Orissa High Court
Smt. Padamabati Lenka vs State Of Orissa And Anr. on 19 May, 2006
Equivalent citations: 102(2006)CLT65, 2006CRILJ3718, 2006(II)OLR109
Author: I. Mahanty
Bench: I. Mahanty
JUDGMENT A.K. Ganguly, J.
1. This writ application has been filed challenging the order dated 7.10.2005 passed by the Addl. District Judge (F.T.C.), Baripada, dismissing F.A.O. No. 8/23 of 2005. The said appeal was filed challenging an order dated 24.5.2005 passed by the Authorised Officer-cum-Asst. Conservator of Forests, Baripada Division, in O.R. Case No. 19-R of 2004-2005.
2. The material facts of the case are that the petitioner is the owner of Mahindra Pick Up Van having registration No. OR-1F/4229. The said Van was seized on 29.7.2004 by the forest authorities at P.W.D. Road (Rasgovindpur to Amarada) near Sarumulla. Pursuant to such seizure of the vehicle, a prosecution report was submitted by the Forester, Rasgovindpur section for initiation of confiscation proceeding under Section 56 of the Orissa Forest Act (hereinafter referred to as the 'Act').
3. The allegations of the opposite parties are that at about 1.00 P.M. on 29th July 2004 the said Van was seized with 450 bundles of Sal leaves weighing around four quintals by the officials of the forest department in the presence of the Executive Magistrate and a seizure list was prepared whereupon a prosecution report was submitted in respect of unauthorized carrying of Sal leaves by violating of the provisions of Sections 4, 12 and 14 of Orissa Timber and Other Forest Produce Transit Rules, 1980 (hereinafter referred to as 'O.T.O.F.T. Rules'). On the basis of such unauthorized transit of Sal leaves, which, according to the opposite parties, were forest produce, a case was initiated and the same was submitted by the Forest Range Officer, Rasgobindapur Range, Morada-ll to the Divisional Forest Officer, Baripada Division, Baripada, for trial under Section 56 of the said Act. The said case was numbered as O.R. Case No. 19-R of 2004-05. Accordingly, a show cause notice was issued by the Authorised Officer. At that stage a writ petition was filed by the petitioner before this Court bearing W.P.(C) No. 8872 of 2004. In the said writ petition a prayer was made for a direction to the authorities to release the seized vehicle of the petitioner. In the said writ petition seizure of the vehicle was challenged and one of the contentions which was raised in the said writ petition is that for the alleged transportation of Sal leaves no Timber Transit Permit is necessary in view of the provisions of Rule-2(1)(h) read with Rule 5(1) of the said Rules. The said writ petition was disposed of by a Division Bench of this Court oa5.10.2004. The learned Division Bench while considering the petitioner's case was pleased to dispose of the writ petition with a direction to the Authorised Officer-cum-Asst. Conservator of Forest, Baripada Division, Mayurbhanj to dispose of the confiscation proceeding within a period of two months from the date of receipt of a copy of their Lordships order provided that the petitioner files his reply to the show cause within a period of two weeks and effectively participates in the proceeding. The Authorised Officer was also directed to provide an opportunity of hearing to the petitioner and pass a speaking order.
4. Thereupon, the Authorised Officer passed an order dated 24th May 2005. By the said order the Authorised Officer directed confiscation of the said Van along with the seized 450 bundles of Sal leaves with the State under Section 56(2) of Orissa Forest Act, 1972. Prior thereto a contempt petition was filed by the petitioner before this Court on 15.4.2005 under Section 12 of the Contempt of Courts Act alleging that the Authorised Officer, the alleged contemnor, should be suitably punished for not disposing of the confiscation proceeding in terms of the High Court's order. The said contempt petition was however disposed of by a Division Bench on 6.6.2005 as not pressed.
5. Now in this writ application the petitioner challenges the order of the Addl. District Judge which confirmed the order of confiscation passed by the Authorised Officer.
6. The main ground of challenge in this writ application is that for transportation of dry Sal leaves no permit is necessary. It is also contended that the place of loading and the place of seizure is within the district of Mayurbhanj and as such, Section 56 is not applicable. The third point urged is that in the absence of knowledge of the owner, the dry leaves are carried by the driver, the confiscation proceeding cannot be sustained, in as much as an attempt is made to urge that the vehicle in question was hired by one Pradip Kumar Raul for transportation of husk from Rasgovindpur and the petitioner had categorically instructed the driver not to lift any objectionable goods. But despite such precautionary measure and opposition from the driver the said hirer loaded certain dry Sal leaves, since he could not get husk from Rasgovindpur village.
7. It may be noted in this connection that along with this writ petition neither the show cause notice issued in this case nor the petitioner's reply in the said show cause notice has been annexed. In the absence of those documents, the Court has to proceed on the basis of the facts recorded in the judgment of the Authorised Officer and also in the concurring judgment of the District Judge.
