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2008 DIGILAW 424 (ORI)

State of Orissa v. Manoj Kumar Nayak

2008-05-16

PRADIP MOHANTY

body2008
Judgement The judgment dated 24.03.2007 of the Addl. Sessions Judge (FTC), Baripada in Criminal Revision No.3/ 29 of 2006 directing release of the seized Hero Honda Motorcycle and the mobile handset by setting aside the order dated 19.07.2006 passed by the S.D.J.M., Udala in 2(b) C.C. Case No.33 of 2006 is assailed in the instant revision. 2. FACTS OF THE CASE : On 23.06.2006 at about 4.00 A.M. the forest officials detected a Mahindra Pickup Van bearing registration number OR-01-D-9622 loaded with 120 pieces of Sal and Kaima timbers. During course of detection, it is alleged, the driver of the said Van and the timber smugglers fled away. The opposite party was caught red handed along with a Hero Honda Motorcycle bearing registration number OR-01-E-7639 and a mobile phone. As per instruction of the Range Officer, the above noted vehicles and mobile phone were seized together with the forest produce, seizure list was prepared in presence of the witnesses and accused-opposite party was arrested. On 13.07.2005, the accused-opposite party filed a petition before the S.D.J.M., Udala to release the seized Hero Honda Motorcycle and the mobile phone. The S.D.J.M. after hearing the parties rejected the said petition by order dated 19.07.2006 inter alia on the ground that there was every chance of instituting confiscation proceeding by the Authorised Officer under Section 56 of the Orissa Forest Act with regard to the seized property. Against that order, accused-opposite party preferred Crl. Revision No.29 of 2006 before the Sessions Judge, Mayurbhanj, Baripada. The said revision was eventually transferred to the court of the Addl. Sessions Judge (FTC), Baripada and renumbered as Crl. Revision No.3/29 of 2006. The Addl. Sessions Judge after hearing the parties by judgment dated 24.03.2007 allowed the revision by setting aside the order of the S.D.J.M. and directed release of the seized Hero Honda Motorcycle and mobile phone inter alia with the finding that no confiscation proceeding under Section 56 of the Orissa Forest Act was pending before the Authorised Officer and there was also absolutely nothing in the P.R. to suggest that the opposite party is a timber mafia. Assailing the said order of the Addl. Sessions Judge, the State has preferred this revision. 3. Mr. Assailing the said order of the Addl. Sessions Judge, the State has preferred this revision. 3. Mr. Rao, learned counsel for the petitioner submitted that the criminal court has no jurisdiction to release the properties in question which have not been seized by the police officer but by the forest officials in connection with forest offence. Therefore, the impugned judgment allowing the revision is illegal, without jurisdiction and liable to be set aside. In support of his submission, Mr. Rao relies upon the decisions in State of Orissa v. Akhaya Charan Choudhury, 1990 (I) OLR 481, Sarat Kumar Malu v. State of Orissa, 57 (1984) CLT 381 : (1984 Cri LJ 984) and Kuril Tirla v. State of Orissa, 2007 (36) OCR 828. 4. Mr. Barik, learned counsel for the opposite party submitted that this revision is not maintainable on the grounds (i) that the order out of which it arises is an interlocutory one, (ii) that the petitioner has annexed to the revision petition the order sheet containing the ordering portion only and not the entire judgment dated 24.03.2007 passed by the learned Addl. Sessions Judge, FTC, Baripada, and (iii) that the revision has not been filed by the State of Orissa but by the Range Officer, which cannot represent the State as his status is just like an informant. He further submitted that there is no illegality committed by the Addl. Sessions Judge in reversing the order of the S.D.J.M. when there was no proceeding pending before the Authorised Officer, even no notice was served upon the opposite party and there was no report of initiation of any confiscation proceeding till 24.03.2007. The factum of seizure was communicated to the S.D.J.M., Udala while forwarding the accused. There was no intimation of any confiscation proceeding till that date by the forest officials. The seized mobile phone and the motorcycle in question were not involved in the commission of forest offence and seizure of those articles by the forest officials is also without jurisdiction. Therefore, no error was committed by the Addl. Sessions Judge in allowing the revision by ordering release of the motorcycle and the mobile phone in favour of the opposite party. Therefore, no error was committed by the Addl. Sessions Judge in allowing the revision by ordering release of the motorcycle and the mobile phone in favour of the opposite party. In support of his submissions, he placed reliance upon the decisions in Ranjitarani Sahoo v. State of Orissa, CLT (2005) (Supp) (Crl.) 351 and Daitary Samantaray v. The Divisional Forest Officer, Baripada Division and another 1993 (II) OLR 295 : 1994 Cri LJ 963. 5. Perused the LCR, records of Confiscation Proceeding, i.e., O.R. Case No.25 of 2006-07 and the decisions cited by the parties. From the records, it reveals that the matter was put up before the Authorised Officer on 22.03.2007 for the first time and notice was issued on the same day. But the petition to release the motorcycle and the mobile phone was filed on 13.07.2006, and on 19.07.2006 the said petition was rejected. The opposite party preferred Crl. Revision No.29 of 2006, which was allowed on 24.03.2007. 