Orissa High Court
State Of Orissa vs P.P. Agrawala And Ors. on 8 September, 1997
Equivalent citations: AIR 1998 ORISSA 54, (1997) 2 ORISSA LR 354 (1998) 85 CUT LT 179, (1998) 85 CUT LT 179
Author: S. N. Phukan
Bench: S.N. Phukan, P.K. Tripathy
ORDER S. N. Phukan, C.J.
1. This writ petition has been filed by the State challenging the judgment and order of the learned District Judge, Bolangir in Misc. Judicial Appeal No. 2 of 1991 setting aside the order dated 28-5-1990 passed by the Authorised Officer-cum-Divisional Forest Officer, Bolangir Forest Division in case No. OP 212 of 1989-90. The Authorised Officer, by his aforesaid order passed under Section 56 of the Orissa Forest Act (for short, "the Act") had confiscated 438 pieces of green bamboo together with the vehicle bearing registration number OPS 3316, alleged to have been used in the commission of the forest offence.
2. Briefly stated, the facts are as follows :--
The Forester, Deogaon, while on petrol duty on 16-10-1989, intercepted the truck in question near village Sikuan on Goibahal-Bhutiarbahal road. It is alleged that the truck was carrying 438 pieces of green bamboo without valid transit permit. The truck was brought to Deogaon and was seized. A copy of the seizure list was given to the driver, who gave out his name as Ramesh Behera, son of Chandra Behcra of Saintala the report of seizure was sent by the Forestor to the Sub-divisional Judicial Magistrate, Bolangir with intimation to the Divisional Forest Officer, Bolangir. The custody of the seized property was, however, given to a Forest Guard. It is also alleged by the prosecution that the driver of the truck took permission of the Forestor to attend the call of nature and slipped away to Tusura where he lodged a report before the Officer-in-charge of the said police station alleging that the truck, which was empty, was forcibly detained by the Forestor. It is further alleged that between 8.30 and 9.00 p.m. the driver along with the Sarpanch of the locality went to Deogaon and enquired about the Forestor, but he was not available. Therefore, the driver went to the Forest Guard at Kendu Leaf Central Godown and told him in presence of the other staff that he would take his bag and personal belongings from the truck so saying, he entered into the truck and asked the Forest Guard to fetch a glass of water. After the Forest Guard had gone to bring water, he started the truck and took it away along with the forest produce, i.e., the bamboo pieces. At Deogaon P.W.D. Inspection Bangalow, he unloaded the bamboos and filed a diary in Tusura Pol ice Station that no forest staff was present at Deogaon and that his truck, for which no seizure list was given to him, was taken by him to Tusura. The Forestor also reported the matter to the office-in-charge of the said police station, who started a case, being Tusura police station case No. 110/89 under Section 379, IPC. According to the prosecution, the driver gave two different names at two different times, but his actual name is Nadia Kishore Behera (opposite party No. 3). Pooran Prasad Agrawala (opposite party No. 1) is the owner of the truck.
3. We have heard learned Counsel for the parties.
4. We extract below the provisions of clauses (e), (g) and (o) of Section 2 and Section 56 of the Act, which are relevant for the present purpose:--
"2. Definitions.-- In this Act, unless the countext otherwise requires--
XX XX X
(e) Forest offence means an offence punishable under this Act or under the rules and includes the abetment of a forest offence;
xx xx x (g) forest produce includes--
(i) the following whether found in or brought from a forest or not, that is to say--
(a) timber, charcoal, cauoutchouc catechu, wood-oil, resine, natural varnish, bark, Tussar Cocoon, lac, gums, roots of Patal Garuda, mahua flowers, mahua seeds, myrabolans, Kendu leaves, Sandalwood, 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) the following when found in or brought from a forest that is to say--
(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 oil products of mines or quarries);
XX XX X
(o) tree includes palms, bamboos stumps brushwood and canes.
56. 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 offence compounded, either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the 'authorised 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.
(2-a) Where an authorised 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) any 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 matter.
(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 authorised officer that it was used without his knowledge or connivance or 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 or cause 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-a) or Sub-section (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 properly 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. Explanation-- For the purpose of this section and Section 59, cattle shall not include buffaloes, bulls, cows, calves and oxen."
5. From clause (ii) of Sub-section (g), read with Sub-section (c) of Section 2 of the Act, it is clear that bamboo is a forest produce only if it is found in or brought from the forest. In other words, bamboo is not a forest produce if it is brought from a private land.
