Orissa High Court
Anatha Bandhu Mandal vs State Of Orissa And Others ... Opposite ... on 20 June, 2012
Author: C.R. Dash
Bench: L. Mohapatra, C.R. Dash
ORISSA HIGH COURT, CUTTACK.
W.P. (C) No. 22753 of 2010
Arising out of the order passed by learned District Judge, Sambalpur
in F.A.O. No.29 of 2010 confirming the order of confiscation passed
by the learned Authorized Officer-cum-A.C.F., Rairakhol Forest
Division under Section 56 of the Orissa Forest Act, 1972 in C.P.C.
No.10/09-10.
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Anatha Bandhu Mandal ... Petitioner
Versus
State of Orissa and others ... Opposite Parties
For Appellant : M/s. D.P. Dhal, K. Dash, S.K. Dash and
C.S. Dasparida.
For Respondent : Mr. Sangram Das, Addl. Standing Counsel.
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PRESENT:
THE HONOURABLE MR. JUSTICE L. MOHAPATRA
AND
THE HONOURABLE MR. JUSTICE C.R. DASH
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Date of Argument : 24.04.2012 Date of Judgment : 20.06.2012
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C.R. Dash, J.The present writ petition is directed against the appellate order passed by learned District Judge, Sambalpur in F.A.O. No.29 of 2010 confirming the order of confiscation passed by the learned Authorized Officer-cum-A.C.F., Rairakhol Forest Division under Section 56 of the Orissa Forest Act in C.P.C. No.10/09-10.
22. The facts relevant for disposal of this writ petition is as follows :-
On 23.08.2009 Forester Krushna Chandra Dalabehera and other forest staff were on their night patrolling duty. During such patrolling, they intercepted the truck bearing Registration No.WB- 33A-5229 near Khandadhipa Bridge on N.H.-42 at Rairakhol on suspicion that forest produces are being transported in the said truck. On checking, it was found that the truck was loaded with processed Kendu leaves covered with rice bran ('Kunda') and tarpaulin. The driver of the vehicle named Ajit Prasad and Helper named Chiranjit Patra could not produce any document or authority to substantiate the transportation of Kendu leaves. The truck along with the Kendu leaves was seized in presence of witnesses. On the basis of the aforesaid detection and report, Confiscation Proceeding in respect of the aforesaid vehicle and Kendu leaves under Section 56 of the Forest Act was initiated.
3. The present petitioner is the registered owner of the aforesaid truck bearing Registration No. WB-33A-5229. On receipt of notice, he appeared and participated in the proceeding. In course of the proceeding, prosecution examined four witnesses, out of whom P.W.1 Krushna Chandra Dalabehera is the Forester, who intercepted the vehicle found to be loaded with Kendu leaves and seized the same and P.W.2 is the Range Officer, Rampur. The present petitioner examined himself as O.P.W.1. On consideration of the materials on record, learned Authorized Officer passed order for confiscation of the 3 truck obliging the petitioner to move the learned District Judge, Sambalpur in appeal.
4. In appeal, the order passed by the Authorized Officer in the confiscation proceeding was challenged mainly on two grounds, viz., (1) there being no material before the Authorized Officer to show that the truck was transporting Kendu leaves to Sambalpur district from outside the district or from Sambalpur district to any other district, there was no ground for confiscation of the vehicle; and (2) there being flagrant contravention of Rule 4(2) of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offence) Rules, 1980 (for short "1980 Rules"), the entire proceeding before the Authorized Officer under Section 56 of the Orissa Forest Act is vitiated.
5. Learned District Judge, on consideration of the materials on record, found the aforesaid truck to have been engaged for commission of forest offence and held that the petitioner being the registered owner of the vehicle having not proved that the vehicle was involved in commission of the alleged offence without his knowledge or connivance or knowledge or connivance of his agent, his driver or the person in-charge of the vehicle and the provisions contained in Rule 4(2) of the 1980 Rules having been complied with, there is no infirmity in the impugned order passed in the Confiscation Proceeding.
6. Mr. D.P. Dhal, learned counsel for the petitioner relying on the case of Rabinarayan Sahu vrs. Forest Range Officer of Soroda Range & others, 2008 (II) OLR - 592 and the provisions 4 contained in Rules 3 and 4 of the 1980 Rules, strenuously contends that provisions of Rule 3 and 4 have not at all been complied with in the present case and in view of the law settled by this Court in Rabi Narayan Sahu's case (supra), the order passed by the Authorized officer and the appellate order passed by learned District Judge, Sambalpur suffer from jurisdictional error.
