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2017 DIGILAW 1320 (ORI)

Santosh Banchhur v. State of Orissa

2017-11-17

B.K.NAYAK

body2017
JUDGMENT B.K.NAYAK, J. - In this writ petition the petitioner prays for quashing V.G.R. Case No.44 of 2013 pending on the file of the learned Special Judge Vigilance, Sambalpur, arising out of Sambalpur Vigilance P.S. Case No.53 dated 21.09.2013, under Section 13(2) read with Section 13 (1) ( d )of the Prevention of Corruption Act, 1988 and Section 120-B of the I.P.C. 2. The prosecution case against the petitioner as per F.I.R. lodged by D.S.P. Vigilance, Sambalpur Division is as follows : The petitioner, an Officer of OFS-I was functioning as in-charge DFO, Sambalpur, North Forest Division during the period from 10.08.2009 to 13.08.2009. On allegations of criminal misconduct by the petitioner an enquiry was conducted, which revealed that M/s. Maya Traders, Raipur was transporting teak sawn sizes, 1669 bundles and 838 pieces (30 Cum) by Truck No.OR-14-L-8199 from Raipur to Rourkela as per the Foreign Transit Permit No.753/53 dated 29.07.2009 issued by the D.F.O.. Raipur Forest Division. The said Truck with loaded timber was detained at the Forest Check Gate, Jharsuguda on 07.08.2009 by the Forest Staff for checking, while the Truck was proceeding towards Rourkela. The Driver of the Truck fled away from the spot, leaving the Truck. Since for transportation of the timber in the said truck inside the State of Orissa there was no Transit Permit in lieu of the Foreign Transit Permit, Sri Hemata Kumar Sahoo, Forester, Jharsuguda seized the truck along with loaded timber under Section 56 of the Orissa Forest Act, 1972 and prepared seizure list and also booked Offence Report No.23 dated 07.08.2009 for violation of Rule 4 and 19 of the Orissa Timber and Other Produce Transit Rules, 1980 (in short ‘the OTT Rules’) punishable under Rule 21 of the said Rule. On receipt of the Offence Report of Forester, Jharsuguda, the Range Officer, Jharsuguda registered OR Case No.45 of 2009-10 and intimated the Authorized Officer-cum-DFO, Sambalpur, North Forest Division, Sambalpur vide his letter No.301 dated 08.08.2009 requesting for further legal action. On receipt of the letter of the Range Officer, Jharsuguda along with the seizure list, custody memo, copy of Foreign Transit Permit and other connected documents on 10.08.2009 in his office, the petitioner, the then D.F.O., Sambalpur, North Forest Division sought for a clarification about the genuineness of Foreign Transit Permit from D.F.O., Raipur Division. On receipt of the letter of the Range Officer, Jharsuguda along with the seizure list, custody memo, copy of Foreign Transit Permit and other connected documents on 10.08.2009 in his office, the petitioner, the then D.F.O., Sambalpur, North Forest Division sought for a clarification about the genuineness of Foreign Transit Permit from D.F.O., Raipur Division. In reply, the D.F.O., Raipur Division confirmed the genuineness of the Forest Transit Permit issued in favour of M/s. Maya Traders, Raipur vide his letter dated 11.08.2009. On receipt of such confirmation, the petitioner without physically verifying the loaded timber specified in the Foreign Transit Permit allowed to release the seized truck with loaded timber from the custody of the Forest Range Officer, Jharsuguda vide Order No.181 dated 13.08.2009, with observation that there was no prima facie material for initiation of confiscation proceeding under Section 56 of the Orissa Forest Act, 1 972 and simply passed order for realization of fine of Rs.2,000/- from the party for violation of Rule 20 of the OTT Rules, although he had no power under the OTT Rules to compound an offence and to realize the fine. It is further alleged that the concerned party had violated Rule 20 of the OTT Rules for transporting timber inside the State of Orissa without obtaining ‘In Lieu Permit’ from D.F.O., Bargarh against the Foreign Transit Permit issued by D.F.O. , Raipur and, therefore, the said party was liable under Rule 21 of the OTT Rules and also for confiscation of the seized materials under Section 56 of the Orissa Forest Act , but the present petitioner by abusing his official position and mis-utilising his power under Section 56 of the Orissa Forest Act, 1972 and without following the legal procedure allowed release of the seized truck and timber from the custody of the Forest Range Officer, Jharsuguda, and as such showed undue favour to the Proprietor, M/s. Maya Traders in pursuance of their criminal conspiracy causing loss to Government Revenue. 3. 