The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 28680 OF 2021 (An application under Article 226 and 227 of the Constitution of India) Arakhita Sahu * * * * -versus- …. Petitioner State of Odisha and others …. Opp. Parties Advocates appeared: For Petitioner : Mr. Chittaranjan Pattnaik, Advocate For Opp. Parties : Mr. Swayambhu Mishra, Addl. Standing Counsel (For Opp. Party Nos.1 to 3) CORAM: JUSTICE K.R. MOHAPATRA --------------------------------------- Heard and disposed of on 30.07.2024 --------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Judgment dated 28th January, 2021 (Annexure-5) passed in FAO No.24 of 2019 is under challenge in this writ petition, whereby learned District Judge, Mayurbhanj at Baripada dismissing the appeal filed under Section 56(2-e) of the Orissa
Legal Reasoning
Forest Act, 1972 (for short ‘the Forest Act’) confirmed the order dated 29th May, 2019 passed by the Authorized Officer-cum- Assistant Conservator of Forest, Baripada Forest Division, Baripada in OR Case No.191-B of 2017-18 confiscating the vehicle of the Petitioner bearing Registration No.OD-01-V-5012 Page 1 of 10 // 2 // (Mahindra Bolero Pick-up Van) (for short ‘offending vehicle) along with seized forest produces.
Legal Reasoning
3. Mr. Pattnaik, learned counsel for the Petitioner submits that on the ill-fated day, i.e. on 24th February, 2018 at about 8.30 P.M., the Forester of Betnoti Range during his patrolling duty with staff on NH-18 near Agria Railway Crossing gave signal to the driver to stop the offending vehicle and he stopped the offending vehicle. It was alleged that on search, fresh cut Neem Logs with bark 12 pieces (i.e. 37.57 cft) and 2 (two) quintals fire-wood were found loaded on it. On being asked, the driver allegedly could not produce any permit for transportation of the same. Consequently, the Forester seized the logs and fire-wood along with the offending vehicle, arrested the driver and produced him before the Court of learned S.D.J.M., Baripada. Subsequently, confiscation proceeding under Section 56 of the Act in OR. Case No.191-B of 2017-18 was initiated. Vide judgment dated 29th May, 2019 passed by the Authorised Officer in the aforesaid confiscation proceeding, the offending vehicle along with seized articles were directed to be confiscated. Assailing the same, the Petitioner preferred FAO No. 24 of 2019, which was dismissed vide judgment dated 16th November,
Decision
2020. Being aggrieved, the Petitioner filed W.P.(C) No.34902 of 2020, which was disposed of on 14th December, 2020 with the following direction: “Heard learned counsel for the parties and perused the material placed before this Court. There is no dispute to the ratio decided in the case laws referred to by learned District Judge. But, while exercising the power under Section 56 (2-e) of the Act, he is required to discuss the arguments raised Page 2 of 10 // 3 // the during recorded with reference to the evidence led by the parties during confiscation proceeding under Section 56 of the Act in detail. It, however, appears that learned District Judge has referred to the evidence of the confiscation petitioner proceeding. No doubt, learned District Judge is not required to repeat the discussion made by Authorized Officer in the proceeding under Section 56 of Act, but he has to discuss the contentions raised by learned counsel for the appellant in course of appeal with reference to the materials available on record and record his independent findings on the same. In the case at hand although learned District Judge has recorded the contentions of learned counsel for the appellant, but while disbelieving the statement of the appellant, learned District Judge ought to have assigned good reasons for the same. The reason assigned by learned District Judge appears to be not satisfactory in view of the statements of the driver as well as the helper of the vehicle, which were not discussed. They categorically stated that the Range Officer directed to bring the seized vehicle to the Range Office and at that time the vehicle was empty. The statement of the witnesses recorded during confiscation proceeding also remained unassailed. These material evidence ought to have been learned District Judge while considered by adjudicating the appeal. In that view of the matter, the impugned order is set aside, the matter is remitted back to learned District Judge, Mayurbhanj at Baripada to adjudicate the appeal afresh with reference to the relevant materials on record, giving opportunity of hearing to the parties concerned. With the aforesaid observation and direction, this Court, without expressing any opinion on the merits of the case of the petitioner, disposes of the writ petition.” Accordingly, the appeal was heard afresh and learned District Judge, Mayurbhanj at Baripada reiterating his earlier order confirmed the order of Authorized Officer vide judgment dated Page 3 of 10 // 4 // 28th January, 2021 (Annexure-5). Hence, this writ petition has been filed. 4. Mr. Pattnaik, learned counsel further submits that the offending vehicle in question was empty at the time of its seizure. The Petitioner along with driver have also stated so in their statement recorded by the Authorized Officer during adjudication of confiscation proceeding. Said statement remained unassailed as the witnesses were not cross-examined. Thus, considering the plea of the Petitioner, this Court in W.P.