Orissa High Court
M/S.Agrawal Graphite Industries & ... vs Authorised Officer-Cum-Assistant ... on 15 May, 2019
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.4377 OF 2010
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
M/s.Agrawal Graphite Industries & another : Petitioners
-Versus-
Authorised Officer-cum-Assistant Conservator
of Forests, Khariar Division & others : Opp. Parties
For petitioners : M/s.K.K.Jena & D.Mohanaty
For O.Ps. : Sri U.K.Sahoo,
Additional Standing Counsel
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of hearing : 30.04.2019 & Date of Judgment : 15.05.2019
Biswanath Rath, J. This writ petition involves a challenge to the
judgment and order dated 28.1.2010 passed by the Additional
District Judge, Nuapada in Misc. Judl. Appeal No.5/2008
confirming the order dated 17.11.2008 passed by the Authorised
Officer-cum-Assistant Conservator of Forests in the Confiscation
Proceeding in O.R. No.02Kh of 2006-07 C.P. No.6 of 2006-07.
2. Short background involving the case is that on
receipt of information from reliable source, concerned Forest Guard
proceeded towards Bichhinapali (Nehena) Village and performed
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night patrolling duty on 16.4.2006 at about 10 p.m. Finding moving
of a dumper truck bearing Regn. No.OSS-1461, he stopped the
truck/dumper, checked, verified and found that 16 numbers of
Teak logs equivalent to 0.5124 Cu.M. were loaded along with
Graphite in the truck. The Forest Guard finding forest produce
loaded in the truck asked the driver to produce valid permit in
relation to the loaded Teak logs, the driver failing to produce any
document told the Forest Guard that the forest produces were
loaded by one Hero Kumar Bag and he had no valid permit for the
said transportation. Consequently, the vehicle and the forest
materials were taken into custody along with the truck dumper. The
truck and the driver along with the materials were brought to the
Range Office compound. Consequently, OR No.2kh of 2006-07 was
registered for alleged violation of the provisions of Section 37 of the
Orissa Forest Act, 1972, Rule 21 of the Orissa Timber and Other
Forest Produce Transit Rules, 1980 read with Section 56 of the
Orissa Forest Act, 1972. The case was handed over to the Forester
of Khariar Section with intimation of seizure to the Judicial
Magistrate First Class, Khariar and also to the Divisional Forest
Officer, Khariar Division by the Range Officer, Khariar Range. The
Forester on preliminary enquiry submitted his enquiry report to the
Range Officer. Thereafter the Range Officer submitted the case
record along with his supervisory enquiry report, vide Memo No.528
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dated 24.7.2006 for necessary trial of the case under Section 56 of
the Orissa Forest Act to the Authorised Officer-cum-A.C.F., Khariar
Forest Division. As the case was required to be tried under Section
56 of the Orissa Forest Act, 1972 for violation of Rules 4 & 21 of the
Orissa Timber and Other Forest Produce Transit Rules, 1980, the
trial was undertaken by the Authorised Officer-cum-A.C.F., Khariar
Division. On notice in the Forest Offence Case, the owner appeared
and filed show cause. This apart, the owner was also examined as a
witness and cross-examined. Similarly, the Forest Department also
produced copy of the report and copies of the statements recorded
during preliminary enquiry. This apart the Forest Department also
examined their witnesses and produced their documents in
satisfaction of their case. Based on the materials available on record
and the pleadings of the respective parties, the Authorised Officer-
cum-A.C.F., Khariar Division by final order dated 17.11.2008
concluded the proceeding observing that there has been
commitance of forest offence under Section 33 of the Orissa Forest
Act and Rules 4 & 21 of the Orissa Timber and Other Forest
Produce Transit Rules, 1980 with involvement of truck dumper
bearing Regn. No.OSS-1461 with full knowledge and consent of the
driver in-charge of the vehicle and accordingly directed for
confiscation of the truck/dumper along with 16 numbers of green
Teak logs to be confiscated to State releasing thereby the Graphite
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loaded with due permission in the truck/dumper involved in favour
of the rightful owner further also recommended the case to the
Judicial Magistrate First Class, Khariar for trial involving Hero
Kumar Bag and the driver for appropriate action for their criminal
involvement in the offence.