8. The Authorized Officer in his judgment has noted that the seizing officer appeared before his Court on 30.11.2004 and stated that on 29.7.2004 while he was returning from Saw Mill at Tambakhuri along with the Divisional Mobile Squad with A.P.R. and magistrate at about 1.00 P.M. he noticed along Rasgovindapur-Amarda Road, P.W.D road at Sarumula the said pick up Van was moving towards Amarda Road" loaded with Sal leaves. As such the vehicle was detained and the documents were demanded from the driver for verification. The driver and the co-passenger Sri Pradeep Kumar Raul, the owner of the Sal leaves could not produce any valid documents regarding purchase of Sal leaves loaded in the vehicle. As such, the goods were seized along with the vehicle and the driver and co-passenger were arrested. The Authorised Officer also noted that in the course of cross-examination by the owner of the vehicle the driver had stated that Pradeep Kumar Raul, owner of the Sal leaves was transporting Sal leaves from Bhuskunda of Deoli Range to Nalbahar of Balasore district. P.W.2, the Range Officer, Rasgovindapur, also confirmed the same by saying that Sal leaves were carried from Bhuskunda of Deoli range to Nalbahar of Balasore district violating the provisions of the said Rules. The driver was also examined. The driver stated that on 29.7.2004 he proceeded to Rasgovindapur along with Pradeep Kumar Raul to procure paddy husk from Rasgovindapur and then they were to proceed to Baripada for sale. But as the said Pradeep Kumar Raul failed to procure the paddy husk, he directed the driver to load 450 bundles of Sal leaves and to transport the same on the return trip to Nalbahar. The driver stated that he initially denied but due to pressure of Pradeep Kumar Raul he was compelled to load and transport Sal leaves without any permit. Pradeep Kumar Raul in his evidence admitted the commission of offence and stated that he asked the driver to load the vehicle against the driver's wish and he was unaware of the rules and regulations of the Forest Department for which the vehicle was seized. It was stated by him that neither the owner nor the driver was directly involved in the case. The petitioner also appeared before Authorised Officer and stated that on 29.7.2004 Pradeep Kumar Raul hired her vehicle for transportingpaddy husk from Rasgovindapur to Baripada and on the same day at 1.30 P.M. she got a phone call from Moroda that her vehicle has been seized by the Forest staff of Rasgovindapur Range while it was transporting Sal leaves without any valid documents. She accordingly, lodged a written complaint and requested that action may be taken against the culprit. The petitioner deposed before the Court that she had taken ample precautionary measure by initiating police action and also deposed that neither she nor the driver had directly or indirectly violated the Rules of Forest Department or are involved in committing any forest offence.
9. The Authorised Officer in view of the factual background of the case referred to Section 56(2-c) of the said Act and quoted the same in his judgment but the Authorised Officer has not come to any finding in the facts of the case that the said Section is not applicable. The Authorised Officer, on the other hand, held that the Sal leaves are forest produce under Section 2(g)(ii) (a) of the Act. Neither the driver nor the owner of the seized forest produce could produce valid documents in support of the ownership as well as transportation of seized materials while on transit. As such, they have committed forest offence for which the Authorised Officer registered a case against them for violation of Rules 4, 12 and 14 of O.T.O.F.T. Rules which is punishable under Rule 21 of the said Rule and as such, the Authorised Officer confiscated the vehicle and Sal leaves under Section 56(2-c) of the said Act.
10. When the appeal was filed the appellate authority also noted the argument which were mainly advanced before the such appellate authority. Those arguments are that the Sal leaves which were transported in the vehicle are not forest produce and the second argument is that in spite of necessary precaution the seized vehicle was engaged for transportation of Sal leaves without the knowledge and connivance of the appellant. But the learned appellate authority did not accept the said contention on the ground that a Station Diary Entry was lodged by the owner-appellant vide SDE No. 155 dated 8.8.2004 in Rupsa Police Station whereas the vehicle was seized on 29.7.2004. Therefore, it was lodged much after the seizure. The appellate authority also came to the conclusion that the driver of the vehicle came to know that despite his objection the hirer was loading the vehicle with Sal leaves which were objectionable items. But the driver did not intimate the owner instantly. Therefore, the appellate authority held that the driver of the vehicle failed to take reasonable precaution to stop the commission of offence. So far as the contention that the Sal leaves are not forest produce, the appellate authority relied on a decision of the Orissa High Court in O.J.C. No. 12626 of 2000 and referred to accept that contention.
11. In this case both the petitioner and the learned Counsel for the State have filed written notes raising almost all the contentions which have been noted above.
12. So far as the question, whether Sal leaves are forest produce or not, the matter requires a little deeper consideration by this Court.
