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the Cr.P.C. and provides that it shall not be called into question before any court.
29.3. Section 52-C stipulates that on the receipt of an intimation by the Magistrate under sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorized Officer, an Appellate Authority or Court of Sessions (under Sections 52, 52-A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub-section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized under Section 52, as provided in Section 61. Hence, upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted. 29.4. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 of the Cr.P.C, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction under Section 451 of the Cr.P.C. was not available to the Magistrate, once the Authorized Officer initiated confiscation proceedings."
13. Thus, keeping the above principle in mind whiles the facts and circumstances of the case in hand are analyzed in the light of the relevant provision of law, we find sufficient force in the submission of Mr. D. Gogoi, the learned Standing counsel for the Forest Department and accordingly the same is accepted.
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14. Since the authorized officer has already started confiscation proceeding in respect of the seized elephant, this Court is not empowered to release the same in the custody of the petitioner during pendency of the said proceeding; otherwise it will frustrate the object of enacting the relevant provision. The submissions, so made by Mr. Ahmed, learned counsel for the petitioner, received due consideration of this court. But, in view of the elephant being seized under special statute and separate mechanism is provided for dealing with the same, I am unable to record my concurrence with the same. There is also nothing on the record to show that the elephant was used for committing the forest offences without the knowledge and connivance of the petitioner. Since alternate remedy is available to the petitioner under the Assam Forest Regulation the petitioner may pursue the same, if so advised.
15. In the result, I find no merit in the present Criminal Revision Petition and accordingly the same is dismissed. The parties have to bear their own costs.
JUDGE Comparing Assistant