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2019 DIGILAW 157 (ORI)

Arun Kumar Sahu v. State of Odisha

2019-02-26

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. 1. This writ petition is filed seeking quashing of the order dated 15.7.2015 passed by the learned District Judge, Phulbani in F.A.O. No. 3/2015, vide Annexure-5 thereby confirming the order passed by the Authorised Officer-cum-A.C.F. Phulbani Forest Division involving O.R. Case No. 135/2013-2014. 2. Short background involved in this case is that on 29.12.2013 on receipt of information from reliable source, Sri Chandra Sekhar Mallick, Forest Guard, Ranipathar (S) Beat along with Section Forest Staff and Anti-Smuggling Squad team proceeded to Ranipathar area. While patrolling at about 4.10 P.M. the patrolling staff noticed one tractor bearing Regn. No. OR-12B-5204 and its trolley bearing Regn. No. OR-12B-5205 was standing by the side of Ghat Road in Ranipathar Reserved Forest (Compound No. 4) loaded with some freshly cut poles visible to outside of the trolley. The forest staff on verification of the trolley found it loaded with Sal and Non-Sal Poles under 30 Cm (girth), i.e. 26 numbers. The driver on being asked disclosed his name as Prasant Ghatal but he could not produce any authority/valid permit in support of transportation of forest produce loaded therein. On further query from another occupant of the tractor, he disclosed his name to be Harihar Singh. For absence of any legal document/permit, Sri Chandra Sekhar Mallick, Forest Guard, seized the forest produce along with the tractor bearing Regn. No. OR-12B-5204 and its trolley bearing Regn. No. OR-12B-5205 after impressing the poles with seized hammer No. 28 in presence of Fakir Uddin Khan, Forester, Ranipathar Section and ASS personnels. On preparation of the seizure list and handing over the same to the accused persons, the spot map of the seizure spot was prepared. The accused driver, Prasant Ghatal and co-accused, Harihar Singh were arrested by the Forest Guard, Chandra Sekhar Mallick. The seized produces along with the tractor and trolley and accused persons were brought to the Range Office, Sudrukumpa and were produced before the Range Officer, Sudrumumpa. Involving the above development, a forest offence case was booked, vide OR Case No. 135/2013-14 under Sections 27(2) and 56 of the Orissa Forest Act, 1972 (Amended 2000) and Rule 21 of the Orissa timber and Other Forest Produce Transit Rule, 1980 (Amended 2006). Involving the above development, a forest offence case was booked, vide OR Case No. 135/2013-14 under Sections 27(2) and 56 of the Orissa Forest Act, 1972 (Amended 2000) and Rule 21 of the Orissa timber and Other Forest Produce Transit Rule, 1980 (Amended 2006). In the process the Range Officer, Sudrukumpa intimated the fact of seizure to the Authorised Officer- cum-Divisional Forest Officer, Phulbani Forest Division for initiation of confiscation proceeding under Section 56 of the Orissa Forest Act, 1972 (Amended 2000). During investigation, it was ascertained that one Arun Kumar Sahu, the present petitioner was the owner of the alleged tractor with trolley, which was engaged on hire basis by one Jagdish Pradhan for transportation of construction materials to execute a project work. During enquiry, the owner of the seized tractor claimed that the poles so seized from his tractor do not belong to him rather belong to the co-accused, Harihar Singh and others, who have in the meantime compounded the offence, vide OR Case Nos.121, 124 and 132 of 2013-14 of Sudrukumpa Range. Disbelieving the claim of the owner, the Forest Officer being satisfied that there is a prima facie case for initiating a confiscation proceeding under Section 56 of the Orissa Forest Act, 1972 involving the Tractor and Trolley, issued notice to the owner of the alleged tractor for showing cause as to why the tractor along with its trolley should not be confiscated. In the proceeding, the prosecution examined seven witnesses whereas the defence examined four witnesses. Depending on the materials on record, the Forest Officer disbelieving the case of the owner of the vehicle that the transaction involved is without his knowledge and connivance, the Authorised Officer disposed of the proceeding under Section 56 of the Act directing confiscation of the tractor and its trolley and the materials seized from therein to the State after the period of appeal is over. On appeal, the learned District Judge dismissed the F.A.O. No. 3/2015 confirming the observation of the Authorised Officer. Being aggrieved, the owner of the vehicle filed the present writ petition. 