Learned Addl. Standing Counsel on the other hand taking us through the discussion in paragraph-7 of the impugned judgment, submits that there being no contravention of Rule 4(2) of the 1980 Rules, there is no justification for interference so far as the impugned orders are concerned. Learned Addl. Standing Counsel further submits that the provisions of 1980 Rules and some relevant provisions of the Act were not placed properly or were not at all placed before this Court at the time of argument in Rabinarayan Sahu's case (supra). Had those provisions been placed, the decision of the Court in that case would have been different.
7. This Court in Rabinarayan Sahu's case took into consideration the contention that provision of Sub-Rule (2) of Rule 4 of 1980 Rules was not complied with, and such a lapse was in derogation of the law settled by the House of Lords in the famous case of Taylor vs. Taylor, (1876) 1 Ch. 426. This Court, on consideration of the provisions contained in Rule 4 of 1980 Rules and the evidence obtained on record in the enquiry before the Authorized Officer held that Sub-Rule (2) of Rule 4 of 1980 Rules was not complied with in the case. Relying on the principles settled by Taylor vs. Taylor (supra) as adopted in India by different judicial 5 pronouncements, this Court held that if a thing is required to be done in a particular way, it should be done in that way by strictly complying with the requirement of law and failure to comply with such requirement was fatal. On the basis of the aforesaid rationale, this Court held that provision in Sub-Rule (2) of Rule 4 of 1980 Rules having not been complied with, the order of the Authorized Officer and the Appellate order impugned suffer from jurisdictional error as a consequence.
8. I am in respectful agreement with My Lords' view so far as the law settled by the famous Taylor vs. Taylor (supra) is concerned, and it is also a matter of agreement that such principle of law has been adopted in India as relied on by My Lords in Rabinarayan Sahu's case. When it is contended that some provisions of 1980 Rules and the Orissa Forest Act were not placed properly while addressing submissions in Rabinarayan Sahu's case, I feel persuaded to address those facts / provisions first to find out whether the court was assisted properly in reaching the conclusion.
9. The nomenclature of 1980 Rules is "The Orissa Forest (Detection, Enquiry and Disposal of Forest Offence) Rules 1980". Learned Addl. Standing Counsel submits that in view of placement of the word 'and' in between "enquiry" and "disposal of forest offence", the noun phrase "disposal of forest offence" is to qualify the word "enquiry" by reading the word 'and' as a conjunction. It is further submitted by learned Addl. Standing Counsel that there being provisions in the Orissa Forest Act, 1972 (in short "the Act") 6 investing power in any Judicial Magistrate of First Class to try the forest offences, there should not be any other mode of disposal of a forest offence except compounding besides trial. And, if the phrase "disposal of forest offence" in 1980 Rules is held to have qualified "enquiry", the enquiry contemplated or purported should be one for the purpose of compounding only, and as a consequence of non- compliance of any of the provisions of 1980 Rules, confiscation proceeding or trial which are independent of the compounding proceeding cannot be held to have been vitiated, and orders passed therein cannot further be held to have suffered from jurisdictional error.
Mr. D.P.Dhal, learned counsel for the petitioner submits that the 1980 Rules having enshrined particular procedures for enquiry keeping especially in view the stringency of consequence that is to visit an offender and the property seized, sacrosanct compliance of the provisions of the 1980 Rules is a must and non-compliance thereof strikes at the very root of the proceedings concerned.
10. For detection of any offence including a forest offence, no rule can be framed. Detection of any offence is always a matter of chance or endeavour by the detecting official. Detection of a forest offence, if taken as the causa sine qua non, it gives rise to different causes in a case where the accused is known and some different causes where the accused is unknown. For the purpose of the present case, we shall proceed to discuss the case where the accused is known. Chapter VIII of the Orissa Forest Act, 1972 ('Act' for short) 7 containing Section 55 AA to 74 prescribing "penalties and procedure"
is relevant for our discussion in the present case.
(i) DETECTION / SEISURE :
Section 56(1) authorises any Forest Officer or Police Officer to seize any forest produce together with all tools, chains, ropes, boats, vehicles or cattle used in committing any such forest offence when there is reason to believe that a forest offence has been committed in respect of any forest produce.
(ii) ARREST AND REPORT ABOUT SEIZURE :
According to Section 56(2) every officer seizing the property, except where the offender agrees in writing to get the offence compounded under Section 72, either produce the seized property before 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.
