Gayadhar Ojha ' Ojhar vs State of Orissa

D.M. Patnaik, J.—The petitioner hiving been convicted and sentenced to undergo rigorous imprisonment for three months u/s 46 of the Orissa Forest Act, 1972 by the Subdivisional Judicial Magistrate, Anandapur and the same having been confirmed by the Sessions Judge, Keonjhar in appeal is in revision before this Court.

Prosecution case is, on 15-9-1984 at about 9 a. m. on the basis of a search warrant, the Forest Range Officer, Anandapur, along with the vigilance squad of the Forest Department carried on a raid in the premises of the petitioner and recovered and seized forest timbers (including logs and sized logs) numbering 666 pieces of different varieties such as Sal, Pia-sal etc. The petitioner failed to produce any authority for such possession So prosecution report was submitted against him for violation of Secs. 27, 37 read with Section 46 of the Orissa Forest Act, 1972 (hereinafter referred to as the ''Act'') and for violation of Rules 4 and 16 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 and Rule 3 of the Orissa Forest Saw Pits and Saw Mills (Control) Rules, 1980 (for short, ''the Timber Transit Rules ''and'' the Saw Pits Rules''). The total timbers were found to be 283. 32 cubic feet valued at Rs. 78, 1895/- which, according to the prosecution report included the value of the timbers as Rs, 15,000/- and rest as compounding tees.

The petitions in his 313 statement admitted possession and seizure but, claimed possession under valid document.

Both the Courts below held that since trie petitioner admitted to have been in possession of the timber in question and that he could not produce any document authorising such possession, he was liable u/s 46 of the Act. the finding of the trial Court that the defence could not prove that the son of the petitioner had in fact possessed a valid registration certificate from the General Manager, District Industries Centre for a small scale carpentry unit was negatived by the lower appellate Court who held that the duplicate certificate (Ext. F) issued by the District Industries Centre, Keonjhar, was duly proved and, therefore, he held that the son of the petitioner had a small scale unit for manufacturing of wooden furniture.

The lower appellate Court upheld the rest of the findings of the trial Court.

Before this Court Mr. Deepak Misra learned counsel for the petitioner, raised the following contentions :

(i) That the Courts below committed an error in wrongly placing the onus on the defence to prove its case beyond reasonable doubt In other words, according to Mr. Misra the burden on the defence to prove its case is not that onerous as it should be on the prosecution. Therefore, the finding of the both the Courts below that the accused could not explain possession of the timbers has to be set aside.

(ii) That Section 46 of the Act authorities the State Government to frame appropriate rules u/s 45 of the Act to control the transit, possession etc. of all sorts of forest produce. But the State Government have not yet framed any rule prescribing penalty for mere possession of the forest produce and, therefore, the judgments of the Courts below are liable to be set aside.

Mr. A.N. Misra, learned Standing Counsel for the Stale stated that there is nothing wrong in the judgments of the lower Courts for the punishment imposed u/s 46 of the Act since there has been a flagrant violation of the Timber Transit Rules and the Saw Pits Rules as is evident from the prosecution report and, therefore, imposition of punishment u/s 46 of the Act cannot be assailed.

The rival contentions need examination.

So far as the first contention of Mr. Misra is concerned, I am unable to accept the same. The finding of both the Courts below is that though the petitioner could explain the possession with regard to 124 nos. of timbers, he could not explain as to how he came to possess the rest without any authority. There is nothing wrong in this reasoning of the both the Courts below particularly when the petitioner admitted the possession of all the 666 nos. of timbers and the seizure thereof from his premises. Not only that, the petitioner also led evidence in support of his case in explaining possession of 124 nos. of timbers which were, according to the petitioner, given by the witnesses for the purpose of preparing wooden furniture. Therefore, the question of placing the onus on the accused to prove his case becomes immaterial. Thus the first contention of Mr. Misra must fail.

The second contention of Mr. Misra is that no rule has been framed by the State Government to make it punishable for mere possession of timbers as in the present case. He drew the attention of this Court by way of analogy to Section 14 of the Railway Property (Unlawful Possession) Act, 1966, which according to Mr. Misra, makes the person Iiable to account for the mere possession of any railway property found with him. In this regard Mr. Misra cited a decision reported in 63 (1987) C. L T. 559 T. Shyam Patra v. State, a case under the Essential Commodities Act which is of no assistance to Mr. Misra''s contention.

It would be an idle exercise to advert to the point raised by Mr. Misra with regard to the absence of any rules u/s 45 (a) of the Act, since going through the case records 1 find, there is manifest and/or apparent error in conducting the proceeding which, in my opinion, has vitiated the whole trial and for the reasons to follow the order of conviction and sentence has to be set aside.

The prosecution report shows that the same was submitted u/s 46 of the Act as wall as under the provisions of the Timber Transit Rules and the Saw Pits Rules (vide reverse of the prosecution report). It seems the Sub-Divisional judicial Magistrate became oblivious in not taking into account the alleged violation of the provisions of the two Rules mentioned therein. Needless to say that whether the same is due to inadvertence or not, fact remains that prosecution report was received by the Court on 15-11-1984. It shows the Magistrate passed the following orders on that day ;

"P. R. u/s 46, Orissa Forest Act is received against the accused Gayadhara Ojha. Perused the P. R. There is a prima facie case against the accused u/s 46, O. F, Act. Hence cognizance is taken. Issue summons against the accused fixing 12-12-1984 for his appearance."

