Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 A.F.R. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9142 of 2017 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). State of Odisha and Ors. …. Petitioner(s) -versus- Batakrushna Sahoo …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Ms. Gayatri Patra, ASC Ms. Soumya Sucharita Deo, Adv. CORAM: DR. JUSTICE SANJEEB K. PANIGRAHI DATE OF HEARING:-31.07.2025 DATE OF JUDGMENT:-19.08.2025 Dr. S.K. Panigrahi, J. 1. In this Writ Petition, the petitioner is seeking a direction from this Court to set aside the order dated 30.04.2016 passed by the learned District Judge, Cuttack in FAO No. 44 of 2014, and to uphold the confiscation orders passed by the DFO and the appellate authority under the 1991 Act. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: Page 1 of 15 Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 (i) The Opposite Party (owner of Kamala Saw Mill) was granted a license in 1995, which was renewed periodically until 2005. On 18.04.2005, the license was revoked by the Divisional Forest Officer (DFO) on the ground that the saw mill was located within a prohibited distance of forest areas. (ii) On 23.06.2006, a raid was conducted at the saw mill premises by the Cuttack Forest Range staff and Vigilance Wing officials. During the raid, one old 1 HP motor, some sawdust (quantity recorded variously as ‰ kg and 2.5 kg), and a circular saw fitted on a table were found. The Forest Department’s version records the presence of Chakunda logs and alleges active sawing, while the Opposite Party contends that no logs were seized and the saw mill was not in running condition, with no electricity connection. (iii) Based on the raid, a forest offence case (OR No. 66 of 2006–07) was booked under provisions of the Orissa Saw Mill & Saw Pits (Control) Act, 1991, alleging illegal operation of a saw mill without a valid license. (iv) An inquiry was conducted: for the prosecution, the Forest Range Officer and the Forester of Salipur Section deposed that Chakunda logs were being cut in the saw mill; for the defence, an employee (Durga Charan Mohanty) stated that the sawdust came from purchased firewood and not from sawing of logs. (v) The Licensing Authority-cum-DFO, Bhubaneswar, by order dated 29.08.2009, directed confiscation of the seized articles. On appeal, the Page 2 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 Regional Chief Conservator of Forests, Bhubaneswar Circle, upheld the order on 13.03.2014. (vi) Meanwhile, the Opposite Party had separately challenged the revocation of its saw mill license in W.P.(C) No. 9320/2006. By order dated 26.06.2006, the Orissa High Court set aside the earlier appellate order of the Conservator of Forests, directed rehearing by another authority, and noted that the saw mill was not operational at that time. (vii) In FAO No. 44 of 2014, the District Judge, Cuttack, by order dated 30.04.2016, set aside both the confiscation order of the DFO and the appellate order. The District Judge noted contradictions in seizure records, absence of logs in seizure lists, lack of electricity connection, and the denial of cross-examination opportunity to the Opposite Party. (viii) The State has now filed the present writ petition challenging the order of the District Judge dated 30.04.2016, while the Opposite Party maintains that the order was passed after proper appreciation of evidence and that the raid materials do not establish illegal operation. II. SUBMISSIONS ON BEHALF OF THE PETITIONERS: 3. (i) Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions: The District Judge ignored the testimony of the defence witness (Durga Charan Mohanty) which itself admitted that the Opposite Party was dealing in sawn firewood purchased from elsewhere, indirectly supporting that saw dust was linked to mill activity. (ii) The Judge overlooked the deposition of prosecution witnesses (Range Officer and Forester), who clearly testified that Chakunda sizes and Page 3 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 sawdust were found near the circular saw, indicating illegal sawing activity. (iii) The finding that the appellant had no opportunity to cross-examine prosecution witnesses is incorrect; the defence had the opportunity but chose not to cross-examine. (iv) The FAO was wrongly allowed on minor discrepancies, like the non- mention of logs in the seizure list and the variation in sawdust quantity (2.5 kg vs 0.5 kg), which at best was a clerical/typing error and could not override substantive evidence. (v) The District Judge failed to consider crucial circumstantial evidence: presence of circular saw with motor, freshly sawn saw dust, and seized Chakunda logs. (vi) As per Section 4 of the Act, operating a saw mill without a valid license is absolutely prohibited. Since the license was revoked in 2005, any operation in 2006 was patently illegal. (vii) Under Section 16 of the Act, the burden of proof lay on the Opposite Party to justify lawful possession of timber or equipment. The Opposite Party failed to produce documents to show lawful procurement of Chakunda logs or sawn sizes. (viii) The order of the District Judge is based on conjectures and mechanical reasoning (e.g., “no electricity, so no sawing possible”), ignoring the possibility of illegal connections/generators and ignoring the broader evidentiary record. Page 4 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY: 4. (i) The Learned Counsel for the Opposite Party earnestly made the following submissions in support of his contentions:
