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2017 DIGILAW 1203 (ORI)

State of Orissa v. Quazi Ali Ahmed

2017-10-27

B.R.SARANGI

body2017
JUDGMENT : B.R. SARANGI, J. This is a writ petition filed by the State of Orissa through its functionary assailing the legality, propriety and correctness of the judgment dated 13.01.2009 passed by the learned Ad hoc Additional District Judge, Balasore in FAO No. 21/34 of 2008 modifying the order of confiscation dated 24.01.2008 passed by the Authorized Officer-cum-Divisional Forest Officer, Bhadrak Wildlife Division, Chandabali in O.R. Case No. 18-B of 2006-07. 2. The factual matrix of the case, in a nutshell, is that on receiving information from reliable source regarding transportation of teak logs in a mini truck, the Range Officer, Bhadrak (Wild Life) on 08.03.2007 proceeded to Bagurai Chhak with Forester, Bhadrak and P. Sethi, Forest Guard, Bhandaripokhari and watched the movement. At about 11 P.M., a mini truck bearing registration no.OSB-5259 proceeding towards Bhadrak was detained and on search it was found to be loaded with 7 pieces of teak logs. On being asked, the driver of the vehicle could not produce any valid permit/transit pass in support of such transportation. As a result, the vehicle (mini truck) along with the timbers was seized and O.R. Case No.18-B of 2006-2007 was registered for violation of Rules-4, 12 and 14 of the Orissa Timber and Other Forest Produce Transit Rules, 1980. The seized forest produce was produced before the Authorized Officer-cum-Divisional Forest Officer, Bhadrak Wild Life Division, Chandbali for initiation of confiscation proceeding under Section 56 of Orissa Forest Act, 1972. Thereafter, the Authorized Officer, by following statutory formalities, proceeded with the enquiry and after going through the oral and documentary evidence available on record passed order dated 24.01.2008 confiscating the mini truck bearing registration No.OSB-5259 along with teak timber volume 27.00 Cft. to the Government. Against the said order of the Authorized Officer, the opposite party filed appeal before the learned Ad hoc Additional District Judge, Balasore, which was registered as FAO No.21/34 of 2008. The learned Ad hoc Additional District Judge, Balasore, by order dated 13.01.2009, while holding that the forest offence was committed, allowed the appeal in part and, while confirming the confiscation of the seized forest produce, modified the order of confiscation of the vehicle and substituted the same by imposing penalty of Rs.20,000/- (rupees twenty thousand) in default the opposite party would undergo simple imprisonment for three months. It was also directed that in case the penalty was paid and appeal was not preferred, the seized motor vehicle which has been confiscated under Section-56 of the Forest Act, would be released in favour of the opposite party. 3. Mr. P.K. Muduli, learned Additional Government Advocated contended that Section-56 of the Orissa Forest Act, 1972 does not contemplate for imposition of fine in lieu of confiscation. Consequentially, the direction given by the learned Ad hoc Additional District Judge, Balasore for imposition of penalty of Rs.20,000/- (rupees twenty thousand) in lieu of confiscation of vehicle and for release of the same is absolutely misconceived. More so, if Section-56 of the Orissa Forest Act, 1972 does not contemplate the provision for imposing penalty, the impugned order so passed by the learned Ad hoc Additional District Judge, Balasore in appeal is without jurisdiction and, as such, the same cannot sustain in the eye of law. 4. Although Mr. S.K. Nayak-2, learned counsel along with his associates entered appearance for the opposite party, none was present at the time of hearing. Even though the matter was initially passed over, on subsequent revised calls no one also appeared on behalf of the opposite party. Therefore, keeping in view that the matter relates to the year 2009, this Court disposed of the same finally on perusal of the records and upon hearing learned counsel for the petitioner. 5. On the basis of the factual matrix of the case, as indicated above, the Authorized Officer-cum-Divisional Forest Officer, Bhadrak Wildlife Division, Chandbali on 24.01.2008 passed the following order: “That the mini truck bearig Regd. No.OSB-5259 along with teak timber volume to 27.00 cft. are confiscated to Govt. The seized produce be disposed off after the appeal period is over.” Against the said order dated 24.01.2008, the opposite party preferred appeal before the learned Ad hoc Additional District Judge in FAO No.21/34 of 2008, which has been disposed of vide judgment and order dated 13.01.2009. The operative portion of the said order reads as under: “7. Having considered in the manner mentioned above more so the unchallenged evidence of Forest officials, I am inclined to hold that the appellant’s mini truck in question was used for commission of the Forest offence and he had failed to take sufficient and substantial precautionary measures against use of his vehicle for commission of such Forest offence. Having considered in the manner mentioned above more so the unchallenged evidence of Forest officials, I am inclined to hold that the appellant’s mini truck in question was used for commission of the Forest offence and he had failed to take sufficient and substantial precautionary measures against use of his vehicle for commission of such Forest offence. Therefore, he was liable for the commission of Forest offence and rightly the Authorised Officer so held in his impugned order. 8. As regards confiscation, I consider the submission made from the side of the appellant that the appellant was poor, unemployed young man who for earning his livelihood, purchased the truck in question by incurring loan from Orissa State Financial corporation. The confiscation would adversely effect him and his family livelihood. Considering the value of the Forest produce being carried and magnitude of the adverse impact that would be made on the bread and butter of the appellant’s family, I find when the Authorised Officer had discretion to impose penalty instead of confiscating the vehicle, it would be inconsistent with the existing facts and circumstances to substitute the order of confiscation by imposition of penalty to sub-serve the better and greater ends of justice. Hence it is ordered:- ORDER The appeal is partly allowed confirming the confiscation of the seized Forest produce and modifying the order of confiscation of the vehicle and substituting the same by imposing penalty of Rs.20,000/- (Rupees twenty thousand) only on the appellant. In default of payment of Rs.20,000/-, he shall undergo simple imprisonment for three months, in case the penalty was paid and appeal was not preferred, in that case the seized motor vehicle is directed to be released in favour of the appellant.” 