Gitanjali Sahu vs State Of Odisha & Ors

Dr. S.K. Panigrahi, J

In filing this Writ Petition, the Petitioner being the owner of the vehicle in question (TATA ACE having registration No.OD-01-C-2675) which is seized based on the allegation of transportation of Forest Goods, has challenged the order dated 30.03.2024 passed by the learned District Judge, Mayurbhanj, Baripada in FAO No.30 of 2022 and the order dated 04.07.2022 passed by the Authorized Officer-cum-Assistant Conservator of Forest, Baripada in OR Case No.155B of 2018-2019 converted from UD Case No.28B of 2018-19, Baripada.

In addition to the above challenge, the Petitioner has also sought for a direction from this Court to the Opposite Party Nos.2 and 3 for releasing the above noted vehicle in her favour.

I. FACTUAL MATRIX OF THE CASE:

The brief facts of the case are as follows:

(i) On getting some credible information regarding illegal transportation of forest goods i.e. timber the Forester, Badampur Section along with other staffs of Betnoti Range on 28th October, 2018 detained the above noted TATA ACE vehicle which was coming towards them from Bhagabandihi village. On seeing the said Officials the driver of the TATA ACE fled from the spot by leaving the said vehicle. On search, though the Forest Officials recovered two pieces of Neem logs with bark measuring volume 4.74 cft, five pieces of Acacia pole and two quintals of mixed firewood without any mark of hammer impression on the said timbers from the said TATA ACE vehicle, no R.C book and legal documents pertaining to the said forest goods were there in the said vehicle. After seizure of the said goods nobody came forward to claim the seized products. Accordingly, the Forest Officials seized the above noted vehicle along with all the timbers and other products loaded in the said vehicle. Accordingly, a seizure list was prepared in presence of the available witnesses having seizure hammer No.FD-SZD-16.

(ii) Soon after seizure of the above noted vehicle along with the goods loaded therein a Forest Offence Case vide U.D. Case No.28B of 2018-19 was prepared. Thereafter, on query, it was ascertained from the R.T.O, Balasore that the Petitioner is the registered owner of the above noted seized vehicle. On getting notice the Petitioner appearing before the authority concerned stated that she had no knowledge regarding transportation of the above noted seized Forest goods through her vehicle in question. She further contended that the driver of the vehicle was transporting the seized goods being misguided by someone.

(iii) Thereafter, the Forester, Badampur Section arrested the Petitioner and converted the above noted U.D. Case to OR Case No.155B of 2018-19. Accordingly, the Petitioner was forwarded to the Court of J.M.F.C, Betnoti. The advance P.R. against the Petitioner was also submitted before the Court for contravention of Rules 4, 12 & 14 of the Odisha Timber & Other Forest Produce Transit Rule, 1980. At the same time, the Range Officer intimated the D.F.O, Baripada, Forest Division for taking further action in the matter.

(iv) On getting the case record, the D.F.O, Baripada appointed one Sandeep Parthy, I.F.S (Probationer), ACF, Baripada Forest Division as the Authorized Officer. On being appointed, the Authorized Officer-cum-ACF issued show cause notice to the Petitioner. Accordingly, the Petitioner submitted her reply to the said show cause notice. In the meantime, since Sandeep Parthy, I.F.S was transferred to some other Division, the D.F.O, Baripada again appointed Sri Sarat Kumar Mishra, A.C.F, Baripada as the Authorized Officer. After some time since said Sarat Kumar Mishra was transferred one Dillip Kumar Barik was appointed as the Authorized Officer to deal with the case of the Petitioner.

(v) Now, the present Authorized Officer after recording evidence and hearing all the parties concerned found that the above noted TATA ACE vehicle was involved in illegal transportation of above noted seized Forest produces. Thereafter, the Authorized Officer ordered for confiscation of the above noted seized vehicle.

(vi) Being aggrieved with the said order of the Authorized Officer, the Petitioner preferred an appeal vide FAO No.30 of 2022 before the Court of learned District Judge, Mayurbhanj. Thereafter, upon hearing both the parties and looking to the averments made in the said appeal memo, the learned District Judge confirmed the order of confiscation of the above noted vehicle passed by the learned Authorized Officer.

(vii) Being aggrieved by the above noted orders of the learned Authorized Officer and also the learned District Judge, Mayurbhanj passed in the above noted FAO the Petitioner has preferred this Writ Petition.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:

Challenging the above noted impugned orders, learned counsel for the Petitioner submits that the learned District Judge has passed the judgment dated 30.03.2024 in the above noted FAO without taking into consideration the fact that the Seizing Officer who happens to be a Forester and prepared the initial prosecution report, had no jurisdiction to conduct the inquiry whereas the provision at Rule 4(2) of the Orissa Timber and other Forest Produce Transit Rules, 1980 mandates that the Range Officer should conduct the inquiry and not by an Officer subordinate to such rank.

He further contends that since the above noted vehicle was used in illegal transportation of forest produces without the knowledge of the Petitioner, the decision relied on by the learned District Judge, Baripada in Sanjib Mishra Vrs. State of Orissa [(2006) Supp.-II, OLR 346] in passing the impugned order in the above noted FAO is not appropriate.

He, in the process, relies on the following decisions to support the case of the Petitioner:-

a. State of Odisha Vrs. Raghunath Pradhan and Anr.[ MANU/OR/0968/2023]

b. Sunderbhai Ambalal Desai Vrs. State of Gujarat[(2002) 10 SCC 283]

c. Ashis Ranjan Mohanty Vrs. State of Odisha and Ors.[ 2022(I)OLR 555]

d. General Insurance Council and Ors. Vrs. State of Andhra Pradesh[(2010) 6 SCC 768.]

