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2015 DIGILAW 139 (ORI)

State of Orissa v. Jyoshna Mohapatra

2015-02-25

S.K.MISHRA

body2015
JUDGMENT : S.K. M/S.HRA, J. In this writ petition, the State of Orissa has assailed the judgment passed by the learned District and Sessions Judge, Cuttack in F.A.O No. 59 of 2006, disposed of on 30.06.2007, allowing the application of the opposite party, thereby setting aside the order passed by the Divisional Forest Officer-cum-Authorised Officer, Athagarh directing confiscation of the opposite party's Truck bearing Registration NO.OR-05-H-1869. 2. The facts leading to this writ petition may be stated as follows: On 05.04.2000 at 2.00 P.M. the Truck was parked near Chandi Mandir square at Cuttack. It was detained by the Addl. Superintendent of Police, Cuttack who found that the Truck had been loaded with forest produce i.e. timber. On suspicion, he intimated the matter to the Forest Officer at Cuttack for verification. The Forest Officials reached the spot and verified the timber. One Iswar Chandra Das, the driver/custodian of the truck produced a permit authorizing transportation of forest produce. The forest officials found that the permit was for old timbers and the truck was actually loaded with fresh, woods. The matter was reported to the Authorised Officer-cum-D.F.O. who initiated a proceeding under Section 56 of the Orissa Forest Act, 1972, hereinafter referred to as the U Act" for brevity. The opposite party appeared before the Authorised officer and demanded release of her seized truck on the ground that the truck was not involved in any forest offence. The authorized officer, after conducting an enquiry directed confiscation of the Truck as well as the timber loaded on it vide his order dated 23.02.2004. 3. The order dated 23.02.2004 passed by the Authorised officer was challenged before the learned District Judge, Cuttack in M/s.c. Appeal No. 30 of 2004. The learned District Judge, Cuttack vide his order dated 11.07.2005 set aside the order of the Authorised Officer as the latter had not given any definite finding on the facts by analyzing the oral and documentary, evidence on recorst Therefore, the learned District Judge has remanded the matter back to the Authorised Officer for fresh disposal. The authorized officer by his order dated 18.03.2006 has reiterated his earlier decision. The matter was again challenged before the learned District Judge, Cuttack in FAO. No. 59 of 2006. The authorized officer by his order dated 18.03.2006 has reiterated his earlier decision. The matter was again challenged before the learned District Judge, Cuttack in FAO. No. 59 of 2006. The Learned District Judge again set aside the order of the Authorised Officer and remanded the matter back to him to give a reasoned order after fully analyzing the evidence, both oral and documentary on record. Being aggrieved by order remand, the opposite party approached this Court in W.P.(C) No. 13147 of 2006. This Court set aside the order of the learned District Judge and as per the order dated 08.11.2006 directed the learned District Judge to dispose of the matter finally on the basis of the materials on record instead of remanding the case to the Authorised Officer. 4. The learned District Judge after reconsidering the matter, in his judgment dated 30.06.2007 has allowed the appeal by setting aside the order of confiscation, Such judgment passed by the learned District Judge, Cuttack has been assailed in this writ petition. From the records it is apparent that the learned District Judge has reversed the order of confiscation passed by the learned Authorised officer on the following grounds: (i) Firstly, that the offending vehicle (Mini Truck) has passed through check gates at Athagarh and Choudwar and the Truck was seized at Cuttack only one hour after the checking at Choudwar. Thus, it is highly improbable that the appellant unloaded the checked forest produces after crossing Choudwar check gate and reloaded the Truck with seized timbers not covered under the permit within a short period. {ii) Secondly, the learned District Judge has held that the order of confiscation by the Authorised Officer has been passed assuming that the forest offence was committed solely on the basis of the past antecedents of the opposite party, though such antecedent has been proved or referred in the case. (iii) Thirdly, the finding of the Authorised officer that the permit produced by the opposite party was for old timber, whereas the Truck was actually loaded with fresh cut wood is not based on cogent material. So holding, the learned District Judge further held that the seizure list prepared at 2.00 P.M. i.e. at the very moment when the Truck was detected' clearly showed that there was no actual physical verification and comparison with the load with load with the permit produced by the opposite party. 5. So holding, the learned District Judge further held that the seizure list prepared at 2.00 P.M. i.e. at the very moment when the Truck was detected' clearly showed that there was no actual physical verification and comparison with the load with load with the permit produced by the opposite party. 5. On the basis of the aforesaid three considerations, the learned District Judge, Cuttack has come to the conclusion that no forest offence has been committed. Thus, the opposite party is not required to satisfy that the vehicle was used for commission of forest offence without her knowledge, connivance etc. in course of hearing, Mr. Rath, learned Addl. Standing Counsel took pains in pointing out that the Timber Transit permit granted to the petitioner and the wood seized after physical verification are at variants. Hence, the .same cannot be accepted. Secondly, it is stated that there are number of cases against the opposite party on the allegation that she has committed forest offences. Thirdly, it is suggested that the finding of the learned District Judge, Cuttack that there was no physical verification and there is detection of fresh cut green timbers and the old timbers are not detected by any chemical examination is due to non-application of judicial mind. In other words, the learned Addl. Standing Counsel representing the State has prayed for re-appreciation of evidence/materials on record for setting aside the order assessed by the appellate Court. 6. The scope of interfering with a judicial order passed by the subordinate Court, by the High Court under Articles 226 and 227 of the constitution has been dealt with by the Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai and others, (2003) 6 SCC 675 : 2013 (2) OLR (SC) 361. The Supreme Court has' in clear terms after referring to several earlier judgments held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bound of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. 7. Learned Addl. Standing Counsel has failed to prove that there is an error manifest and apparent on the face of the orders passed by the learned District Judge is in clear ignorance or utter disregard or provisions of law. He has also failed to prove how grave injustice has been done in the case. In that view of the matter, this Court is of the opinion that writ of certiorari under Article 226 or the supervisory jurisdiction under Article 227 of the Constitution should not be invoked in this case to set aside the order passed by the learned District Judge. 8. Accordingly, this writ petition is devoid of any merit and the same is, therefore, dismissed. The Authorised Officer-cum-Divisional Forest Officer, Athagarh Division is directed to release the vehicle in favour of the opposite party forthwith, if it is not already released in her favour. Petition dismissed.