On Appeal, the Appellate Authority hearing the
rival contentions of the parties and taking into account the grounds
raised in the Memorandum of Appeal, vide his judgment dated
28.1.2010 dismissed the Appeal while confirming the order passed
by the Authorised Officer-cum-A.C.F., Khariar Division.
3. Assailing the impugned judgment and order, Sri
K.K.Jena, learned counsel for the petitioners on reiteration of the
grounds taken in the Memorandum of Appeal contended that the
impugned judgment and order suffer on account of the following :-
I) Even though the Authorised Officer in the order
dated 17.11.2008 mentioned that he has perused the statement of
twelve persons recorded in the confiscation proceeding but in fact
as per the order-sheet of the proceeding file, it appears, there has
been recording of statement of five witnesses only and alleged that
the impugned order suffers on account of such wrong recording.
There is appreciation that there might be utilization of statement of
seven persons being manufactured subsequently and utilised
against the petitioners to their prejudice.
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II) The judgment impugned also suffers on
account of non-consideration of this ground by the Appellate
Authority.
III) There is no report in Form No.1 submitted by
the Forester concerned after conducting preliminary enquiry.
IV) The Authorised Officer should have held the
proceeding in terms of mandatory provision of Rule 4(2) of the
Orissa Forest (Detection, Enquiry and Disposal of Forest Offence)
Rules, 1980.
V) Non-compliance of the mandatory provision
makes the proceeding suffered and has drawn the support of the
decision of the Hon'ble apex Court in Ramchandra Keshav Adke
(Dead) by Lrs. Vrs. Govind Joti Chavare & others : AIR 1975 SC
915 and Rabinarayan Sahu vrs. Forest Range Officer of Soroda
Range & others : 2008 (II) OLR-592.
VI) The judgment and order also suffer for non-
consideration of the statements of Dukhu Dip and Bhajaman Majhi,
who have categorically stated that the wood materials were loaded
in the dumper on being threatened by Hero Kumar Bag.
VII) For no sufficient material statement of Hero
Kumar Bag on payment of Rs.300/- to the driver for transportation
of the logs so seized could not have been taken into account.
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VIII) The judgment and order impugned also
suffer on account of perversity as well as non-consideration of vital
contradictions.
IX) The judgment and order are based on
interested witnesses.
X) There has been no material to establish that
the vehicle involved in the offence had the consent of the owner. The
owner has neither been noticed nor was any enquiry conducted to
know the name of the owner of the vehicle before confiscating the
vehicle. There has been no material that the offence has been
committed with knowledge and consent of the driver.
XI) The judgment and order also suffer for not
taking into consideration the offence involved a material worth
paltry sum of Rs.3000/-.
XII) The judgment and order also suffer for
violation of principle of natural justice.
XIII) The fact that the driver has taken all
precautions for avoiding the transportation and that the
transportation was under a threat have not been properly viewed
either by the Assistant Conservator of Forest or the Additional
District Judge.
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XIV) The fact that the action involved was not
intentional and could not be properly viewed either by the Original
Authority or the Appellate Authority.
XV) There has been non-consideration of
judgments cited by the learned counsel for the petitioners before
both the forums.
XVI) Since the finding of the Authorised Officer
that Hero Kumar Bag was transporting the alleged forest produce
without valid permit, there was no occasion on the part of the
Appellate Authority to confirm the view of the Authorised Officer for
confiscation of the vehicle involved.
XVII) Learned counsel for the petitioners lastly
contended that the finding on availability of Form No.1 by the
Appellate Authority in paragraph-9 is perverse and not borne out
from the record.
4. Sri Jena, learned counsel for the petitioners
further taking this Court to two decisions one from the Hon'ble apex
Court in Ramchandra Keshab Adke (Dead) by Lrs. Vrs. Govind
Joti Chavare & others : AIR 1975 SC 915 and other of this Court
in Rabinarayan Sahu vrs. Forest Range Officer of Soroda
Range & others : 2008 (II) OLR-592 submitted that for the
application of the above decisions to the case of the petitioners, the
writ petition should succeed.
