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Judgment
Sashikanta Mishra, J.
The state, represented by the petitioners has filed this writ application questioning the correctness of order of the learned District Judge, Mayurbhanj passed on 06.08.2013 in F.A.O. No.5 of 2013.
The facts of the case, briefly stated are as follows: -On 21.03.2012, at about 3:30 PM forest officials in Udala intercepted a Mahindra Maximo Van with registration no. OR-11-K-0498 on Khunta-Damodar Road near Champagadi village loaded with four freshly cut Simili round logs with barks that lacked required transit permits or official hammer impressions. Following an inquiry, the Authorised Officer-cum-Assistant Conservator of Forests, Baripada, (hereinafter called the Authorized Officer) held that a forest offence within the meaning of the Orissa Forest Act, 1972, was committed and ordered the confiscation of both the timber and the vehicle on January 30, 2013. The vehicle owner, Dhirendra Sahu, carried appeal. Learned District Judge allowed the appeal by setting aside the confiscation order on 06.08.2013, citing procedural non-compliance under Rule 4(2) of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980 (hereinafter called the Rules). Being aggrieved, State has filed this writ petition contending that procedural irregularities under the Rules, 1980 do not invalidate statutory confiscation proceedings and that the illegal, unpermitted transport of non-exempt timber was fully established by witness accords.
The Opposite Party has not filed any counter.
Heard Mr. S. Mishra learned Additional Standing Counsel for the State and Mr. A.K. Biswal learned counsel for the private Opposite Party.
Mr. Mishra would argue that the order of the District Judge is perverse and unsustainable in law as the offence committed under the Orissa Forest Act, 1972 was proved beyond reasonable doubt. The forest staff apprehended the vehicle while carrying non-exempted Simili timber without any valid transit permit or hammer marks violating Rule-4,12 and 14 of the Orissa Timber and Other Forest Produce Transit Rules, 1980. He further argues that the appellate court erred in setting aside the order of the Authorized Officer under section-56 on a mere technicality of alleged non-compliance of Rule 4(2) of the Rules,1980, especially when the apprehended persons, i.e. the defense witnesses have admitted to transporting of the timber. He further argues that since the owner failed to prove that the illicit transport occurred without his knowledge or connivance, the original confiscation order passed by the Authorized Officer be restored.
Per Contra, Mr. Biswal, appearing for the private Opp. Party submits that the appellate authority rightly set aside the order of the Authorized Officer for non-compliance of the mandatory statutory procedure under rule-4(2) of the Rules, 1980. He further argues that the Authorized Officer ordered the confiscation proceedings under Section-56 of the Orissa Forest Act, 1972, without a valid inquiry thereby violating the principles of natural justice. He further argues that the opposite party had neither the knowledge of the illegal transport of the Simili timber nor was he in connivance with the defence witnesses apprehended with the vehicle. Furthermore, since the state authorities failed to strictly discharge their primary burden of establishing that the owner or his agents knowingly permitted the vehicle’s use for transport of the contraband materials, the order of the appellate authority is legally sound and requires no interference.
Upon hearing learned counsel for the parties at length and on careful perusal of the pleadings and materials on record, this Court finds that the question for consideration is, whether the Authorized Officer’s order for confiscation of the vehicle under the Section-56 of the Orissa Forest act, 1972 was done in accordance to the Provisions of Rule-4(2) of the Rules, 1980.
Perusal of the impugned order reveals that the appellate Court set aside the order of the Forest Officer relying on the judgment of this court rendered in the case of Rabinarayan Sahu V. Forest Range Officer, Soroda Range & Others1 wherein, this court held that the subsequent enquiry contemplated under Rule-4(2) of the Rules, 1980 is mandatory in nature. The decision of this court in the case of Anatha Bandhu Mandal V. State of Orissa & Others2 was also relied upon wherein, the procedure to be followed in the enquiry under the above Rule was discussed.
