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2020 DIGILAW 37 (ORI)

Pranabandhu Samal v. State of Odisha

2020-02-05

D.DASH

body2020
JUDGMENT : D. Dash, J. 1. The petitioner by filing this writ application has assailed the judgment dated 07.02.2018 passed by the learned District Judge, Dhenkanal in F.A.O. No. 08 of 2017. By the said order, the appeal filed by the petitioner under section 56(2)-(e) of the Orissa Forest Act, in questioning an order dated 17.08.2017 passed by the Authorized Officer-cum-Asst. Conservator of Forests, Dhenkanal Division in OR Case No. 201M of 2016-17 has been dismissed The tractor and the trolley bearing registration No. OD-19H-8993 and OD-19H-8994 respectively have been confiscated for being used in commission of forest offences. 2. Facts necessary for the purpose are as under:- On 31.01.2017, the forest officials of Mahabirod Forest Range were on patrolling duty inside Barabanki North Reserve Forest. During then, they found the tractor and trolley belonging to the petitioner being loaded with some rocks which is a forest produce and engaged in transportation of the same and that is inside the reserve forest. The trolley loaded with the rocks when was detained, the driver managed to escape. So, the tractor and trolley was brought to the forest range office and upon their seizure, proceeding under section 56 of the Orissa Forest Act came to be initiated. The petitioner being the owner of the said tractor and trolley, in his objection has not disputed the fact that in the trolley fitted to the tractor, rocks had been loaded. It is his case that such rocks had been removed from his own field and for the same he had engaged his tractor fitted with a trolley. It is specifically stated that the driver of the tractor collected and loaded rocks from the land under plot No. 8602 of Khata No. 444 belonging to the petitioner and there the forest officials came and raised the objection. So the driver out of fear fled away and that made the field clear for the forest officials to seize the tractor and trolley so as to serve their ulterior motive in causing undue harassment to the petitioner. So the driver out of fear fled away and that made the field clear for the forest officials to seize the tractor and trolley so as to serve their ulterior motive in causing undue harassment to the petitioner. The stand of the petitioner is that the tractor and trolley were never involved or used in commission of forest offences The Authorized Officer recording the evidence adduced from both sides and upon their analysis has held the tractor fitted with the trolley to been engaged in transportation of the rocks from inside the reserve forest amounting to their user in commission of the forest offences. Having said so, the order of confiscation has been passed. The Appellate Court addressing the contentions raised from the side of the petitioner has held the evidence to be sufficient and acceptable to find that those rocks loaded in the trolley at the relevant time were being so carried being removed from the forest. With that view, the appellate court has refused to interfere with the order of confiscation. 3. Learned counsel for the petitioner submits that the Authorized Officer as also the Appellate Court have fallen in error by accepting the evidence let in by the prosecution in holding that the rocks found in the trolley had been removed from the reserve forest It is his submission that the joint inspection report as at Annexure-3 which is a document of the prosecution has not been taken into account in its proper perspective. Drawing the attention of this Court to said report, he contends that admittedly the land of the petitioner adjoins the jungle land and when nobody has seen that rocks had been removed or brought from inside the reserve forest or that nearby jungle land and being loaded in the trolley, the tractor and trolley loaded with the rocks cannot be said to have been used in commission of forest offence. According to him, the evidence on record are not at all acceptable to hold that those rocks had been removed from the forest land. It is thus stated that the finding of the Authorized Officer as well as the Appellate Court on that score which has led to the passing of the impugned orders of confiscation are vulnerable as the same is based on findings which are the outcome of perverse appreciation of the evidence and other materials on record. It is thus stated that the finding of the Authorized Officer as well as the Appellate Court on that score which has led to the passing of the impugned orders of confiscation are vulnerable as the same is based on findings which are the outcome of perverse appreciation of the evidence and other materials on record. He, therefore, submits that the order of confiscation is liable to be quashed. 4. Learned counsel for the State submits all in favour of the order of confiscation. It is submitted that since the Authorized Officer as also the Appellate Court have arrived at the conclusion by making thorough examination of the evidences on record and as no such perversity appears in the matter of appreciation of evidence in finally rendering the findings that the tractor and trolley in question had been used for commission of forest offences, the interference of this Court in annulling the finding on that score is not permissible. 5. The "rocks" come within the definition of forest produce as provided in section 2(g)(ii)(d) of the Orissa Forest Act when found in the forest or brought from the forest. When in this case, the "rocks" loaded in the trolley of the tractor as it is are not the 'forest produce'; in order to say that the loading/carriage of the rocks amounts to commission of the forest offence, there must be acceptable evidence that said loaded rocks had been brought or removed from forest. 