6. The Authorised Officer has held that there is no conclusive evidence regarding the charge against both the opposite parties under Section 27 of the Ad. We may extract below Sub-sections (1), (2) and (3) of Section 27 of the Act :--
"27. Offences--
(1) Any person who--
(a) makes any fresh clearing or causes breaking of land which is prohibited under Section 5;
(b) sets fire to a reserved forest or to a forest land in respect of which a notification under Section 4 has been issued or in contravention of any Rule made by the State Government in this behalf, kindle any fire in such manner as to endanger such forest or forest land; or
(c) in a reserved forest kindles, keeps or carries any fire except at such season as the Forest Officer may notify in this behalf;
shall be punishable with imprisonment for a term which may extend to six months and with fine which may extend to five hundred rupees.
(2) Any person who in a reserved forest--
(a) trespasses or pastures cattle or permits cattle to trespass; or
(b) causes any damage by negligence in felling any tree or cutting or dragging any timber or removing any forest produce;
shall be punishable with fine which may extend to one thousand rupees in addition to such compensation for the damage done to the forest, which in no case shall be less than the value of the property damaged, as the convicting Court may direct to be paid.
(3) Any person who in a reserved forest--(a) fells, gridles, lops or burns any tree or plant or stripes off the bark or leaves from or otherwise damages the same or causes damage to any forest produce :
(b) quarries stone, burns lime or charcoal or collects, subject to manufacturing process or removes any forest produce;
(c) clears or breaks up any land for cultivation or for any other purpose, or cultivates or attempts to cultivate any land in any manner or puts up any sheds or other structure; or
(d) in contravention of any Rule made in this behalf of the State Government hunts, shoots fishes, poisons water or sets traps or shares;
shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees.
(4) to (6) xxx xx Thus, it will be clear that the finding of the Authorised Officer is in accordance with law, as nothing has been proved that the bamboos were brought from the reserved forest.
7. The Authorised Officer has held that both the opposite parties are guilty of the offence under Sections 45 and 85 of the Act and that there are sufficient materials to prove that the vehicle in question was used in commission of the said forest offence with full knowledge or connivance of the driver and owner of the truck. Before we proceed further, we may state here that the findings of the Authorised Officer are based on mere conjectures and surmises and he has not discussed anything about the evidence on record. Therefore, we have no other alternative but to quash his order.
8. The learned District Judge in the appellate order has held, inter alia, that though the truck was seized, it was not produced before the Authorised Officer. On reading Sub-sections (2) and (2-a) of Section 56 of the Act, he has opined that such non-production is fatal.
9. It has been brought to our notice that the case registered against the opposite parties under Section 379, IPC being G.R. Case No. 472 of 1989 (Tr. No. 44/91) of the Court of Judicial) Magistrate First Class, Bolangir, ended in acquittal vide judgment dated 31-8-1991 (Annexure-A).
10. The only offence that might have been committed by the opposite parties is non-production of the transit permit under the provisions of the Orissa Timber and other Forest Produce Transit Rules, 1980.
11. The power of confiscation is a very important power and it has to be used by the Authorised Officer, not silting as a forest official but as an independent authority. Sub-section (2) of Section 56 of the Act imposes a duty on the forest officials that while seizing any property under this section, they shall place on all such property a mark indicating that the same has been so seized. In the case in hand, neither from the order of the Authorised Officer nor from that of the learned District Judge we find that any such mark was placed. In fact, according to the prosecution, the bamboos were dupmed in front of the P.W.D. Inspection Bungalow. Therefore, there is nothing to link that the bamboos alleged to have been seized were the bamboos actually carried by the truck. As such, confiscation of the truck is illegal. That apart, as the bamboos were not marked, as required under Sub-section (2) of Section 56 of the Act, it cannot be held that those were transported in violation of the rules in question.
12. For the reasons stated above, the writ petition fails and is dismissed and the order of the learned District Judge is affirmed. Costs on the parties.
P. K. Tripathy, J.
While respectfully agreeing with the aforesaid findings and the conclusion of my Lord the Chief Justice, it is felt expedient to deal with the findings of the learned District Judge on the points as to whether bamboo is a forest produce and whether its transportation without transit permit is an offence under the Act.