Decision
The allegations in the Writ Petition are false, frivolous, vexatious, and self-destructive, since the State itself admitted that the saw mill was not operational and had no electricity at the time of raid. (ii) Section 13 of the Act permits confiscation only if a saw mill is actually run after revocation of license. Mere presence of an old motor and some old sawdust, without proof of operation, does not attract the section. (iii) The seizure records are inconsistent and unreliable: seizure list mentions motor and sawdust, but no logs; sawdust quantity is contradictory; this creates deep doubt about allegations of sawing Chakunda sizes. (iv) The DFO revoked the license illegally despite Tahasildar’s report showing no forest within 10 km, and without applying proper mind; later, the Conservator of Forest dismissed the appeal mechanically. (v) The Opp. Party had already secured relief in W.P.(C) No. 9320/2006, where the High Court set aside the earlier appellate order and directed rehearing; thus, the State’s insistence on unlicensed operation is contrary to judicial findings. (vi) The Opp. Party was not afforded reasonable opportunity of cross- examining the Range Officer and Forester in OR Case No. 66/2006–07; this violates Section 13(2)(c) of the Act, a defect correctly noted by the District Judge. Page 5 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 (vii) The contention of the State regarding Section 16 burden of proof is misplaced, as it applies to trial of offences before a criminal court under Sections 15 & 17, not to confiscation proceedings under Section 13. (viii) Since operation of machinery was impossible without electricity, the burden lay on the authorities to prove how the saw mill was operational. Their failure to establish this justified the District Judge’s decision to set aside confiscation. (ix) The present writ petition is a malicious attempt to harass the Opp. Party, filed only to prevent his saw mill’s inclusion in the rehabilitation process, and should be dismissed with heavy costs. IV. COURT’S REASONING AND ANALYSIS: 5. 6. Heard Learned Counsel for the parties and meticulously analysed the documents placed before this Court. At the outset it is imperative that this Court examines the procedural safeguards in confiscation proceedings. Section 13(2)(c) of the Orissa Saw Mills and Saw Pits (Control) Act, 1991 (“1991 Act”) mandates that before any order of confiscation is made, the concerned person must be given a reasonable opportunity of being heard. This statutory right embodies the principles of natural justice. Crucially, the right to be heard includes the right to cross-examine adverse witnesses when facts are disputed. Denial of such opportunity defeats the very spirit of the confiscation proceedings and violates natural justice. Page 6 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 7. In this regard, the Supreme Court too has affirmed that cross- examination of a witness is a part of natural justice and an indefeasible right even if a statute is silent on it. In the case of New India Assurance Co. Ltd. v. Nusli Wadia1, the Court observed as follows: “The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right.” 8. In the present case, the Opposite Party has contended, and the District Judge accepted, that he was not afforded a real opportunity to cross- examine the Range Officer and Forester whose testimony formed the backbone of the Department’s case. The record bears out that during the confiscation inquiry (OR Case No. 66 of 2006-07), the statements of the Forest officials were taken behind closed doors and no effective chance to test their assertions was given to the Opposite Party. The State’s assertion that the Opposite Party “chose not to cross-examine” is unsubstantiated; there is no material to show that a proper offer to cross-examine was ever made or that the Opposite Party waived such right. 9. On the contrary, the absence of cross-examination was one of the key grounds on which the learned District Judge set aside the confiscation. Given the importance of this safeguard, we agree with the District Judge that the confiscation proceeding stood vitiated by breach of natural justice. An order imposing confiscation, a penalty that deprives 1AIR 2008 SUPREME COURT 876. Page 7 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 a person of property, cannot be sustained when the person was not allowed to challenge the evidence against him through cross- examination. This defect alone is sufficient to annul the proceeding, as similarly recognized in other jurisdictions. 10. The petitioners-State has argued that by virtue of Section 16 of the 1991 Act, the burden lay on the Opposite Party to prove that his possession of timber or operation of the saw mill was lawful. It is true that Section 16(1) creates a presumption that if any wood (sawn or unsawn) is recovered from an unlicensed saw mill, it “shall, until the contrary is proved, be presumed that the saw mill… was in operation,” with the burden on the accused to prove otherwise. However, this presumption aids the fact-finding process; it does not obliterate the requirement that the Authorized Officer must first recover “wood” from the premises and properly establish the foundational facts to invoke the presumption. In this case, the very application of Section 16 is in doubt because the seizure records do not clearly show recovery of any illicit timber or freshly sawn wood from the Opposite Party’s mill – only some quantity of sawdust was seized. Mere presence of sawdust (especially in a long-standing saw mill where residual sawdust could exist from past lawful operations) is qualitatively different from recovery of logs or freshly sawn timber. 