Disposed

Safar Uddin Laskar v. the State of Assam and 4 Ors.

Gauhati HC6 Sept 2022WP(C)/4864/2022

Case brief

AI extract

What is this about?

The Gauhati High Court heard a writ petition seeking release of two domestic elephants seized by Forest officials for straying into Reserve Forest. The Court held that under Section 49-A of the Assam Forest Regulation, 1891, elephants could be released on bond.

What did the court decide?

Respondents directed to release seized elephants 'Gangamala' and 'Gauri' to owners upon execution of bond and furnishing identity proof within two weeks.

Safar Uddin Laskar Vs the State of Assam and 4 Ors. — Property and Title | Gauhati HC (2022)

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GAHC010147332022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4864/2022

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SAFAR UDDIN LASKAR S/O- JAJAD ALI LASKAR, RESIDENT OF VILLAGE- GANGANAGAR, P.O. AND P.S. AND DIST. CACHAR, PIN-

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND HEAD OF FOREST FORCE, ARANYA BHAWAN, PANJABARI, GUWAHATI, KAMRUP(M), PIN- 781037.

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2:THE CHIEF CONSERVATOR OF FOREST

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SOUTHERN ASSAM CIRCLE SILCHAR P.O. AND P.S. SILCHAR DIST.- CACHAR PIN- 788001.

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3:THE DIVISIONAL FOREST OFFICER CACHAR DIVISION AT SILCHAR P.O. AND P.S. SILCHAR PIN- 788001.

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4:THE DIVISIONAL FOREST OFFICER

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KARBI ANGLONG WEST FOREST DIVISION AT DIPHU PIN- 782460.

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5:THE FOREST RANGE OFFICER

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MONIERKHAL RANGE SONAI DIST. CACHAR (ASSAM) PIN- 788119

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Advocate for the Petitioner : MR Z HUSSAIN

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Advocate for the Respondent : SC, FOREST

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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06.09.2022

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Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Mr. D. Gogoi, learned Standing Counsel, Forest Department, Assam appearing on behalf of respondent Nos.1, 2 and 3 and Mr. J. Chutia, learned Standing Counsel, Karbi Anglong Autonomous Council, appearing for the respondent Nos.4 and 5.

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The issue involved in this writ petition pertains to seizure of two domestic elephants viz., ‘Gangamala’ and ‘Gauri’ (Hasina) made on 06.04.2022 by the Range Forest Officer, Central Forest Range, Diphu, Karbi Anglong West Division along with their Mahuts viz. Ramjan Hussain lascar and Anowar Laskar when those elephants had strayed inside the Reserve Forest area for grazing purpose. It appears that the two elephants were earlier taken from Silchar to Dimapur for some work and during their return from Dimapur via Karbi Anglong District the incident happened.

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Immediately after the seizure, the respondent No.4 wrote a letter to the respondent No.3 informing that the two elephants viz., ‘Gangamala’ and ‘Gauri’ had been seized by the Division on 06.04.2022 and therefore, a request

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was made to furnish detail report regarding the ownership of the elephants as well as microchip and grazing etc. for further action. In response to the said communication, the respondent No.3 had replied to the Divisional Forest Officer, West Karbi Anglong Division i.e. the respondent No.4 by confirming that both ‘Gangamala’ and ‘Gauri’(Hasina) were registered under the Cachar Forest Division, Silchar and accordingly, the details regarding the two elephants, along with the particulars of their owners, had been furnished to the respondent No.4. Notwithstanding the same, the elephants have been kept in detention till today. Hence, this writ petition.

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The respondent No.4 has filed counter-affidavit inter-alia contending that the elephants having unauthorisedly entered the Reserve Forest area, an offence under Section 24 of the Assam Forest Regulation, 1891 read with Section 49 of the Regulation has been committed. Therefore, further action in the matter is being contemplated by the department.