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5. Sri U.K.Sahoo, learned Additional Standing
Counsel for the opposite parties on the other hand producing the
record involving the case and taking this Court to the details of
documents including the reports at different stages, Form No.1 and
other forms available on record, further taking this Court to the
statement recorded during continuance of the proceeding before the
Authorised Officer, the statements recorded during preliminary
investigation as well as initial investigation by the Forester and the
subsequent investigation by the Forest Ranger, the report from the
concerned Police Station regarding non-submission of any F.I.R. as
claimed by the owner, the contradictions in the statement of the
witnesses produced by the owner, the substance available from the
statement produced by the Forest Authorities, non-examination of
the driver, the most vital witness, non-production of F.I.R., on
which much reliance has been placed by the owner involving the
allegation of threat to the driver of the vehicle by the owner, the
discussions of the A.C.F. and the A.D.J. involving the original
proceeding and the appeal proceeding contended that there is no
infirmity in either of the orders and both the orders as well as the
judgment impugned herein are well supported with the reasoning
leaving any scope for interfering in the same. Taking this Court to
the materials available on record, the observations of both the
original authority as well as the appellate authority, Sri U.K.Sahoo,
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learned Additional Standing Counsel for the opposite parties while
opposing each of the grounds raised by the learned counsel for the
petitioners attempted to justify both the judgment and order. Sri
Sahoo taking this Court to the citations relied on by the learned
counsel for the petitioners and the discussions in both the decisions
rather claimed that the decisions have support to the case of the
opposite parties. Sri U.K.Sahoo, learned Additional Standing
Counsel ultimately submitted that for the nature of offence in the
event there is interference in such order, situation will add to
increase in such type of offence.
6. Taking into account the submissions made by
both the Counsel for respective parties and the points raised herein
in challenging the judgment and order involved herein, this Court
from the materials available on record finds, the date of occurrence
is 16.4.2006. The story involved goes to show that the Forester
while remaining in patrol duty stopped the vehicle involved at 10
P.M. on 16.4.2006, checking the vehicle found 16 numbers of Teak
logs loaded along with Graphite asking the driver to produce valid
permit, the driver failed in producing the same. The driver with
regard to loaded Teak logs told to the Forest Guard that the logs
were loaded by Hero Kumar Bag, who was also sitting in the truck.
For non-production of valid permit either by the driver or Hero
Kumar Bag, the Forest Guard prepared the seizure list obtaining
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signature of the driver and submitted the seized materials with the
vehicle to the Range Office along with report is prepared during
process of investigation at his level. The Range Officer apart from
intimating the fact to the Judicial Magistrate First Class, Khariar
and the Divisional Forest Officer, Khariar Division submitted the
case record along with the supervisory enquiry report and the
enquiry report of the Range Officer to the Authorised Officer-cum-
A.C.F., who ultimately registered the forest offence case, tried under
Section 56 of the Orissa Forest Act for violation of offence under
Rules 4 & 21 of the Orissa Timber and Other Forest Produce Transit
Rules, 1980. The A.C.F. on registration of the case issued notice to
Bipin Nayak, driver of the seized truck and Ramesh Kumar Mishra,
General Manager of Agrawal Graphite Industries, the
owner/custodian of the vehicle involved.
It is at this stage, looking to the allegation of Sri
Jena, learned counsel for the petitioners that there has been non-
compliance of provision of law and non-compliance of principle of
natural justice, this Court from the provision under the Orissa
Forest (Detection, Enquiry and Disposal of Forest Offence) Rules,
1980 finds, the proceeding being followed in the matter of forest
offence involving Orissa Timber and Other Forest Produce Transit
Rules and also finds, there is a clear bar for transportation of item
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materials classified except the items notified in Rule 5 therein and
all other forest produce removal of which requires a transit permit.
7. Now coming to the enquiry required involving any
forest offence being committed under the provision of 1980 Rules,
the Orissa Forest (Detection, Enquiry and Disposal of Forest
Offence) Rules, 1980 requires an enquiry in terms of Rule 4, 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.1 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 or 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 there for. Such
application in Form No.IV shall also form a part of the case
record.
(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 in
the offence."