11. Moreover, the scope of the burden-shifting provision must be understood in context. The Opposite Party rightly points out that Section 16(2) speaks of the burden in any prosecution for an offence Page 8 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 under the Act. Confiscation proceedings under Section 13, on the other hand, are penal but not strictly criminal prosecutions they are special in-rem proceedings handled by the departmental authority, with a separate appellate mechanism. The Supreme Court in the case of Abdul Vahab v. State of Madhya Pradesh2 has drawn this distinction in the context of a similar law. In a case concerning vehicle confiscation under a State prohibition statute, which likewise placed the burden of proof on the owner in criminal trials, the Court clarified that such burden- shifting provisions apply to the trial of offences, not to the confiscation process itself. The confiscating authority cannot simply assume the offence and reverse the burden; rather, it must evaluate the evidence and circumstances to reach a prima facie conclusion that the law was violated. Only then can the onus shift to the person concerned to rebut that conclusion. The Supreme Court cautioned as follows: “Insofar as the submission of the State Counsel that the burden of proof is on the truck owner in the process of confiscation, we must observe that Section 13A of the 2004 Act, which shifts the burden of proof, is not applicable for for the process of the confiscation proceedings but prosecution. By virtue of Section 13A of the 2004 Act, the burden on the State authority to legally justify the confiscation order, cannot be shifted to the person facing the confiscation proceeding. The contention to the contrary of the State’s counsel, is accordingly rejected.” 12. Here, the Department’s case for confiscation rests on the allegation that the Opposite Party was operating the saw mill on 23.06.2006 despite the revocation of his license. Unless that foundational fact of 2CRIMINAL APPEAL NO.340 OF 2022. Page 9 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 “operation after revocation” is proved, directly or via legitimate presumption, the confiscation cannot stand. The Opposite Party has consistently maintained that his mill was non-functional after the license was cancelled, no electricity connection existed, no machinery was running, and that the stray sawdust found was from cutting firewood purchased from outside, an activity which, notably, is not the same as running a full-fledged saw mill to process logs. He thus provided an explanation to rebut any presumption of illegal operation. The onus was on the authorities to counter that explanation with credible proof of actual operation, not merely rely on inference or suspicion. 13. Having scrutinized the material on record, this Court finds that the evidence of illegal operation on 23.06.2006 is at best tenuous. Several glaring contradictions and omissions were rightly highlighted by the learned District Judge: a. If indeed the Forest officials found “Chakunda logs” being sawnas claimed in their oral testimony, one would expect those logs, or sawn timber pieces, to be seized and listed in the seizure memo. Incredibly, the seizure list prepared at the spot contains no mention of any logs or timber at all. It only lists an old 1 HP electric motor, a circular saw blade mounted on a table, and a small quantity of sawdust. The omission of the very object that was allegedly being illegally processed (the wood) creates serious doubt about whether any such logs Page 10 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 were present or any sawing was actually in progress. This is not a minor paperwork error; it strikes at the heart of the allegation. The Court cannot gloss over the fact that the primary incriminating article – the timber, is missing from the evidentiary record. The State’s attempt to downplay this by calling it a “clerical mistake” is not convincing. In a criminal or quasi-criminal proceeding, such an unexplained lacuna in the seizure record must be viewed against the prosecution. b. The records oscillate between two figures- ‰ kg and 2.5 kg, as the quantity of sawdust seized. While on its own this discrepancy might be chalked up to a typographical error, it assumes significance here when considered with other evidence. The Department asserts the sawdust was freshly sawn, implying recent operation of the saw. The Opposite Party, however, explains that sawdust (of indeterminate age) was present because they used to cut up purchased firewood for sale as fuel. Whether 500 grams or 2.5 kilograms, the quantity is modest and could well have come from lawful activities, firewood cutting, rather than illegal timber processing. The inconsistent documentation further diminishes confidence in the prosecution’s claims, it suggests a lack of care and accuracy in observing and recording facts during the raid, which in turn calls into question the reliability of the Forest officials’ assertions on critical points. Page 11 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 c. It is undisputed that at the time of the raid the saw mill had no electricity connection. The Opposite Party had been out of operation, and the