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2019 DIGILAW 291 (ORI)

Gangadhar Sarangi v. State Of Orissa

2019-04-08

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. W.P.(C) No.772 of 2010 has been filed by the owner of the Mini Trick (TATA-407) bearing Registration No.OR-01- 8151 assailing the order in C.P. Case no.5 of 2004-05 arising out of OR No.2 BP of 04-05 passed by the Authorized Officer-cum-Asst. Conservator of Forests, Bhadrak Wildlife Division, Bhadrak vide Annexure-1 as well as the order of the learned Additional District Judge, Balasore in F.A.O. No.97/68 of 2009/2005. Whereas the W.P.(C) No.22689 of 2010 has been filed by the petitioner namely Jadumani Behera claiming to be the owner of the timber seized in the process of seizure involved herein from the Mini Truck bearing Registration No.OR-01-8151, assailing the order vide Annexure-2 passed in C.P. Case no.5 of 2004-05 arising out of OR No.2 BP of 04-05 passed by the Authorized Officer-cum-Asst. Conservator of Forests, Bhadrak Wildlife Division, Bhadrak as well as the judgment passed by the learned Additional District Judge, Balasore in FAO No.97/68 of 2009/2005 on 21.11.2009 vide Annexure-3. Both the impugned orders emanated involving a proceeding U/s.56 of the Orissa Forest Act, 1972 and concluded by the order of the Authorized Officer-cum-Assistant Conservator of Forest for confiscation of the Mini Truck involved herein along with timbers and the order being confirmed by the judgment passed by learned Additional District Judge, Balasore in FAO involved herein. Both the orders though arises out of the common proceeding and disposal by common order as well as by common judgment indicated hereinabove, but while the first writ petition bearing no.772 of 2010 has been filed by the owner of the vehicle, the second writ petition bearing no.22689 of 2010 has been filed by the owner of the timber seized from the Mini Truck bearing Registration No.OR-01-8151. It be stated here that records clearly discloses that owner of the Timber is never a party to either of the proceedings. 2. Short background involved in both the writ petitions are, on 9.11.2004 a Mini Truck (TATA-407) bearing registration No.OR-01-8151 carrying Sal and Kasi to the volume of 47.715 CFT moving from Manjuri Road to Akhuapada side was detected by the Bhandari Pokhari Police at Tesingu near embankment of river Baitarani. On being asked to produce the document for transportation of the Timber contained therein, the Driver did not produce any such document. As a consequence, the Police seized the vehicle for illegal transportation of timber and arrested three persons. On being asked to produce the document for transportation of the Timber contained therein, the Driver did not produce any such document. As a consequence, the Police seized the vehicle for illegal transportation of timber and arrested three persons. Thereafter, the Police handed over the seized produces with the vehicle and accused persons to the Range Officer, Bhandari Pokhari (Wild Life) Range for action under Forest Law as the offence involved was coming under the Forest Law. As per the direction of the Range Officer, the Forester received the seized produces with vehicle as well as the accused persons and a re-seizure of the articles as well as the vehicle was made following the provisions contained in the Orissa Forest Act, 1972 hereinafter in short called as "the Act, 1972". During course of inquiry, for the accused persons failing to produce any valid document and finding offence involved an illegal transportation of the Sal and Kasi timber, it is, at this stage, the owner of the vehicle got involved in the proceeding. Consequent upon finding the timber under seizure coming under the definition of Section 2(6) of the Act, 1972 and being dissatisfied with the explanation of the owner of the vehicle, a case was registered U/s.56 of the Orissa Forest Act, 1972 and the proceeding was undertaken by the Authorized Officer for trial. In the trial, getting into inquiry as required under law and on recording of the statements of the persons implicated as well as the Forest Department persons involved therein, it was ascertained that while the driver indicated that the transportation of the timber seized was made following the direction of the owner, the owner stated that the transportation of the timber have been done by his driver, which is without his knowledge. 3. Considering the rival contentions of the parties and basing on the materials available on records as well the statement of the driver in the cross examination admitting that the owner of the vehicle Gangadhar Sarangi had good knowledge about transportation of the forest goods, further observing that parties failed to produce the T.T. permit for transportation of the materials involved, the Authorized Officer-cum-Asst. Conservator of Forests, Bhadrak Wildlife Division, Bhadrak observed that not only there involves an offence U/s.56 of the Act, 1972 but there also connivance of the owner of the vehicle in the incident. Conservator of Forests, Bhadrak Wildlife Division, Bhadrak observed that not only there involves an offence U/s.56 of the Act, 1972 but there also connivance of the owner of the vehicle in the incident. As a consequence by the order vide Annexure-1 involving W.P.