13. The truck in question was ordered to be confiscated by the Authorised Officer on the ground that it was carrying green bamboos without any transit permit. Learned District Judge quashed the order of confiscation mainly on the ground that bamboo is not a "forest produce" as per the definition of the term in Section 2(g) pf the Act. In this connection, the relevant portions of the findings of the learned District Judge, as contained in paragraph 2 of his judgment, are quoted below :--
"In the definition of forest produce given in Section 2(g) of the Forest Act, bamboo is not specifically mentioned in either part of the definition.
XXXXX Therefore, following the decision in N. V. Gopalswamy v. Asst. Conservator of Forest, 1990 (2) OLR 4001 hold that the bamboos transported by the truck in question did not require any timber transit permit."
14. As has been recorded in paragraph 5 of the leading judgment, and keeping in view the definition of "forest produce" in Section 2(g) of the Act, read with the provisions contained in Rules 4 and 5 of the Orissa Timber and Other Forest Produce Transit Rules, 1980(for short "the rules, 1980"), it can safely be concluded that bamboo is a forest produce when it is found in or brought from a forest and transportation of such bamboo without valid transit permit amounts to "forest offence" within the meaning of the term as defined in Section 2(e) of the Act. In that connection, Rule 4 of the Rules, 1980 clearly provides that except as provided in Rule 5, all forest produce in transit by land, rail or water shall be covered by a permit hereinafter called the "transit permit" to be issued free of costs by the Divisional Forest Officer or v Assistant Conservator of Forests authorised by him in that behalf. All the four provisions make no exception to the aforesaid construction. On the other hand, the fourth proviso supports the aforesaid interpretation inasmuch as it prescribed for issuance of a transit permit for removal of bamboos from the sale depots either for industrial or for commercial purposes.
15. Rule 5(1)(d) and (c) of the said Rules provides as follows :--
"5. Cases in which permit shall not be required--
(1) No transit permit shall be required to cover transit of forest produce in the following cases, namely :--
(a) to (c) xxxxx
(d) for the transport of 'Bamboo' timber and firewood bearing Orissa Forest Department's hammer mark where removal is covered by depot permit;
(e) for removal of forest produce other than timber, bamboos and minerals of any description required by transits, having recognised rights under any law in force for their bona fide domestic use but not for trade or barter subject to the condition that tribals can transport or possess up to fifty Kgs. of tamarind and ten bundles of hill brooms without transit permit, (f) to (j) xxxxx
16. Thus, it cannot be generally stated that bamboo is not a forest produce and needs no transit permit. To that extent, the findings recorded by the learned District Judge is incorrect and cannot be accepted.
17. It goes without saying that on technical grounds the writ petition filed by the State has to be dismissed. Being quite conscious regarding factum of preservation of forest and ecology, we are of the view that offender should not get scope to sneak through due to half-hearted or faulty detection of cases by the forest officials. Their endeavour should be in positive side so as to follow proper procedure and collect sufficient materials to pin up the offenders with clinching evidence.
18. In Encyclopaedia Britannica (15th Edn. Vol. 7) while dealing with the classification of forest it has been stated that three types of botanical forests are available on this earth. The Asian countries including that of India has 'monocots' type of forests. These types of forests include principally the palms and bamboos. At page 529 in the said book it has been mentioned about the bamboo forest as follows :
"Another form of tropical monocotyledenous forest is the bamboo thicket, common in Asia composed of giant woody grasses springing from stout rootstocks. One of the most versatile plants in the world, bamboo is valuable as a construction material, as well as for hundreds of other applications notably in high-grade paper products."
It is commonly experienced that the bamboos are not only grown in forest but also such plants are grown in private lands. Just to curb the delinquency and clandesting removal of such bamboos from the forest, the State Government should make adequate provision of law, so that offences of the complained nature can be effectively curbed. In that connection, reference may be made to a decision of this Court in Kazi Prasad Sahu v. State of Orissa, AIR 1963 Orissa 24, where while dealing with the case regarding transit permit relating to mahua flowers, this Court has gone to the extent of saying that at page 26 :
"(5) Thus, on a mere interpretation of the expression "Forest produce" and bearing in mind the provisions of Section 41 and other sections of the Act mentioned above it must be held that Government have the power by rules to regulate the transit forest produce as defined in the Act even though the said produce may not be the property of Government."
19. In the case at hand, the Authorised Officer has recorded a finding that there is no evidence to prove that the bamboos in question were found in or brought from the forest. Therefore, a forest offence is not made out. Hence, the order of confiscation is not sustainable.
20. In the result, the writ petition is dismissed and the impugned order of the learned District Judge is upheld. Parties to bear their own costs.