(C) No.34902 of 2020 directed learned District Judge, Mayurbhanj at Baripada to consider the matter afresh. Learned Appellate Court without taking note of the same reiterated his earlier order by dismissing the appeal. It is his submission that the Petitioner being the owner of the offending vehicle had no knowledge of alleged transportation of the forest produces in the offending vehicle. Further, the Petitioner has instructed his driver not to carry any contraband articles in the offending vehicle. It is stated by the driver that when the offending vehicle was parked at Betonati Bazar, the Forester asked the driver to carry his household articles free of cost but the driver refused. Thus, the offending vehicle has been falsely implicated in the forest offence. It is submitted that the offending vehicle of the Petitioner is the only source of his livelihood and it was purchased by obtaining a loan from the Bank. Hence, the Petitioner prays for setting aside the impugned judgment and to release the offending vehicle. 5. Mr. Mishra, learned Additional Standing Counsel vehemently objects to the submission made by Mr. Pattnaik, Page 4 of 10 // 5 // learned counsel for the Petitioner and submits that the plea taken by the Petitioner that the offending vehicle was empty at the time of its seizure, is an afterthought and is made out to wriggle out of the rigors of law. Elaborating his submission, it is contended that the Petitioner submitted his show cause reply to the notice issued in the confiscation proceeding on 5th June, 2018. In the said written reply, the Petitioner had never alleged that the Range Officer, namely, Ghanashyam Singh, has taken his vehicle to the Range Office without any wood or log being loaded in it. It was never stated that the offending vehicle was empty. The Petitioner simply stated in his show cause reply that he had no knowledge regarding transportation of any forest produce as he had specifically instructed his driver not to transport any contraband/objectionable goods. But the driver might have on good-faith transported the fire wood. He further submits that on the date of seizure of the offending vehicle, the Forester in presence of the Range Officer recorded the statements of the driver (D.W.2) and one Guruva Singh (D.W.3) as well as Mangal Singh (D.W.4), who were working as labourers in the said offending vehicle. They unequivocally stated that on 24th February, 2018, the owner, namely, the Petitioner, instructed them to transport some Neem Logs from Dantiamuhan. Accordingly, they went to Dantiamuhan and loaded some Neem Logs and were transporting the same towards Balasore. At that time, near Railway Crossing at Betnoti, the Range Officer and other forest officials detained them and brought the vehicle along with logs to the Range Office at Betnoti. In the case of Matia Palei –v- State of Orissa, reported Page 5 of 10 // 6 // in 2001 Crl. Law Journal 1897, it is held that the confessional statement made before the Forest Officer is not hit by Section 25 of the Evidence Act, 1972 (for short ‘the Evidence Act’) as the Forest Officer is not a Police Officer even though they are vested with certain powers of the Police Officer. It is also held therein that the self implicating statement made by the co-accused before the Forest Officer can be the basis of conviction. He also relied upon the case of Malatilata Samal and others –v- State of Orissa and others, reported in 2002 (II) OLR 216, wherein at paragraph-8, this Court held as under: “8. Mr. Panda strenuously submitted that as would be evident from the evidence, the owner had absolutely no role to play in the alleged offence and the truck therefore should not be confiscated. To appreciate the said argument a cursery glance at the Section itself would be very much necessary. Section 56(2-c), according to us, has put an embargo so far as means rea is concerned. The Section provides that in cases of confiscation of the tools or the vehicles used for the offence, it is the owner who has to prove that the same has been used without his knowledge or connivance, or the knowledge or connivance of his agent, if any, or the person in charge of the article in question. Thus, it would be clear that the knowledge and connivance, so far as Section 56(2-c) are concerned, are not confined to the owner alone, but take within their fold, the knowledge and connivance of the agent, if any, or the person in charge of the vehicle. A closer reading of the Section further reveals that it also stipulates that to escape the order of confiscation it must be further proved that each of the concerned persons had taken all reasonable any necessary precautions against use of the vehicle in question in respect of commission of Forest offence. The view expressed by us is fortified by the decision of this Court reported in 71 (1991) CLT 157 (supra)” (emphasis supplied) Page 6 of 10 // 7 // He also relied upon the case of State of Orissa represented through the Range Officer, Khurda Forest Range –v- Kiran Sankar Panda and others, reported in (1991) 71 CLT 151, it is held as under: "4. What is more important than the difference in phraseology used in the two Acts is that so far as confiscation of any tool, rope, chain, boat, vehicle or cattle is concerned, section 56(2-c) has excluded the conception of mens rea by necessary implication, as already noted. We have said so because this section states that in case of confiscation of such articles, it is the owner who has to prove that the same had been used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the article in question. This would show that knowledge or connivance is assumed unless contrary is proved. The knowledge or connivance about which section 56(2-c) has spoken is not confined to the owner but takes within its fold