6. The crux of the case is whether the articles seized by the Authorised Officer under the Forest Act come under the purview of Section 56 of the Act or not. In other words, whether release of seized articles has been made under the provisions of Section 56 and 57 of the Forest Act or Sections 451 and 457 of the Criminal Procedure Code. For ready reference, Section 56 is quoted below : "56. Seizure of property liable to confiscation - (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any forest officer or police officer. Seizure of property liable to confiscation - (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any forest officer or police officer. (2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, except where the offender agrees in writing to get the offence compounded, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorized by the State Government in this behalf by notification (hereinafter referred to as the authorized officer) or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made : Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior and the Divisional Forest Officer. (2-a) Where an authorized officer seizes any forest produce under sub-section (1) or where any such forest produce is produced before him under sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, lie may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence. (2-b) No order confiscating any property shall be made under sub-section (2-a) unless the person from whom the property is seized is given - (a) a notice in writing informing him of the grounds on which it is proposed to confiscate such proper; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and (c) a reasonable opportunity of being heard in the manner. (2-c) Without prejudice to the provisions of Sub-section (2-b), no order of confiscation under Sub-section (2-a) of any tool, rope, chain, boat, vehicle or cattle shall be made if the owner thereof proves to the satisfaction of the authorized officer that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any or the person in charge of the tool, rope, chain, boat, vehicle or cattle, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. (2-d) Any Forest Officer not below the rank of a Conservator of Forests empowered by the Government in this behalf by notification, may, within thirty days from the date of the order of confiscation by the authorized officer under sub-section (2-a), either suo motu or on application, call for and examine the records of the case and may make such inquiry or cause such inquiry to be made and pass such orders as he may think fit : Provided that no order prejudicial to any person shall be passed without giving him an opportunity of being heard. (2-e) Any person aggrieved by an order passed under Sub-section (2-a) or Sub-section (2-d) may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property has been seized, and the District Judge shall, after giving an opportunity to the parties to be heard, pass such order as he may think fit and the order of the District Judge so passed shall be final. (3) The property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received. Explanation- For the purpose of this section and section 59, cattle shall not include buffaloes, cows, calves and oxen." From a bare reading of Section 56(1), it reveals that if a forest officer or police officer has reason to believe that a forest offence has been committed in respect of any forest produce, then such produce together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence may be seized by him. Under Sub-section (2) of Section 56, it is the duty of the officer who seized the property to make a report of such seizure to the Magistrate having jurisdiction to try the offence. Under Section 59 of the Forest Act, the property seized under Section 56 is liable for confiscation. In the instant case, the seizure is made under the provisions of Section 56 of the Forest Act, the property seized is lying with the Range Officer, and the Authorized Officer has initiated the confiscation proceeding just two days before disposal of the revision by the Additional Sessions Judge, FTC. Now, the question is whether the criminal court has jurisdiction to release the articles in question. On perusal of prosecution report, it reveals that the vehicle loaded with forest articles was seized, and the driver and the timber smugglers fled away from the vehicle. But the escort person was arrested along with his motorcycle and a mobile phone. In other words, no forest articles were seized from the possession of the opposite party or his motorcycle. There is no material before this Court so as to connect the forest produce with the motorcycle and the mobile phone. There is also no material before this Court that the motorcycle and the mobile phone in question have been used to facilitate commission of the forest offence. For all these reasons, this Court is of the opinion that power to release the seized properly in question lies with the criminal court and not with the Authorised Officer. Therefore, the learned Addl. Sessions Judge has rightly passed the impugned order releasing the motorcycle and the mobile phone in favour of the opposite party and there is no reason to interfere with the same. The revision is accordingly dismissed. Petition dismissed.