This clearly indicates that the Magistrate did not take cognizance of any alleged offence under any of the provisions of the Timber Transit Rules or the Saw Pits Rules. Admittedly Section 46 of the Act itself does not predicate any penal provision for violation of any Order. It merely authorises the government that while framing any rule u/s 45 of the Act State Government may provide that breach thereof shall be punishable with imprisonment which may extend to one year and with fine which may extend to one thousand rupees. Section 45 is the section which is included in Chapter VI and this vests with the Government the power to make rules to regulate and control transit of forest produce. Therefore, neither Section 46 nor Section 45 can be termed as penal provisions for any offence under the Act. Sec, 45 of the Act is not a penal provision as has already been held in an earlier decision of this Court reported in 1989 (II) O. L. R. 124 M/s. Dayal Trading Company v. State of Orissa and Ors.. It has been held therein that for violation of the Timber Transit Rules, a person cannot be punished u/s 45. The same analogy can be extended to interpret Section 46 of the Act. Section 46 of the Act under which cognisance has been taken in the present case is neither a defining section nor a penal section. It is only an enabling provision authorising the State Government to frame rules u/s 45 of the Act for regulating possession or transit of forest produce with a maximum punishment of one year and with fine. For these reasons, taking of cognisance u/s 46 of the Act alone is bad. It is only in case of violation of Orders or infraction of any provisions of any Order or Rule framed u/s 45 of the Act by the Government which has been made punishable under that particular Order or Rule. Since the trial Court has not taken cognisance of the offences alleged to have been committed under the Timber Transit Rules or Saw Pits Rules, the entire proceeding has been vitiated on account of gross irregularity. When cognisance has not been taken, no trial could have proceeded far less to speak of any conviction thereunder. Secondly, the order-sheet dated 12-12-1984 shows that particulars of the offence and the substance of accusation were explained to the accused to which he pleaded not gulty. Thus, when the Magistrate took cognisance u/s 46 of the Act which itself is not a penal section, the order that particulars of the offence and the substance of accusation was stated to the accused does not carry any meaning since it is obvious that particulars of the offences and the substance of the accusation with regard to the Timber Transit Rules and the Saw Pits Rules were not stated to the accused. Therefore, the entire trial is vitiated. To substantiate this proposition of law, I may refer to a case of this Court reported in K.N. Sarkar Vs. The State, In the case referred to, the petitioner was a shop-keeper dealing with purchase and sale of food articles including peas and mustard-oil. These two items were alleged to have been noxious and unfit for human consumption and, therefore, after decision in the mobile Court, he was tried summarily and having been found guilty u/s 273 IPC was convicted and sentenced to pay a fine of Rs100/- in default, to undergo simple imprisonment for one month. In that case, particulars of the offence were not stated to the accused In para 8 of the judgment, the matter for consideration was whether in the absence of the Magistrate not stating the particulars of offence to the accused, the order amounted to an illegality or a mere irregularity curable u/s 537 of the Cr. P. C. ( old Code). This Court held that since two vital ingredients of the section were not put to the accused ''on the very face of it the omission had occasioned failure of justice. The trial was, therefore, vitiated and conviction was set aside.

In another case of this Court reported in 1980 C. L. R. 227 Tarinisen Maharana and Anr. v. The State it was held that the particular Order said to have bean violated was neither mentioned in the charge nor in any other document exhibited. In para 3 of the judgment this Court held that it was surprising that the prosecution had not indicated as to which order made u/s 3 of the Essential Commodities Act had been violated. The charge did not mention it nor other documents exhibited in the case brught out as to which particular Order was violated. The revision was allowed and the petitioners were acquitted of the charges.

In the case that was reported in 1989 (II) O. L. R. 124 M/s. Dayal Trading Company represented by its proprietor Giridharilal Kedai v. The State of Orissa and Ors., this Court while dealing with the similar matter where cognisance was taken under Rule 14(a) of the Saw Pits Rules held that the act of taking cognisance of an offence is not a mere formality. Therefore, before taking cognisance of an offence, it is the duty of the Magistrate to apply his Judicial mind in order to find out on the facts alleged by the prosecution whether there is a prima facie case so as to issue process. The revision was allowed and the impugned orders were set aside.

I am conscious of the argument placed by Mr. Deepak Misra that mere possession of any forest produce whatsoever has not been made punishable under any of the Rules or Orders framed by the Government till now Particularly his submission with reference to Section 45 (k) of the Act which shows that Government may make rule to regulate the possession and transit of valuable forest produce like sandal wood, tusks and wild life trophies. Since the present case is being disposed of for the gross irregularity in conducting the proceeding in the manner pointed out by me which has occasioned in a total miscarriage of justice, I pretermit at this stage to give an opinion on the point raised by Mr. Misra and, therefore, leave this issue open.

In the result, the revision is allowed. The conviction and sentence of the petitioner are set aside. The seized timbers, if not already confiscated or disposed of in the meantime, shall be delivered to the petitioner or else money value thereof as assessed by the Forest Department at Rs. 15,000/- shall be paid to the petitioner.