Orissa High Court
State Of Odisha vs Sudam Meher ... Opposite Party on 9 January, 2024
Author: Krushna Ram Mohapatra
Bench: Krushna Ram Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.32975 of 2023
(In the matter of an application under
Articles 226 and 227 of the Constitution of India, 1950)
*******
State of Odisha ... Petitioner
-versus-
Sudam Meher ... Opposite Party
Advocate for the Parties
For the Petitioner : Mr. Amiya Kumar Mishra,
Additional Government Advocate
For Opp. Party : Mr. Sarathi Jyoti Mohanty, Advocate
CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
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Heard and Disposed of on 09.01.2024
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JUDGMENT
K.R. Mohapatra, J.-
1. This matter is taken up through hybrid mode.
2. Judgment dated 31st January, 2023 (Annexure-8) passed in
FAO No.08/09 of 2019-2022 is under challenge in this writ
petition, whereby learned Additional District Judge, Bargarh
allowing an appeal filed under Section 56(2-e) of the Orissa Forest
Act, 1972 (for short 'the Act'), set aside the order dated 5th July,
2019 passed by the Authorized Officer-cum-Asst. Conservator of
Forest, Bargarh Forest Division, Bargarh in CPC No.12 of 2016-17
confiscating the tractor and trolley bearing registration No.CG-04-
Digitally Signed // 2 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
L-1130 and CG-04-DB-7322 (for short 'the offending vehicles')
respectively.
3. Mr. Mishra, learned Additional Government Advocate
submits that learned appellate Court set aside the order of
confiscation passed by the Authorized Officer-cum-Asst.
Conservator of Forest, Bargarh Forest Division, Bargarh on the
ground that the owner had no knowledge of the forest offence
committed by using the offending vehicles. He had also not
permitted his agent to commit the forest offence. It is his
submission that admittedly the offending vehicles while carrying
fifteen numbers of miscellaneous logs with four quintals of fire
woods driven by one Bhakta Sahu (a minor) was seized by the
forest officials on 14th January, 2017. Accordingly, confiscation
proceeding in CPC No.12 of 2016-17 was initiated on the file of
Authorized Officer-cum-Asst. Conservator of Forest, Bargarh
Forest Division, Bargarh and order of confiscation was passed on
5th July, 2019 (Annexure-6). Assailing the same, the Opposite
Party-Sudam Meher moved the appellate Court under Section 56(2-
e) of the Act and the impugned order under Annexure-8 has been
passed.
4. It is his submission that admittedly a forest offence has
been committed by using the offending vehicles, as there was no
valid permission for transportation of the forest produce. The only
ground on which learned Additional District Judge set aside the
order of confiscation is that the owner or his agent had no
knowledge of commission of such forest offence. It is his
submission that one Rajim Meher of Karsdol of Chhattisgarh State
is the owner of the offending vehicles. He had given the same on
lease to Sri Sudam Meher, who is the grandson-in- law of the
Digitally Signed // 3 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
registered owner. On 14th January, 2007, a minor, namely, Bhakta
Sahu was driving the offending vehicle, which was loaded with the
forest produce. The forest produce was being transported for
preparation of Mahaprasad in Hanuman Temple of the village as
per the instruction of local Sarpanch. The key of the vehicle was
handed over to said Bhakta Sahu by the mother of the said Sudam
Meher. Thus, no precaution was taken before commission of the
forest offence. In his cross examination, Sudam Meher had
categorically stated that at the relevant time, he was at Bargarh.
Thus, it could not be said that the said Sudam Meher had no
knowledge of commission of such forest offence. In fact, when the
offending vehicles were seized, said Sudam Meher went to the
Sarpanch to get a letter for transportation of the firewood.
Thereafter, he produced the same before the Range Officer,
Bargarh and learned that the offending vehicles have already been
seized. From the conduct of said Sudam Meher, it is clear that he
had knowledge of the commission of forest offence as immediately,
after seizure of the vehicle, he proceeded to Sarpanch as well as
Bargarh to release the vehicle on the very same day i.e., on 14th
January, 2017. No material is available on record to show that
Sudam Meher or his agent had no knowledge of commission of
such forest offence. In support of his case, he relied upon a decision
in the case of Malatilata Samal and others vrs. State of Orissa and
others, reported in 2002 (II) OLR 216, in para-8, this Court held as
under:
"8. Mr. Panda strenuously submitted that as would be evident
from the evidence, the owner had absolutely no role to play in
the alleged offence and the truck therefore should not be
confiscated. To appreciate the said argument a cursery glance
at the Section itself would be very much necessary. Section 56(2-
c), according to us, has put an embargo so far as mens rea is
concerned. The section provides that in cases of confiscation of
Digitally Signed // 4 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
the tools or the vehicles used for the offence, it is the owner who
has to prove that the same has been used without his knowledge
or connivance, or the knowledge or connivance of his agent, if
any, or the person in charge of the article in question. Thus, it
would be clear that the knowledge and connivance, so far as S.
56(2-c) is concerned, are not confined to the owner alone, but
take within their fold, the knowledge and connivance of the
agent, if any, or the person in charge of the vehicle. A closer
reading of the Section further reveals that it also stipulates that
to escape the order of confiscation it must be further proved that
each of the concerned persons had taken all reasonable and
necessary precautions against use of the vehicle in question in
respect of commission of Forest offence. The view expressed by
us is fortified by the decision of this Court reported in (1991) 71
Cut LT 157 (supra)."