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Mr. J. Chutia, learned Standing Counsel, KAAC, submits that there is a provision for release of the elephants on bond under Section 49-A of the Assam Forest Regulation, 1891 but such an exercise would be possible only if the real owners of the two elephants, along proof of their identity, approaches the respondent No.4 by making appropriate application for release of the elephants after executing a bond to produce the same as and when those are required in connection with any proceeding. It is also the submission of Mr. Chutia that the respondent Nos.4 and 5 are finding it unmanageable to retain the custody of the two elephants any further and therefore, preparations have already been made to transfer the elephants to the Kaziranga National Park as

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per advice of the Principal Chief Conservator of Forest, Assam.

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Mr. D. Gogoi, learned Standing Counsel, Forest Department, Assam, on the other hand, submits that the elephants were taken to another State viz., Nagaland without obtaining NOC or proper transit pass from the Forest department, Assam and therefore, the aforesaid transaction itself constitutes a forest offence. Mr. Gogoi has, however, submitted that since no proceeding has yet been initiated against the owners of the elephants by the State Forest Department, hence, he would refrain from making any further submission in the matter at this stage.

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After hearing the arguments advanced by learned counsel for the parties, it is apparent that the two elephants were seized by the Forest Department officials of Karbi Anglong Forest Division when those were moving around inside the Reserve Forest area in the Karbi Anglong district. Save and except the above, there is neither any allegation brought by the respondent Nos.4 and 5 against the owners of the Elephants nor is there any proceeding initiated against them for violation of any of the provisions of the Forest Act and Regulation. Whether a proceeding under Section 24 read with Section 49 of the Assam Forest Regulation, 1891 would be maintainable against the owners of the two elephants and whether such elephants would be liable for confiscation on such count are matters that would arise for consideration as and when a proper proceeding is initiated by the departmental authority which stage is yet to come. At this stage, the only issue that would arise for consideration of this Court is as to whether, the prayer for release of the two seized elephants made by the writ petitioner deserves to be considered. In the above context, it would be

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pertinent to reproduce herein Section 49-A of the Regulation, 1891 which reads as follows :-

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“ 49-A. Power to release property seized under S. 49. Any Forest Officer not below the rank of a Forest Ranger, whose subordinate has seized any tools, vehicles, trucks vessels, rafts; machineries, boats, motorised boats cattle ropes, chains or any other implements, articles etc under S. 49, may release the same on the execution by the owner or the person in charge thereof of a bond for the production of the property so released if and when so required if and when so required before the Magistrate having jurisdiction to try the offence or before any authorised Officer whenever required for the purpose mentioned under S. 49 to proceed ahead with the offence on account of which the seizure has been made :

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Provided that whenever such release is made the Officer releasing the property shall immediately make a report to the authorised Officer describing the circumstances and the reasons for the release of the property to the claimant or the owner or the owner or the person in charge of the property. ”

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What would be significant to note herein that in case of seizure, the provisions of Section 49-A of the Regulation, 1891 itself permits release of such seized property on execution of bond to produce the same. If that be so, having regard to the facts and circumstances of the case, I am of the view that ends of justice would be met if the respondent Nos.4 and 5 are directed to release the seized elephants viz., ‘Gangamala’ and ‘Gauri’(Hasina) to its owners upon bonds being executed by the registered owners of those elephants undertaking to produce them before any court or forum as and when necessary in connection with any proceeding. The registered owners of the two elephants will also furnish necessary proof of their identity at the time of

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executing the bonds.

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The aforesaid exercise be carried out as expeditiously as possible but not later than two weeks from the date of receipt of a certified copy of this order.

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In so far as the other issues raised by the learned departmental counsel is concerned, this Court refrains from making any observation on those issues at this stage and leave the issues to be decided in an appropriate proceeding.

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With the above observation, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Safar Uddin Laskar v. the State of Assam and 4 Ors.

Case brief

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Safar Uddin Laskar v. the State of Assam and 4 Ors.

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