WP(C) 3643/2009 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY Petitioner by the present petition has challenged the order dated 19.8.2 009 (Annexure-7) passed by the Divisional Forest Officer, Kamrup West Division, Bamunigaon, refusing the prayer of the petitioner for custody of the vehicle bea ring registration no.AS-18/A-3331(Bus) pending finalization of proceedings initi ated by the authority under the provisions of the Assam Forest Regulation, 1981. I have heard Mr I. Rafique, learned counsel for petitioner as well as Mr s VL Singh, learned state counsel, appearing for the respondents. The said vehicle belonging to the petitioner was seized by the forest of ficials on 18.2.09 on the allegation of commission of forest offence. Thereafter , a confiscation proceeding has been initiated, where the petitioner has partici pated. In such proceeding, two applications, including the one dated 2.7.09 for interim custody of the vehicle have been filed by the petitioner, which applicat ions have been rejected by the impugned order dated 19.8.09 by the Divisional Fo rest Officer on two grounds, firstly, the confiscation proceeding has not been c ompleted due to absence of driver and handyman of the vehicle, who were arrested and found to have been involved in the forest offence and secondly, that if the custody of the vehicle is given in favour of the petitioner, the said vehicle m ay again be used for commission of forest offence. The respondent no.2, in the affidavit-in-opposition, has stated that the said vehicle was seized as it had committed forest offence and the custody coul d not be given in favour of the petitioner, since the confiscation proceeding is continuing, and the owner of the bus is vicariously liable for the deeds of the driver and handyman, and the owner had failed to take sufficient precautions to prevent his staff from doing illegal activities by using the bus. It has furthe r been stated in the said affidavit that the vehicle was not released on the gro und that it may again be used in the commission of forest offence. It is not the case of the respondents in the affidavit-in-opposition tha t the petitioner, who is the registered owner of the vehicle in question, is not producing the driver and the handyman, though they are under his employment. Mo reover, Regulation 49-A read with Regulation 57 of Assam Forest Regulation 1891 provides for release of the property seized u/s 49 during pendency of the procee dings initiated under the Forest Regulation. That being the position, the said g round given in the order dated 19.8.2009 for not releasing the vehicle in favour of the petitioner during pendency of the confiscation proceeding is not sustain able in law. The other ground on which the vehicle has not been released in favour of the pe titioner is that the vehicle may again be used for forest offence. There is no b asis on which such satisfaction has been recorded by the DFO. If the vehicle is again used for committing any forest offence, the forest officials may seize the same again and proceed accordingly. That apart, the authorized officer may also obtain an undertaking from the person concerned i.e. the owner of the vehicle n ot to use such vehicle or caused to be used or allowed such vehicle to be used f or commission of any offence. The reason given by the respondent no.2 in the aff idavit-in-opposition that the owner of the bus is vicariously liable and he has failed to take sufficient precaution to prevent his staff from doing illegal act ivities cannot be the ground for rejection of the prayer for interim custody, as under Regulation 49(6) of the Assam Forest Regulation, 1891, order of confiscat ion cannot be passed by the authority in the event the owner of the vehicle prov es to the satisfaction of the authorized officer that such vehicle was used with out his knowledge or connivance or abatement, as the case may be, of his servant or agent and that reasonable and due precaution has been taken against the use of such vehicle for the commission of such forest offence. The stage for decidin g the same is yet to come. In view of the above, the order dated 19.8.2009 (Annexure-7) passed by t he Divisional Forest Officer, Kamrup West Division, Bamunigaon is set aside. The vehicle bearing registration no.AS-18/A-3331(Bus) is directed to be released in favour of the petitioner in the interim custody till the confiscation proceedin gs initiated is decided, subject to execution of bond by the petitioner that he shall not use or allow to be used such vehicle for commission of any offence and shall take all reasonable care and precaution so that such vehicle is not used for commission of any forest offence and that he shall produce the vehicle as an d when directed by the authorized officer. The petitioner shall also execute a b ond that in the event of failure to produce the vehicle, he shall pay a sum of R s.10 lakhs (Rupees ten lakhs only) to the Forest Department of the Government of Assam. The Divisional Forest Officer, Kamrup West Division, Bamunigaon shall re lease the vehicle immediately on execution of such bond. The writ petition is accordingly allowed. No costs.