13. Section- 2(g) of the Act deals with forest produce. Section-2(g) is divided into two Parts. Part-(i) and Part (ii). Part-(i), i.e. Section 2(g)(i) lists certain items as forest produce "whether they are found in, or brought from a forest or not." But so far as Part-(ii) is concerned, i.e., Section 2(g)(ii), certain items have been listed as forest produce but "they are forest produce only when they are found in or brought from a forest." Under this category i.e. in 2(g)(ii)(a) falls leaves.
It is a common ground that Sal leaves fall under Section 2(g)(ii)(a) of the said Act.
Therefore, Sal leaves 'per se' are not forest produce. They are forest produce only when they are found in or brought from a forest.
14. An argument was made by the petitioner before the authorities that it has not been proved by the prosecution that those Sal leaves which were seized along with the vehicle were found in or were brought from a forest. The argument has also been noted in the judgment of the appellate Court. But the said argument has been met by the Government side by relying on a judgment of this Court as referred to above. In view of that judgment, the appellate Court accepted the Government's argument that Sal leaves in this case are forest produce.
15. But this aspect of the case has not been properly appreciated by the appellate authority. The definition of the forest produce under Section 2(g) of the Act is an inclusive definition. For better appreciation of the points involved in this case, Sections 2(g)(i) and 2(g)(ii) of the Act are set out as below:
Section-2(g): "Forest produce" includes-
(i) the following whether found in, or brought from a forest or not, that is to say-
(a) timber, charcoal, caoutchouc, catchu, wood-oil, resin, nature varnish, bark, tussar cocoon, lac, gums, roots of Patal Garuda, Mahua flower, mahua seeds, myrabolans, kendu leaves, sandal wood, tamarind, hill-broom, siali leaves, siali fibres, sal seeds;
(b) wild animals and wild birds, skins, tusks, horns, bones and all other parts or produce of wild life; and
(c) such other produce as may be notified by the State Government; and
(ii)
(a) trees and leaves, flowers and fruits and all other parts or produce of trees not hereinbefore mentioned;
(b) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants;
(c) honey, wax and arrowroot
(d) peat, surface oil, rock, sand and minerals (including limestone, laterite, mineral oils and all products of mines or quarries.
16. A reading of the two parts of Section 2(g) of the said Act would make it clear that framers of the Statute have made a clear distinction between the class of items listed in 2(g)(i) and the items listed in 2(g)(ii). So far as the items under 2(g)(i) are concerned it is clear that those items are forest produce wherever they are found whether they are found in or brought from a forest or not. But items which are listed under 2(g)(ii), can only become forest produce when they are found in or brought from a forest but not otherwise. It is obviously true that the definition in Section 2(g)(i) of the Act about the forest produce is an inclusive and not an exhaustive one. The Government has been given liberty under Section 2(g)(i)(c) of the Act to include such other items as the Government may notify as forest produce. But this liberty is given to the Government only in Section 2(g)(i) but not in Section 2(g)(ii). So far as items falling under Section 2(g)(ii) are concerned, the definition is exhaustive.
17. It is no doubt true that in the context of a prosecution under the said Act the definition of forest produce assumes great importance and specially in the facts and circumstances of the case since Sal leaves find placed in 2(g)(ii).
18. There is a great deal of logic behind the differentiation of the items into two categories. If the nature of the items which are categorised in two clauses of Section 2(g) of the said Act are properly analysed, it will be clear that items which are categorised In 2(g)(i) are generically different from items which are categorised in 2(g)(ii). Sal leaves are found outside the forest in great abundance in the State of Orissa. The Sal leaves which are found outside the forest are collected by poor people and they are sold by them for their livelihood. By doing so they do not commit any forest offence inasmuch as such leaves are not collected in or brought from the forest. So any person who collects Sal leaves which are found outside the forest and does not bring leaves from the forest does not commit any offence.
The obvious intention of the definition clause under 2(g)(ii) is that leaves which fall inside the forest cannot be taken out of the forest, as that would deplete the forest. But from the very nature of things dry leaves are found outside the forest and such leaves do not come within the sweep of Section 2(g)(ii).
Admittedly the vehicle was intercepted on the main road and there is no allegation by the prosecution that the vehicle was carrying leaves which were collected from the forest.
