Orissa High Court
Sk. Happizulla vs State Of Odisha And Another .... Opp. ... on 24 January, 2024
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No: 3282 of 2023
(Arising out of the order dated 28-06-2023 passed by Authorised Officer-
cum-A.C.F. Cuttack, (T) Division, Cuttack bearing confiscation
proceeding case no. 34/2021 arising out of O.R. Case No: 111 of 2021-
22, Tomka Range)
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Sk. Happizulla .... Petitioner
Ms. R. Das, Advocate
-versus-
State of Odisha and another .... Opp. Parties
Mr. S. Patra, ASC
P R E S E N T:
HONOURALE SHRI JUSTICE CHITTARANJAN DASH
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Date of Judgment : 24.01.2024
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Chittaranjan Dash, J.
1. Heard learned counsel for the Petitioner and the State.
2. By means of the present petition, the petitioner prays to quash the order passed by the Authorized Officer-cum-AFC Cuttack (T) Division Cuttack and release the seized truck bearing Regd. No: OD-04-7656 currently in Page 1 of 10 possession of Tomka Division under Confiscation Case No. 34 of 2021 arising out of OR Case No: 111T of 2021-2022.
3. The brief facts of the case are such that on 10-11-2021, the DPF forest Tomka division found one truck half loaded with iron ore and one JCB standing in starting position inside Tomka DPF for further loading the truck near Champajhara Biodiversity Park. The truck driver and the JCB operator along with other persons abruptly fled away from the spot leaving the vehicles there. The accused persons could not be apprehended because of the dark. The Forester Tomka Section conducted thorough search of the area and found 5 Tons (Approx) Iron ore has been loaded inside the truck bearing regd no.: OD-04K-7656. On verification of the cabin, both the JCB and truck did not have any legal documents/valid permits in supporting procurement and transportation of Iron ore. Also, no ownership document was traced out from both the vehicles during the search. In confirmation with the commission of forest offence, Sri Chitta Ranjan Biswal, Forester, Tomka Division seized the Truck (OD-14K-7686) having chassis no: MEC 2246 (LHP052159; Engine No: 400952D0052125) loaded with Iron ore of 5 tons (approx.) and the JCB Machine (bearing Regd No: OD-06J-8982 having chassis no: RAJ3D-XINA02898850; Engine no: H00279356) seen in standing position. Henceforth, the forester seized the vehicles and filed FIR No: 0205623/586; Dt: 10-11-2021 and the case is registered vide UD Case No: 9T of 2021-2022 for violation of section 37(1)(b)(c) of OFA 1972 (amended punishable under the same section of OFA Act, 1972) and for violation of 4-12 & 14 of Orissa Timber and other Forest Produce Transfer Rule 1980 and punishable under Rule 21 of the said Rule. Subsequently, he intimated the RTO, Chandikhol& Dhenkanal about the seized truck and JCB with their registered numbers to ascertain the identification of the registered owner of the seized vehicles. Accordingly Page 2 of 10 basing on the ownership details obtained from RTO, the owners of the concerned Truck and JCB respectively were liable to be the accused. Then, UD Case No. 9T of 2021-22 was converted into OR Case No.111T of 2021- 22 and declared as notified forest vide Notification No. 6898, Dt. 23.01.1956.In the meantime, the driver Kalim Khan of the seized truck who had escaped from the spot on the date of seizure, surrendered before the Forester on 02.12.2021 and his statement was recorded that he was illegally transporting Iron Ore being threatened by some other persons. The driver Kalim Khan was arrested by Forester, Kansa Section on 02.12.2021 at 01:30 PM and remanded to judicial custody. Subsequently, the driver of the seized JCB machine Sri Bhuban Mahanta, who had escaped from the spot on the date of seizure, surrendered on 02.12.2021 and his statement was also recorded admitting his guilt and expressed that he went to the spot as intimated by the JCB manager and was not aware thatthey were loading the Iron Ore on the truck illegally. He was also arrested soon after, the same day at 2:00 PM and remanded to judicial custody. Subsequently, confiscation proceeding was initiated vide C.P.C. No. 31 of 2021 and judgment by Authorized Officer-cum-A.C.F. Cuttack, (T) Division was pronounced on 28th June, 2023
4. Section 56 of the Orissa Forest Act, 1972 reads as -Seizure of property liable to confiscation:-
(1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.
