Orissa High Court
State Of Orissa Represented By ... vs District Judge And Ors. on 21 December, 1993
Equivalent citations: 1994(I)OLR296
Author: G.T. Nanavati
Bench: G.T. Nanavati
JUDGMENT
G.T. Nanavati, A.C.J.
1. The State has filed this petition challenging the judgment passed by the 2nd Additional District Judge, Berhampur in Miscellaneous Appeal No. 1 of 19S9. By the {impugned judgment, the learned Additional District Judge has set aside the order of confiscation of some logs/timber, which were found in illegal posse- ssion of opp. party No. 4, passed by the Authorised Officer-cum- Assistant Conservator of Forests, Ghumsur South Division.
2. On 7-1-1934, the Range Officer, Kodala, found forest produes such as teak sawn timbers, teak sawn planks, teak timbers., sal timbers, kasi logs, sisoo logs and sal and non-sal containing poles in the premises of opp. party No. 4 No hammer marks were found on the togs. On being called upon, opp. party No. 4 failed to produce any permit or document to show his lawful possession of the said forest produce. The Range Officer, therefore, seized the logs and initiated a proceeding against opp. party No. 4. Ha also made report of the seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure had been made. Thereafter, the Authorised Officer issued notice to opp. party No. 4 calling upon him to show cause as to why the goods seized should not be confiscated. Some witnesses were examined on behalf of the Department and some by opp. party No. 4. After considering the materials placed before him, the Authorised Officer pissed an order of confiscation of some of those logs. That order was passed on 30-8-1983. We are not referring to the earlier order passed by the Authorised Officer and the appeal filed against the same as that is not necessary for the purpose of this petition.
3. What was urged before the learned Additional District Judge was that in view of Section 56 of the Orissa Forest Act, it was not open to the Authorised Officer to pass an order for confiscation as it was only the Magistrate to whom the seizure was reported who could have passed such an order. It was also urged that there was no sufficient material to show that opp. party No. 4 had illicitly felled or acquired timber without any permit. It was also contended that during the course of inquiry, opp, party No. 4 was not given reasonable opportunity to lead evidence. The learned Additional District Judge accepted all the above contentions and allowed the appeal.
4. What is urged by the learned Government Advocate is that the learned Additional District Judge has not appreciated the correct position of law and, therefore, the impugned judgment suffers from error of law apparent on the face of the record. Ha also submitted that no reason whatsoever has been given by the learned Additional District Judge for taking the view that opp. party No. 4 was not given reasonable opportunity to lead evidence.
5. In our opinion, there is much substance in the contentions raised by the learned Government Advocate. Section 56 of the Orissa Forest Act (for short "the Act") authorises any forest officer to seize any forest produce in respect of which he has reason to believe that a forest offence has been committed. Sub-section (2) of that section requires that the forest officer should either produce the property seized before an officer not below the rank of an Assistant Conservator of forests authorised by the State Government in that behalf or make a report of the seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Section 57 gives power to release the property seized Under Section 56. This power is available to him even when a report regarding seizure has been made to the competent Magistrate. Sec 58 provides for the action to be taken by the Magistrate after he receives the report made Under Section 56. In short, it requires the Magistrate to take steps for the trial of the offender and disposal of the property according to law. Under Section 59, all timber or forest produce which is not the property of the Government and in respect of which a forest offence has been committed is made liable to confiscation unless an order of confiscation has already been passed in respect thereof Under Section 56. Such confiscation may be in addition to any other punishment provided for such offence. The scheme disclosed by the sections is that in so far as a forest offence is concerned, it has to be tried by the Magistrate having jurisdiction to do so; and at the end of the trial, he can also pass an order of confiscation. At the same time, the Authorised Officer can also proceed further with the confiscation proceeding and pass an appropriate order in that behalf. Therefore, it will not be correct to say that once a report of seizure is made to the Magistrate, the Authorised Officer thereafter cannot pass an order of confiscation.