6. In view of the aforesaid, it is to be examined whether the learned Ad hoc Additional District Judge, Balasore has got jurisdiction to modify the order of confiscation of the vehicle and substitute the same by imposing penalty. 7. For the above purpose, it is necessary, at the outset, to refer to the provisions of Section 56 of the Orissa Forest Act, 1972, which reads thus: “56. 7. For the above purpose, it is necessary, at the outset, to refer to the provisions of Section 56 of the Orissa Forest Act, 1972, which reads thus: “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. (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 [under Section 72] [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 make, as soon as may be, a report of the circumstances to his official superior and the Divisional forest Officer. [(2-a) When an authorized officer seizes any forest produce under Sub-section (1) or where any such forest produce is produced before him under Subsection (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. (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 property; (b) an opportunity of making a representation in writing within such reasonable times 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 Subsection (2-b) no order of confiscation under Subsection (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 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 Subsection (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 order 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 Subsection (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. Provided that the seized property shall not be released during pendency of the confiscation proceeding or trial even on the application of the owner of the property for such release.” The above mentioned provision nowhere prescribes imposition of penalty in lieu of confiscation of the vehicle seized in connection with forest offence. 8. In Gwalior Rayons Silk Mfg. (Wvg.) Co. Provided that the seized property shall not be released during pendency of the confiscation proceeding or trial even on the application of the owner of the property for such release.” The above mentioned provision nowhere prescribes imposition of penalty in lieu of confiscation of the vehicle seized in connection with forest offence. 8. In Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747 ; Shyam Kishori Devi v. Patna Municipal Corpn., AIR 1966 SC 1678 ; A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 and subsequently in many other cases the apex Court held that the “language” is clear, the intention of the Legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity. 9. In State of Kerala v. Mathai Verghese, (1986) 4 SCC 746 ; and Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96 , the apex Court held that the court cannot reframe the legislation as it has no power to legislate. 10. In J.P. Bansal v. State of Rajasthan, (2003) 5 SCC 134 = AIR 2003 SC 1405 , the apex Court held as follows: “When the words of a Statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. The intention of the Legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said as also to what has not been said.” 11. While dealing with pari materia of the provisions of Section 52(3) of the Indian Forest Act, 1927 in the case of State of Jharkhand v. Govind Singh, AIR 2005 SC 294 , the apex Court categorically held as follows: “Reading into S.52(3) the power to direct release of vehicle alleged to be involved in confiscation, was not proper. While dealing with pari materia of the provisions of Section 52(3) of the Indian Forest Act, 1927 in the case of State of Jharkhand v. Govind Singh, AIR 2005 SC 294 , the apex Court categorically held as follows: “Reading into S.52(3) the power to direct release of vehicle alleged to be involved in confiscation, was not proper. It is further held that the finding by the High Court that though the power to levy fine in lieu of confiscation is not there under S.52(3), same has to be read into the statute to fully effectuate the legislative intent, it was a case of casus omissus, held, was against the settled principles relating to statutory interpretation. The legislative casus omissus cannot be supplied by judicial interpretative process.” 12. Applying the above principles to the present context, if Section 56 of the Orissa Forest Act does not contemplate for imposition of fine in lieu of confiscation, learned Ad hoc Additional District Judge, Balasore could not have modified the same contrary to the provisions of law. 13. The Privy Council in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 held as under: “Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.” The same view holds good till date and the apex Court referred the said principles in a catena of decisions, namely, State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 ; Dhananjay Reddy v. State of Karnataka, AIR 2001 SC 1512 ; Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd, AIR 2008 SC 1921 ; and Ram Deen Maurya v. State of U.P., (2009) 6 SCC 735 . 14. For the reasons stated above, this Court is of the considered view that the order dated 13.01.2009 passed by learned Ad hoc Additional District Judge, Balasore cannot sustain in the eye of law and is liable to be quashed. Accordingly, the impugned order dated 13.01.2009 passed by learned Ad hoc Additional District Judge, Balasore is quashed and consequentially the order of confiscation dated 24.01.2008 passed by the Authorized Officer is restored. 15. The writ petition is accordingly allowed. No order as to cost.