(emphasis supplied) Section 68(1) authorises any Forest Officer or Police Officer to arrest the offender, without orders from a Magistrate and without a warrant. Section 68(2) obligates the arresting officer to produce the arrestee within twenty four hours of such arrest before the nearest Magistrate. Section 69, which relates to power of a Forest Officer not below the rank of a Range Officer to release the arrestee on a bond authorises such Forest Range Officer to release the person arrested on bond when the offence committed by the person arrested is bailable. Such power of release on bond in case of bailable offence, 8 in the event of arrest by a police officer is obviously governed by the provisions of Code of Criminal Procedures and for that reason no such provision is there in the Forest Act so far as release on bond by a police officer is concerned.
(iii) ACTION AFTER SEIZURE AND ARREST :
So far as the seized property is concerned Section 56(2-a) vests jurisdiction in the Authorized Officer to order confiscation after following the procedures prescribed in Sub-Section (2-b) and (2-c).
Section 58 authorises the Magistrate to take measures as may be necessary for trial of the offender and disposal of the property according to law upon receipt of report of seizure under Sub-Section 2 of Section 56. But no such action by the Magistrate is required to be taken where the offence has been compounded.
(emphasis supplied)
(iv) DISPOSAL ON CONCLUSION OF TRIAL FOR FOREST OFFENCE OF PRODUCE IN RESPECT OF WHICH IT WAS COMMITTED :
According to Sub-section 3 of Section 56 the seized property is to be kept in the custody of a forest officer or a third party until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received.
Section 59(1) authorises confiscation on the basis of order passed otherwise than under Section 56.
Section 59(2) provides that the confiscation of tools, vehicles etc. may be in addition to any other punishment provided for the forest offence.9
Section 60 excludes the power of the Magistrate to order disposal of property on conclusion of trial if such property is the property of the Government or has been confiscated. On conclusion of the trial, the Magistrate is empowered only to deal with any other property which is not the property of the Government or has not been confiscated.
(emphasis supplied)
(v) Section 64 provides for vesting of confiscated property in the Government free of all encumbrances.
(vi) Section 71 provides for summary trial of certain forest offences under the Code of Criminal Procedure.
(vii) Section 72 deals with powers to compound of offences, the limitations so far as compounding of offence is concerned and the consequence of such compounding on the offender and the property seized.
11. If the word "disposal" is understood in its literal sense it would mean the act of disposing or dealing with something, the act or process of getting rid of something, the act of bestowing or assigning property etc. In the same literal sense "disposal of offence" would mean the process or method of dealing with the offence and the offender. As discussed supra, it is well settled in law that when confiscation proceeding deals with the properties seized, the methods regarding disposal of the offence whether by trial or by compounding or withdrawal deals with the offender. The provisions of the Orissa 10 Forest Act, discussed supra therefore, give rise to three parallel proceeding on detection of a forest offence. They are:-
(I) Trial by the Magistrate in accordance with the provisions of the Code of Criminal Procedure on filing of prosecution report by the Forest Officer empowered or charge-sheet by the empowered Police Officer; (II) Confiscation proceeding by the Authorized Officer in respect of goods / properties following the procedures prescribed in Sub-sections (2-b) and (2-c) of Section 56 of the Act or on production of the seized property by the police officer concerned or the Forest Official who is further required to file an offence report; (III) Compounding of offence after necessary enquiry on written option being filed by the accused.
The aforesaid consequences that follows on detection of a forest offence may be put in the following illustration :-
Prosecution Report Trial by Magistrate Conviction/acquittal Charge-sheet Detection of forest Offence Report Enquiry by Confiscation / offence Production authorized officer Release of property (by any Forest Officer of property.
or Police Officer).
Written option for Enquiry Compounding
compounding of offence /
Refusal to compound
12. As the discussion of different provisions of the Forest Act (supra) shows, the Magistrate has to wait till receipt of the 11 compounding order, if any, and he may proceed for trial only on receipt of information that the offence has not been compounded. The seizing forest officials are also not required to produce the property before the Authorized Officer, if the offender agrees in writing to get the offence compounded under Section 72 of the Act. The trial, according to the provisions of the Act, is dependent on compounding of offence and the Forest Officer seizing the forest produce is not at all required to produce the property before the Authorized Officer (which is the sine-qua-non for initiation of the confiscation proceeding) where the offender has agreed in writing to get the offence compounded under Section 72 of the Act. Such provisions in the Forest Act vest certain powers in the Forest Officer concerned, who has effected the seizure, but the said power is couched by limitation, as provided in Section 72 of the Forest Act. To elaborate my view, I may say, those forest offences, which have been excluded specifically by Section 72 of the Act cannot be brought within the fold of any compounding proceeding, in as much as the Act has consciously excluded those offences from being compounded. In view of such position, the Magistrate may not wait to take up the trial, if the offence alleged against the offender is not compoundable.