(2) Every officer seizing any property under this section shall place, on such property a mark indicating that the same has been so seized and shall as soon as may be, except where the offender agrees in writing to get the Page 3 of 10 offence compounded, [1] [either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorized by the State Government in this behalf by notification (hereinafter referred to as the authorized officer) or] make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made:
Provided that, when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior and the Divisional Forest Officer.
[1] [(2-a) Where an authorized officer seizes any forest produce under sub- section (1) or where any such forest-produce is produced before him under sub-section (2) and he is satisfied that a forest offence has been committed in respect thereof, he may order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence.
(2-b) No order confiscating any property shall be made under sub-section(2-
a) unless the person from whom the property is seized is given -
(a) a notice in writing informing him of the grounds, on which it is proposed to confiscate such property;
(b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and
(c) a reasonable opportunity of being heard in the manner.
(2-c) Without prejudice to the provisions of sub-section (2-b), no order of confiscation under sub-section (2-a) of any tool, rope, chain, boat, vehicle or cattle shall be made if the owner thereof proves to the satisfaction of the authorized officer that it was used without his knowledge or connivance or Page 4 of 10 the knowledge or connivance of his agent, if any, or the person in charge of the tool, rope, chain, boat, vehicle or cattle, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use.
(2-d) Any Forest Officer not below the rank of a Conservator of Forests empowered by the Government in this behalf by notification, may, within thirty days from the date of the order of confiscation by the authorised officer under sub-section (2-a), either suo motu or on application, call for and examine the records of the case and may make such inquiry to be made and pass such orders as he may think fit:
Provided, that no order prejudicial to any person shall be passed without giving him an opportunity of being heard.
(2-e) Any person aggrieved by an order passed under sub-section (2-d) or subsection (2-d) may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property has been seized, and the District Judge shall after giving an opportunity to the parties to be heard, pass such order as he may think fit and the order of the District Judge so passed shall be final.] (3) The property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received.
[Provided that the seized property shall not be released during pendency of the confiscation proceeding or trial even on the application ofthe owner of the property for such release.]
5. In case of Sanjeev Mishra @ Sanjib Mishra Vs. State of Orissa; reported in 2006 (Supp-II) OLR-346 held that absence of knowledge on Page 5 of 10 the part of the owner by itself cannot get him out of the consequences flowing from the provisions contained in Section 56(2)(e) of the Act. Vehicle in question was involved in commission of a forest offence andrequirement of this section casts a burden on the owner to prove to the contrary and the findings arrived at by the Authorized Officer-Cum-A.C.F- Cuttack Forest Division clearly indicate that he was not satisfied by the evidence led by the owner.
6. In Guru Charan Singh Vs. State of Orissa, 2005 (Supp.) OLR 921, this Court held that in initiation of proceeding under Section 56 of the Orissa Forest Act, the department has to simply show prima facie materials indicating involvement of the concerned vehicle in a forest offence. If such onus is discharged by the Department, then the burden shifts on the owner of the vehicle to establish that he had no knowledge or connivance in commission of the forest offence and that he had taken all reasonable and necessary precaution against misuse of the vehicle by the driver or his agent. Once this was established and once the opposite party offered no evidence to show that he had taken reasonable and necessary precaution against use of the vehicle in any illegal work, the protection provided under sub-section (2-c) of Section 56 of the Act is not available.
7. In State of Orissa v. Kiram Shankar Panda, (1991) 71 Cut LT 157, held that if a forest offence is committed even with the knowledge or connivance of the driver of the vehicle, the vehicle would be liable for confiscation even though the owner might not have any knowledge or connivance. In that decision it was further pointed out that to escape the order of confiscation, it must be further proved that each of the concerned persons named, in Subsection (2-c) of Section 56 of the Forests Act had taken all reasonable Page 6 of 10 and necessary precaution against the use of the vehicle in respect of the commission of the forest offence.
Therefore, in absence of such materials, the learned authority below could not have come to such a conclusion for releasing the confiscated vehicle in favour of the opposite party.
