Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 15065 of 2018 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Bisikeshan Ray …. Petitioner(s) -versus- State of Odisha and Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Ms. Sailabala Jena, Adv. Mr. Prabhu Prasana Behera, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-26.03.2025 DATE OF JUDGMENT:-11.04.2025 Dr. S.K. Panigrahi, J. 1. In this Writ Petition, the Petitioner seeks a direction from this Court to set aside the order dated 14.02.2017 passed by the Authorized Officer- cum-Assistant Conservator of Forests, Bargarh Forest Division in C.P. Case No.15 of 2015-16, and the appellate order dated 11.07.2018 passed by the learned District Judge, Bargarh in FAO No.2 of 2017, on the ground that the confiscation of the tractor bearing registration number Page 1 of 12
Facts
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 OD-17F-9326 was not supported by any finding of knowledge or intent on the part of the Petitioner or the Driver. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: (i) The tractor bearing Registration No.OD-17F-9326 was seized on 12.03.2016 by the forest officials of Bargarh Forest Division. At the time of seizure, it was found transporting 92 numbers of miscellaneous forest poles illegally. The driver and two occupants of the vehicle failed to produce any valid documents authorizing such transportation. (ii) In response to the show-cause notice issued to the concerned
Legal Reasoning
the Department must present prima facie evidence linking the vehicle to the forest offence. Once this threshold is met, the burden of proof shifts to the owner, who must demonstrate both lack of knowledge and due diligence in preventing the offence. 11. The abovementioned provision makes it clear that once prima facie involvement of a vehicle in the commission of a forest offence is established by the Department, the onus squarely shifts to the vehicle owner to discharge the burden of proof under Sub-section (2-g). In the present case, there is a glaring failure on the part of the petitioner to meet this statutory obligation. 12. The petitioner merely asserts that the driver was unaware of the illegality, relying on a receipt purportedly shown by the forest produce owner. However, such a plea, unsupported by cogent evidence or corroborative documentation, cannot be accepted as a credible defence. The Act does not contemplate a subjective standard of good faith or personal belief but demands affirmative proof of non-involvement and Page 8 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 active due diligence. Mere ignorance, especially when advanced post- facto, cannot absolve the owner from liability. 13. Furthermore, the petitioner’s argument that the driver was illiterate and thus unable to differentiate between a receipt for compounding and a transit permit borders on conjecture. No specific evidence has been led to demonstrate that the receipt in question was forged, misleading, or that it was actually presented at the time of transportation. The statutory defence available under Section 56(2-g) is not one of compassion but of evidence and preventive action, neither of which was sufficiently demonstrated. 14. It is also pertinent to note that the procedural safeguards were duly complied with by the opposite parties. The petitioner was served with a show-cause notice, clearly informing him of the grounds on which confiscation was proposed. He was granted adequate opportunity to submit his written representation and was also afforded a reasonable opportunity of being heard. There is no material on record to suggest any procedural lapse or denial of natural justice at any stage of the proceedings. 15. At this juncture, it is also pertinent to understand the distinct nature and purpose of confiscation proceedings under the Odisha Forest Act, 1972. Unlike criminal prosecution, which is punitive in nature and aims to determine guilt and impose penalties on individuals for committing offences, confiscation proceedings are essentially preventive and remedial. The primary object of confiscation is to immediately disable the instruments or means, such as vehicles, tools, or equipment, used in Page 9 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 the commission of a forest offence, regardless of whether a criminal conviction ultimately follows. This distinction was also outlined by the Supreme Court in the case of State of M.P. v. Kallo Bai1 wherein it was held as under: is distinct “Criminal prosecution from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the is to punish the offender. The scheme prosecution Adhiniyam prescribes an for confiscation. The separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle.” intention of prescribing independent procedure 16. This distinction is crucial, as it allows the forest authorities to act swiftly in safeguarding forest resources by removing the tools of exploitation from further misuse. Confiscation is thus not dependent on the outcome of a criminal trial but is an independent adjudicatory mechanism focused on the illicit use of property, not necessarily the criminal liability of individuals. 