power line to his premises had been disconnected (likely as a result of the license cancellation). The Forest Range Officer admitted as much in cross-examination during the appellate proceeding, and the Department’s only rebuttal is to speculate that the mill could have been run on a generator or an illegal hookup. Yet, tellingly, the raiding team did not report finding any generator, fuel, or makeshift power arrangement at the site. They found an idle machine, not a machine running or still warm from recent use. In legal terms, the Department’s allegation requires proof of mens rea and actus reus post-revocation. Both elements are unproven here. A dormant saw and some sawdust do not demonstrate an ongoing sawing operation. The District Judge’s reasoning that “no electricity means no sawing was possible” is a commonsense inference from the facts on record. The State faults that reasoning as mechanical, but in the absence of any evidence of an alternate power source or any eyewitness account of the saw running, the inference is logical. Certainly, if the Department wanted to assert that a diesel generator or other power was used, the burden was on them to produce evidence of that. They did not. 14. These evidentiary deficiencies, when viewed cumulatively, make it highly unsafe to conclude that the Opposite Party was operating the Page 12 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 saw mill illegally on 23.06.2006. The standard of proof in confiscation proceedings may not be beyond reasonable doubt as in a criminal trial, but the proof must still be clear and convincing, given the serious consequences. Here, we find the evidence not only lacking in conviction but actually tilting in favor of the Opposite Party’s innocence. An order of confiscation must be supported by reasons and solid evidence, not conjectures. If the material on record is insufficient or of doubtful credibility, the confiscation cannot be upheld merely to satisfy a zeal for enforcement. On the contrary, any such harsh order without proper basis would be arbitrary and violative of the protection of property rights. 15. For completeness, the Court clarifies the legal position that a confiscation proceeding under the 1991 Act is independent of any criminal trial that might be initiated for the same violation. The law is well-settled that the fate of a criminal prosecution (conviction or acquittal) does not govern the fate of confiscation, since the two are distinct processes with different purposes. In this regard, the Madhya Pradesh High Court in the case of Neelakanth Rao Sapre (D) Lrs. Vinay and Anr. v. The State of M.P.3 The State rightly pointed out, relying on Section 13(1)(c) of the Act, that once a saw mill license is revoked, any operation of the mill is per se illegal. There is no necessity of a prior criminal conviction to order confiscation of the equipment; the Authorized Officer can act on his satisfaction that an offence has been committed, and the proceedings before him, and on appeal to the 3WRIT PETITION No. 2888 of 2003 Page 13 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 District Judge, are in the nature of in-rem adjudication. In other words, a conviction is not a sine qua non for confiscation. The Court held as follows: independent of “At the cost of repetition we clarify that confiscatory proceedings are the main criminal proceedings. In view of our detailed discussion in the preceding paragraphs we are of opinion that High Court as well as the revisional court erred in coming to a conclusion that the confiscation under the law was not permissible unless the guilt of the accused is completely established.” 16. However, the independence of confiscation proceedings does not mean insulation from basic principles of proof and justice. Even if an authorized officer need not await a conviction, he must still reach a bona fide conclusion, based on evidence and after due hearing, that the law was violated. In the present case, this Court’s decision does not in any way hinge on the absence of a criminal conviction, it hinges on the absence of credible evidence and the denial of a fair opportunity to the Opposite Party. Thus, while this Court agrees in principle that the authorities were empowered to confiscate without awaiting court trial, we find that on facts they have not made out a sustainable case. 17. Having given anxious consideration to the submissions of both sides, this Court is persuaded that the order of the learned District Judge, Cuttack, dated 30.04.2016 in FAO No. 44 of 2014, is correct and requires no interference. The District Judge marshalled the evidence in detail and applied the law appropriately. He justly concluded that the confiscation order of the DFO suffered from factual and procedural infirmities: the lack of any seized logs or clear evidence of operation, Page 14 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Sep-2025 19:41:54 the contradictory and meagre nature of what was seized, and the breach of the Opposite Party’s rights during the proceeding. 18. Accordingly, the Writ Petition filed by the State is dismissed. The impugned order of the learned District Judge is affirmed in entirety. The seized articles (motor, saw etc.), having been under custody all these years, shall be released to the Opposite Party forthwith, since there is no other legal bar. 19. Interim order, if any, passed earlier stands vacated. (Dr.Sanjeeb K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the19th August, 2025/ Page 15 of 15