5. In the case of Malatilata (supra), this Court has relied upon
the case law in the case of State of Orissa represented through the
Range Officer, Khurda Forest Range vrs. Kiran Sankar Panda &
others, reported in (1991)71 CLT 151 in which it was held as
under:
"4. What is more important than the difference in
phraseology used in the two Acts is that so far as
confiscation of any tool, rope, chain, boat, vehicle or cattle is
concerned, section 56(2-c) has excluded the conception of
mens rea by necessary implication, as already noted. We
have said so because this section states that in case of
confiscation of such articles, it is the owner who has to prove
that the same had been used without his knowledge or
connivance or the knowledge or connivance of his agent, if
any, or the person in charge of the article in question. This
would show that knowledge or connivance is assumed unless
contrary is proved. The knowledge or connivance about
which section 56(2-c) has spoken is not confined to the
owner but takes within its fold the knowledge or connivance
of - the agent, if any, or of the person in charge of the article
in question. Not only this, this section further states that to
escape the order of confiscation, it must be further proved
that each of the concerned persons had taken all reasonable
and necessary precaution against the use of the article in
question in respect of the commission of the forest offence."
He therefore, submits that learned appellate Court has
committed an error of law in holding that Sudam Meher had no
knowledge of commission of forest offence by using the vehicles.
Digitally Signed // 5 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
He therefore, prays for setting aside the impugned order and to
uphold the order passed by the Authorized Officer-cum-Asst.
Conservator of Forest, Bargarh Forest Division, Bargarh.
7. Mr. Mohanty, learned counsel for the Opposite Party
vehemently objects to the same and contends that the observation
of the Authorized officer in the order of confiscation of the
offending vehicles at Annexure-6 makes it clear that the Opposite
party or his agent has no knowledge of commission of forest
offence by the offending vehicle. He drew attention of this Court to
the following portion of the order under Annexure-6:
"During trial Sri Sudam Meher stated that as per request of
the Sarapanch and other villagers of village Bandhpali, the driver
was transporting the logs and firewood from the rayati land of
Antaram Seth without any valid documents and on the way the
forest staff seized the tractor near Handiphuta village. The said
logs and firewood were being transported for preparation of
Mahaprasad in Hanuman Temple. He learnt about seizing of
tractor from his friend on 14.01.2017. Then he consulted with the
Sarapanch and brought a letter from him. But the concerned
Sarapanch in his letter has not mentioned from where the logs
and firewood were removed and for what purpose it was brought
and for which vehicle it was transported. Thereafter he
proceeded to the Range Office, Bargarh and learnt that the forest
staff seized the vehicle while transporting of forest produce
illegally by the vehicle. During cross examination Sri Meher
stated that the actual owner of the seized tractor is his
grandfather-in law Sri Rajim Meher of Kansdol of Chhatisgarh
State. He had not handover the tractor to Sri Bhakta Sahu and he
was present at Bargarh on the date of occurrence rather the key
of the tractor has been handed over by his mother. He has also
stated that an agreement was made with Sri Rajim Meher @ of
Rs.8, 000/- per month as hire basic and the logs were being
donated by Antaram Seth to Hanuman Mandir Committee."
He, therefore, submits that it is clear that Opposite Party was not
present at the spot on the date of occurrence. There is also no
material available on record to show that Opposite Party or the
registered owner has ever authorized Bkhakta Sahu to drive the
vehicle. Thus, learned appellate Court has committed no error in
Digitally Signed // 6 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
setting aside the order of confiscation and release the offending
vehicle.
9. Considering the submission made by learned counsel for
the parties and on perusal of the observation of the Authorized
Officer, it is clear that Sudam Meher had no knowledge of
commission of forest offence by using the offending vehicle. On
the date of occurrence, i.e., on 14th January, 2017, he was at
Bargarh, but the forest offence was committed in Bandhapali
village. The vehicle was detected committing forest offence near
Handiphata village. It is also clear from the statement of said
Sudam Meher-Opposite Party that the said logs and fire wood were
being transported for preparation of 'Mahaprasad' in Hanuman
Temple on the instruction of the local Sarpanch. Getting
information of the seizure of vehicle, said Sudam Meher rushed to
the Sarpanch and obtained a letter from him authorizing
transportation of forest produce. Thereafter, he came to Bargarh to
apprise the forest officials about the occurrence. But by that time,
the offending vehicles were already seized.
10. In course of argument, Mr. Mishra, learned Additional
Government Advocate drew attention of this Court to the letter of
said Sudam Meher addressed to the Authorized Officer. The
contents of the letter dated 13th September, 2017 written by said
Sudam Meher to the Authorized Officer clearly discloses that said
Sudam Meher had no knowledge of commission of forest offence
and it is clearly stated that he had never authorized Bhakta Sahu to
drive the vehicle. Thus, it cannot be said that Sudam Meher had
connived for commission of offence.
11. In that view of the matter, this Court is of the considered
opinion that the Opposite Party has discharged the initial burden as
Digitally Signed // 7 //
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Jan-2024 17:18:14
required under Section 56(2-c) of the Act. Thus, the onus shifts to
the prosecution to prove that the owner of the offending vehicle had
knowledge of commission of forest offence. No material is
produced before this Court to show that Sudam Meher (Opposite
Party) had in fact knowledge of commission of forest offence by
using the offending vehicle. On the other hand, there are sufficient
materials on record to show that Sudam Meher had no knowledge
of commission of offence by using the offending vehicle and he had
never authorized the transportation of the forest produce in the said
vehicle.
12. In view of the above, this Court is of the considered opinion
that learned appellate Court has committed no error in directing
release of the vehicle in favour of the Opposite Party.
13. Accordingly, the writ petition, being devoid of any merit,
stands dismissed.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
High Court of Orissa, Cuttack
Dated 9th January, 2023/Rojalin