3. Sri D.P. Dhal, learned counsel for the petitioner taking this Court to the plea of the petitioner, further relying the evidence involving the accused involving the forest offence case and further the observation of the Authorised Officer on consideration of the evidence from the side of the accused particularly the evidence of DWs. 3. Sri D.P. Dhal, learned counsel for the petitioner taking this Court to the plea of the petitioner, further relying the evidence involving the accused involving the forest offence case and further the observation of the Authorised Officer on consideration of the evidence from the side of the accused particularly the evidence of DWs. 1, 2, 3 and 4 contended that there was absolutely no involvement of the petitioner and there was involvement of an offence without the knowledge of the petitioner. Sri Dhal, learned counsel for the petitioner further taking this Court to the observation of the learned District Judge, Phulbani particularly dealing with the evidence of DWs. 1, 2, 3 and 4 and arriving at a conclusion that it can safely be said that the appellant/petitioner had no knowledge or connivance regarding commission of forest offence and further observation of the learned District Judge drawing inference against the petitioner on the premises that for the nature of offence and the previous involvement, the owner ought to have been more cautious and forbidden his agency to transport forest materials, and therefore, there is no application of the provision of Sub-Section 2(c) of Section 56 of the Orissa Forest Act, contended that the observation of the learned District Judge is self- contradictory and here the conviction is made on mere surmises. In the above premises, Sri Dhal, learned senior counsel for the petitioner submitted that there is wrong appreciation of the issue involved by the learned District Judge and thus prayed that this Court, interfering with the impugned orders should set aside the same and direct release of the Tractor and Trolley for having no involvement in the forest offence. 4. Sri S.N. Mishra, learned Additional Government Advocate appearing for the State on the other hand taking into the materials available on record more particularly the evidence of prosecution witnesses and the documents produced before the Authorised Officer submitted that for the materials available therein and the specific evidence of prosecution witnesses, there can be no doubt that the vehicle of the petitioner involved in the forest offence case. In the above premises, Sri Mishara, learned Additional Government Advocate, thus contended that there is right appreciation of the issue involved by both the Authorised Officer as well as the learned District Judge requiring no interference of this Court in either of the orders. 5. In the above premises, Sri Mishara, learned Additional Government Advocate, thus contended that there is right appreciation of the issue involved by both the Authorised Officer as well as the learned District Judge requiring no interference of this Court in either of the orders. 5. Considering the rival contentions of the parties and going through the order passed by the Authorised Officer, this Court finds, a strong reliance has been made on the evidence of DW-4. Going through the evidence of DW-4 as appended to the writ petition, this Court finds, in the chief the DW-4 has specifically stated that during December, 2013 he was engaged to supervise the construction of retaining wall from Phase-I to Phase-10 at Ranipathar by the contractor, Jagdish Pradhan to whom the work was entrusted. The tractor with its trolley involved in possession of Arun Kumar Sahu was engaged in transportation of construction materials including wooden poles being required for centring wall. This witness further deposed on the same day, he had collected about 50-60 poles from the Forester and being charged by the Forest Officials, he had also paid compensation in compounding the offence to the Forester, Ranipathar. Thus DW-4 has the specific plea that on the date of seizure, he was transporting the used poles from one site to another site through the tractor involved. With this specific plea in chief of DW-4, going through the cross-examination of this witness by the prosecution, this Court finds, the prosecution miserably failed in demolishing the chief of the witnesses. It is at this stage, this Court takes into consideration the stand of the owner that though the tractor was admittedly engaged in the working of Jagdish Pradhan, the tractor had no transaction involving forest offence, and offence, if any, committed was without knowledge and connivance of the owner of the vehicle. This Court further takes here into consideration the evidence of DWs. 1, 2, 3 and 4 by the appellate authority. For convenience this Court here takes note of the recording of the above aspect by the learned District Judge in the appeal as appearing at paragraph-6 of the appellate order, which reads as follows:- "6. This Court further takes here into consideration the evidence of DWs. 1, 2, 3 and 4 by the appellate authority. For convenience this Court here takes note of the recording of the above aspect by the learned District Judge in the appeal as appearing at paragraph-6 of the appellate order, which reads as follows:- "6. As the department established that the tractor-in-question was involved in committing of forest offence, the onus was on the appellant/petitioner to prove that the vehicle was used committing of forest offence without his knowledge or connivance and that he had taken all reasonable and necessary precaution against such use. As a matter of fact that the appellant/petitioner has produced some evidence and taken a specific stand in his show cause in support of the above stand. In this situation, the evidence on record is worth noting:- DW-1, Arun Kumar Sahu the owner of the vehicle-in-question deposed that on 29.12.2014 he had given his tractor on hire basis to Jagadish Pradhan, contractor for transportation of road material such as chips, sand, metal etc. for construction retaining wall at Ranipathar Aswin Ghatal has engaged as driver of his tractor on that day. Prasanta Ghatal was