Similarly, the Forest Officer seizing the forest produce may not be obliged to ask for a written request from the accused to get the offence compounded, when the offence complained of is not at all compoundable. Three such offences have been mentioned in Section 72 of the Orissa Forest Act, which are not at all compoundable. We shall discuss the Sections later on, but the offence which are not compoundable are - (1) any forest offence under Section 66 or 67 of 12 the Forest Act; and (2) any offence, in committing which a vehicle has been used. At the cost of repetition, therefore, I feel persuaded to take the view that so far as the aforesaid offences, which are not compoundable are concerned, the Magistrate may proceed without waiting for any order of compounding and the officer, who has effected the seizure, has to produce the seized property before the Authorized Officer, even if a request in writing is made to get the offence compounded.
13. It is the submission of learned Addl. Standing Counsel that non-compliance of Rule 4(2) of 1980 Rules does not in any way affect the confiscation proceeding and if the provisions of the act would have been placed before this Court and if Hon'ble Court would have been assisted properly, different meaning would have been ascribed to the provisions of 1980 Rules.
14. Before proceeding further I feel persuaded to elaborate the nature of confiscation proceeding and how has this proceeding been viewed so far judicially. It is not a matter of dispute that confiscation is aimed against the goods/properties, which are tangible; it consists in condemnation of the goods/properties, whereas the trial is aimed against the person alleged to have dealt with the goods/properties (forest produce here) in contravention of the forest Act and Rules made thereunder. I may refer to a Constitution Bench decision of the Hon'ble Supreme Court in Maqbool Hussain v. State of Bombay, A.I.R. 1953 S.C. 325 in which confiscation aspect of the matter was examined in the context of Article 20(2) of the Constitution of India. The Hon'ble Apex Court in the aforesaid case 13 opined in paragraph- 16 of the judgment that though the Sea Customs Authorities can impose confiscation as one of the penalties, that is more in the nature of proceeding in rem than proceeding in personam, the object being to confiscate the offending goods, which were dealt with contrary to the provisions of the law in respect of which also an option has been given to the owner of the goods to pay in lieu of confiscation, such fine, as the officer thinks fit. In Divisional Forest Officer v. G.P. Sudhakar Rao, A.I.R. 1986 S.C. 328, Hon'ble Supreme Court was dealing with the power of the Authorized Officer given by the Andhra Pradesh Forest Act to confiscate goods in relation to which a forest offence had been committed. In paragraph- 12 of the judgment it was stated that the confiscation proceeding is distinct from trial before the Court and the power of the confiscation conferred on Authorized Officer was not dependent upon whether a criminal prosecution for commission of the forest offence has been launched against the offender or not. It is therefore clear from the aforesaid judicial pronouncements that the confiscation proceeding is independent of criminal prosecution against the offender and it aims at confiscation of goods / properties only.
15. The rules under our consideration is "The Orissa Forest (Detection, Enquiry and Disposal of Forest Offence) Rules, 1980".
"Disposal of forest offence" would literally mean the process or method of dealing with the offence or the offender. "Disposal of forest offence" does not embrace seized property, which is to be dealt with by the confiscation proceeding, which is independent of criminal prosecution as held by Hon'ble Supreme Court in D.F.O. v. G.P. 14 Sudhakar Rao's case supra. Taking the literal meaning of "disposal of forest offence", as premise, if we proceed to interpret the rule, the "rule of last antecedent" applied generally in matters of interpretation of statutes may be applied in the present case and applying the said rule the qualifying phrase "disposal of forest offence" would certainly refer to the preceding word "enquiry". The rule therefore relates to "enquiry" in connection with "disposal of forest offence" which has nothing to do with confiscation of property.
16. Before proceeding further to appreciate the contention advanced, it is beneficial to understand the offence which are compoundable. Section 72 of the Act provides for compounding of offences, which reads thus :-
"72. Power to compound of offences - (1) Any Forest Officer specially empowered in this behalf by the State Government may accept as compensation from any person who committed or in respect of whom it can be reasonably inferred that he has committed 2[any forest offence (other than an offence under Section 66 or Section 67 or an offence in committing which a vehicle has been used).]
