Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 203 (ORI)

BASUDEV SAHOO v. RANGE OFFICER

2018-02-19

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. - This matter involves a challenge to the order passed by the appellate authority involving F.A.O. No. 11/2016 thereby dismissing the appeal and confirming the order passed by the competent authority involving a proceeding under Section 56 of the Orissa Forest Act, 1972. 2. Short background involved herein is that the petitioner is the owner od one Tata 407 Mini Truck bearing Regn. No. OR-02-BK-8490. The truck was seized on 24.8.2015 in the morning by Sri Sashikanta Behera. Forestor, CNG, Choudwar along with his staff at the Check Gate moving towards Cuttack for carrying green Bara sizes 12 pieces along with Bara fire wood 6.5. quintals loaded in the vehicle and the transportation was being undertaken without any valid permission from the competent authority. It is also alleged that while stopping the truck for necessary checking, the driver attempted to flee away with the vehicle and the staff available therein chasing the vehicle though could be able to prevent the vehicle from moving further and taking the truck to its custody but the driver of the truck very cunningly fled away, However, finding illegal transportation of the items indicated herein above, the truck was seized along with the materials loaded therein and as a consequence, the Range Officer, Dalijoda Range after completion of enquiry submitted a report to the competent authority for undertaking a confiscation proceeding under Section 56 of The Orissa Forest Act, as a consequence of which a forest case has been booked involving the petitioner, vide OR Case No. 69-D of 2015-16 of Dalijoda Range. It is the case of the petitioner that being noticed the petitioner-owner of the vehicle appeared before the competent authority along with the driver and contended that based on the version of one Prasant Mohanty of Belpada that the loaded sawn sizes are Chakunda and under this impression, the driver, namely, Mangaraj Nayak agreed to transport the materials from Nuahat to Angul but however after informing the matter involving the transportation to the owner of the vehicle. The original proceeding was conducted involving the petitioner based on materials available on record produced by both sides and depending on the evidence of both sides, the competent authority being the original authority finding satisfied with the prosecution case under Section 56 of The Orissa Forest Act directed for confiscation of the materials seized on seizure of the truck appearing at Annexure-1. Taking aid of the provision at Section 56(2-e) of The Orissa Forest Act, the petitioner preferred appeal before the learned District Judge, Cuttack. The appeal was registered as F.A.O. No. 11/2016. The appeal being decided on contest, the appellate authority found no case in favour of the appellant and finding the case of the prosecution being established through materials as well as evidence while dismissing the appeal, the Appellate Authority confirmed the order passed by the original authority. 3. Assailing the impugned order, Sri B. Biswal, learned counsel for the petitioner taking this Court to the materials available on record, particularly the evidence discussed by the original authority submitted that for the clear case of the owner through his driver along with the owner of the materials seized that the seized items do not belong to Bara rather they belong to Chakunda and further majority of the seized items being in the nature of fire wood, the transported materials even in absence of any permission did not involve any offence under Section 56 of The Orissa Forest Act. Learned counsel also contended that through several witnesses have been examined but the prosecution that through several witnesses have been examined but the prosecution failed in establishing that the seized items required permission for transportation. Further for the bona fide impression of the petitioner for trusting the owner of the wood seized claiming the seized materials were all Chakunda, no proceeding under Section 56 of The Orissa Forest Act was involved, as claimed any the learned counsel. Learned counsel for the petitioner also contended that for no evidence involving the owner/driver involved in the alleged offence, order of confiscation as well as confirmation of the same in the appeal becomes illegal. Learned counsel for the petitioner also contended that for no evidence involving the owner/driver involved in the alleged offence, order of confiscation as well as confirmation of the same in the appeal becomes illegal. As an alternate, it is also contended by Sri Biswal, learned counsel for the petitioner that for the involvement of the driver transporting the forest produce even assuming the transportation of materials required permission and for the driver's bona fide belief of statement of the owner of the materials seized, neither the owner nor the driver can be held responsible. It is also claimed that for the contradictory statement of the prosecution witnesses, somebody claiming that the driver of the offending vehicle fled away from the spot during the detention of the truck and somebody saying the driver of the alleged vehicle was nabbed at the spot create a suspicion about the veracity in the evidence of such witnesses. It is thus contended that the courts below have failed to appreciate the benefits in evidence resulting both the impugned orders become bad. Further under the pretext that there is no examination of the owner of the materials seized, namely, Prasant Mohanty, Sri Biswal, learned counsel for the petitioner also claimed that for non-examination of the vital witness by the prosecution, the orders impugned become bad. It is thus claimed that since the prosecution failed in establishing the case, the orders impugned become bad fa non-consideration of this aspect. Sri Biswal, learned counsel for the petitioner also drawing the attention to a decision of this Court in Smt. Padmabati Lenka v. State of Orissa & another reported in 2006 CRI. L.J. 3718submitted that for the ratio decided therein, the decision has a clear application to the petitioner's case, and therefore, requested this Court to grant the benefit of the decision involving the above case to the case of the petitioner also. 4. Sri B. Senapati, learned Additional Government Advocate for the O.P taking this Court to the