Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 28846 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Licensing Officer-cum-Divisional Forest Officer, City Forest Division, Bhubaneswar & Anr. …. Petitioner(s) M/S. Tara Maa Concern, Nemalo, Cuttack -versus- …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Prabhu Prasanna Behera, ASC Mr. J. Sahoo, Sr. Adv. Along with Ms. Kajal Sahoo, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-07.04.2025 DATE OF JUDGMENT:-25.04.2025 Dr. S.K. Panigrahi, J. 1. In this Writ Petition, the Petitioner seeks a direction from this Court to set aside the order dated 04.07.2022 passed by the learned Additional District Judge, Salipur in F.A.O. No.74 of 2013, and to restore the confiscation order dated 29.08.2009 passed by the Licensing Authority. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: Page 1 of 14
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 (i) The Opposite Party (respondent in the original case) was operating a saw mill at Nemalo under the name M/s Tara Maa Concern. The license of the said saw mill was revoked on 08.04.2005 (Order No. 96) as the mill was found to be within 10 km of a forest area, violating norms under the Orissa Saw Mill and Saw Pit (Control) Act, 1991. Consequently, the saw mill was directed to cease operations. (ii) Based on confidential inputs, a joint raid was conducted by the Vigilance and Forest personnel on the unlicensed premises. During inspection: a. The saw mill motors were found in hot condition. b. Electricity connection was active and was immediately disconnected. c. 45 sawn timber pieces (Bada Chakunda) and 1 bag of sawdust were found near the band saw. d. 140 round logs and timber sawn sizes with a total volume of 970 cft were discovered. (iii) A seizure was made, and OR Case No. 218C of 2005–06 was registered under the Orissa Saw Mill and Saw Pit (Control) Act, 1991. (iv) The Range Officer, Cuttack conducted a detailed inquiry and submitted findings to Petitioner No. 1, who thereafter ordered confiscation of materials on 29.08.2009. The Opposite Party challenged this order before Petitioner No. 2, who remanded the matter back to the licensing authority for fresh hearing (Order dated 17.06.2013). Dissatisfied, the Opposite Party filed FAO No. 74 of 2013 before the Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 Additional District Judge, Salipur, contending violations of Section 13 of the Act. (v) The case was initially decided ex parte on 17.07.2015 by the 3rd Additional District Judge, Cuttack. Petitioners filed Review Petition No. 01 of 2016, which was allowed on 07.03.2020, setting aside the earlier ex parte order. Subsequently, the Additional District Judge, Salipur passed the impugned order on 04.07.2022, quashing the seizure and setting aside the orders dated 17.01.2006 and 29.08.2009. The present writ petition challenges this order. (vi) Electricity records showed continuous consumption even after license revocation (total of 14,289 units from April to December 2005, and 846 units in January 2006). This, according to petitioners, confirmed the illegal operation of the saw mill during the relevant period. (vii) Notices were issued to the proprietor and partner of the mill, but they did not cooperate during inquiry. Statements of witnesses, including electricity personnel and the caretaker (Salesman), indicated ongoing operation despite revocation. Range Officer’s findings and confiscation order were based on physical and documentary evidence. II. 3. (i) FINDINGS OF LOWER COURT: The Additional District Judge, Salipur passed an order on 04.07.2022. The findings of the Court is produced below: The Court undertook a critical examination of the raid process. It found procedural irregularities in how the seizure was effected: Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 a. No independent witness was present at the time of the raid, which casts doubt on the integrity and transparency of the procedure. b. There was no technical report or expert verification to substantiate the claim that the saw mill was operational at the time of the raid (e.g., based on the “hot” condition of the electric meter or freshly sawn timber). c. No requisition was made to the electricity department to verify meter status or power consumption. (ii) These lapses led the Court to conclude that the entire foundation of the seizure was flawed and lacked adherence to Section 100 of the Cr.P.C., which governs the legality of the search and seizure. (iii) The Court further held that the legal presumptions under Section 16 of the Act cannot operate in a vacuum. The statutory presumption that a saw mill is operational without a license must rest on a valid and lawful seizure. In the absence of procedural integrity, such presumptions are inapplicable, and the burden cannot be shifted to the accused to disprove illegality. (iv) The Licensing Authority was found to have mechanically accepted the version of the forest officials without any independent scrutiny or verification. The requirement to test the reliability of the seizure, particularly in light of conflicting claims by the appellant (that the timber was stored from earlier operations) was not fulfilled. The Court held that the Licensing Authority failed its duty to critically assess the material and procedural validity of the raid. Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 (v) The Regional Chief Conservator of Forests, while rightly identifying that the seizure and confiscation order was flawed, proceeded to remand the matter back to the Licensing Officer for fresh adjudication. . The High Court disapproved of this approach. It reasoned that once the foundational act of seizure itself is found defective, there can be no justification for remanding the matter for a rehearing. The Appellate Authority ought to have quashed the entire proceeding instead of reviving a tainted process. III. SUBMISSIONS ON BEHALF OF THE PETITIONER: 4. (i) Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: The impugned order dated 04.07.2022 is arbitrary, contrary to evidence, and not sustainable in law. The Court failed to appreciate critical materials and acted beyond its jurisdiction. (ii) The salesman admitted during seizure that the mill was operating, the motors were hot, and electric connection was in use. This was not duly considered by the learned Court. (iii) A local constable was present during the seizure, satisfying the requirement of independent witnesses under Section 100 Cr.P.C. The petitioners argue the Court ignored this legal compliance. (iv) Electricity meter readings and consumption patterns proved that the mill continued operations post-license revocation. Total electricity used was significant and could only be explained by continuous illegal activity. Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 (v) Proprietor and partner failed to appear during investigation despite repeated notices. Their delayed appearance and vague responses support the inference of non-compliance and suppression. (vi) Hearing notices were issued. Statements of key persons, including Range Officer and mill representatives, were recorded. All statutory requirements were followed before passing the confiscation order. (vii) Operation of the mill without a license and consumption of electricity post-revocation were in clear breach of Sections 4, 7, 11, 13, and 14 of the Orissa Saw Mill and Saw Pit (Control) Act, 1991. Additionally, it also led to violation of Rules 4 and 7 of the Orissa Saw Mill and Saw Pit (Control) Rules, 1993. IV. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 5. (i) The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: The raid and seizure were allegedly not conducted in accordance with Section 100 Cr.P.C., which is applicable through Section 8(2) of the Orissa Saw Mill Act. No independent witnesses were present; only members of the raiding party were listed as witnesses. (ii) No expert report was placed on record to establish that the motor was in a heated condition. No electric consumption bills conclusively proved active usage at the time of raid.
Legal Reasoning
(iii) Sri Bichitrananda Swain, a helper who took the meter reading, was allegedly unauthorized and not a seizure witness. His reading contradicted the “nil” reading stated by the Manager, CESCO, Salipur Electrical Division. 40 round logs were not seized, which the Opposite Page 6 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 Party claims disproves the allegation that they were used for sawing, as per Section 8(d) of the Act. (iv) The Opposite Party contends that no written notice specifying the grounds of proposed confiscation was served upon them, violating Section 13(2) of the Act. The licensing officer failed to conduct a proper and fair inquiry before issuing the confiscation order. (v) DFO’s finding itself stated that the machines were not in operation at the time of inspection, and conclusions were circumstantial. No proof of illegal electricity consumption was established beyond doubt. The helper’s participation in the raid was allegedly not requisitioned through proper authority, undermining the authenticity of the evidence. (vi) The Petitioners deliberately did not contest the appeal proceedings, and only filed a review after ex parte order, indicating malafide intent to harass the Opposite Party. It is contended that a writ petition against an order in a First Appeal against the Order (FAO) is not maintainable, and the remedy, if any, lies elsewhere. (vii) Due to pendency of this writ, the Opposite Party is denied the opportunity to be rehabilitated under the Government’s rehabilitation policy dated 30.07.2011, which allows relocation of saw mills in notified industrial estates. Petitioners raised, for the first time, issues regarding timber returns of 2003 (Mango and Teak inventory), which are unrelated to the seizure in 2006. Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 (viii) As per Rule 5 of the Odisha Timber and Forest Produce Transit Rules, 1980, no permit was needed for movement of Mango, Teak or Bada Chakunda , rendering the petitioner’s arguments on this issue moot. V. COURT’S REASONING AND ANALYSIS: 6. 