(i) a sum of money not exceeding fifty rupees where such offence if of a trivial nature and involves forest produce the market value of which does not exceed twenty-five rupees.
(ii) a sum of money which shall not in any case be less than the market value of the forest produce, or more than four times such value as estimated by such Forest officer, in addition to the market value of the forest produce, where such offence 15 involves any forest produce which in the opinion of the Forest Officer may be released.
(iii) a sum of money which shall not in any case be less than the market value of the forest produce, or more than four times such value as estimated by such Forest officer, where such offence involves forest produce which in the opinion of the Forest officer should be retained by the Government :2
[Provided that no such offence as is referred to in Clause (ii) or Clause (iii) shall be compounded if the market value of the forest produce involved exceeds (five hundred rupees).
(2) On receipt of sum of money referred to in Sub-section (1) by such officer -
(i) the accused persons, if in custody, shall be discharged;
(ii) the property seized shall, if it is not to be so retained, be released; and
(iii) no further proceedings shall be taken against such person or property;
17. In the aforesaid section "or an offence in committing which a vehicle has been used" occurring in Sub-section (1) was inserted by Orissa Act 9 of 1983. Similarly the proviso to Sub-section (1) was substituted by the aforesaid Orissa Act 9 of 1983. The word "five hundred rupees" was substituted by Orissa Act 9 of 2011. But the aforesaid amendment touching the compoundability of offence was not brought into 1980 Rules though required. As on date therefore, in view of the proviso to Sub-section (1) to Section 72 no offence as is referred to in clause-II or clause-III shall be compounded if the market value of forest produce involved exceeds five hundred 16 rupees. Similarly no forest offence in committing which a vehicle was used is compoundable. The market value of forest produce being the basis for compounding such value is required to be assessed after giving opportunity of being heard to the person opting for compounding by the officer empowered to compound. The 1980 Rules has therefore been made to facilitate compounding of the offence (which is one of the mode of disposal of forest offence) by the Forest Officer empowered and it has nothing to do so far as confiscation proceeding is concerned. The scheme of the rules, as discussed below, does not in any way also embrace the trial by the Magistrate.
18. Rule 3 of 1980 Rules speaks of maintenance of the case records and reads as follows :-
"3. Maintenance of the Case Records -- (1) When a forest offence is detected and booked, it shall be dealt with in the manner hereinafter provided.
(2) The Forest officer who detects any forest offence under any of the provisions of the Act, shall draw a report in Form No.I which shall form a part of the case record.
(3) A list in duplicate of articles seized shall be prepared by the officer detecting the offence, in Form No.II and a copy of the seizure list shall be made over to the accused person, where the accused is known and his signature shall be obtained in the duplicate copy of the said seizure list. The duplicate copy of the seizure list shall form a part of the case record.17
(4) The report of seizure required to be made to the Magistrate under Sub-section (2) of Section 5 of the Act shall be in Form No.-III, and a copy of the report shall be retained in the case record when the report is so made."
Cursory reading of the aforesaid provision shows that the provision obligates the Forest Officer detecting the forest offence under any of the provisions of the act to draw a report in Form No-I which contains details like place of occurrence, date and hour of detection, name (s), parentage and residence of the offenders, information regarding property seized etc. The said Form-I is to form a part of the case record so far as disposal of forest offence under the 1980 Rules is concerned. Sub-rule (3) of Rule 3 which is alleged to have been contravened in the present case obligates the Forest Officer to prepare a list in duplicate in Form No-II of the article seized and making over to the accused person a copy of such seizure list on obtaining his signature in the duplicate copy thereof. The Sub-rule (3) of Rule 3 obligates preparation of seizure list in duplicate and obtaining signature of the accused there on the duplicate to facilitate simultaneous initiation of compounding proceeding as the original seizure list has to be sent to the Magistrate in compliance of Sub- section (2) of Section 56 of Act. Sub-rule (4) of Rule 3 obligates the seizing Forest Officer to report the Magistrate in Form No-III retaining a copy of such report in the case record. Form No-III is as follows:-
" FORM III [Vide Sub-rule (4) of Rule 3] To 18 MAGISTRATE Dated...........
Sir, I have the honour to report that on ....... (the date of occurrence I ............(name of the Forest Officer) seized the following property of ......... for an offence committed in a Reserve Forest Protected Forest punishable under ........ Section of the Orissa Forest Act, 1972.(1) (2) (3)
and I have reported the matter to the Divisional Forest Officer.