working as labourer in his tractor. He always instructed his driver not to transport any forest produce without valid permit. DW-2, who is the driver at the material point of time deposed that the tractor was engaged in transporting construction materials like sand, chips etc. of Jagadish Pradhan, contractor at Ranipathar ghat. One Harihar Singh was the Supervisor of contractor Jagadish Pradhan. He has been to call of nature at the nearby spring giving his tractor in the custody of Prasant Ghatal. When he returned, he found his tractor was not there along with Prasant Ghatal and supervisor Harihar Singh. He enquired from the labourers and came to know that the tractor has been taken to Sudrukumpa Range Office. DW-3, who is another agent of appellant deposed that he was working as labourer. The tractor was engaged in transporting construction materials like sand, metal, chips etc. On 29.12.2013 at about 3 p.m. the driver Aswin Ghatal went to attend call of nature handling over the said tractor in his custody. By that time, the supervisor Harihar Singh told to load the used centering poles in the tractor to transport the same to the next project. On 29.12.2013 at about 3 p.m. the driver Aswin Ghatal went to attend call of nature handling over the said tractor in his custody. By that time, the supervisor Harihar Singh told to load the used centering poles in the tractor to transport the same to the next project. DW-4, Harihar Singh who appears to be the supervisor of Jagadish Pradhan deposed that the tractor bearing registration No. OR-12-B-5024 with its trolley belonging to Arun Kumar Sahu was engaged for transportation of construction of materials like sand, chips, metal etc. Some wooden poles were required for centering work. He had collected about 50 to 60 poles from forest. He was using the poles for the centering work for which he had paid the compensation. On the say of occurrence, the used poles were transported by the tractor, by that time of loading of poles in the tractor regular driver Aswin Ghatal had been to nearby spring to attend call of nature and instructed Prasant Ghatal to drive the tractor. On examination of the above evidence, it can be safely said that the appellant/petitioner had no knowledge or connivance regarding commission of forest offence. Mere absence of knowledge or connivance regarding commission of forest offence is not sufficed to spurn down a confiscation proceeding U/s. 56 of Orissa Forest Act. The petitioner has to further prove that he had taken all reasonable and necessary precaution against such use. In the present case, even though appellant/petitioner has taken stand and adduced evidence regarding absence of knowledge or connivance of the forest case, yet his labourer was carrying the seized articles without his knowledge or consent. The statements of defence witness before the authorised officer reveal that at the time of loading of seized articles the driver was absent but the labourer was very much present at the spot and transported the seized articles by the vehicle-in-question. The driver and labour did think precious little to communicate the commission of forest offence to their owner and on the other hand owner did not take any reasonable and necessary precaution against the use of the vehicle in any illegal work. Moreover, it is the specific case of the appellant that the seized materials were being used in the work site where the contract work carried on. Moreover, it is the specific case of the appellant that the seized materials were being used in the work site where the contract work carried on. Ext.A goes to show that the forest produce had been used in the construction site at the behest of contractor and forest cases had been booked against them and compounded in lieu of fine. If that be so, the owner ought to have cautious and forbidden his agents to transport the forest materials. Thus, the provision provided U/s. 56 Sub-Section Rule (2-c) was not available to the owner in this case in hand. This view finds support from the ratio laid down in the case of Gurparlad Singh vs. Divisional Forest Officer, Rairakhol Division, Sambalpur and Others, (1998) 15 OCR 58." Taking into consideration the above, this Court finds, the District Judge has clearly observed that the owner has neither any involvement in the offence nor the incident taken place was within his knowledge. The other part of the observation was based on mere surmises and conjectures and has no foundation. 6. It is, at this stage of the matter, this Court again takes into account the document, Ext.A, which discloses that the Forester produced the seized items, which had already been used in the construction site at the behest of the Contractor, further the forest produces since already involved in another forest offence case, the forest offence case has been closed in the meantime on compounding the offence on imposition of fine. It is in the above background of the matter, this Court finds, there is no proper appreciation of the materials available on record either by the Authorised Officer or by the learned District Judge. 7. Resultantly, this Court interfering in both the impugned orders sets aside the orders at Annexure-5 and 4. As a consequence of setting aside the orders at Annexures-5 and 4, this Court directs for release of the tractor and the trolley involved therein forthwith in favour of the petitioner. No cost.