statements of prosecution witnesses recorded by the Authorised Officer in the original proceeding and reading through the same contended that for clear evidence of the prosecution establishing seizure of transportation of restricted wood without necessary permission and further involving the Mini Truck of the petitioner herein, there is a clear case of the petitioner's commissioning an offence under Section 56 of the Orissa Forest Act. Further taking this Court to the statements of defence, particularly the owner of the truck, Basudev Sahoo and the driver, Mangaraj Nayak, Sri Senapati contended that both the statements in court established that the petitioner rather failed in establishing his claim and demolishing the evidence led by the prosecution. For the failure of the petitioner's establishing his case in spite of sufficient scope and for the recordings therein by the Authorised Officer, Sri Senapati, learned Additional Government Advocate submitted that there is no lacuna involving the original case and the petitioner has absolutely no material to claim the impugned judgment bad. For the clear case of the prosecution in the original stage and for right appreciation of the same by the appellate authority, Sri Senapati, learned Additional Government Advocate contended that both the orders remaining in conformity with the materials available on record, there is no scope for interfering in either of the orders and writ petition should be dismissed. 5. Considering the rival contentions of the parties and on perusal of the proceeding conducted by the Authorised Officer appearing at Annexure-1, this Court finds, the prosecution had a clear case of seizure of green Bara sawn sizes 12 pieces and Bara sawn fire wood 6.5 quintals seized from the vehicle involved. The prosecution through its witnesses also established their claim that the seized items are of Bara sawn sizes and Bara fire wood. Further the prosecution has also brought clear evidence establishing that the seizure has been made from the truck belonging to the petitioner. This Court also reading the statement of the prosecution witnesses recorded therein finds that the prosecution established its case and the evidence as well as the materials produced therein leaves no doubt that the seized items belong to Bara sawn size and Bara firewood mentioned therein. Further in spite of opportunity of defence, this Court also finds, the defence that is the petitioner in spite of opportunity failed in demolishing the claim of the prosecution by any contrary evidence. Whatever evidence brought by the owner establishes the petitioner did not able to establish his case. Further in spite of opportunity of defence, this Court also finds, the defence that is the petitioner in spite of opportunity failed in demolishing the claim of the prosecution by any contrary evidence. Whatever evidence brought by the owner establishes the petitioner did not able to establish his case. Further in the event there was any false evidence on the materials seized, nothing prevented the defence to examine the owner of the materials and for not availing the same, the petitioner is legally stopped from shifting burden of examination of the owner of the seized items on the prosecution. 6. Under the above circumstances and for the clear evidence established the case involving an offence under Section 56 of the Orissa Forest Act and further finding that for the glaring difference in the case decided and in the cited decision in Smt. Padmabati Lenka (supra), this Court finds, the decision has also no application in the case at hand. Accordingly, this Court holds that not only the prosecution is able to establish its case but there has been also right appreciation of materials available on record by the Authorised Officer. Thus, there is no scope for interfering with the original order. 7. Accordingly, this Court holds that not only the prosecution is able to establish its case but there has been also right appreciation of materials available on record by the Authorised Officer. Thus, there is no scope for interfering with the original order. 7. From the point of view of the claim of the petitioner that for the seizure being made outside the forest, for the provision contained in Section 2-g(i) of the Orissa Forest Act, 1972, there is no commissioning of offence under Section 56 of the Orissa Forest Act, this Court on perusal of the provision contained in Section 2(g) of the Orissa Forest Act finds, Section 2(g) of the Orissa Forest Act 1972 reads as follows : "Section-2(g)- "forest" produce includes - (i) the following whether found in, or brought from a forest or not, that is to say - (a) timber, charcoal, caoutchouc catechu, wood-oil, resign, natural varnish, bark, Tussay Cocoon, lac, gums, roots of Patala Garuda, mohua flowers, mohua seeds, myrabolans, Kendu Leaves, sandalwood, tamarind, hill-broom, Siali leaves, Siali fibres, Sal seeds; (b) wild animals and wild birds, skins, tusks, horns, bones, and all other parts or produce of wild life; and (c) such other produce as may be notifird by the State Government; and (ii) the following when found in or brought from a forest that is to say - (a) trees and leaves, flowers and fruits and all other parts or produce of trees not hereinbefore mentioned; (b) plants not being trees (including grass, creepers, reeds, and moss) and all parts or produce of such plants; (c) honey, wax and arrowroot; (d) peat, surface oil, rock, sand and minerals (including limestone, late rite, minerals oils and all products of mines or quarries)" Taking into consideration the provision taken note of herein above applying the same to the case at hand, this Court from the factual scenario involving the case at hand finds, admittedly the forest produce involved herein is seized outside the forest area but for the materials involved therein, this Court finds, provision at Section 2(g)(i)(a) & (c) has the application to the case at hand and plea of the petitioner on the above score has no legal support. 8. 8. For the above observation and for the clear case establishing an offence under Section 56 of the Orissa Forest Act committed by the petitioner and for the detailed discussion therein in the appellant order, this Court finds no infirmity in the appellate order at Annexure-2 creating any scope for interference of this court in the appellate order. As a consequence this Court dismisses the writ petition for having no merit in the same. No cost.