2. The offender agrees to compound the offence, and I am awaiting orders from the Divisional Forest Officer as to the same money he shall pay as compensation.
Yours faithfully STATION RANGE Ranger or Forester of Copy submitted to the Divisional Forest Officer with the report No...........dated ........
Ranger or Forester"
The aforesaid Form No-III shows that report is to be sent in an offence having committed in a Reserve Forest, Protected Forest punishable under certain Section of the Orissa Forest Act, 1972 and in para-2 factum of option by the offender to compound the offence and factum of awaiting the compounding order is intimated to the Magistrate. The report is in consonance with Section 58 of the Act as 19 the Magistrate has been obligated to take measure as may be necessary for trial of the offender if the offence is not compounded. If the Form No-III is read along with the provision of Sub-rule(4) of Rule 3, the report to the Magistrate is concerned with the offence under Section 27 of the Act, which relates to the Reserve Forest or under Section 37 of the Act, which relates to Protected Forest. The provision of Sub-rule (3) has therefore no application so far as disposal of offence by trial before the Magistrate or disposal of property through confiscation proceedings are concerned. The said Rule 3 if understood in its context speaks of maintenance of case record for the purpose of compounding and report is to be made to the Magistrate only under Section 58 of Act to obligate him to wait till passing of the compounding order.
19. Rule 4, which is the crucial rule for discussion in the 1980 Rules provides for enquiry, which reads as follows :-
"4. Enquiry - (1) When a forest offence is detected, a preliminary enquiry may be held by a Forester in charge of the section who shall forward his enquiry report along with the report in Form No.I to the Range Officer concerned, soon after his preliminary enquiry is completed:
Provided that no enquiry may be held by any such Officer if the accused who has committed a forest offence other than an offence under Section 66 of Section 67 of the Act agrees, and files a petition to that effect in Form No.IV to get the offence compounded under Section 72 of the Act and to pay compensation therefor. Such application in Form No.IV shall also form a part of the case record.20
(2) An enquiry into the forest offence shall thereafter be held by an officer not below the rank of a Range Officer.
(3) The enquiry report together with the case record shall be submitted to the Divisional Forest Officer by the Range Officer in all cases in which the Divisional Forest Officer is not competent to compound under Rule 7 and where the accused persons do not opt to compound the offence."
20. Before proceeding to deal with the aforesaid rule, it is to be borne in mind that forest offence may be detected by the Forest Officer or by Police Officer. Irrespective of detection by the authorities prescribed, Sub-rule(1) obligates the Forester-in-charge of the Section to conduct a preliminary enquiry and to forward his enquiry report along with the report in Form No-I (as discussed supra) to the Range Officer concerned, soon after his preliminary enquiry is completed. However, no such enquiry report under Sub-rule(1) of Rule 4 is required to be submitted, if the accused who has committed a forest offence other than an offence excepted in Section 72 files a petition to that effect in Form No-IV to get the offence compounded under Section 72 of the Act and to pay compensation therefore. Such application in Form No-IV is also a part of the case record referred to in Rule 3. Sub-rule (2) provides for an enquiry into the forest offence after the preliminary enquiry by the forest officer is over by an officer not below the rank of a Range officer. Sub-rule(3) obligates the Range Officer concerned to submit the enquiry report along with the case record referred to in Rule 3 to the Divisional Forest Officer in all cases in which the Divisional Forest Officer is not competent to 21 compound under Rule 7 and where the accused persons do not opt to compound the offence.
21. Rules 5, 6 and 7 of the 1980 Rules read as follows -
"5. Compounding the Offence - Every accused who agrees under Rule 4 to get the offence compounded shall immediately deposit in advance an amount as determined by the Forest Officer not below the rank of a Forester, towards the probable compensation within the meaning of Section 72 of the Act. On receipt of such amount the Forest Officer concerned shall issue a receipt in Form No. V duly signed by him;
Provided that the acceptance of any amount as aforesaid by the Forest Officer shall be without prejudice, decision that may be taken by the Forest Officer specially empowered under Section 72 of the Act having regard to the quantum of compensation in conformity with the Clauses (i) to (iii) of Sub- section (1) of the said section.
6. Release of Seized Property - Any forest produce seized from an accused shall not immediately be released on receipt of the amount of advance towards probable compensation under Rule 5 but shall be retained with the Forest Officer concerned until an order in this behalf is issued by the competent authority under Section 72 of the Act.