He, accordingly, prays for allowing the prayer made in this Writ Petition.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of her contentions:

In her opposition, learned counsel for the State submits that the vehicle was seized due to unauthorized transportation of forest produces.She further contends that despite providing of adequate opportunity the Petitioner failed to establish a case in her favour.

She also contends that the learned District Judge, Baripada and the Authorized Officer have dealt with the matter appropriately after taking into consideration all the facts and providing adequate opportunity of hearing to all the parties concerned.

She, accordingly, prays for dismissal of this Writ Petition.

IV. COURT’S REASONING AND ANALYSIS:

Heard the learned counsel for the Parties and perused the materials placed on record.

The petitioner assails two concurrent orders: one passed by the authorised officer under the Orissa Forest Act, 1972 and the Orissa Timber & Other Forest Produce Transit Rules, 1980 ordering confiscation of the vehicle, and the other by the District Judge, Mayurbhanj upholding that order. The main submissions are: (a) that the forester (a subordinate to the Range Officer) lacked jurisdiction to seize the vehicle and prepare the initial report; and (b) that the vehicle was used for illegal transport of timber without the petitioner’s knowledge, so the confiscation is bad.

The confiscation proceedings were initiated under s. 56 of the Orissa Forest Act. The statute provides that all forest produce and the instruments used for committing a forest offence are liable to seizure and confiscation. Section 56(2‑c) expressly protects an innocent owner but only where the owner proves that the article or vehicle was used without his knowledge or connivance and that he and his agent took “all reasonable and necessary precautions” against such use. The bar on confiscation does not operate automatically; the owner carries the burden of proving both elements to the satisfaction of the authorised officer. Sub‑section (2‑d) and (2‑e) provide a statutory appeal to the Conservator of Forests and a further appeal to the District Judge, whose order is made final by s. 56(2‑e) and s. 56(3). These provisions constitute a complete code for seizure and confiscation and exclude the jurisdiction of ordinary courts to order release of seized property during pendency of the proceedings.

In this regard, the Supreme Court in the case of State of Bihar v. Kedar Sao[AIR 2003 SC 3650], the Supreme Court construed the parallel provisions of the Indian Forest Act (as amended by the Bihar Act). The Court held that once an intimation of initiation of confiscation proceedings under s. 52 is sent to the magistrate, no court, tribunal or authority (other than the authorised officer and statutory appellate authorities) has jurisdiction to deal with possession, delivery or disposal of the property.

“All the more so, in our view, in this case, having regard to Section 53-C inserted by the Bihar Amendment Act 9 of 1990 in the Indian Forest Act, 1927, which in unmistakable language of a mandatory nature, ordaining that on receipt of intimation under sub-section (4) of Section 52 about initiation of proceedings for confiscation of property, by the Magistrate having jurisdiction to try the offence on account of which the seizure of property, which is subject matter of confiscation, has been made, no Court, Tribunal or Authority (other than the Authorized Officer, Appellate Authority and Revision Authority referred to in Sections 52, 52A and 52B) shall have jurisdiction under the said Act or any other law for the time being in force to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated. That apart, it must also be kept in consideration unlike the position under the Central Act in view of Section 17 of the Trade Act, no court shall take cognizance of any offence punishable under the said Act except on report in writing from the authority specified therein.”

It further emphasised that Section 52(5) bars confiscation when the owner shows that the vehicle was used without his knowledge or connivance and that he had taken all reasonable precautions. The object of these provisions is to protect forests against depredation and to provide swift confiscation as an effective deterrent.

The petitioner contended that the seizure was illegal because the forester, who is subordinate to a Range Officer, prepared the initial prosecution report. Rule 4 of the Orissa Timber & Other Forest Produce Transit Rules, 1980 prohibits transport of timber or other forest produce without a permit. It authorises any forest officer (not merely the Range Officer) to intercept and seize timber and vehicles illegally transporting forest produce.

However, a mere wrong reference to a rule or description of the officer does not vitiate the prosecution; what matters is whether the accused had notice of the charge and an opportunity to defend. Here, the forester seized the vehicle upon credible information of illegal transport; the seizure list was prepared in the presence of witnesses; the Range Officer and D.F.O. were immediately intimated; and the Divisional Forest Officer appointed an authorised officer who issued show‑cause notice to the petitioner, recorded evidence and passed the confiscation order. The petitioner was informed of the proceedings, furnished a copy of the show‑cause notice, and filed her reply. There is therefore no substantive irregularity in the seizure or prosecution that could vitiate the confiscation. The alleged procedural irregularity is at best an irregularity curable under the statute; it did not prejudice the petitioner or deprive her of any statutory right.

V. CONCLUSION:

The records show that the vehicle in question was caught carrying timber and firewood without permits; the driver absconded; and the petitioner was unable to show that she took any reasonable precautions to prevent such illegal use. The authorised officer and the appellate court considered the evidence, applied the statutory provisions and relevant case-law, and ordered confiscation. Under the scheme of the Orissa Forest Act and the Orissa Timber & Other Forest Produce Transit Rules, this Court cannot, in exercise of its writ jurisdiction, substitute its view for that of the statutory authorities unless there is manifest illegality or perversity, which is absent here.

The Writ Petition is, therefore, dismissed.

Interim order, if any, passed earlier stands vacated.