8. If we look at the India Forest Act, 1972, the law has been settled by the Apex Court in a Special Leave Petition inState of Madhya Pradesh Vs. Rakesh Levaniya and Ors. that - Upon a seizure under Section 52(1), the officer effecting the seizure has to either produce the property before the Authorised Officer or to make a report of the seizure under sub-section (2) of Section 52. Upon being satisfied that a forest offence has been committed, the Authorised Officer is empowered, for reasons to be recorded, to confiscate the forest produce together with the tools, vehicles, boats and articles used in its commission. Before confiscating any property under sub- section (3), the Authorised Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. Where it is intended to immediately launch a criminal proceeding, a report of the seizure is made to the Magistrate having jurisdiction to try the offence. The order of confiscation under Section 52(3) is subject to an appeal under Section 52-A and a revision under Section 52-B. Subsection (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the CrPC and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate under sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (under Sections 52, 52-A and 52-B) shall have jurisdiction to pass orders with regard to possession, Page 7 of 10 delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub-section (1) of Section 52- C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized under Section 52, as provided in Section 61. Hence, upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted.........Protection of forests against depredation is a constitutionally mandated goal exemplified by Article 48A of the Directive Principles and the Fundamental Duty of every citizen incorporated in Article 51A(g). By isolating the confiscation of forest produce and the instruments utilised for the commission of an offence from criminal trials, the legislature intended to ensure that confiscation is an effective deterrent."
9. The Apex court has also reiterated that as an effective tool for protecting and preserving environment, these provisions must receive a purposive interpretation. For, it is only when the interpretation of law keeps pace with the object of the Legislature that the grave evils which pose a danger to our natural environment can be suppressed. The avarice of humankind through the ages has resulted inan alarming depletion of the natural environment. The consequences of climate change are bearing down on every day of our existence. Statutory interpretation must remain eternally vigilant to the daily assaults on the environment.
Page 8 of 1010. In the instant case, upon the commencement of confiscation proceeding the owner was even given an opportunity of being heard to contest the confiscation via notice from Divisional Forest Officer, Cuttack Forest Division and gave a notice to the petitioner on dated 23.12.2021 (Annexure
- 2) to show cause as to why the vehicle should not be confiscated within 10 days upon receipt of the notice but he filed the show cause on 15.03.2022.Relying upon the above case laws,in a proceeding under section 56 of the Act, the confiscation authority has to show prima facie materials indicating involvement of the concerned vehicle in a forest offence. If such onus is discharged by the Authority, then the burden shifts on the owner of the vehicle to establish that he had no knowledge or connivance in commission of the forest offence and that he had taken all reasonable and necessary precaution against misuse of the vehicle by the driver or his agent. In the present case facts / statement shows that the driver of the JCB had not reported about the fact to the proprietor of the JCB immediately out of fear but the proprietor contacted him and persuaded him to surrender before the Forest Authority Tomka and reveal the actual fact. This fact was not contested by the prosecution or disputed by the truck driver and owner. The prosecution also failed to prove that the JCB was actually used for loading or excavation inside Tomka DPF beyond any reasonable doubt, whereas, the petitioner could not satisfy the Authorized Officer-Cum-A.C.F-Cuttack Forest Division below that he had taken reasonable and necessary precaution against use of vehicle in any illegal work and also filed the show cause later than the time given to him. Thereafter, it was proved beyond all reasonable doubt that there is no involvement of the JCB operator, the agent, and the proprietor in this forest offence but the same was not done by the owner of the truck and hence, the protection provided under Sec. 56 Sub- Sec (2-c) could not be made available to the owner of the truck.
Page 9 of 1011. Hence, it can be concluded that the Authorized Officer-Cum-A.C.F- Cuttack Forest Division has not erred in his judgment to have confirmed the confiscation of the concerned truck to Government. There is no infirmity in the Judgment impugned passed by the Authorised Officer and the same being consistent with the fact and law is confirmed. The application accordingly being devoid of merit stands dismissed.
12. The CRLMC is disposed of accordingly.
(Chittaranjan Dash) Judge AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Designation: Sr. Steno Reason: Authentication Location: HIGH COURT OF ORISSA Date: 25-Jan-2024 12:03:46 Page 10 of 10