the knowledge or connivance of - the agent, if any, or of the person in charge of the article in question. Not only this, this section further states that to escape the order of confiscation, it must be further proved that taken all the concerned persons had each of reasonable and necessary precaution against the use of the article in question in respect of the commission of the forest offence." He, therefore, submits that mens rea is not required to be proved to constitute an offence under the Forest Act. The owner of the vehicle or the person in-charge of the same has to prove that he had no knowledge or connivance in commission of the forest offence. It is also held therein that knowledge or connivance is assumed unless the contrary is proved. Thus, he submits that even though no cross-examination of the witnesses examined by the Petitioner was made, the same would not affect the case of the prosecution as it is a clear case of afterthought of the Page 7 of 10 // 8 // Petitioner to make out a story to escape the confiscation of the vehicle and goods seized. Learned Appellate Court has dealt with the matter in detail and passed the impugned order, which warrants no interference. Although it is alleged that since the driver of the offending vehicle refused to carry the household articles of the Range Officer free of cost, they were falsely implicated, but the Range Officer in his statement has categorically denied the suggestion put to him that he had any ill feeling with the owner of the vehicle. He, therefore, prays for dismissal of the writ petition. 6. Heard learned counsel for the parties. Perused the case record and the case law cited. 7. The matter has travelled to this Court earlier in W.P.(C) No.34902 of 2020, which was disposed of on 14th December, 2020 setting aside the order passed by the Appellate Authority and remitting the matter to it for fresh adjudication of the appeal taking into consideration that the witnesses examined on behalf of the Petitioner have categorically stated that the offending vehicle was empty when it was taken to the Range Office, Betnoti as per the direction of the Range Officer. It is also apparent from the record that the witnesses were not cross- examined. Thus, this Court is required to find out as to whether the statements made by the witnesses examined on behalf of the Petitioner in the confiscation proceeding can be the basis to set aside the order of confiscation, more particularly when they were not cross-examined. It is not disputed that D.Ws 2 to 4, namely, the driver and labourers of the offending vehicle, who were present at the time of seizure of the offending vehicle, have Page 8 of 10 // 9 // made statements before the Range Officer that on instruction of the owner, namely, the Petitioner, they were transporting Neem Logs from Dantiamuhan. It was also stated by them that when they were transporting Neem Logs from Dantiamuhan towards Balasore, the Range Officer and other forest officials detained the vehicle at Railway crossing of Betnoti and instructed them to take the vehicle to the Range Office. In the case of Matia Palei (supra), this Court has categorically held that the confessional statement made before the Forest Officer is not hit by Section 25 of the Evidence Act as they are not Police Officers. It is also held therein that the statement of the co-accused can be the basis of conviction. Thus, it cannot be ruled out that the statements made by D.W. Nos.2 to 4 before the Range Officer are redundant for confiscation of the offending vehicle. 8. It also appears from the record that the plea that the offending vehicle was empty at the time of its seizure, was not taken in the show cause reply filed by the Petitioner on 5th June, 2018 in the confiscation proceeding. For the first time, such a plea was taken while deposing in the confiscation proceeding. It is also not borne out from the record that the confessional statements of D.W. Nos.2 to 4 were made on coercion. The proximity of recording of the statements of the driver and labourers by the Range Officer immediately after the seizure of the vehicle rules out any distortion in it. From the facts and circumstances stated above, it is apparent that the witnesses became prudent at the time of making statements before the Authorized Officer in the confiscation proceeding. Thus, a possibility of distortion cannot be ruled out at that juncture, more Page 9 of 10 // 10 // particularly when the plea taken by the Petitioner and his witnesses was not taken in the written show cause reply. 9. True, it is that the witnesses were not cross-examined but the statement recorded during confiscation proceeding does not become sacrosanct. The Adjudicating Authority is under legal obligation to test the veracity of the unrebutted statements along with other materials and circumstances available on record to come to a definite conclusion. 10. In the instant case, learned District Judge, Mayurbhanj at Baripada while adjudicating the appeal has elaborately dealt with the matter and assigned reason as to why the unrebutted statements of the witnesses examined on behalf of the Petitioner cannot be accepted. 11. In view of the discussion made above, I find no reason to take a different view as arrived at by learned District Judge, Mayurbhanj at Baripada. 12. Accordingly, the writ petition being devoid of any merit stands dismissed, but, in the circumstances, there shall be no order as to cost. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated the 30th July, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Aug-2024 14:56:04 Page 10 of 10