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2017 DIGILAW 210 (ORI)

State of Odisha v. Sumitra Adhikari

2017-03-01

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. This writ application has been filed by the State of Odisha to set aside the impugned judgment and order dated 27.04.2016 passed by the learned District Judge, Sambalpur in F.A.O. No.26 of 2015 in setting aside the order dated 26.11.2015 passed by the learned Authorized Officer -cum-Divisional Forest Officer, Rairakhol Division passed in C.P.C. No. 2 of 2014-15 arising out of O.R. Case No.113C of 2015-16 of Charmal Range and directing that the vehicle of the opp. party bearing registration No.WB-19D-6903 be released in favour of the owner of the vehicle. 2. From the factual background, it appears that on 16.09.2014 on receipt of the reliable information regarding the transportation of processed Kendu leaves at Sanhindol, the Forester of Sansajal Section being accompanied by the Divisional Forest Staff conducted a night patrolling, during course of which, they found a truck bearing No.WB-19D-6903 loaded with huge quantity of Kendu leaves bundles in the jungle area. The driver and other occupants of the truck fled away from the spot leaving the truck there and on interception, 1077 bundles of Kendu leaves weighing 51.20 quintals were recovered. The truck along with Kendu leaves were seized and after completion of enquiry, P.R. was submitted by the Range Officer before the Authorized Officer -cum-Divisional Forest Officer, Rairakhol Division and accordingly, confiscation proceeding under Section 56 of the Orissa Forest Act was instituted. 3. In the confiscation proceeding, the learned Authorized Officer has been pleased to hold that the Forest offence has been committed for illegal transportation of 1077 bundles of processed Kendu leaves and the vehicle bearing registration No.WB-19D-6903 was used in illegal transportation of the processed Kendu leaves which is a forest produce and it was also established from the evidence and depositions recorded that the forest offence has been committed with full knowledge of the owner and the person-in-charge of the vehicle and the owner had not taken sufficient precautionary measures to avoid the involvement of her vehicle in the commission of forest offence. Accordingly, the learned Authorized Officer directed the seized vehicle bearing registration No.WB-19D-6903 with the seized Kendu leaves to be confiscated as per Section 56 of the Odisha Forest Act, 1972. 4. Accordingly, the learned Authorized Officer directed the seized vehicle bearing registration No.WB-19D-6903 with the seized Kendu leaves to be confiscated as per Section 56 of the Odisha Forest Act, 1972. 4. The learned District Judge, Sambalpur in the impugned judgment has been pleased to hold that when the very seizure of the vehicle is under shadow of the doubt, the involvement of the vehicle in the forest offence was also doubtful. It was further held that the prosecution has failed to establish the shifting of the vehicle from the spot to the Range Office, Charmal so also the weighment of the Kendu leaves by adducing cogent and reliable evidence. The learned District Judge further held that the case was detected by the Forest Official on 16.09.2014 and it seems that the owner of the vehicle (opp. party) had no knowledge about the alleged forest offence and she had taken precaution to guard the vehicle for using in any illegal manner by the driver. It was further held that the Kendu leaves were loaded near village Sanhindol but the prosecution did not take any step to apprehend the actual owner of the Kendu leaves who loaded the vehicle with Kendu leaves. The learned District Judge further held that the non-compliance of the mandatory provisions under Rule 4(2) of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980 is fatal to the case of the prosecution and further held that when there is no iota of evidence brought on record regarding the transportation of Kendu leaves from Sanhindol to outside of the district, the detection of the vehicle will not come within the purview of Orissa Timber and other Forest Produce Transit Rules, 1980 and accordingly, the confiscation proceeding in regard to the seized vehicle was found to be not sustainable. 5. Mr. Deepak Kumar, learned counsel for the State submitted that the finding of the learned District Judge, Sambalpur, inter alia, that the non-compliance of the mandatory provision of Rule 4 of 1980 Rules is fatal to the prosecution is based on the decision of this Court in case of Rabi Narayan Sahu Vs. Forest Range Officer reported in 2008 (2) OLR 592 . 6. It is contended that Full Bench of this Court in case of Anantha Bandhu Mandal Vs. Forest Range Officer reported in 2008 (2) OLR 592 . 