Point of Law : Jurisdiction under Section 451 of Cr.P.C. not available to Magistrate, once Authorized Officer initiated confiscation proceedings.

JUDGMENT :

ROBIN PHUKAN, J.

1. 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 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 and 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.

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 ele