The court emphasized that the failure to exercise jurisdiction under section 49A of the Assam Forest Regulation, 1891, based on a non-existent fact of initiation of confiscation proceedings amounted to malice in law, and discretionary power exercised for an unauthorized purpose is immaterial whether done in good faith or bad faith.

ORDER :

1. Heard Mr. B. Baruah, learned counsel for the petitioner and Mr. D. Gogol, learned standing counsel appearing on behalf of the Forest Department.

2. This writ petition has been filed challenging the seizure of the goods vehicle bearing Registration No. AS-23-CC-3228 belonging to the petitioner by the Forest Officials of Jagun Range, Jagun.

3. The facts of the instant case as alleged by the petitioner in the writ petition is that the petitioner had purchased on loan a goods vehicle bearing Registration No. AS-23-CC-3228 in the year 2019. On 5.12.2020 one Sri Raja Pegu hired the vehicle of the petitioner and he along with some other persons on being suspected to be involved in loading sawn timber at Waru area near Tinkopani RF into the vehicle of the petitioner, the Forest Officials of Jagun Range under sections 24, 25, 40 and 41 of the Assam Forest Regulation, 1891 as amended by Act of 2005 arrested the said persons and had seized the vehicle of the petitioner.

4. The petitioner on coming to learn about the incident applied for the certified copy of the Seizure List and the Seizure Report as prepared by the Namchik Beat Officer, Jagun Range and could come to learn that the petitioner's vehicle was also seized. Consequently the petitioner approached the learned SDJM, Margherita seeking lawful custody of the vehicle in connection with CR Case No. 23 of 2020 registered under sections 24, 25, 40 and 41 of the Assam Forest Regulation, 1891 on the basis of the incident which took place on 5.12.2020. The learned Judicial Magistrate vide an order dated 25.1.2021 rejected the Zimma Petition filed by the petitioner on the basis of a report of the Forest Range Officer, Jagun Range, Jagun that confiscation proceedings have been initiated.

5. Thereupon the petitioner on 8.2.2021 filed a petition under section 49A of the Assam Forest Regulation, 1891 read with section 451, Cr. P.C. for releasing the vehicle of the petitioner upon execution of the Bond. The Forest Range Officer, Jagun Range, Jagun vide an order dated 9.2.2021 rejected the petition filed by the petitioner on the ground that confiscation proceeding is pending before the DFO, Digboi the Authorized Officer. It is against the action for not releasing the vehicle of the petitioner which the petitioner contends to be illegal, arbitrary and unauthorized that the petitioner has approached this court under article 226 of the Constitution of India.

6. This court on 27.4.2021 after hearing the parties issued Notice returnable on 12.5.2021 and directed the Forest Department to place on record in the form of affidavit their stand on or before 12.5.2021. In the interim, it was further directed that the status quo as regards the vehicle in question shall be maintained till the returnable date. Thereafter a perusal of the orders passed by this court and the records reveals that the respondent Forest Department did not file any affidavit in spite of the specific direction issued in the order passed on 27.4.2021. In fact the perusal of the order dated 12.11.2021 reveals that the Standing Counsel, Forest Department had placed a communication dated 16.9.2021 before this court wherein it was mentioned that the confiscation proceedings would be initiated on completion of the enquiry. It further transpires from the said communication that as on 16.9.2021 no confiscation proceeding was initiated. Today when the matter had been taken up and on a pointed query being made to the standing counsel appearing for the Forest Department as to whether any confiscation proceedings have been initiated, there has been no materials placed on record on the basis of which this court can arrive at a conclusion that there has been any confiscation proceedings initiated.

7. Mr. D. Gogoi, standing counsel for the Forest Department submits that a communication dated 30.9.2021 was issued by one Detecting Officer having his office at the Office of the Range Forest Officer, Jagun Range, whereby the petitioner was asked t