7. Compounding Order - Where the accused files the petition under Rule 4, the Forest Officer specially empowered under Section 72 of the Act may compound the case by passing an order in this behalf in Form No.VI. The Order shall, in all such cases, be communicated 22 to the accused immediately by or through the Range Officer, as the case may be."
22. Notification dated 27 May, 1983 vide No.11783 - 9F. Legal - 173/80 F.F.A.H. authorizes all the Divisional Forest Officers, all the Assistant Conservators of Forests attached to the territorial forest division and all the Range Officers in-charge of the territorial ranges of the State, to accept compensation in lieu of compounding of offences. Rule 5 of 1980 Rules, as quoted supra, authorises the Forest Officer not below the rank of a Forester to receive the compensation in advance in lieu of compounding, which is without prejudice to the compensation to be fixed by the compounding officer. Rule 6 authorises release of the seized property on the offence being compounded by the competent authority empowered under Section 72 of the Act. But such release of property is again subject to provision contained in Sections 60 and 72 of the Act. Rule 7 provides for the compounding order to be passed in Form No.VI, Rule 8 speaks of consequence of non-compounding when advance compensation had already been received, Rule 10 provides for time limit to pay the compensation amount, Rule 11 provides for prosecution of the offender, if he does not opt to compound the offence or the Authorized Officer empowered refuses to compound the offence, on submission of report to the Magistrate in Form No.VII along with the report in Form No.I. The entire rule, as found from its body, deals with the scheme of compounding of the offence. Therefore, the enquiry contemplated in Rule 4 is necessarily an enquiry for the purpose of compounding only and any defect in the enquiry has its 23 effect so far as compounding is concerned and it has no effect so far as the trial of the offender by the Magistrate or disposal of the seized property through confiscation is concerned.
23. The scheme of enquiry, as provided in the proviso to Rule 4(1), authorises the Forester not to submit his preliminary report to the Range Officer if the accused opts in writing to get the offence compounded. He is however required to submit a report to the Range Officer, who has further been obligated under Sub-rule (2) to conduct an enquiry where the accused does not opt before the Forester to get the offence compounded. The Range Officer under Sub-rule (3) is obligated to submit the enquiry report to the Divisional Forest Officer in all cases in which the Divisional Forest Officer is not competent to compound the offence under Rule 7 and where the accused persons do not opt to compound the offence. The following questions obviously come to mind on cursory reading of Rule 4.
(i) Why there is no necessity of enquiry by the Range Officer under Sub-Rule (2) of Rule 4, where the accused opts to get the offence compounded in course of preliminary enquiry by the Forester ?
(ii) Why there is necessity of submission of a report by the Range Officer to the Divisional Forest Officer in all cases in which Divisional Forest Officer is not competent to compound under Rule 7 and where the accused persons do not opt to compound the offence ?
24. So far as the first question is concerned, disposal of offence through compounding being the object of the Rule, 24 submission of preliminary report by the Forester to the Range Officer is required in a case where the accused does not opt to compound just to facilitate further action by the Range Officer to see that the accused comes forward for compounding the offence. For that reason, there is no necessity of an enquiry by the Range Officer under Sub-Rule (2) of Rule 4, where the accused has opted for compounding, because in that case the case record, as referred to in Rule 3, along with willingness of the accused given in writing in Form No.IV to get the offence compounded, has to be sent to the officer empowered to compound the offence to do the needful at his end. So far as the second question is concerned "in which the Divisional Forest Officer is not competent to compound under Rule 7" is to be read in conjunction with "where the accused persons do not opt to compound the offence". The competence of the Divisional Forest Officer to compound the offence has been wisely left to the discretion of the Divisional Forest Officer himself. The rule has obligated the Range Officer not to close the enquiry if the accused persons do not opt to compound solely on the basis of his wisdom that the Divisional Forest Officer is not competent to compound. Such provision has been made in the Rule especially in view of the fact that the basis of compounding being the market value of the forest produce seized, assessment of such price is left to the discretion of the officer empowered to compound and no other authority should take a decision whether the offence is compoundable or not. Sub-Rule (3) of Rule 4, if read with Sub-Rule (1) along with its proviso and Sub-Rule (2) thereof, would mean that if accused persons opt to compound the offence and file petition in Form No.IV thereof to get the offence compounded in course of the 25 enquiry by the Range Officer under Sub-rule(2), the Range Officer need not have to send the enquiry report under Sub-Rule (3), as he has to send the petition filed by the accused persons under Form No.IV to the empowered officer to take up the compounding proceeding at his end. Only in case where the accused persons do not opt to compound the offence, the Range Officer has to submit his enquiry report along with the case record in all cases, in which the Divisional Forest Officer is not even competent to compound under Rule 7, in as much as the competence to compound is to be adjudged by the empowered officer himself.