3. It was submitted by the learned Counsel for the petitioner that on receipt of the report under Section 56 of the Orissa Forest Act from the Range Officer, Jharsuguda, the petitioner enquired from the D.F.O., Raipur about the genuineness of the Foreign Transit Permit No.753/53 dated 29.07.2009 and got confirmation from the said D.F.O. that the said transit permit was genuine and valid under which the timber in question was to be transported to Rourkela. Therefore, the petitioner found that though the driver of the truck should have obtained a T.T. permit in lieu of the Foreign Transit Permit issued by the D.F.O., Raipur at the point of entry to the State of Orissa, but due to his ignorance, he has not obtained the same and, therefore, he was satisfied that it was not a case of theft of forest produce (timber) and hence no confiscation proceeding under Section 56 of the Orissa Forest Act was called for. Merely for non-obtaining ‘In Lieu Transit Permit’ the petitioner imposed a fine of Rs.2,000/- on the party concerned and directed the Assistant Conservator of Forest to grant “In lieu Transit Permit” after physical verification of the timber in question. It is submitted that within the scope of Section 56 of the Orissa Forest Act, 1972, the D.F.O. has the authority to pass any order in respect of the proceeding under Section 56 of the Orissa Forest Act and, therefore, since the petitioner (DFO) was satisfied that it was not a case of smuggling of timber, he has rightly passed order within his power for release of the seized truck and timber. 4. It is the further submission of learned Counsel for the petitioner that under sub-section (2) of Section 56 of the Orissa Forest Act, the Forest Officer conducting seizure has the power and authority to get the offence compounded where the offender agrees for such compounding in accordance with Section 72 of the Orissa Forest Act. A fortiori a D.F.O., who is a superior officer, has also the power to compound the offence. Therefore, by passing order for release of the seized truck and timber by the petitioner on being satisfied that the transportation of timber was no part of any organized crime, but it was under a valid Foreign Transit Permit issued by the D.F.O., Raipur, the petitioner has committed no illegality or misconduct. 5. Therefore, by passing order for release of the seized truck and timber by the petitioner on being satisfied that the transportation of timber was no part of any organized crime, but it was under a valid Foreign Transit Permit issued by the D.F.O., Raipur, the petitioner has committed no illegality or misconduct. 5. It is also submitted that since the transportation of the timber was under valid transit permit and due to ignorance the driver of the truck could not obtain the “In lieu Transit Permit” on entry to the State of Orissa, the petitioner directed the Assistant Conservator of Forests to grant in “In lieu T.T. Permit” and for grant of such permit necessary fees etc. are to be paid by the party concerned and, therefore, the petitioner cannot be said to have caused loss to Government Revenue as alleged in the F.I.R. It is also submitted by the learned Counsel for the petitioner that the allegations that the petitioner released the seized truck and timber for extraneous consideration being in conspiracy with the owner of such timber is wholly without basis and there is no material to that effect. In such view of the matter initiation of the criminal proceeding against the petitioner for offence under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and Section 120-B of the I.P.C. is wholly illegal and unsustainable. 6. Learned Additional Standing Counsel appearing for the Vigilance Department, on the other hand, contended that the fact that the transportation of timber in question within the territory of Odisha without a permit “In Lieu of Foreign Transit Permit” was itself illegal and constitutes offence under Rule 21 of the OTT Rules, it cannot be said that no forest offence in respect t of the seized timber and truck was committed even if there was a Foreign Transit Permit in respect of the timber in question issued by the D.F.O., Raipur. It is submitted that once an offence has been committed, the petitioner was bound to initiate a confiscation proceeding under Section 56 of the Orissa Forest Act, 1972 and he having not done so and releasing the seized truck with timber in furtherance of criminal conspiracy with the Proprietor of M/s. Maya Traders, Raipur, he abused his official position and as such has committed misconduct by himself. Therefore, the initiation of the prosecution against him is well founded. 7. The gravamen of the prosecution allegations against the petitioner is that the Truck in question loaded with timber was not having permit for transportation in lieu of the Foreign Transit Permit as required under Rule 20 of the OTT Rules, 1980 and the owner thereof was liable to punishment under Rule 21 of the said Rules and the truck with timber was liable to confiscation under Section 56 of the Orissa Forest Act, and that the petitioner, having not initiated the confiscation proceeding and having released the seized truck and timber in furtherance of his criminal conspiracy with the owner of M/s. Maya Traders, has abused his official position and as such committed misconduct as per the provision of Section 13 (1) (d) (ii) of the Prevention of Corruption Act, 1988 and Section 120-B of the I.P.C. This is apparent from the F.I.R. as well as the charge-sheet. 