19. The appellate authority in his judgment which is under challenge has relied upon a decision of this Court in the case of Muralidhar Sahu and 5 others v. State of Orissa and Ors. which is reported in 2003 (I) OLR 178. In paragraph-3 of the said judgment the learned Judges have quoted Section 2(g)(i) and 2(g)(ii) of the Act and came to the conclusion that Sal leave is a forest produce. This Court agrees with the said finding that Sal leave is a forest produce. But the question with which this Court is concerned in this case was not an issue in that case. In that case the question with which the Court was concerned was discussed in the opening paragraph of the judgment and from a perusal of the opening paragraph of the said judgment, it appears that validity of Clauses 6 and 7 of the Government order in the Forest and Environment Department communicated in letter No. 17811/F & E. dated 7.11.2000 was the subject matter of challenge in that writ petition. In this case we are not concerned with that question. The next question which was discussed in that case was whether leaf plates and leaf cups made out of Sal leaves change their character and whether it can be said that once Sal leaves are made into cups and plates they cease to be Sal leaves. In this aspect of the matter, the learned Division Bench held that even though from Sal leaves cups and plates are made by stitching Sal leaves with tags and once the tags are removed they turn out to be leaves. As such, the Court held that such cups and plates made of Sal leaves are forest produce. Therefore, the Court held that transit permit will be required for regulating transport of Sal leave cups and Sal leave plates outside the State and the Court held that Clause-6 of the Government order at Annexure-1 does not suffer from any vice or invalidity.
20. It is clear from the facts which have been stated above that the question with which we are concerned in this case, did not arise for consideration in the case of Muralidhar Sahu v. State of Orissa (Supra), Therefore, a point on which no decision has taken place cannot be cited as a precedent in the instant case. The difference in the definition of forest produce in Section 2(g)(i) and 2(g)(ii) of the Act was not noticed in that judgment. In paragraph-3 of the judgment the learned Judges have held that Sal leaves comes within the definition of forest produce when they are found in and brought from the forest. In this case nobody is disputing that when Sal leaves are found in and brought from the forest they are forest produce. Apart from that, in Muralidhar's case no question of prosecution was at all considered. But in the instant case validity of a confiscation proceeding is considered in the peculiar context of Section 2(g)(ii) of the Act. It is, therefore, clear that the issues are different in both the cases. So the decision in Muralidhar (Supra) is factually distinguishable.
21. In the case of Municipal Corporation of Delhi v. Gurnam Kaur, , a three Judges Bench of Supreme Court have dealt with the question of what is the binding effect of a decision. In doing so, the Supreme Court has quoted from Salmond on Jurisprudence and explained the concept of 'sub silentio'. The said concept is relevant in the instant case and as such this Court takes the liberty of quoting Salmond's treatment of the same concept:
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
22. Following the aforesaid principles enunciated in Salmond, and which has been approved by the Supreme Court, it is clear that the decision in the case of Muralidhar on the point that Sal leaves are forest produce cannot be said to be a precedent in the context of points which are discussed In the instant case. It is clear that the point with which the Court is concerned here was neither argued nor considered by the Court in Muralidhar (Supra). So following Salmond, this Court holds that the decision in the case of Muralidhar (Supra) is not an authority on the present point with which the Court is concerned namely, that unless Sal leaves are found in and brought from the forest they are not forest produce. In paragraph-12 of the said judgment in Gurnam Kaur (Supra) the Supreme Court held "Precedents sub silentio and without arguments are of no moment" and the Court further went on observing "Mere casual expression carry no weight at all. Not every passing expression of a Judge however eminent can be treated as an ex ca thedra statement, having the weight of authority". Following the aforesaid observations of the Supreme Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur, this Court feels that the decision in Muralidhar's case cannot be considered to be an authority on the question which is discussed in the instant case in the context of the confiscation proceeding under the said Act.
23. Similar observation was made by the Supreme Court in the case of M/s. Goodyear India Ltd. v. State of Haryana wherein at paragraph-34 the learned Judges held that "a decision on a question which has not been argued cannot be treated as a precedent".
24. Following the aforesaid principles, this Court is of the opinion that perception of the appellate authority on the question that Sal leaves are forest produce by following the decision in Muralidhar's case is not a correct decision in the facts of the case. This Court holds so having regard to the statutory distinction made in the definition of forest produce under Section 2(g)(ii) of the said Act.
25. In view of the discussions made above, Sal leaves seized from the petitioner's vehicle, cannot be treated as forest produce in the facts and circumstances of the case since it is not the prosecution allegation that the vehicle was loaded with Sal leaves from within the forest or that the Sal leaves were taken away from the forest.
26. A confiscation proceeding has quasi-criminal implications and confiscation is a penalty for an offence. A person loses his title and property in the confiscated goods and confiscation is a proceeding in rem. So in the context of such penal provision, the definition of Sal leaves calls for strict interpretation.
27. Thus the confiscation proceeding in this case cannot be upheld. Both the orders of the Authorised Officer and that of the appellate authority are set aside by issuing a writ of certiorari and the confiscation of the vehicle in question is set aside. The vehicle shall be returned to the petitioner forthwith.
The writ petition is, thus allowed.
In the facts and circumstances of the case, there will be no order as to costs.
I. Mahanty, J.
28. I agree.