SUMITRA ADHIKARI vs AUTHORISED OFFICER-CUM-DIVISIONAL FOREST OFFICER

Biswanath Rath,J.

This writ petition involves a challenge to the orders passed by the Authorised Officer as well as the District Judge, as appellate authority, involving

commissioning of the forest offence at the instance of the petitioner, the owner of the vehicle. It may be made here clear that the dispute so far it

relates to orders of both the courts is confined to the interest of the owner involved herein.

Short background involved in the case is that on 16.9,.2014 getting a secret information from the reliable source regarding smuggling of processed

kendu leaves in the truck bearing registration No.WB-19D-6903 in Sunhindol village during night time, the Bansajal forester along with Divisional

mobile staff proceeded on patrolling to the suspected area. At about 5.30 A.M., the patrolling team saw a truck standing near village- Sanhindol and

on seeing the forest staffs, the crew and the driver of the vehicle fled away from the spot. On chasing by the forest staff, they could not be able to

catch anybody but, however, on search the truck bearing registration No.WB-19D-6903 was found to be loaded with processed kendu leaves.

For finding no supporting document to carry kendu leaves and in absence of any claimant being available to own the materials, the kendu leaf bundles

along with truck were seized and on counting, comes to be 1077 bundles. On preparation of seizure list at the spot, the truck was brought to the

Charmal Central godown for weighment which comes to be 51.20 quintals. Seized items were given in zima to S.D.M., O.F.D.C., Charmal Godown

for the involvement of a forest offence. U.D. Case No.5(C) of 2014-15 was registered. Case record was submitted to the Range officer and inquiry

was conducted. Inquiry report since found illegal transportation of processed kendu leaves in the truck, indicated hereinabove, the case records were

submitted to the Local Authorised Officerâ€"cum-Divisional Forest Officer for taking cognizance for involvement of an offence under Section 56 of

the Orissa Forest Act, 1972. Accordingly, Confiscation Proceeding No.2 of 2014-15 was initiated in the court of Authorised Officer for trial. Since

nobody was coming to claim the ownership of the seized vehicle, an advertisement was brought out in the local daily newspaper “Samaya†on

22.1.2015 for appearance of the owner of the seized vehicle before the Authorised Officer with relevant documents. During course of further

investigation, on revealing of the name of the owner of the seized truck, case records in U.D. Case No.5(C) of 2014-15 was returned to the Range

Officer, Charmal Range with a direction to convert the same to O.R. Case for necessary inquiry and for submitting the case record for trial. It is on

the above premises, O.R. Case No.113C of 2015-16 was registered involving the owner of the seized vehicle. Upon initiation of O.R. Case No.113C

of 2015-16, notice was issued to Sumitra Adhikari, Wife of Manas Adhikari being the owner of the vehicle.

The petitioner thus contested the case involving the seized vehicle and while defending the case for seizure of the vehicle with seized kendu leaves,

prayed not to confiscate the vehicle to Government for no commissioning of forest offence. In addition to the above, in response to the show cause

notice, the petitioner through her advocate filed memo with an affidavit dated 9.9.2015 treating the same to be her defence involving the show cause.

In response, it was submitted that one Subash Rai bearing driving licence No.2020040250820 was duly authorized to drive the truck and the crime, if

any committed, should be treated as the responsibility of the driver Subash Rai. In the trial, six witnesses were examined from the side of the

prosecution witness and one witness was examined from the defence side. On assessment of the materials as well as evidence available on record,

the Authorised Officer-cum- Divisional Forest Officer, Rairakhol on establishment of an offence under Section 56 of the Orissa Forest Act passed an

order directing the vehicle under seizure as well as the material under seizure to be confiscated to Government under the provision of section 56 of the

Orissa Forest Act, 1972. Being aggrieved by the said order, the owner of the vehicle so far her interest involving the direction for confiscation of the

vehicle, preferred an appeal bearing F.A.O. No.26 of 2015 on the file of learned District Judge, Sambalapur. The appeal was disposed of on contest

by an order of dismissal thereby confirming the order of the Authorised Officer-cum-Divisional Forest Officer, Rairakhol Division, Rairakhol.

Assailing both the orders, Sri K.A.Guru, learned counsel appearing for the petitioner reiterating the stand of the petitioner taken all through,

submitted that for the truck owner had an authorization to the driver to drive the truck and since the driver was in charge of the truck at the relevant

point of time, in absence of any material regarding the involvement of the owner in the commissioning of the forest offence, findings of both the courts

holding the petitioner’s involvement in a forest offence so far the involvement of the vehicle is concerned is improper. It is also contended that for

the prosecution failing on apprehending the actual owner of the kendu leaves as well as arrest of the accused-driver by the Forest Officials, the case

leading to loading of kendu leaves will remain under shadow of doubt. Learned counsel for the petitioner further challenged the impugned orders on

the premises that for the factual scenario involving the seizure of the vehicle along with seized materials and in absence of arrest of the driver, onws to