17. In the present case, the confiscation proceedings were conducted strictly in accordance with this legislative framework. The Authorized Officer, after following due process, concluded that the tractor was indeed involved in the illegal transportation of forest produce. This conclusion was not based on mere conjecture but on the seizure of 92 poles, the absence of valid transit documents, and the inconsistent narrative 1 Special Leave Petition (Criminal) No. 8861 of 2014. Page 10 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 provided by the petitioner. The statutory requirement of issuing notice, allowing for representation, and affording a personal hearing was meticulously observed, thereby reinforcing the legality of the process. 18. Importantly, this confiscation was not left untested. The petitioner challenged the same before the learned District Judge, Bargarh, in FAO No. 02 of 2017, who, upon independent judicial scrutiny, upheld the order of confiscation, finding no infirmity in the decision-making process or in the evidentiary foundation on which it rested. 19. Following this judicial affirmation and in the absence of any further legal bar or stay from a higher forum, the authorities proceeded with the public tender sale of the confiscated vehicle. The auction was duly notified through public channels such as “The Samaj” and “The Bharat Darshan”, and the vehicle was sold to Sri Fakir Pradhan for ₹2,70,000/-. With this, the matter reached its logical conclusion. There is nothing on record to suggest any compelling reason to reopen the case at this stage. V. CONCLUSION: 20. In light of the foregoing analysis, it is evident that the confiscation proceedings were conducted in strict adherence to the statutory provisions. The petitioner failed to discharge the burden placed upon him by law to prove lack of knowledge and that all reasonable precautions were taken to prevent the misuse of his vehicle. The explanations offered were neither convincing nor supported by credible evidence. The confiscation order, having been duly upheld by the District Judge and followed by a transparent auction process, leaves no legal or factual basis to interfere with the impugned action. Page 11 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 21. 22. The Writ Petition, therefore, deserves to be dismissed as devoid of merit. Interim order, if any, passed earlier stands vacated. (Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 11th April, 2025/ Page 12 of 12
Arguments
individuals, the petitioner Sri Bisikeshan Ray, along with others, admitted to the transportation of only 40 poles and paid a compounding fine of ₹10,000/-. However, the seizure report clearly mentions that 92 poles were being transported, indicating that an excess of 52 poles was being moved without authorization. (iii) The petitioner claimed that the poles were collected for domestic use and that he had instructed the driver and other persons accordingly. He denied any forest offence. However, the authorities considered this denial baseless and a fabricated story intended to evade confiscation proceedings. (iv) The amount of ₹10,000/- was collected from individuals named Debarchan Majhi, Jita Nial, and Purna Dharua of village Dudukijhari, whereas the persons actually arrested for the illegal transportation were Mahendra Bariha, Mandhar Nial, and Puran Bag. This raised suspicion Page 2 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 that the compounding and seizure incidents were being misrepresented to shield the actual offenders. (v) The Authorized Officer-cum-Asst. Conservator of Forests invoked Section 56 of the Odisha Forest Act, 1972, and found sufficient evidence that the petitioner failed to exercise due diligence and precautions. This order of confiscation was confirmed by the District Judge, Bargarh in FAO No. 02 of 2017. (vi) After the judicial confirmation of confiscation and in the absence of any further stay, the vehicle was put to public tender sale vide Office Memo No. 5065 dated 20.12.2018 and corrigendum dated 08.01.2019. The auction notice was published in “The Samaj” and “The Bharat Darshan.” The vehicle was ultimately sold to Sri Fakir Pradhan for ₹2,70,000/-. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. (i) Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: The driver of the tractor, Puran Bag, had no knowledge that he was using the vehicle to commit a forest offence. He believed in good faith that the goods were lawfully permitted for transport as the owner of the forest produce had shown him the payment receipt. (ii) The petitioner contends that the illiteracy and lack of understanding of the driver must be taken into consideration. The driver could not distinguish whether the receipt issued by the Forester was for a fine or a transit permit, especially since it was written in English. Page 3 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 (iii) It is argued that the authorities failed to appreciate both the oral and documentary evidence submitted by the petitioner, which included the money receipt and the statements of the driver and owners of the forest produce. (iv) The petitioner emphasizes that the principle of mens rea (guilty mind) is essential in establishing an offence. Since the driver acted in ignorance and without intent, the offence cannot be said to have been committed with knowledge. (v) The orders passed by both the Authorized Officer and the learned District Judge are challenged as being contrary to established legal principles laid down by higher courts, including the requirement of knowledge and intent in forest offences. (vi) The petitioner asserts that the proceedings have failed to consider the correct legal implications and have resulted in an unjust confiscation of property without proper analysis of the factual matrix. