The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 13:03:50 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 7042 OF 2018 (An application under Articles 226 & 227 of the Constitution of India) ***** Khadala Gouda …… Petitioner -Versus- State of Odisha and another . … … Opp. Parties Advocates appeared: For Petitioner : Mr. Swarup Kumar Pattnaik, Advocate For Opp. Parties : Mr. Swayambhu Mishra, Additional Standing Counsel
Legal Reasoning
has to make out a prima facie case that a forest offence is made out at the time of lunching the prosecution for confiscation of the seized articles. In the instant case, there is no material on record to show that the firewood was being transported from the forest area. Thus, the prosecution has miserably failed to make out a case that a forest offence is made out. This material aspect was lost sight of by the Authorized Officer as well as by learned Appellate Court while adjudicating the matter. 11. In view of the above, the impugned orders under Annexures-5 and 6 are not sustainable and are set aside. The offending vehicle shall be released in favour of the Petitioner forthwith observing formalities, if it is not required in any other case. 12.
Arguments
CORAM : MR. JUSTICE K.R. MOHAPATRA ------------------------------------------------ Heard and disposed of on 17.09.2024 ---------------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the judgment dated 30th March, 2018 (Annexure-6) passed in F.A.O. No.7 of 2017, whereby learned District Judge, Kandhamal dismissed an appeal filed under Section 56 (2-e) of the Odisha Forest Act, 1972 and confirmed the order dated 29th June, 2017 (Annexure-5) passed by the Authorized Officer-cum-Assistant Conservator of Forests, Balliguda Forest Division in OR Case No.23 of 2016-17 confiscating the Tractor and Trolley bearing W.P.(C) No. 7042 OF 2018 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 13:03:50 // 2 // Registration Nos.OD-20-4864 & OD-20-4865 respectively (for brevity ‘the offending vehicle) along with the firewood. 3. Mr. Pattnaik, learned counsel for the Petitioner submits that on the ill-fated day, i.e., on 21st October, 2016 at about 2.00 PM, one Dharmendra Digal, the Forest Guard of Jhinjiriguda Beat was on patrolling duty and gave signal to the driver of the offending vehicle to stop. At that moment, the offending vehicle was loaded with firewood for melting coal tar for repairing of the road leading from Daringbadi to Brahmunigaon. The repairing work was allotted to the son of the Petitioner. It is his submission that there is no material on record to show that the firewood was collected from the forest area and was being transported without permit. It is further submitted that the owner of the vehicle had no knowledge of involvement of the offending vehicle in commission of any forest offence. Thus, the vehicle is not liable to be seized or confiscated. 4. Mr. Pattnaik, learned counsel for the Petitioner relied upon the case of State of Odisha –v- Sudam Meher, reported in 2024 SCC OnLine Ori 331 and submits that since the Petitioner has discharged the initial burden in establishing that he had no knowledge for involvement of the offending vehicle in any forest offence as required under Section 56 (2-c) of the Odisha Forest Act, 1972, the onus shifts to the prosecution to prove that a forest offence has been committed by the Petitioner involving the offending vehicle. He also relied upon the case of The Authorized Officer-cum-Asst. Conservator of Forests, Balasore and others –v- Kuna Sahu (in W.P.(C) No.12126 of 2022, W.P.(C) No. 7042 OF 2018 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 13:03:50 // 3 // decided on 8th September, 2022), wherein this Court relying upon the decision in the case of N.V. Gopalaswamy –v- Assistant Conservator of Forests-cum-Authorised Officer, Nowrangpur Division and others, reported in 1990 (II) OLR 400 held that transit permit is required where more than one head-load of firewood is being transported from the forest area. Although Rule 5(1)(h) of the Odisha Timber and Other Forest Produce Transit Rules, 1980 provides that no transit permit is required if a head-load of firewood is being transported, but, in view of the ratio decided in the case of N.V. Gopalaswamy (supra), when firewood is being transported from a private land or a non-forest area, there would be no necessity to make an application under the said Rules for grant of transit permit. It is his submission that the firewood was not being transported from the forest area. Thus, no transit permit is required. The firewood was collected from the roadside and was being transported to made coal tar for repairing of the road. As such, no forest offence is committed involving the offending vehicle. Neither the Authorized Officer nor learned appellate Court considered this legal aspect while adjudicating the matter. Hence, he prays for setting aside the impugned orders under Annexures-5 and 6 and to release the offending vehicle. 