6. It is contended that Full Bench of this Court in case of Anantha Bandhu Mandal Vs. State of Orissa and others reported in 2015 (2) OLR (FB) 1 while answering to the question posed that “whether the Orissa Forest (Detection, Enquiry and Disposal of Forest Offence) Rules, 1980 have any application to the proceeding before the Authorized Officer under section 56 of the Orissa Forest Act, 1972”, held as follows: “12. With regard to the sixth submission of Mr. Dhal that even under Section 56(2-a) of “the Act”, the Authorized Officer has to be satisfied that a forest offence has been committed in order to move further and for this purpose enquiry under Rule 4 of “the 1980 Rules” is a must in order to arrive at the above conclusion, our view is that as indicated earlier the enquiry envisaged under Rule 4 is not an enquiry to detect a forest offence but a post-offence-detection enquiry. A harmonious reading of Rule 4 with Rule 11 of “the 1980 Rules” would indicate that ultimately such enquiry report can be used by the Divisional Forest Officer while forwarding of the offence report to the jurisdictional Magistrate for prosecution of the offence where compounding has not been done as required under law. Thus the enquiry under Rule 4 pre-supposes existence of a forest offence as it covers an enquiry into the forest offence after the same is detected. This being the position, it cannot be contended that an enquiry under Rule-4 is a must in order to satisfy that the Authorized Officer that a forest offence has been committed. In such background it cannot be contended that Rule 4 of “the 1980 Rules” or any other provision of “the 1980 Rules” can have an application to the confiscation proceeding under Section 56 of the Act. Even otherwise for reaching the prima facie satisfaction that forest offence has been committed the report of seizure prepared at post-detection stage and the seizure list would be good enough for an experienced officer belonging to the rank of Assistant Conservator of Forest and above in reaching the conclusion as to whether a forest offence has been committed prima facie or not. For this no detailed enquiry is necessary. Thereafter if satisfied, he can start confiscation proceeding. 13. For this no detailed enquiry is necessary. Thereafter if satisfied, he can start confiscation proceeding. 13. Further, it is to be noted that “the 1980 Rules” is a piece of delegated legislation, mainly connected with Section-72 of the Act. It is totally silent on confiscation proceeding to be conducted by Authorised Officer, provisions for which have been made clearly in sub-sections (2-a), (2-b) & (2-c) of Section 56 of “the Act.” In such background, also “the 1980 Rules” cannot have any application to the confiscation proceeding before the Authorized Officer. 14. At the cost of repetition, it can also be stated that nothing prevented the legislature from making “the 1980 Rules” applicable to confiscation proceeding as contained in subsections (2-a), (2-b) & (2-c) of Section 56 of “the Act” which were brought in much later by making suitable amendments. Further, had there been any reference in the provisions under Section-56 of “the Act” dealing with the confiscation proceeding to “the 1980 Rules” then the things could have been different. But the very fact that though provisions for confiscation proceeding were introduced later on and the legislature have though it fit not to make reference therein to “the 1980 Rules”, for the purpose of confiscation proceeding also is an indicator of the fact that the said Rule has no application to the confiscation proceeding. 15. For all these reasons, this Court holds that “the 1980 Rules” have no application to the proceeding before the Authorised Officer under Section-56 of “the Act”. To be more clear since the Authorized Officer under Section-56 of “the Act” deals mainly with the confiscation proceeding, “the 1980 Rules” have no application to such confiscation proceeding.” 7. It is the contention of the learned counsel for the petitioner that in view of the decision of the Full Bench, the ratio which has been laid down in case of Rabi Narayan Sahu (supra) is no more good law and therefore, the learned District Judge, Sambalpur was not justified in relying upon such decision. 8. Learned counsel for the opp. party fairly submits that the decision of this Court in case of Anantha Bandhu Mandal (supra) was not placed before the learned District Judge, Sambalpur and that is why he has no objection if the matter is remitted back to the learned District Judge, Sambalpur for fresh disposal in accordance with law. 9. 8. Learned counsel for the opp. party fairly submits that the decision of this Court in case of Anantha Bandhu Mandal (supra) was not placed before the learned District Judge, Sambalpur and that is why he has no objection if the matter is remitted back to the learned District Judge, Sambalpur for fresh disposal in accordance with law. 9. Considering the submissions made by the learned counsels for the respective parties and on perusal of the findings recorded by the learned District Judge, Sambalpur particularly in Paragraph-12, I am of the view that the impugned judgment and order dated 27.04.2016 passed by the learned District Judge, Sambalpur in F.A.O. No.26 of 2015 is not sustainable in the eye of law and accordingly the same is hereby set aside. 10. The matter is remitted back to the Court of learned District Judge, Sambalpur who shall adjudicate F.A.O. No.26 of 2015 afresh giving due opportunity of hearing to the respective sides. The parties are directed to appear before the learned District Judge on 10th of March, 2017. On that date, the learned District Judge, Sambalpur shall fix the date of hearing of the appeal and try to dispose of the appeal as expeditiously as possible preferably by end of April, 2017. 11. With this aforesaid observation, the writ application is allowed.