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2016 DIGILAW 366 (ORI)

Narendra Beura v. State of Odisha

2016-05-06

S.PUJAHARI

body2016
ORDER 06.05.2016. I have heard the learned Counsel for the petitioner and the learned Counsel for the State. 2. This writ petition is directed against the order of confiscation at Annexure-2 passed by opposite party No.2-Authorised Officer-cum-D.F.O., Dhenkanal Forest Division, Dhenkanal confiscating the JCB bearing Registration No. OR-04-3772 in exercise of power under Section 56 (2-a) of the Orissa Forest Act, 1972 (hereinafter referred to as ‘the Act’), which has been confirmed by the learned District Judge, Dhenkanal in an appeal i.e. F.A.O. No.11 of 2014 filed by the petitioner vide judgment under Annexure-3, with a prayer to quash the impugned order and judgment at Annexure-2 & 3 on the ground that the same are outcome of error of law apparent on the record as his JCB was not used in commission of an offence in respect of any forest produce, so also the petitioner in this case has discharged the burden that his aforesaid JCB was used for the alleged purpose without his knowledge or connivance or without the knowledge or connivance of his agent or the person in charge of the same and all of them had taken the reasonable and necessary precautions to prevent the use of the same in a forest offence in respect of a forest produce. 3. During the course of hearing, drawing the notice of this Court to Section 56 (2-a) of the Act which speaks that when an authorised 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, he shall 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, it has been submitted by the learned Counsel for the petitioner that in this case no offence having been committed in respect of any forest produce, the JCB does not become liable for confiscation even if for sake of argument the same is assumed to have been used in commission of any forest offence. The learned Counsel has further submitted that admittedly the petitioner had given his JCB on hire and the person hiring the JCB had no knowledge that the land which was broken was a forest land and in that factual background even if it is accepted that an forest offence was committed entailing an confiscation, as the petitioner-owner in this case has brought enough materials indicating the fact that the same was used without his knowledge or connivance or without the knowledge or connivance of his driver who was in charge of it and both of them cannot be said to have allowed the use of the same knowing the fact that a forest offence is going to be committed, the JCB is not liable for confiscation. In such premises, the impugned order of confiscation, so also the judgment of the appellate Court confirming the same were unsustainable and liable to be quashed. 4. Learned Counsel for the State, on the other hand, has supported the impugned judgment and order of confiscation advancing the submission that since the forest offence was committed using the tool i.e. JCB even if no forest produce was seized in this case, the vehicle was liable for confiscation. 5. Forest produce has been defined under Section 2 (g) (i) and 2 (g) (ii) of the Act. The entries which find place in Section 2 (g) (i) (a) of the Act are forest produce, but the entries in Section 2 (g) (ii) are forest produce only when found in or brought from the forest. Section 27 of the Act is a penal provision describing the offence under the Act. Breaking of any land either for cultivation or any other purpose inside a reserve forest is a forest produce under the Act and the offender is punishable under Section 27 (3) (c) of the Act. But the said Section does not provide any power for confiscation by the Authorised Officer. It provides that the implements or tools, vehicle or cattle or any other articles which have been used in commission of offence shall be subject to disposal in accordance with provisions contained in the Code of Criminal Procedure by the Court trying the offence if the same have been seized. It provides that the implements or tools, vehicle or cattle or any other articles which have been used in commission of offence shall be subject to disposal in accordance with provisions contained in the Code of Criminal Procedure by the Court trying the offence if the same have been seized. However, Section 56 gives an independent power to the Authorised Officer if an offence is committed in respect of a forest produce and the produce is seized to direct confiscation of the same inasmuch as a person, who has committed an offence under the Act or Rules in respect of any forest produce is not supposed to enjoy the same which he obtained by committing any offence in respect of the same. Besides the same, if the tools, ropes, chains, boats, vehicles or cattle as mentioned in Section 56 (2-a) of the Act appear to have been used in commission of such offence in respect of the forest produce seized, the same shall also be confiscated. The aforesaid provision, deterrent in nature, has been brought to the statute to dissuade the enjoyment of forest produce obtained by committing the offence in respect of the same. In absence of any forest produce, however, the seizure of an article made which has been used in commission of a forest offence the jurisdiction of the Authorised Officer is ousted to initiate a confiscation proceeding. 6. In the above premises, it appears to this Court that since in this case no forest produce was seized or produced before the Authorized Officer, the initiation of the confiscation proceeding on the allegation that the JCB in question was used for commission of a forest offence under Section 27 (3) (c) of the Act and, the ultimate order holding the same liable for confiscation, appears to this Court to be misconceived. The Authorised Officer could not have passed the order of confiscation at Annexure-2. The learned District Judge, Dhenkanal also remained oblivious of the same and passed the judgment and order at Annexure-3 confirming the order of confiscation. 7. Hence, this writ petition stands allowed. The impugned order of confiscation at Annexure-2 which has been confirmed by the learned appellate Court vide its judgment and order at Annexure-3 are quashed. 8. However, in the circumstances, there shall be no order as to cost. Petition allowed.