An elephant that is not wild is not forest produce and, therefore, the Deputy Commissioner has no jurisdiction to award it to the Forest Department.

PATHAK, C. J.:- By this application under Article 226 of the Constitution of India the petitioner has challenged the order dated 18-1-1973 passed by the Deputy Commissioner, Lakhimpur in Misc. Case No. 1/71-72 (Elephant Missing Case).

2. The petitioners case briefly stated is as follows. In 1969-70 one Naranath Upetry was one of the Mahaldars in Elephant Mahal No. VI under Eastern Range, Borigang, District Darrang. The said mahaldar Naranath Upetry being unwilling to operate the mahal himself entrusted the management of No. VI Bongang Elephant Mahal to the petitioner though no formal agreement was entered into between them in this respect. Normally the elephant hunting operation period is from 1st October, till 15th of March, but on application being made by mahaldars the period may be extended till 30th of March. Upto 15th of March, 1970, the mahaldar operating No. VI Borgang Elephant Mahal could capture only one elephant and all the mahaldars including Naranath Upetry applied for extension and in anticipation of formal order of extension continued the mela shikar after 15th of March, 1970, till 30th March, 1970. After 15th of March, 1970, it so happened that Naranath Upetry captured two more elephants before 30-3-1970 and, in fact, the last one, which was a she-elephant, was captured on 27-3-1970. Shri L.C. Das, who was incharge of the Depot, was formally informed about the capture and he following the usual procedure recorded and numbered the catch as No. 21 and on 28-3-1970 measured the elephant last caught, fixed the royalty, Mahal fee and Sales Tax and completed all the official formalities. In Annexure A to the petition it has been stated as follows:-

"Date of Fixing measurement-28-3-70 By whom measured: L.C. Das (VI)

Royalty -425.00}

M Fee -400.00} Read vide R. L. No.94/3207 of 4-7-70."

S. T. - 29.75}

At the time the elephant in question (Catch No. 21) was captured, the permission for extension was yet to be received, and no transit pass was issued. But the Forest Department, after registering the catch, allowed the Mahaldar to take the elephant along with his earlier catch in his zimma under indemnity bond. The Mahaldar by virtue of the indemnity bond of Rs. 8,000/- took the two elephants out of the mahal when the same had to be compulsorily wound up on 31-3-1970. A copy of the indemnity bond has been stated to be in the record of the case. Subsequently the order of extension was received by the authorities after which the royalty, mahal fee and sales-tax, totalling Rs. 854.75, were deposited with the Government on 4-7-1970 vide R. L. No. 94/3207 of 4-7-1970. Thereafter the petitioner had to square up his accounts with the Mahaldar in respect of the operation of the mahal and the petitioner agreed to purchase the she-elephant, being Catch No. 21, from the Mahaldar at Rs. 6,051/- and the purchase deed was accordingly executed on 15-7-1970. A part of the purchase price was not paid and it was agreed that the transit pass would be handed over to the petitioner on payment of the arrear price. By the time the petitioner purchased the elephant on 15-7-70, the elephant was already trained up though not fully and the petitioner engaged one Rudra Singh Narjari of Sesa, Simaluguri as keeper and trainer of the elephant. There was some dispute regarding the payment of salary to Rudra Singh Narjari whereupon the petitioner was threatened by said Rudra Singh Narjari, saying that he would do something. At that time the elephant was being kept at Sesa, Simaluguri and a few days thereafter Rudra Singh Narjari came back and reported to the petitioner that the elephant was lost in the jungle and he did not give any explanation about her whereabouts. Immediately thereafter the petitioner lodged a complaint before the Sub-Divisional Officer, North Lakhimpur, on 7-9-1970 alleging that Rudra Singh Narjari was illegally concealing or converting the elephant to his own use. A copy of that complaint has been annexed to the pet