25. The entire scheme of 1980 Rules, which I have interpreted by applying "Rule of Last Antecedent" supra, applies to compounding proceeding alone and it has nothing to do so far as confiscation proceeding or trial by the Magistrate is concerned. If there is any defect in the enquiry under Rule 4, the same can be cured by providing opportunity to the offender concerned to get his offence compounded. But non-compliance of any rule cannot have the effect of vitiating the confiscation proceeding in respect of offence excepted by Section 72 of the Act. There cannot be any consequence beyond the effect a particular cause ensues. In that rationale, any order passed in confiscation proceeding cannot be held to have suffered from jurisdictional error for non-compliance of Rule 4 of 1980 Rules. Though I am in agreement with My Lords so far as the principle decided in the famous case of Taylor vs. Taylor (supra) is concerned, I do not feel persuaded to agree with the view of My Lord on the consequence of non-compliance of Rule 4 (2) of 1980 Rules, as held 26 by My Lords in Rabinarayan Sahu's case. Had the aforesaid provisions been placed before My Lords in course of argument in Rabinarayan Sahu's case, the conclusion on the consequence of non- compliance of Rule 4, as deduced by My Lords, would have perhaps been different.
26. Mr. D.P. Dhal, learned counsel for the petitioner urged for confiscation proceeding to be vitiated for non-compliance of Sub- Rule (2) of Rule 3 on the ground that signature of the accused was not obtained on the duplicate copy of the seizure list. In view of my discussions supra, such a contention merits no consideration. Learned Authorized Officer and learned Appellate Court having taken the view that the vehicle in question was involved in a forest offence, I do not find any justification to interfere with the impugned order on the ground of contravention of Rule 3 or Rule 4 of the 1980 Rules.
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C.R. Dash, J.
L. Mohapatra, J. The question raised before the Court is with regard to applicability of the provision contained in the Orissa Forest (Detection, Enquiry and Disposal of Forest Offence) Rules, 1980 so far as proceeding before the Authorized Officer under Section 56 of the Orissa Forest Act is concerned. In the case of Rabinarayan Sahu vrs. Forest Range Officer of Soroda Range and others reported in 2008(II) OLR-592, it was held that the provisions contained in the above 1980 Rules are not only applicable to the confiscation 27 proceeding before the Authorized Officer under Section 56 of the Orissa Forest Act but also the said provisions are mandatory and non- compliance thereof vitiates the proceeding under Section 56 of the Orissa Forest Act.
In paragraph-25 of the judgment in the present case, Hon'ble Justice C.R. Dash has held that the entire scheme of 1980 Rules applies to compounding proceeding alone and it has nothing to do so far as confiscation proceeding or trial by the Magistrate is concerned. I was a party to the judgment in the case of Rabinarayan Sahu (supra) and I respectfully disagree with the view taken by Hon'ble Justice C.R. Dash that the scheme of 1980 Rules only applies to compounding proceeding and has no application to either confiscation proceeding or to a trial by the Magistrate for the following reasons. Rule 4 of the 1980 Rules gives an option to an accused not to opt for compounding the offence and therefore Rule 8 of the 1980 Rules prescribes the procedure where cases are not compoundable. Rule 11 also provides that where the accused does not opt to compound the offence or the Forest Officer empowered refuses to compound the offence and for all cases under Sections 66 and 67 of the Act, the Divisional Forest Officer may forward the offence report in Form No.VII along with the report in Form No.I to the Magistrate having jurisdiction for prosecution of the offender. I therefore respectfully disagree with Hon'ble Justice C.R. Dash that 1980 Rules have no application to a trial by the Magistrate. There being no reference to a confiscation proceeding in the 1980 Rules, I am of the view that the question involved should be examined by a larger Bench.
28I therefore request Hon'ble the Chief Justice to refer the matter to a larger Bench or take the view of the third Hon'ble Judge on the question as to whether the above 1980 Rules have any application to the proceeding before the Authorized Officer under Section 56 of the Orissa Forest Act or not. This writ application be placed for hearing after a decision is taken on the above question of law either by larger Bench or after obtaining the view of third Hon'ble Judge.
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L. Mohapatra, J.
Orissa High Court, Cuttack.
The 20th day of June, 2012. /Parida & Biswal