Reading the aforesaid Rule, it appears, when the
forest offence is detected, a preliminary enquiry may be held by the
Forester and he has to forward his enquiry report along with Form
No.1 and such format is very much available in the record.
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Secondly, the preliminary enquiry by the Forest
Authority, by enquiring into the forest offence by an Officer not
below the rank of Range Officer, which is also being complied with
as per the records available and disclosure in the order of the
Authorised Officer and the third criteria is the enquiry report
together with the case record shall be submitted to the D.F.O. by
the Range Officer. For the notification, the power of the D.F.O. has
also been vested in the Authorised Officer-cum-A.C.F. It is for the
above, this Court finds, there is no violation of the statutory
provision involving the case.
8. Coming to the question of natural justice, from
the complain of natural justice as recorded earlier, this Court finds,
the Forester has recorded the statement of the driver, Bipin Nayak
and Hero Kumar Bag being the custodian of the wood being
transported in the vehicle involved and other witnesses available on
spot. This apart, after the case is forwarded to the A.C.F., it also
appears, notices have been issued to Bipin Nayak, the driver and
Ramesh Kumar Mishra, the General Manager. The record also goes
to show that Bipin Nayak, the driver even though made a
submission by way of affidavit to the show cause notice but was not
produced for his examination to testify his version particularly with
the materials so seized were transported under the threat of Hero
Kumar Bag. This Court here also finds, even though the driver in
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the earlier statement and show case made an allegation that he was
threatened to be killed on his failure to transport the materials and
on this, he has submitted an F.I.R., this Court observes, neither the
driver appeared as a witness on behalf of the owner to testify this
nor the owner could be able to file a copy of the F.I.R. so claimed by
the owner as well as the driver. On the contrary, taking into
account the show cause response by the owner as well as the driver
of the vehicle, particularly on the driver's lodging an F.I.R., the
Forest Authority attempted to get a response on the F.I.R. form the
concerned Police Station and the concerned Police Station in writing
informed the forest officials that there has been no lodging of any
such F.I.R., and therefore, no copy of the F.I.R. was surfaced to
rescue the owner as well as the driver and to escape them from the
offence involved. Even though there have been some statements of
some witnesses otherwise claiming to be present and to have seen
Hero Kumar Bag threatening the driver but for non-availability of
copy of the F.I.R., the person lodging the F.I.R. and the response of
the Police-Station submitting that there has been no lodging of
F.I.R. in fact made the witnesses produced by the owner to
establish their claim of involvement of threatening by Hero Kumar
Bag could not be trustworthy and has been rightly disbelieved by
the Authorised Officer and has been correctly appreciated by the
Additional District Judge in Appeal.
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9. Coming to the material relied on by the
Authorised Officer in coming to his conclusion and finding a case
against the driver as well as the owner, the impugned judgment and
order of the Authorised Officer disclose that the Authorised Officer
has taken into account the followings :-
"i) The detailed case records of the O.R. Case
No.2kh of 2006-07 submitted vide Memo No.528
dt.24.7.2006 of the Range Officer, Khariar Range along with
supervisory enquiry note dated 23.7.2006.
ii) Reply to show cause notice of Sri Bipin
Nayak driver of the seized vehicle dated 26.8.2006.
iii) Reply to show cause notice of Sri Ramesh
Kumar Mishra, GM, Agrawal Graphite Industries,
Mundapala, P/O-Gandabaheli, P/S-Sinapali, Dist-Nuapada.
iv) Statement of Sri Dukhu Dip of Gandabaheli
witness before the A.O. on dt.27.9.2006.
v) Statement and cross-examination of Sri
Bansilal Tandi of Gandanbaheli on dated 27.9.2006.
vi) Statement and cross-examination of Sri
Teku Sagaria of Gandabaheli on dt.18.10.2006.
vii) Statement of Sri Bhajaman Majhi, before
the A.O. on dt.27.9.2006.
viii) Statement and cross-examination of Sri
Khetramohan Bag before the A.O. on dt.27.9.2006.
ix) Statement of Sri Hero Kumar Bag, accused
before the A.O. on dt.27.9.2006.
x) Statement of Sri Khageswar Majhi, F.G.