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. (i) The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: The petitioner’s claim that the confiscation order is illegal is wholly unfounded. Both the seizure and subsequent legal actions were taken strictly as per law and with sufficient material evidence. (ii) The petitioner has not discharged the statutory burden under the Odisha Forest Act to prove that the vehicle was used without his knowledge or authority. The defense that the forest produce was Page 4 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 forcibly loaded despite protests is not corroborated and was never reported to the police. (iii) The petitioner’s version appears to be an afterthought and a deliberate attempt to mislead the authorities. The denial of any forest offence, despite overwhelming evidence including seizure of excess forest produce and inconsistent identities, proves mala fide intention. (iv) The Authorized Officer acted within the framework of law. The confiscation order has been judicially affirmed, and in absence of any stay or reversal, the subsequent sale of the vehicle by tender process is also legal and justified. (v) In view of the Full Bench decision in OJC No. 6582 of 1995 dated 03.04.2019, vehicles involved in forest offences are liable for confiscation, further reinforcing the validity of the impugned order. Considering the factual matrix and legal position, the present writ petition is devoid of merit and deserves to be dismissed in limine. IV. COURT’S REASONING AND ANALYSIS: 5. 6. Heard Learned Counsel for parties and perused the documents placed before this Court. The heart of the dispute lies in the fact that a tractor used for transporting 92 illegal forest poles was confiscated by forest authorities, and the petitioner challenges this confiscation. Despite paying a compounding fee for 40 poles, evidence indicated unauthorized transport of 92 poles. The petitioner claims ignorance and lack of intent by the driver, citing illiteracy and miscommunication. However, authorities and the judiciary upheld the confiscation, citing failure to Page 5 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 prove due diligence. The vehicle was lawfully auctioned post- confirmation of confiscation. In view of the aforesaid, the primary issue for consideration is whether the order of the learned Additional District Judge, Bargarh, suffers from any infirmity warranting interference by this Court. 7. Before delving into the factual matrix, it is necessary to examine the relevant statutory provisions in this regard. Section 56 of the Orissa Forest Act, 1972, governs the seizure of property liable to confiscation and stipulates the conditions under which forest produce, along with tools, vehicles, and other equipment, may be seized and confiscated. The provision reads as follows: “56. Seizure of property liable to confiscation - (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer, (2) Every Officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, except where the offender agrees in writing to get the offence compounded, (either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the authorized officer’) or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made : Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufiicient if the officer makes, as soon as may be, a Page 6 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 report of the circumstances to his official superior and the Divisional Forest Officer. (2-a) Where an authorised officer seizes any forest produce under Sub-section (1) or where any such forest produce is produced before him under Sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence. (2-b) No order confiscating any property shall be made under Sub-section (2-a) unless the person from whom the property is seized is given - (a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation, and (c) a reasonable opportunity of being heard in the manner. (2-g) Without prejudice to the provisions of Sub-section (2- b) no order of confiscation under Sub-section (2-a) of any tool," rope, chain, boat, vehicle or cattle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat, vehicle or cattle, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use.” 8. Under Sub-section (1) of Section 56 of the Odisha Forest Act, if a Forest Officer has reason to believe that a forest offence has been committed involving any forest produce, they are empowered to seize not only the forest produce itself but also any tools, ropes, chains, boats, vehicles, or cattle used in the commission of the offence. Sub-section (2-a) further Page 7 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 23-Apr-2025 18:11:49 authorizes an Authorized Officer to initiate confiscation proceedings for the vehicle involved, provided that proper notice is given and the owner is granted an opportunity to represent their case and be heard. 9. However, Sub-section (2-c) introduces a safeguard for vehicle owners. It states that if the owner can prove they had no knowledge or involvement in the offence, and that they took all reasonable and necessary precautions to prevent the misuse of their vehicle, then the vehicle shall not be subject to confiscation. 10. A careful reading of these provisions reveals a two-tiered process: First,