Orissa High Court
WP(C)/9160/2021 on 8 April, 2021
W.P.(C) No. 9160 of 2021
5. 08.04.2021 This matter is taken up through video
conferencing mode.
2. Heard Mr. Asish Mishra, learned counsel
for the petitioner and Mr. Swayambhu Mishra,
learned Additional Standing Counsel for the
State-opposite parties.
3. Petitioner in this writ petition prays for
setting aside the order dated 28.01.2021
(Annexure-1) passed by learned District Judge,
Mayurbhanj at Baripada in FAO No.24 of 2019
filed under Section 56(2- e) of the Odisha Forest
Act, 1972, confirming the order dated 29.05.2019
passed by Forest Officer-cum-Assistant
Conservator of Forest, Forest Division, Baripada
(OP No.2) in OR Case No.191B of 2017-18,
whereby vehicle of the petitioner bearing
registration No.OD-01-V-5012 (Mahindra Bolero
Pick up Van) has been confiscated.
4. Mr. Mishra, learned counsel for the
petitioner vehemently argued that earlier the
petitioner had moved this Court in W.P.(C)
No.34902 of 2020, which was disposed of vide
order dated 14.12.2020 holding as under:-
"xxx xxx xxx xxx xxx xxxx xxx xxx
Heard learned counsel for the parties
and perused the material placed before this
Court. There is no dispute to the ratio decided
in the case laws referred to by learned
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District Judge. But, while exercising the
power under Section 56 (2-e) of the Act, he is
required to discuss the arguments raised with
reference to the evidence led by the parties
during confiscation proceeding under Section
56 of the Act in detail. It, however, appears
that learned District Judge has referred to the
evidence of the petitioner recorded during in
the confiscation proceeding. No doubt, learned
District Judge is not required to repeat the
discussion made by Authorized Officer in the
proceeding under Section 56 of Act, but he
has to discuss the contentions raised by
learned counsel for the appellant in course of
appeal with reference to the materials
available on record and record his
independent findings on the same. In the case
at hand although learned District Judge has
recorded the contentions of learned counsel
for the appellant, but while disbelieving the
statement of the appellant, learned District
Judge ought to have assigned good reasons
for the same. The reason assigned by learned
District Judge appears to be not satisfactory
in view of the statements of the driver as well
as the helper of the vehicle, which were not
discussed. They categorically stated that the
Range Officer directed to bring the seized
vehicle to the Range Office and at that time
the vehicle was empty. The statement of the
witnesses recorded during confiscation
proceeding also remained unassailed. These
material evidence ought to have been
considered by learned District Judge while
adjudicating the appeal.
In that view of the matter, the
impugned order is set aside, the matter is
remitted back to learned District Judge,
Mayurbhanj at Baripada to adjudicate the
appeal afresh with reference to the relevant
materials on record, giving opportunity of
hearing to the parties concerned.
With the aforesaid observation and
direction, this Court, without expressing any
opinion on the merits of the case of the
petitioner, disposes of the writ petition."
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He, accordingly submitted that when DWs 1 to 4
were not cross-examined and their evidence goes
unrebutted, those should have been accepted on
their face value. Learned District Judge, without
taking into consideration the same, disbelieved it
in view of the statements of other witnesses
available on record. It is his submission that this
Court, while disposing of W.P.(C) No. 34902 of
2020, had categorically directed that their
evidence should be taken into consideration in
proper perspective. In the case at hand, the
learned District Judge disbelieved the statements
of the aforesaid defence witnesses relying upon
the ratio in the case of Matia Palei Vs. State of
Odisha and another, reported in 2001 Cri.L.J
1897. The ratio in Matia Palei (supra) is not
applicable to the case at hand. As such, the
impugned order is not sustainable and therefore
the same is liable to be set aside. He further
submits that the matter requires further
consideration by the learned District Judge,
Mayurbhanj at Baripada.
5. Mr. Mishra, learned ASC, on the other
hand, refuting the above submission, submits
that pursuant to the direction of this Court in
W.P.(C) No.34902 of 2020, learned District Judge,
Mayurbhanj, discussed the evidence of DWs 1 to
4
4 in detail at paragraphs-4 and 5 of the impugned
judgment at Annexure-1. In view of the
confessional statements of D.Ws.1 to 4 before the
Range Officer at the time of seizure of the vehicle
along with neem logs make it amply clear that the
statement given by the defence witnesses are
outcome of afterthought and thus carry no
weight. In addition to the above, there are other
overwhelming materials on record, which are
sufficient to come to the conclusion that a forest
offence has been committed and the vehicle in
question is liable to be confiscated. He further
submits that since there is no material
irregularity or flagrant miscarriage of justice in
deciding the matter, this Court should be slow to
interfere with the order under Annexure-1.
Therefore, the writ petition merits no
consideration and is liable to be dismissed.
6. Heard learned counsel for the parties;
perused the materials on record. There is no
dispute to the fact that the Driver and Helper of
the vehicle gave statement before the Forester
that on 24.02.2018 the owner-D.W.1 had
instructed them to transport some Neem logs
from Dantimuhana. While transporting the same,
the vehicle was seized near level crossing of
Betnoti. On perusal of paragraph-4 of the
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impugned order, it appears that the learned
District Judge has discussed in detail the
evidence of DWs 1 to 4. Mr. Mishra, learned
counsel for the petitioner is of course correct in
submitting that the said witnesses were not cross-
examined. Thus, their statements made went
unrebutted. But, the veracity of such evidence
has to be tested along with other materials on
record to reach at a just conclusion. The
unrebutted statements of defence witnesses
cannot be accepted as gospel truth in view of
statements of witnesses and other overwhelming
materials on record, as discussed in detail at
paragraphs-4 and 5 of the impugned order, more
particularly taking into consideration the
confessional statements given by D.Ws. 2 to 4
before the Forester just after seizure of the
vehicle. There is no material on record to come to
a conclusion that the said statements were
recorded by threatening the witnesses or they
were compelled for the same. In view of the ratio
in Matia Palei (supra), confessional statements
given before the Forest Officer is not hit by
Section 25 of Evidence Act, 1872. Thus, the same
can be relied upon in a proceeding under Section
56 of the Act.
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7. Law is well-settled that power under
Articles 226 and 227 of the Constitution cannot
be exercised for re-appreciation of evidence as an
appellate authority. On perusal of materials on
record, since it appears that the learned District
Judge, Mayurbhanj has discussed in detail the
evidence of the defence witnesses and disbelieved
the same assigning cogent reason thereto, I am
not inclined to interfere with the same.
8. Accordingly, the writ petition is dismissed
being devoid of any merit.
8.1 As restrictions due to the COVID-19
situation are continuing, learned counsel for the
parties may utilize a soft copy of this order available
in the High Court's website or print out thereof at
par with certified copy in the manner prescribed,
vide Court's Notice No.4587 dated 25th March,
2020.
................................
K.R. MOHAPATRA,J.
ss