7. Heard Learned Counsel for parties and perused the documents placed before this Court. The crux of the dispute lies in the fact that while the petitioners allege continued illegal operation of the saw mill post license revocation, supported by electricity usage and physical seizure, the opposite party challenges the very foundation of the raid as procedurally defective, thereby rendering the seizure and consequential confiscation orders unsustainable in law. 8. In assessing the legality and propriety of the raid and the consequent seizure, this Court is of the considered view that a holistic approach must be adopted. The object of forest and environmental legislation is to safeguard ecological resources from illegal exploitation, and any interpretation that disproportionately emphasizes technical lapses, to the detriment of substantive justice, would frustrate the very intent of such protective statutes. 9. The first ground of challenge pertains to the alleged absence of an independent witness during the raid, thereby invoking Section 100 of the Code of Criminal Procedure. The principal question that arises for determination before this Court is whether the presence of a local Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 constable as an independent witness is, by itself, sufficient to vitiate the entire process of seizure undertaken by the authorities. 10. The issue at hand is by no means unprecedented. It has surfaced in various judicial contexts and has been the subject of deliberation in numerous decisions. A notable instance is the decision rendered in Rohtash v. State of Haryana1, wherein the Supreme Court had occasion to examine similar contours of procedural compliance. The relevant excerpts of this case are produced below:
Decision
“Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon.” 11. The presence of a local constable, as placed on record, offers a reasonable assurance of procedural propriety. The insistence on a third-party civilian witness, in the context of forest enforcement actions often conducted in remote or semi-urban areas, cannot be interpreted with such rigidity as to invalidate the entire operation. The requirement of an independent witness is one of prudence and caution, not an inflexible mandate the breach of which would automatically vitiate the proceedings. 12. This is a recurring concern in criminal jurisprudence, wherein the testimony of a police officer acting as a witness is often viewed with 1 JT 2013 (8) SC 181 Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 skepticism. The Supreme Court directly addressed this apprehension in State (Govt. of NCT of Delhi) v. Sunil and Another2, shedding light on the evidentiary value of such testimony. The relevant excerpts are produced below: “We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy” 13. As regards the contention advanced by the Opposite Party that no expert report was adduced to establish the heated condition of the sawmill motors or to determine whether the sawing of timber was recent, this Court finds the argument to be technically correct in its formulation, but jurisprudentially misplaced in context. 14. The Orissa Saw Mills and Saw Pits (Control) Act, 1991 is a regulatory statute enacted with a preventive and welfare-oriented objective to curb illegal timber operations and protect forest resources. It is not a penal statute demanding the same degree of evidentiary rigor as required in criminal trials. The enforcement mechanism under the Act is grounded in administrative inspection and circumstantial observation rather than conclusive scientific proof. 2 (2001) 1 SCC 652 Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 15. At this juncture, it would be imperative for this Court to peruse the provisions of Section 8(2) of the said Act: “Section 8(2): The provisions of Section 100 of the Code of Criminal Procedure, 1973 shall, so far as may be, apply to any search or seizure under this section.” 16. The phrase “so far as may be” leaves the door open for flexibility in procedural adherence. The Court is of the opinion that strict insistence on expert verification of equipment conditions or independent scientific assessment is not mandated under the Act, nor is it feasible in matters involving sudden raids and seizures of clandestinely operating units. 17. The cumulative findings of the forest officers, namely, the presence of freshly cut timber, sawdust near the band saw, the detection of a running electricity connection, and the motors found in a heated condition, are sufficient circumstantial indicators of ongoing operation. These are not isolated or speculative, but form part of a coherent evidentiary narrative. It is relevant to note that electricity records demonstrated consumption of 14,289 units post revocation of license, further corroborating operational activity. 