8. For the purpose of the present case, “criminal misconduct” by a public servant as defined in Section 13 of the Prevention of Corruption Act, 1988 runs as under : “13. Criminal misconduct by a public servant –(1) A public servant is said to commit the offence of criminal misconduct – (a)... ... ... (b)... ... ... (c)... ... ... (d) if he – (i) ... ... (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;” It is alleged by the prosecution that the petitioner abused his official position in furtherance of his criminal conspiracy with the Proprietor of M/s. Maya Traders, Raipur, who was the owner of the seized property and released the seized property to the owner. 9. Section 120-A of the Indian Penal Code defines “criminal conspiracy” as under : “120-A. Definition of criminal conspiracy - When two or more persons agree to do, or to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy; Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.- it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” 10. The provisions of sub-sections (1), (2) and (2-a) of Section 56 of the Orissa Forest Act, which are relevant for our purpose are extracted hereunder : “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 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.” 11. The ingredients of the offence under Section 13 (1) (d) of the Prevention of Corruption Act, as alleged against the petitioner, are (i) that the petitioner is a public servant, (ii) that he abused his official position as such public servant; and (iii) that he obtained a valuable thing or pecuniary advantage for Proprietor of M/s. Maya Traders. The ingredients of the offence under Section 13 (1) (d) of the Prevention of Corruption Act, as alleged against the petitioner, are (i) that the petitioner is a public servant, (ii) that he abused his official position as such public servant; and (iii) that he obtained a valuable thing or pecuniary advantage for Proprietor of M/s. Maya Traders. The petitioner was a public servant on the date of the alleged commission of offence. He released the seized truck and timber in favour of M/s. Maya Traders, Raipur on imposing a fine of Rs.2,000/- and as such, he may be said to have obtained valuable thing or pecuniary advantage for the Proprietor of M/s. Maya Traders. Therefore, ingredient Nos. (i) and (iii) of the alleged offence can be said to have been satisfied. Now the question remains whether the ingredient No. (ii), i.e., whether the petitioner has abused his official position in obtaining valuable thing or any pecuniary advantage for M/s. Maya Traders has been satisfied or not ? How does one abuse his official position ? The Prevention of Corruption Act does not define the expression “abuse of official position”. Abusing of one’s official position may occur where law dictates the performance of an official act to be done mandatorily in a particular way in a given circumstance without any exception or any scope for deviation or exercise of discretion. This, in other words, would mean that the Government servant or official has no discretion to consider whether he should proceed in a particular way in the performance of the duty. Where the performing of an official act or duty in a particular way is not mandatory and the Officer/Government Servant has the liberty to exercise discretion to act one way or the other, his action cannot be said to be an abuse of his official position, if the action can be said to be not wholly unjustified and not for any extraneous consideration. More so, where the allegation is that abuse of official position was committed in furtherance of conspiracy between the Government Servant and another person, abuse of official position cannot be said to have been committed if there is no material at all prima facie establishing the criminal conspiracy. More so, where the allegation is that abuse of official position was committed in furtherance of conspiracy between the Government Servant and another person, abuse of official position cannot be said to have been committed if there is no material at all prima facie establishing the criminal conspiracy. It is, therefore, necessary to see whether the petitioner was bound to initiate a confiscation proceeding under Section 56 of the Orissa Forest Act in respect of the seized property. 