It would be apposite to refer to Rule-4 of the Rules,1980 which is reproduced herein below: -
“Rule-4-Enquiry
(1)When a forest offence is detected, a preliminary enquiry may be held by a Forester in charge of the section who shall forward his enquiry report along with the report in Form No. 1 to the Range Officer concerned, soon after his preliminary enquiry is completed:
Provided that no enquiry may be held by any such Officer if the accused who has committed a forest offence other than an offence under Section 66 or Section 67 of the Act agrees, and files a petition to that effect in Form No. IV to get the offence compounded under Section 72 of the Act and to pay compensation therefor. Such application in Form No. IV shall also form a part of the case record.
(2)An enquiry into the forest offence shall thereafter be held by an officer not below the rank of a Range Officer.
(3)The enquiry report together with the case record shall be submitted to the Divisional Forest Officer by the Range Officer in all cases in which the Divisional Forest Officer is not competent to compound under Rule 7 and where the accused persons do not opt to compound the offence.”
According to the above provisions, the subsequent enquiry to be conducted under Rule-4(2) must be done by an officer not below the rank of Range Officer. In the present case, while the same was done by the Range Officer (PW-1), his statement reveals that the preliminary investigation was done by Forester, Ajaya Kumar Nayak before the accused were produced before the S.D.J.M., Udala.
Perusal of the impugned order reveals that the learned District Judge, Mayurbhanj held as follows:-
“12.On a thorough perusal and careful scrutiny of the entire evidence of the forest Range Officer, who has been examined as P.W.1 on behalf of the forest department, it is seen that except recording the statement of the owner of the vehicle i.e. the present appellant, he has not examined the forest officials who caused the seizure of the vehicle as well as the timber. He has also not examined the driver of the Mahindra Maximo van. It is clear from the cross-examination of P.W.1 that except examining the owner of the vehicle, he has not examined the other witnesses. He has also not gone to the spot from where the alleged Simili logs were cut and removed, by simply saying that through the forester, he enquired regarding the documents and the spot where from Simili logs were cut and removed. It is also doubtful from his evidence whether he had been to the spot of seizure or not, since he could not tell in his cross examination regarding the distance of locality from the spot of seizure. Thus, keeping in view of the above cited decisions of our Hon'ble Court, it can safely be concluded that, the Range Officer (P.W.1) has not made any enquiry according to the provisions as contained under rule 4(2) of the Rules, 1980.”
Thus, the so-called non-examination of the Forest Officers, who caused the seizure of the vehicle and the timber as well as the non-examination of the driver of the Mahindra Maximo Van has weighed heavily upon the mind of the Court to hold that no enquiry was conducted according to the provisions contained under Rule 4(2) of the Rules.
Reference to the order passed by Authorized Officer clearly reveals that as many as five prosecution witnesses were examined apart from four defence witnesses. Of the prosecution witnesses, P.W.2-Ajay Kumar Nayak, the Forester of Khunta Section stated that he along with other staff, while doing patrolling duty detained the vehicle in question. P.W.3-Prasanta Kumar Singh Samant, a Forest Guard under Khunta Beat, P.W.4- Maheswar Singh, Forester of Udala Section and P.W.5 Mayadhar Marandi, Forester of Kuamara Section fully corroborated the version of P.W.2 by stating that they were also present during the detention of the vehicle and seizure of the forest produce.
It is therefore, not understood as to how, the learned District Judge, Mayurbhanj could hold otherwise. Obviously, it is a perverse finding and an error of record and therefore, cannot be sustained. Since the statement of the prosecution witnesses has not been taken note of, the subsequent finding regarding absence of knowledge of the owner of the vehicle becomes susceptible to challenge.
It goes without saying that, such finding has to be based on the entire evidence on record and not just by placing the burden on the prosecution. The least that could have been done was to consider the effect of the evidence of the prosecution witnesses, which as stated earlier, was not done. For such reason therefore, this Court is of the considered view that the impugned order cannot be sustained.
Since this Court has found that the learned District Judge, Mayurbhanj ignored the available evidence, it would be proper to remit the matter to the Court below for deciding the appeal afresh.
For the foregoing reasons therefore, the Writ Petition is allowed. The impugned order is set aside. The matter is remitted to the learned District Judge, Mayurbhanj to decide the appeal (F.A.O. No.5 of 2013) afresh after considering the entire evidence and materials on record. The appeal being of the year 2013, learned District Judge shall make effort to dispose of the same as early as possible, preferably within two months from today.