establish that the petitioner was involved in the alleged offence lying on the prosecution and prosecution having failed to establish the same, Sri Guru,

learned Counsel contended that both the authority below as well as the court below have miserably failed to appreciate the above legal aspect and

thereby both of them have reached at wrong finding resulting illegal impugned orders, which needs to be interfered by this Court. Sri Guru also taking

this Court to the prosecution evidence, challenged the orders on the premises that there is great level of inconsistency in the statements of the

witnesses examined from the side of the prosecution. Ultimately Sri Guru, learned counsel for the petitioner finally taking this Court to the decisions

rendered in the case of Gurparlad Singh v. Divisional Forest Officer, Rairakhol Division, Sambalpur and others, (1998) 15 OCR-58, Ganesh Chandra

Bandopadhyay alias Banarjee v. Authorised Officer-cumDivisional Forest Officer, Nayagarh Forest Division and others, (1998) 15 OCR-366,

submitted that for the support of the aforesaid decisions to the case at hand, the petitioner should be exonerated from the charges on interference and

setting aside both the orders.

Sri U.K.Sahoo, Additional Standing Counsel on the other hand while opposing the stand taken by Sri K.A.Guru on behalf of the petitioner taking this

Court to the statement recorded on behalf of the prosecution and further prosecution story urged that there has been right appreciation by both the

authority as well as the court involved herein and for the owner’s failure in establishing her own involvement in the matter submitted that for the

observations and findings of the authority as well as the court below, there is absolutely no infirmity in either of the orders. Further, taking to the

contents in evidence at the instance of the owner, only examining one Amaresh Pathak working in City of Joy Fuel Station, Kolkata 88 and

establishing the case only to the extent that the truck was engaged in transportation of lubricants. Sri Sahoo, learned Additional Standing Counsel

submitted that this evidence so far it relates led through D.W.1 is insufficient to exonerate the owner of the vehicle.

Considering the rival contentions of the parties, this Court finds there is absolutely no dispute up to the fact involved in the case that the truck

bearing registration No.WB-19D-6903 was caught by the forest staff during a raid by the forest officials and the forest staff found 1077 bundles of

processed kendu leaves to the tune of 51.20 quintals. It also reveals that on detaining the truck by the forest officials, the driver as well as the staff

accompanied the truck seized, all fled away. In the trial, this Court also finds the surprise that in spite of the owner of the truck, namely, Sumitra

Adhikari, Wife of Manas Adhikari though submitted a response to the show-cause notice by way of an affidavit, taken some plea on denial to the

charges but did not participate in the trial and even did not lead any evidence through herself to substantiate her claim. For no evidence of the owner

of the vehicle to substantiate her claim in response to the show cause notice, this Court observes there is absolutely no evidence on behalf of the

owner. Now coming to scan the evidence of the prosecution witness and on perusal of the evidence came through prosecution witness, this Court

finds there is sufficient material to involve the truck so as to carrying the processed kendu leaves of huge volume. This apart, the prosecution is also

able to satisfy the involvement of the truck in an offence under Section 56of the Orissa Forest Act. Minor discrepancies here and there in the

statement of prosecution witness with regard to fleeing away of the occupiers of the truck, the driver of the truck, while conducting the seizure of the

truck etc. remain immaterial and are of no help to absolve the involvement of the truck owned by the present petitioner from the offence. Looking to

the statement of the D.W.1, the only witness on behalf of the petitioner, in her defence this Court finds the statement of other six witness is only in

relation to the position of the D.W.1 vis-a-vis the business relation between Kolkata party and the owner and that the truck was not traced for some

time leading lodging of a F.I.R. in Buzbuz Police Station, Kolkata and on an attempt to contact the driver, the driver’s mobile was found to be

switched off. There is no material whatever to exonerate the owner so far involvement of the vehicle in an offence under Section 56 of the Orissa

Forest Act. For the owners not bringing any evidence to support her stand by bringing herself as a witness and for not her being able to dislodge the

statement of P.Ws., it appears the owner has miserably failed to substantiate her claim in trial.

Perused the discussions, observations as well as the findings involving the order passed by the original authority. On perusal of the impugned order,

as this Court finds there is appropriate consideration therein, this Court has no hesitation to differ from the same. The appellate judgment being based

on above materials and for the appellants failing to dislodge the findings of the original authority in its remote sense even, this Court finds the appellate

court in dismissing the appeal thereby confirming the order passed by the Authorised Officer did not commit any error.

Perusal of the decisions cited by Sri Guru, learned counsel for the petitioner noted in paragraph-3 hereinabove, this Court finds for the peculiar

situation involved in the case, no evidence to dislodge the charges and the observations made hereinabove, particularly, this Court finds none of the

decision relied on by the learned counsel for the petitioner has any support to the case at hand.

In the result, the writ petition stands dismissed for having no merit. However, there is no order as to cost.