(C) No.772 of 2010, the Authorized Officer-cum-Asst. Conservator of Forests while allowing the C.P. Case bearing No.5 of 2006-05, while directing for confiscation of both the timbers as well as the vehicle bearing No.OR-01-8151 to Government also directed for disposal of both the items as per the Rules after the period of appeal is over. On Appeal by the owner alone, the matter was registered as FAO no.97/68 of 2009/2005. The Appeal was ultimately taken up for final hearing by the Additional District Judge, Balasore who by his judgment dated 21.11.2009 while confirming the order of the Authorized Officer-cum-Asst. Conservator of Forests, dismissed the appeal resulting the present writ petitions. 4. Advancing his argument and depending on the grounds raised in the writ petition vide W.P.(C) No.772 of 2010 and the stand of the owner of the vehicle all through Shri P.K. Mohanty, learned counsel for the petitioner taking this Court to the statement of the owner of the vehicle before the Authorized Officer-cum-Asst. Conservator of Forests to the effect that the owner of the vehicle had no knowledge of transportation of the seized timber and further taking this Court to the statement of one Hemanta Mohanty a passenger involving the seized truck submitted that the owner of the vehicle had no knowledge or connivance at all. Shri Mohanty, learned counsel thus contended that there was no proper consideration of the plea of the owner as well as the evidence at the instance of the owner of the vehicle and the other witnesses namely Shri Hemanta Mohanty, by the original authority. Shri Mohanty, also alleged that in appeal also the appellate authority did not consider this vital aspect of the matter. Shri Mohanty, therefore, contended that not only the order of the original authority suffers but for the similar appreciation by the Additional District Judge, Balasore, the order at Annexure-2 involving W.P.(C) No.772 of 2010 also suffers. Shri Mohanty, also alleged that in appeal also the appellate authority did not consider this vital aspect of the matter. Shri Mohanty, therefore, contended that not only the order of the original authority suffers but for the similar appreciation by the Additional District Judge, Balasore, the order at Annexure-2 involving W.P.(C) No.772 of 2010 also suffers. Besides this Shri Mohanty, learned counsel for the petitioner also contended that for the materials available on record disclosing that the driver produced some document for transportation of timber, there appears, both the authorities have failed in appreciating the said aspect and have thus arrived in wrong and illegal impugned order and judgment respectively. 5. Advancing his further argument involving W.P.(C) No.22689 of 2010 at the instance of the owner of the Timber, Shri P.K. Mohanty, learned counsel for the petitioner also contended that for there being no following of the procedure as required under the Act, 1972, and the procedure at Rule 4 of the Orissa Timber & OFP Transit Rules, 1980 and there being no inquiry by an Officer not below the rank of Ranger officer, the inquiry involving the proceeding also vitiates resulting setting aside of both the impugned orders involving W.P.(C) No.22689 of 2010. Referring to two judgments of this Court, first in an unreported case in the case of Tabraj Gulam Khan versus Authorized Officer-cum-Assistant Conservator of Forest, Angul Division, Angul involving W.P.(C) No.33787 of 2011 and second an reported judgment in the case of State of Orissa represented through Forest Range officer, Bolangir versus P.P. Agrawala and others, 1997 2 OrissaLR 354 Shri Mohanty, learned counsel for the petitioner also submitted that the petitioner has support of both the above decisions to his above case. It is, in the circumstance, learned counsel for the petitioner further contended that the impugned orders involving both the writ petitions suffer and this Court, therefore, should set aside both the impugned orders involving both the writ petitions. 6. It is, in the circumstance, learned counsel for the petitioner further contended that the impugned orders involving both the writ petitions suffer and this Court, therefore, should set aside both the impugned orders involving both the writ petitions. 