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2015 DIGILAW 144 (ORI)

State of Orissa v. lIIamat Mian

2015-02-25

D.DASH

body2015
JUDGMENT The respondent having been acquitted in the case where the prosecution was launched against him for commission of offence under Rule 21 of the Odisha Timber Transit and Other Forest Produces Rules, 1980 in 2(b)C.C. Case No.51 of 1994, the State has challenged the same. The respondent was convicted by the learned S.D.J.M., Bonai in 2(b)CC No.51 of 1994 for offence under rule 21 of the Rules and was sentenced to undergo imprisonment for a period of three months. 2. The case of the prosecution is that on 14.10.1994 the house of the respondent was searched by the Forest Officials with the required search warrant. In course of search it is said that one hand- sawn bija planks, bala bettons, sal paties etc. were recovered and seized and required seizure list was prepared at the place. Finally, the prosecution report being submitted, the respondent faced the trial. 3. In the trial, prosecution examined one witness, i.e., the Forester of Bonai Section and proved the seizure list, search warrant and the statement of the respondent as Exts.1 to 3 respectively. The defence examined one witness. 4. The trial Court banking upon the presumption under Section 73 of the Orissa Forest Act held that-such possession of forest produce by the respondent without the T.T. permit makes him liable for commission of offence under Rule 21. The appellate Court giving a reading to Rule 12 has arrived at a conclusion that the prosecution has failed to establish that the forest produce has been cut and removed from forest. It has been further found that such presumption under Section 73 of the Act would not come into play to hold the respondent guilty under Rule 21. Thus, the order of conviction and sentence having been set aside, the State has come up in appeal. 5. Learned counsel for the State submits that the lower appellate Court has erred in law by not drawing the presumption under Section 73 of the Act. In view of the facts and circumstances of the case, according to him, when the search, recovery and seizure of forest produce from the house of the respondent stand proved, it was for the respondent to show as to how he brought those, that too under a valid T.T. permit. In view of the facts and circumstances of the case, according to him, when the search, recovery and seizure of forest produce from the house of the respondent stand proved, it was for the respondent to show as to how he brought those, that too under a valid T.T. permit. Therefore, he urges that such order of acquittal passed in the appeal is not sustainable in the eye of law and it having been passed on wrong construction of the relevant provision of law and their application, the same has to be interfered with. Learned counsel for the respondent, on the other hand, supports the order of the lower appellate Court. According to him, it was incumbent upon the prosecution to prove that such forest produce seized in the case were brought from somewhere and stored in the house. So, in the absence of such evidence the lower appellate Court’s order cannot be found fault with. He also submits that in the present case the respondent having led evidence by examining the witness has proved that he was constructing the house after demolishing his old house and those seized forest produce were removed from his own house and were being used by him for construction of his house. Therefore, he urges that the order of the learned Sessions Judge passed in the appeal is not liable to be disturbed. 6. Accepting the prosecution case that there was seizure of forest produce as detailed in the seizure list from the house of the respondent, the question first arises as to whether a conviction can be recorded for commission of offence under Rule 21. Rule 21 provides the penalty for violation any of the rules as provided in the said Rules. In Rule 4 of the said Rules, it is stated that except as provided in Rule 5, all forest produce in transit by land, rail or water shall be covered by a transit permit. The Rules basically have been intended to prevent transportation of forest produce from one place to the other and, therefore, specific rule has been made that it has to be with required permit so that it should be with the knowledge and permission of the concerned authorities. The Rules basically have been intended to prevent transportation of forest produce from one place to the other and, therefore, specific rule has been made that it has to be with required permit so that it should be with the knowledge and permission of the concerned authorities. This is to prevent the clandestine activity of cutting the trees and removal of the timber and other forest produces taking a plea that it was not brought from the forest. Even if a person cuts a tree standing on his own land and then removes it to another place under his control or any other place, when there is no claim of any other over the said timber, still he is required to obtain the transit permit from. the competent authority. Rule 12 reads that any person to whom a transit permit is issued,in other words, who has brought those forest produce on transit has to retain it so long as he remains in possession of the forest produce for necessary inspection .. Here, in the present case .the forest produce was not found on transit. It was found in the house, when specific plea has been taken by. the respondent that those were in his old house since British period and he had kept those after demolishing his old house. D.W.1 has stated so which has remained unshaken. Section 73 of the Act reads about the presumption of the property to be belonging to the Government. It never gives rise to a presumption that who-so-ever is found to be possession in forest produce would be presumed to have brought those from forest requiring the transit permit and for non production of such permit, the removal and transportation as above is to be presumed. 7. In view of the aforesaid, this Court finds no ultimate fault with the order of the lower appellate Court in setting aside the conviction of the respondent as recorded by the trial Court and thereby acquitting the respondent who faced trial for commission of offence under rule 21. The order is thus not liable to be interfered with in this appeal. 8. In the result, the appeal stands dismissed. Appeal dismissed.