Forester demanded the R.C. book of the seized vehicle, it was found that v. Upendra Raju was the owner of the vehicle. Therefore, notice was issued to the
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.268 of 2015 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Md. Iqbal and another ……. Petitioners -Versus- State of Odisha ……. Opposite Party For the Petitioners : Mr. Biraja Prasanna Das, Advocate For the Opp. Party : Mr. Debashis Biswal, Additional Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 12.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 09.04.2015 passed by the learned Additional Sessions Judge, Gunupur in Criminal Appeal No.47 of 2014, whereby the judgment of conviction and order of sentence dated 10.07.2014 passed by the learned S.D.J.M., Gunupur in 2(b)CC Case No.6 of 2012 had been confirmed. 2. The prosecution case, in brief, is that, on June 19, 2012, while the Forester, Naira Section and his staff were on patrol duty, they stopped a car near Bainaguda village bearing registration number OR18-B-1005. During search of the said vehicle, they recovered 28 bags of Genduli Gum measuring 11 quintals from the possession of the petitioners and seized the same. The accused-petitioner No.2, namely, Rabin Bidika, was driving the vehicle whereas the accused-petitioner No.1, namely, Md. Iqbal, was the occupant of the said vehicle. On enquiry, it was ascertained that both the petitioners had committed the offence and disclosed that they had collected Genduli Gum from the tribal people of different villages of Siriguda area and they were transporting the said produce from the village Siriguda towards Bissam Cuttack. The accused-petitioner No.1, Md. Iqbal, claimed that he was the owner of the said forest produce. Therefore, the Forester, Naira Section seized the Genduli Gum along with the vehicle by preparing a seizure list and also booked a case Page 2 of 8 against them for violation of Section 56 of the Orissa Forest Act, 1972 and Rule 4 & 12 of the Orissa Timber and other Forest Produce Transit Rules, 1980. After seizing the vehicle and the forest produce, the vehicle was brought to the Range Office compound at Gumuda and kept under safe custody. When the Forester demanded the R.C. book of the seized vehicle, it was found that V. Upendra Raju was the owner of the vehicle. Therefore, notice was issued to the owner of the vehicle and the accused persons but none of them attended despite service of summons. After due enquiry, it was concluded that the seized vehicle was used for illegal transportation of forest produce, Genduli Gum, without having any valid transit permit of the Forest Department. Therefore, the Forester, Naira Section arrested both the accused persons and forwarded them to the Court. After completion of the enquiry, he submitted the case for sanction of prosecution report before the appropriate authority. Accordingly, this case. 3. The petitioners were subjected to trial for the alleged offence punishable under Section 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980. The prosecution examined as many as four Page 3 of 8 witnesses and exhibited several documents. P.Ws.1 & 2 were the two Forest Guards, whereas P.W.3 was the Forester. P.W.4 was an independent witness examined by the prosecution to prove the seizure of the forest product. However, the said witness had not supported the prosecution case at all. Therefore, he was declared hostile. The prosecution depends only upon the evidence of the official witnesses. 4. The learned trial court had relied upon the testimony of P.Ws.1, 2 and 3, who were official witnesses, and found the petitioners guilty for the offences punishable under Section 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980. In lieu of the said conviction, the petitioners were sentenced to undergo S.I. for three years with a fine of Rs.1,000/- each, in default, to undergo further S.I. for one month each. 5. The judgment of conviction and order of sentence dated 10.07.2014 passed by the learned S.D.J.M., Gunupur in 2(b) C.C. Case No.6 of 2012 was called in question by filing Criminal Appeal No.47 of 2014 before the Court of the learned Additional Sessions Judge, Gunupur by the petitioners. After hearing the learned counsel for the parties, the Appellate Court dismissed the appeal and confirmed the judgment and Page 4 of 8 order dated 10.07.2014 passed by the learned trial court. Therefore, the petitioners have filed the present Criminal Revision Petition assailing the said judgment of conviction and order of sentence passed against them. 6. Essentially, the petitioners are found guilty for the offences punishable under Section 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 on the basis of the testimony of P.Ws.1, 2, and 3. Emphasis has been supplied by the Court below on the fact that the petitioners have confessed before the Forester (P.W.3) regarding their guilt. The Court below has taken the confession as admission of guilt by the petitioners on the ground that P.W.3, being the Forester, is not a police officer in terms of Section 25 of the Indian Evidence Act. Hence, any statement made before the Forester (P.W.3) can be used against the accused being admissible. 7. The Courts below have opined that the testimony of P.Ws.1, 2, and 3 lend corroboration to the confessional statement of the accused persons and accordingly found the petitioners guilty for commission of the alleged offences. Page 5 of 8 8. Heard Mr. Biraja Prasanna Das, learned counsel for the petitioners and Mr. Debashis Biswal, learned Additional Standing Counsel for the State. 9. Mr. Das, learned counsel for the petitioners, at the outset, has submitted that he would not press the Revision Petition on merits. He, however, confined his argument to the quantum of sentence. He has submitted that during the hearing of sentence, he had prayed for extension of the benefit of the Probation of Offenders Act, which was turned down by the Court below. 10. Perusal of the trial court judgment would indicate the same. Paragraph-9 of the trial court judgment is relevant, which reads as under:- <9. Now, we have to see whether the provision of Probation of Offenders Act can be extended to the convicts. The evidence on record reveals that the convicts were involved in transporting the forest produce without any valid T.T. Permit which is a griever offence. Considering the fact, circumstance of the case, nature and gravity of the offence including the character of the offenders, I am not inclined to extend any beneficial provision of Probation of Offenders Act to the convicts.= 11. The incident had taken place in the year 2012. At the time of commission of offence, the petitioner No.1 was 30 years old, whereas petitioner No.2 was 21 years old. It is submitted by the learned counsel Page 6 of 8 for the petitioners that the petitioners are not involved in any other case. They have clean antecedents. Even they were never found wanting for misuse of the concession of bail at any point of time during the pendency of the case. The present Revision Petition is pending since 2015. In these circumstances, I think it appropriate that the petitioners be released by extending the benefit of Probation of Offenders Act. Therefore, the prayer made by Mr. Das, learned counsel for the petitioners, that the benefit of the Probation of Offenders Act should be extended to the petitioners, deserves merit. 12. Accordingly, the present Criminal Revision, in so far as the conviction is concerned, is turned down. But instead of sentencing the petitioners to suffer imprisonment, this Court directs the petitioners to be released under Section 4 of the Probation of Offenders Act for a period of one year on their executing bond of Rs.5,000/- (Rupees Five Thousand) each with one surety each for the like amount to appear and receive the sentence when called upon during such period, and in the meantime, the petitioners shall keep peace and good behavior and they shall remain Page 7 of 8 under the supervision of the concerned Probation Officer during the aforementioned period of one year.
Decision
13. The Criminal Revision is accordingly disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 09-Aug-2024 12:12:01 Page 8 of 8