6. This Court in Sarat Kumar Malu v. State of Orissa, 57 (1984) CLT 381. has held that when any forest produce together with the vehicle used in committing any forest offence is seized by any forest officer in exercise of his powers Under Section 56 of the Act, the power to release the property seized lies with the authorities prescribed in the four corners of the provisions of the Act and not with a Magistrate in exercise of his powers under the provisions of the Code of Criminal Procedure. The Supreme Court in Divisional Forest Officer v. G. V. Sudhakar Rao, AIR 1986 SC 328, in dealing with the relevant sections of the Andhra Pradesh Forest Act, has held as under :
"The change in the law in 1976 was brought about with a view to prevent the growing menace of ruthless exploitation of Government forests by illicit felling of teak and other valuable forest produce by unscrupulous traders, particularly from the reserved forests by providing for a machinery for confiscation of illegally felled trees or forest produce by the Forest Authorities. The intendment of the Legislature in enacting Act 17 of 1976 was to provide for two separate proceedings before two independent forums in the Act, one, for confiscation by a departmental authority exercising quasi-judicial powers conferred under Sub-section (2-A)of Section 44 of the goods forming the subject- matter of the offence, and the other for the trial of the person accused of the offence so committed. There is no conflict of jurisdiction as Section 45 of the Act as amended by the Amendment Act, in terms, curtails the power conferred on the Magistrate to direct confiscation of timber or forest produce on conviction of the accused. The conferral of power of confiscation of seized timber or forest produce and the implements, etc.. on the Authorised Officer under Sub-section (2-A) of Section 44 of the Act on his being satisfied that a forest offence has been committed in respect thereof, is not dependent upon whether a criminal prose- cution for commission of a forest offence has been launched against the offender or not. It is a separate and distinct proceeding from that of a trial before the Court for commission of an offence Under Sub-section (2-A) of Section 44 of the Act, where a Forest Officer makes a report of seizure of any timber or forest produce and produces the seized timber before the Authorised Officer along with a report Under Section 44 (1), the Authorised Officer can direct confiscation to Government of such timber or forest produce and the implements, etc , if ha is satisfied that a forest offence has been committed, irrespective of the fact whether the accused is facing a trial before a Magistrate for the commission of a forest offence Under Section 20 or 29 of the Act."
7. in view of the provisions of law and the authorities cited above, the view taken by the learned Additional District Judge must be regarded as erroneous.
8. The learned Additional District Judge also committed an error in applying the principle laid down in Sidheswar Panda v. State of Orissa AIR 1954 SC16 and allowing the appeal on that ground-in this case, the Forest Department had examined some witnesses. Relying upon their evidence and also on the circumstance that opp. party No. 4 was found in possession of huge quantity of logs and timber and that those logs and timber did not hear the hammer mark of the Department, the Authorised Officer recorded a finding that opp. party No. 4 was in illegal possession of the said forest produce. He did not record the finding merely on account of the failure of opp, party No. 4 to explain satisfactorily his possession of the said forest produce. The fact that opp. party No. 4 could not produce any permit showing his lawful possession of the said forest produce was utilised only as a circumstances along with other materials. The learned Additional District Judge has totally overlooked these aspects and has erroneously come to the conclusion that the order of confiscation was passed because opp. party No. 4 failed to satisfactorily explain his possession of the said forest produce.
9. As stated earlier, one more ground given by the learned Additional District Judge is that opp. party No 4 was not given reasonable opportunity to lead evidence, The learned Judge has not specifically stated as to which evidence opp. party No. 4 wanted to produce and which he was not permitted to do. In fact, no reason whatsoever has been given by the learned Additional District Judge for recording such a finding. Opp party No. 4, in fact, examined some witnesses and there is noting on record to show that he wanted to produce further evidence and was prevented from doing so, Even before us also the learned Advocate appearing for opp. party No. 4 could not state which evidence his client wanted to produce and which was not allowed to be produced.
10. For the reasons stated above, we allow this petition, set aside the the judgment passed by the Second Additional District Judge in Misc. Appeal No. 1 of 1989 and restore the order passed by the Authorised Officer. The rule is made absolute accordingly with no order as to costs.
K.C. Jagadeb Roy, J.
I agree.