12. Decision to take action one way or the other involves individual appreciation of facts and circumstances of a case. Appreciation may differ from person to person. The seized properties in the instant case were produced before the petitioner in accordance with the provision of Sub-section (2-a) of Section 56 of the Orissa Forest Act. Order for confiscation of the seized forest produce would be passed by the Authorized Officer in accordance with the provision of Sub-section (2-a) of Section 56 of the Orissa Forest Act if he is fully satisfied that forest offence has been committed in respect thereof. Section 56 of the Orissa Forest Act does not indicate that as soon as a report of seizure is made to the D.F.O. or Authorized Officer and the seized property produced before him, such officer must initiate a confiscation proceeding. Rather the provision requires that before initiation of the proceeding, he must be prima facie satisfied that a forest offence has been committed with respect of the property seized. 13. In the instant case, the undisputed facts are that the property seizure report had been produced before the petitioner that the seized truck in question was transporting timber inside Odisha with a Foreign Transit Permit issued by the D.F.O., Raipur, but without an Odisha Permit in lieu of such Foreign Transit Permit. It is also an admitted position that in order to satisfy himself about the genuineness of the Foreign Transit Permit, the petitioner verified from the D.F.O., Raipur, who confirmed about the genuineness and validity of the same. True, the driver of the truck should have obtained a permit from the D.F.O. of the area in which first checking station in the State of Odisha lies, in lieu of Foreign Transit Permit. True, the driver of the truck should have obtained a permit from the D.F.O. of the area in which first checking station in the State of Odisha lies, in lieu of Foreign Transit Permit. The lieu permit having not been obtained as required under Rules 19 and 20 of the OTT Rules,1980, technically it was an offence punishable under Rule 21 of the said Rules. Having been satisfied about the genuineness of the Foreign Transit Permit issued by the D.F.O., Raipur for transportation of the timber in question from Raipur to Rourkela, the petitioner found that the infraction of Rules, 19 and 20 of the OTT Rules 1980 has been done because of the ignorance of the driver of the truck. The petitioner was satisfied that it was not a case of theft or smuggling of timber and was not part of an organized crime. He, therefore, imposed a fine of Rs.2,000/- and directed for issuance of permit in lieu of the Foreign Transit Permit in accordance with Rule 20 of the OTT Rules. Imposing of fine of Rs.2,000/- was not for compounding any forest offence. The lieu permit was required to be obtained from the D.F.O., Bargarh, but the driver of the truck had proceeded up to Jharsuguda, i.e, to the jurisdiction of the D.F.O., Sambalpur. If there was a checking station at Bargarh, it is not known as to how the truck crossed that checking station without permit from D.F.O., Bargarh in lieu of the Foreign Transit Permit. In the circumstances, the petitioner was justified in his appreciation that the driver of the truck because of his ignorance could not obtain permit from D.F.O., Bargarh in lieu of Foreign Transit Permit. The timber was due to be transported to Rourkela. Therefore for the fault of the driver in not obtaining lieu permit from the D.F.O., Bargarh, which amounts to a technical violation, the petitioner imposed a fine of Rs.2,000/- and directed for grant of a permit in lieu of the Foreign Transit Permit. 14. Acting in the aforesaid manner by the petitioner without initiating a confiscation proceeding, in my view, is not wholly unjustified. It was not mandatory in the circumstance to initiate a proceeding and confiscate the seized property. 14. Acting in the aforesaid manner by the petitioner without initiating a confiscation proceeding, in my view, is not wholly unjustified. It was not mandatory in the circumstance to initiate a proceeding and confiscate the seized property. The manner in which the petitioner acted cannot therefore be said to be an abuse of his official power, particularly when there is no material at all on record to indicate that the petitioner did so for extraneous consideration having agreed with the Proprietor of M/s. Maya Traders not to initiate confiscation proceeding. 15. In the aforesaid circumstances, this Court is of the view that no prima facie offence under Section 13 (1) (d) of the Prevention of Corruption Act and Section 120-B of the I.P.C. has been committed. Hence, initiation of the vigilance case against the petitioner was unjustified. Therefore, VGR Case No.44 of 2013 pending in the Court of the learned Special Judge Vigilance, Sambalpur is quashed. The copy of the case diary submitted by the learned Additional Standing Counsel for the Vigilance Department be returned. Ordered accordingly.