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2011 DIGILAW 574 (ORI)

SUKANTA KUMAR JENA v. STATE OF ORISSA

2011-11-24

B.K.PATEL, L.MOHAPATRA

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JUDGMENT L. MOHAPATRA, J. The petitioner is the owner of Tata Pick up Van, which was purchased in the year 2004. Before it was assigned with a registration number, the same was seized in connection with a forest offence on 19.9.2004. At the time of seizure, 106 pieces of sal planks of different size and 18 pieces of Kuruma planks of different size were seized from the vehicle. Such seizure was reported to the Assistant Conservator of Forests-cum-Authorised Officer, Cuttack Forest Division, Cuttack. The petitioner was noticed to show cause and subsequently a confiscation proceeding was initiated by the Authorised Officer vide O.R.No.113 D of 2004-2005 for commission of offence under Section 56 of the Orissa Forest Act, 1972. The Authorised Officer directed confiscation of the timber as well as the vehicle vide order dated 24.6.2005. The petitioner preferred an appeal before the learned District Judge, Cuttack vide F.A.O. No.151 of 2005 and the said appeal was also dismissed on 7.10.2005. Challenging the order of Authorised Officer as well as the order passed by the learned District Judge in appeal, this writ application has been filed. 2. From the order passed by the Authorised Officer, it appears that on 19.9.2004 after getting reliable information, S.I. of Dharmasala Police Station seized the said vehicle loaded with the aforesaid timber. Such seizure was intimated to the Range Officer, Balijora. The Forester, Chandikol was authorised by the Range Officer to measure size of timber and also to receive the seized vehicle along with timber from the police and, accordingly on 20.9.2004, the Forester, Chandikhol received the seized vehicle as well as timber from the S.I., Dharmasala Police Station. The driver of the vehicle having not been arrested, an U.D. case was booked and the R.T.O., Chandikhol was requested to intimate the address of owner of the vehicle. On 6.11.2004, the petitioner appeared before the Forester, Chandikhol along with all relevant documents and papers in support of his ownership over the vehicle. Thereafter, U.D. Case was converted to Offence Report and a confiscation proceeding was initiated before the Authorised Officer. After receipt of reply from the petitioner, evidence was collected and the Authorised Officer ultimately passed an order of confiscation holding that the said timber was being transported without any valid permit. In appeal also the said order was confirmed. 3. Thereafter, U.D. Case was converted to Offence Report and a confiscation proceeding was initiated before the Authorised Officer. After receipt of reply from the petitioner, evidence was collected and the Authorised Officer ultimately passed an order of confiscation holding that the said timber was being transported without any valid permit. In appeal also the said order was confirmed. 3. Learned counsel appearing for the petitioner assailed both the orders solely on the ground that Rule 4 of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980 having not been complied with, the entire confiscation proceeding is vitiated and, therefore, both the orders impugned in the writ application are liable to be quashed. Learned counsel for the State referring to the evidence adduced before the Authorised Officer submitted that there has been substantial compliance of the said Rule. It was also contended by the learned counsel for the State that the said question was never raised either before the Authorised Officer or before the Appellate Authority. Therefore, is not permissible to be raised for the first time in the writ application. It was also contended by the learned counsel for the State that the aforesaid Rules are only meant to be complied with for criminal proceedings and not in a proceeding initiated before the Authorised Officer for confiscation under Section 56 of the Orissa Forest Act, 1972. 4. Undisputedly, the vehicle before it was assigned with a registration number had been seized by the police for illegal transportation of timber. The only question raised before this Court is non-compliance of Rule 4 of 1980 Rules. It is a fact that such question was never raised either before the Authorised Officer or before the Appellate Authority, but it being a question of law, the same can be raised at any stage of the proceeding. Referring to the evidence adduced before the Authorised Officer, it was contended by the learned counsel for the State that there has been substantial compliance of the said Rule. In this connection, reference was made by the learned counsel for the State to the statement of Khageswar Mohanty, the Forester, Chandikhol. In answer to a question as to whether he had conducted the inquiry or someone else had conducted, he said that he conducted the preliminary inquiry after which the matter was inquired into by the higher officer. In this connection, reference was made by the learned counsel for the State to the statement of Khageswar Mohanty, the Forester, Chandikhol. In answer to a question as to whether he had conducted the inquiry or someone else had conducted, he said that he conducted the preliminary inquiry after which the matter was inquired into by the higher officer. Rule-4 of 1980 Rules mandates that the inquiry into the forest offence shall be held by an officer not below the rank of a Range Officer. Though the forester in his statement has stated that he had conducted the preliminary inquiry, it is no compliance of Rule 4(2) of 1980 Rules which specifically provides that inquiry has to be conducted by an officer not below the rank of Range Officer. Though the Forester had again stated that the matter was inquired into by the higher officer, report of such higher officer was never produced before the Authorised Officer. In this connection, reference may be made to a decision of this Court in the case of Rabinarayan Sahu Vrs. Forest Range Officer of Soroda Range and others reported in 2008(II) OLR-592. Referring to Rule 4 of 1980 Rules, this Court held that any person vested with statutory authority, is required in law to discharge that function by conducting an effective enquiry into all allegations as well as defence that may be advanced before him. In the reported case, no inquiry had been conducted as envisaged under Rule 4 of 1980 Rules. Accordingly, the Court allowed the writ application and set aside the order of confiscation. In this case also nothing has been placed before the Authorised Officer to show that an officer in the rank of Range Officer had conducted any inquiry as required under Rule 4(2) of 1980 Rules. Since the aforesaid statutory requirement has not been complied with, the entire confiscation proceeding stands vitiated. Though the learned counsel for the State submitted that 1980 Rules are only meant for criminal proceedings, he could not substantiate the said submission as those Rules apply to any case registered for commission of forest offence. 5. For the reasons stated above, on the ground of non-compliance of Rule 4 of 1980 Rules, we set aside both the impugned orders and allow the writ application. 5. For the reasons stated above, on the ground of non-compliance of Rule 4 of 1980 Rules, we set aside both the impugned orders and allow the writ application. The direction for confiscation of the vehicle is set aside and the opposite parties are directed to release the vehicle in favour of the petitioner forthwith. Only if the petitioner is in a position to produce any document relating to procurement of seized timber and any permit for transportation of the same, the Authorised Officer may release the seized timber in favour of the petitioner. Writ petition allowed.