'Forest' would mean reserve forest, protected forest, village forest which include the Government land recorded as Jungle. Thus in a case, where the place as to collection of said forest produce is disputed in saying that those have not been taken from the forest, the initial burden of proof rests upon the prosecution to establish that fact as to removal of rocks from the forest of course with the required standard of 'proof as that of preponderance of probability. Once that is established, the delinquent, in order to escape from the penalty of confiscation, has to show with that standard of proof that:- (i) the vehicle was used without his knowledge or connivance or the knowledge or connivance of his agent; if any or the person in charge of the same; and (ii) they had taken all reasonable and necessary precautions against such use. 6. 6. At this stage, it may be mentioned that the prosecution case here is that there has been commission of forest offences under section 27(1)(b) and 27(3)(b) of the Odisha Forest Act and seized tractor and trolley had been used for the purpose. As per the joint inspection report under Annexure-3, tractor and trolley being loaded with rocks were standing on the land recorded as 'Jungle' and 'Gramya Jungle' which is situated by the side and adjoining the land of the petitioner. It is indicated in the report to which the Forest Range Officer and the Revenue Inspector are signatories that Forest Range Officer, namely, Suresh Chandra Behera showed the spot where from the tractor and the trolley were seized to the Revenue Inspector. It is not stated as to who and in which manner the rocks lying on that land recorded as Jungle and Grama Jungle had been collected and how those were loaded in the trolley. The evidence of that Forest Range Officer runs to the effect that he arrived at the spot by receiving the telephonic message from the Forester, Chinmayee Sahoo. It has been stated by Chinmayee Sahoo that when they were returning around 12.30 pm, they found this tractor loaded with rocks standing at the distance of half kilometer from Barabanki Reserve Forest. The evidence of Forest Guard namely, Abhaya Singh is on the score that when he with the Forester, Chinmayee Sahoo and another Forest Guard, Bighneswar Biswal were returning, they found that the rocks had been loaded. It has been stated by Bighneswar Biswal, the other Forest Guard that when they were returning, they found that rocks were being loaded in the trolley. This witness is for the first time saying about loading. It is to the effect that they found the loading operation to be continuing. But that is not acceptable on the face of his own evidence that 45 cft of rocks were being loaded in the tractor which leads to a clear inference that loading by then was over. Moreover, no other witness is supporting the factum of loading as has been stated by this witness. It is not stated by him that at which place he found the tractor to be standing and rocks were being loaded being removed from which place. He is not saying as to how the loading was going on. Moreover, no other witness is supporting the factum of loading as has been stated by this witness. It is not stated by him that at which place he found the tractor to be standing and rocks were being loaded being removed from which place. He is not saying as to how the loading was going on. Then it is also not stated as to if anyone other than driver was present there so as to probabilize a case of loading. Thus, the evidence on record is acceptable on the score that the tractor and trolley loaded with rocks were found standing on the land under plot Nos. 8610 and 8434 under 'Jungle' and 'Gramya Jungle' kisam respectively, adjoining the land of the petitioner under khata No. 444 and plot No. 8602 of kisam Taila-ll. This being the evidence on record, by no stretch of imagination, it cannot be said that those rocks found in the trolley had been collected from those Jungle and Gramya Jungle lands. It is clearly stated by the witnesses as has also been noted by the Appellate Court that the tractor had been seized outside the reserve forest. It is also not stated by anyone that they have seen the tractor coming with the load from inside the reserve forest and that after some time, it was parked on the Jungle and Gramya Jungle land. All these leads to say that the conclusions arrived at by the Authorized Officer as well as the Appellate Court are the outcome of perverse appreciation of evidence and for that the finding as to commission of forest offence in respect of forest produce as alleged cannot be sustained. Consequently, there cannot be a finding that seized tractor and trolley had been used in committing any such forest offence. In that view of the matter, the order of confiscation of the tractor and trolley as passed by the Authorized Officer and confirmed by the Appellate Court are liable to be quashed. 7. In the result, the order dated 17.08.2017 passed by the Authorized Officer, Dhenkanal in OR Case No. 210M of 2016-17 as well as the order dated 7.2.2018 passed by the learned District Judge, Dhenkanal in FAO No. 08 of 2017 stand quashed. 7. In the result, the order dated 17.08.2017 passed by the Authorized Officer, Dhenkanal in OR Case No. 210M of 2016-17 as well as the order dated 7.2.2018 passed by the learned District Judge, Dhenkanal in FAO No. 08 of 2017 stand quashed. The writ application thus being allowed; it is directed that the seized tractor and trolley bearing registration No. OD-19-H-8993 and OD-19-H-8994 respectively be forthwith released in favour of the petitioner.