18. In this context, Section 16 of the Act assumes critical importance. It reads as follow: “(1)Where wood whether sawn or unsawn is recovered from a saw mill or saw pit for which no valid licence exists in accordance with the provisions of this Act or the Rules, it shall, until the contrary is proved, be presumed that the saw mill or saw pit was in operation, and the burden of so proving the contrary shall lie on the accused. Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 (2) Where, in any prosecution for an offence against this Act or the Rules, it is established that any wood declared unlawful was seized in the premises of a saw mill of a person, or at any site where sawing was being done, it shall, until the contrary is proved, be presumed that such person has contravened the provisions of the Act or the Rules, and the burden of so proving the contrary shall lie on the accused.” 19. Thus, once the seizure is lawfully made, the burden to rebut the presumption of illegal operation squarely falls on the sawmill operator. The argument that absence of an expert report negates the entire enforcement effort misconceives the object and structure of the statute. In matters involving the clandestine operation of sawmills, it is rarely practicable to obtain irrefutable technical proof. The law instead permits reliance on credible and circumstantial evidence presented by forest officials, provided such evidence forms a consistent and logical whole. 20. The electricity consumption data, spanning several months after the revocation of license, reveals usage to the tune of thousands of units. Such substantial consumption, left unexplained by the mill owner, lends strong credence to the allegation that the mill continued to operate unlawfully. The presence of 970 cubic feet of processed and unprocessed timber further corroborates the inference. While the Opposite Party contends that some logs were not seized, this does not dilute the fact that a significant quantity of illicit material was recovered. The burden then shifted on the proprietor to furnish Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 credible justification for the possession and location of such material, which was not done. 21. The Licensing Authority, in passing the confiscation order, recorded the statements of relevant persons, including electricity officials and the caretaker. Notices were served, and the proprietor was given an opportunity to be heard. The procedural safeguards under Section 13 of the Act, which require notice and hearing, were not demonstrably violated. The argument that no written notice of proposed confiscation was served is undermined by records that show the mill proprietor was aware of the proceedings and even participated through his representative 22. The lower appellate court, while noting procedural lapses, fell into error in treating those lapses as fatal to the entire confiscation proceeding. It is settled law that procedural irregularities must be weighed against the overall fairness and impact of the process. Where the enforcement action is founded on substantial evidence, mere formal defects, especially when they have not caused any demonstrable prejudice to the opposite party, should not render the entire action void. Courts must be wary of allowing minor procedural infirmities to become shields for those who have persistently defied regulatory frameworks. 23. Furthermore, the Regional Chief Conservator of Forests, having found the seizure process defective, ought not to have remanded the matter back for fresh adjudication. Once the foundational act of seizure is doubted, and the confiscation order set aside, any further proceeding Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 based on the same tainted material lacks legal legitimacy. However, this does not mean that the entire action of the forest authorities must be discredited. The proper course would have been to examine the overall circumstances of the case, the strength of the material available, and the conduct of the parties. 24. This Court is satisfied that the petitioners have presented cogent evidence of continuing illegal operation. The procedural deviations noted by the lower court do not, in the present context, vitiate the action taken. The findings of the confiscating authority are not based on surmise or conjecture, but on physical evidence, electricity consumption records, and statements of responsible functionaries. VI. CONCLUSION: 25. In light of the above, the order dated 04.07.2022 passed by the learned Additional District Judge, Salipur in F.A.O. No.74 of 2013, cannot be sustained. The same is hereby set aside. The confiscation order dated 29.08.2009 passed by the Licensing Authority stands restored. However, the Opposite Party shall have liberty to pursue statutory remedies, if available under law. 26. 27. The Writ Petition is allowed in the above terms. Interim order, if any, passed earlier stands vacated. Orissa High Court, Cuttack, Dated the 25th April, 2025/ (Dr.S.K. Panigrahi) Judge Page 14 of 14