6. Shri U.K. Sahoo, learned Additional Standing Counsel for the State-opposite parties while defending the stand taken by Shri P.K. Mohanty, learned counsel for the petitioner, in the first hand challenging the submission of Shri P.K. Mohanty, learned counsel for the petitioner that there has been no proper inquiry in terms of the rules indicated hereinabove, taking this Court to the records produced by him submitted that there are clear materials establishing that the case involves a final inquiry report by the Range officer in connection with the OR No.2 BP of 04-05 and in producing the said document from the record, Shri U.K. Sahoo, learned Additional Standing Counsel attempted to justify the same. Challenging the other grounds raised by Shri P.K. Mohanty, learned counsel for the petitioner involving the evidence and other materials available on record involving connivance of the owner, taking this Court to the statement of the driver submitted that the driver not only at the preliminary stage stated that the materials seized being transported under the direction of the owner but in statement recorded by the Authorized Officer also categorically stated that the owner of the vehicle had the knowledge of transportation and for there being no examination of the owner of the vehicle, Shri U.K. Sahoo, learned Additional Standing Counsel contended that the statement of the owner of the vehicle as well as one Hemanta Mohanty remain untrustworthy. Shri U.K. Sahoo, learned Additional Standing Counsel thus contended that there is no merit involving the writ petitions. Therefore, the writ petitions should be dismissed. 7. Shri U.K. Sahoo, learned Additional Standing Counsel thus contended that there is no merit involving the writ petitions. Therefore, the writ petitions should be dismissed. 7. Considering the rival contentions of the parties and on perusal of the records, though this Court finds, W.P.(C) No.772 of 2010 has been filed by the owner of the vehicle and the W.P.(C) No.22689 of 2010 has been filed by the owner of the timbers, this Court also finds, the owner of the timber namely Jadumani Behera is neither a party to the C.P. proceeding bearing No.5 of 2004-05 arising out of OR No.2 BP of 04-05 nor a party to the proceeding vide FAO No.97/68 of 2009/2005 and for there being no participation of the owner of the materials all through and further in absence of any leave to challenge the orders either in the lower appellate court or in this Court and further for no grant of leave involving W.P.(C) No.22689 of 2010, this Court finds, the owner of the seized timber has no locus standi to challenge either the order vide Annexure-2 or the order vide Annexure-3 involving W.P.(C) No.22689 of 2010. 8. Considering the grounds taken involving violation of rule, this Court further observes that this rule was required to be followed involving seizure of the materials involved herein and again from the materials available involving the record of the case involved herein, this Court finds, there involves an inquiry by the Range Officer which is also taken into consideration by the Authorized Officer-cum-Asst. Conservator of Forests, Bhadrak Wildlife Division, Bhadrak, therefore, there is no substance in such submission of the petitioner. Further, for no challenge of the proceedings in either of the stage by the owner of the timber such question becomes academic. Accordingly, the W.P.(C) No.22689 of 2010 stands dismissed. 9. Now coming to decide the case of the owner of the vehicle involved in W.P.(C) No.772 of 2010 this Court, on perusal of the statement of Shri Gopinath Singh the driver involved herein as well as the record finds, at the initial stage of the inquiry the driver made a clear statement that the Sal and Kasi Patta were all loaded on the instruction of the owner of the vehicle Gangadhar Sarangi, which has also been made in his presence. This Court again finds from the statement of the Driver in the proceeding involved herein before the Authorized Officer-cum-Asst. Conservator of Forests, Bhadrak Wildlife Division, Bhadrak, the driver again confirmed his earlier statement saying that the owner of the vehicle himself loaded the articles seized and directed him to transport the materials through the Manjuri Road and not only that the owner also followed the vehicle while transporting the timbers but one Hemanta Mohanty was also present with me. In view of such particular statement of the Driver, this Court finds, the statement of the owner remain unbelievable. Further, in absence of the T.T. permit for transportation of the forest materials keeping the owner of the timber behind screen, all through this Court finds, there is a clear case involving an offence U/s.56 of the Act, 1972. 10. Considering the rival contentions of the parties, on perusal of the observations and findings of the original authority as well as the observations and the findings of the lower appellate authority and further, the discussion of this Court made hereinabove, this Court finds, there is no infirmity in either of the impugned orders involving W.P.(C) No.772 of 2010 requiring any interference of this Court in the same at this stage. 11. Both the writ petitions, accordingly, stand dismissed for having no merit. However, there is no order as to cost.