5. Mr. Mishra, learned Additional Standing Counsel submits that the ratio decided in the case of The Authorized Officer-cum-Asst. Conservator of Forests, Balasore and others (supra) is not applicable to the instant case, as in the said case the firewood was being transported from the private land of said W.P.(C) No. 7042 OF 2018 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 13:03:50 // 4 // Kuna Sahu. In the instant case, no material was placed before the Authorized Officer to establish that the firewood was being transported from any private land. In addition to above, learned appellate Court while adjudicating the appeal has categorically held that no evidence was adduced that substantial quantity of firewood could be found along road side in the area. The burden of proof is on the Petitioner to prove his innocence. But, in the instant case, he miserably failed to discharge the burden. Although a plea was taken that the firewood was collected from the road side, but in his deposition before the Authorized Officer, no such statement was made. Since no statement with regard to collection of firewood from the road side was made before the Authorized Officer, the plea that it was collected from the road side was an afterthought and rightly rejected by learned appellate Court. 6. Mr. Mishra, learned Additional Standing Counsel, however, submits that there can be no quarrel to the ratio decided in the case of N.V. Gopalaswamy (supra). But, the ratio decided therein has no application to the instant case in the facts and circumstances stated above. As such, the writ petition is liable to be dismissed. 7. Heard learned counsel for the parties and perused the materials on record along with the case laws. 8. This Court finds that there is no material on record to come to a conclusion that the firewood was collected and transported from the forest area. Even if the submission of Mr. Mishra, learned Additional Standing Counsel to the effect that W.P.(C) No. 7042 OF 2018 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 13:03:50 // 5 // no statement was made before the Authorized Officer that the firewood was collected from the road side, is accepted, but in absence of any material to the effect that the firewood was collected and transported from the forest area, this Court is of the considered opinion that the ratio decided in the case of N.V. Gopalaswamy (supra) squarely applies to this case. 9. For better appreciation, it is profitable to refer to the relevant portion of the case law in N.V. Gopalaswamy (supra), which reads as under: “5. Because of all the above, we have no hesitation in concluding that fire-wood is a forest produce. The next question for examination is as to when transit permit is required to transport fire-wood from one place to another. Though Rule 4 of the Rules has been couched in wide language which would indicate as if transit permit would be needed whenever fire wood is sought to be transported by land; rail or water, it would seem that such permit would be needed only when transport is involved from forest area to areas located outside it. We have come to this conclusion for these reasons: (1) The definition of fire-wood, as noted above as flowing from what has been stated in Sub-clause (a) of Clause (II) of section 2(g) of the Act, would show that fire-wood would be a “forest produce” when it is found in or brought from a forest. This shows that fire- wood would be a forest pronounce for the purpose of transit permit only when it is being brought from a forest. (2) Rule 5(1)(h) of the Rules has stated that no transit permit shall be required in case of fire-wood if the same does not exceed one head-load. This would indicate that carrying of head-load of fire-wood from forest was in mind of the rule-making authority. This transport could not have been from places outside the forest area. (3) It is common knowledge that when fire-wood is purchased from market for domestic purpose and the W.P.(C) No. 7042 OF 2018 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 13:03:50 // 6 // same is transported from the market to one's house, no transit permit is required. Indeed, Rules 5(1)(e) of the Rules exempts from the requirement of obtaining transit permit in some cases where the forest produce is needed for bona fide “domestic use”. 10. No doubt, the burden of proof of innocence is on the accused (in the instant case the Petitioner). But, the prosecution
Decision
The writ petition is allowed to the aforesaid extent. In the facts and circumstances, there shall be no order as to costs. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 17th September, 2024/Madhusmita W.P.(C) No. 7042 OF 2018 Page 6 of 6