(Seizing Officer) before the A.O. on dt.18.10.2006.
xi) Statement of Sri Dilip Singh Majhi, witness
before the A.O. on dt.7.11.2006.
xii) Statement of Sri Chandra Majhi, witness
before the A.O. on dt.7.11.2006.
xiii) Statement and cross-examination of
Md.Azimuddin, Forestor (Enquiring Officer) before the A.O.
on dated 7.2.2007.
xiv) Statement of Sri Ramesh Kumar Mishra,
General Manager, Agrawal Graphite Industries, Mundapala
before the A.O. on dt.7.8.2007.
xv) Statement and cross-examination of Sri
R.K.Mohanty, F/R, Ext. Range Officer, Khariar Range
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(Supervising Officer) before the A.O. Khariar Division on
dt.5.9.2007.
xvi) Reply of Officer in charge Khariar Police
Station vide his D.R. No.1899 dated 27.9.2008 addressed to
Authorised Officer-cum-A.C.F., Khariar Forest Division."
From the above, this Court finds, not only there
has been examination of witnesses from the side of the Forest
Officials and cross-examination of such witnesses by the petitioners
but there has been also production of some witnesses by the owner
and cross-examination of them, except the owner failing to produce
the driver and failing to produce any material to establish lodging of
F.I.R. so claimed, here it appears, the owner miserably failed in
establishing its main thrust of contest. This apart, there has been
also consideration of the response to show cause filed by both the
driver, Bipin Nayak as well as the owner, Ramesh Kumar Mishra.
Looking to the response to show cause by the driver appearing in
the case record also appearing at Annexure-2 to the writ petition,
this Court finds, even though the response to show cause could be
filed through the driver and that too establishing the signature of
the deponent to be an illiterate one whereas the affidavit is in
English further it is strange to note that the owner in spite of filing
a response to the show cause of the driver failing to produce the
driver, the most vital witness to establish that the transportation
was made under the threat of killing. At this stage, this Court finds,
the allegation that the petitioners have not been provided with
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natural justice has no foundation. At this stage, taking into account
the document filed at Annexure-4 to the writ petition where the
owner claiming to be an admission of Hero Kumar Bag to have used
force and threat for transportation of the materials but surprisingly
the letter so produced nowhere discloses his using force. While the
same admission letter though contains the admission of the driver
regarding use of force by Hero Kumar Bag though contains the
signature of Bipin, the driver, this Court finds, all other documents
involving Bipin though appears to have his signature in local
language involving but surprisingly this admission letter appears to
have contained English signature of the driver. It is again to be
taken note that if such an admission letter was available, nothing
prevented the owner to produce the driver to at least establish such
claim by way of evidence. For the different signature of the Driver at
different levels, it is also not known as to which document shall be
taken into account and which document shall not be accepted.
Further non-production of Driver again leaves no substance in it.
10. Coming to the document at Annexure-5 to the
writ petition, this Court finds, lodging of F.I.R., vide Annexure-5 has
been flatly denied by the concerned Police Station in response to a
query on the progress and outcome of the F.I.R. through its letter
no.1899 dated 27.9.2008 indicating therein that there is no lodging
of any such F.I.R. This Court, therefore, observes, the petitioners
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though have taken a particular defence but has miserably failed in
establishing such defence, on other hand, there was sufficient
material to establish the involvement of the driver of the vehicle and
consequent involvement of the owner involving the vehicle and the
offence, the owner is bound to suffer for the offence involved. This
Court, therefore, in answering the ground raised by the learned
counsel for the petitioners herein observes, all grounds raised by
the learned counsel for the petitioners have no substance.
11. Going through the decisions cited by the learned
counsel for the petitioners, this Court finds, for the change in the
facts and situations involving the case at hand, both the decisions
have no support to the case of the petitioners. For the above, this
Court finds, there is no infirmity in either the judgment and/or the
order involved herein requiring any interference in the same.
Resultantly, the writ petition stands dismissed for having no
ground. No cost.
..............................
Biswanath Rath, J.
Orissa High Court, Cuttack. The 15th day of May, 2019/mkr, secy. 18