JUDGMENT
L. Rath, J.
1. The petitioner having been convicted under Rule 21 of the Orissa Timber and other Forest Produce Transit Rules, 1980 (for short, ‘the Transit Rules’) and sentenced to undergo SI for one year and fine of Rs. 1,000/-, in default to undergo further SI for two months and such conviction and sentence having been confirmed in appeal, has preferred this revision.
2. The petitioner was tried for the offence that on 10-12-1980 his saw mill running in the name of Satyanarayana Saw Mill was raided at about 2.45 p.m. The raid party found some logs inside the mill premises without any hammer mark and the petitioner was also not able to produce any licence or permit for keeping the logs. The logs were seized and the matter was investigated into after completion of which the prosecution report was submitted. The petitioner having denied the offence, the trial ensued. The case of the prosecution was established through seven witnesses all of whom stated regarding the fact of raid and seizure, excepting PW 6 who though was a witness to seizure yet did not support the prosecution case.
3. Mr. Misra, the learned counsel appearing for the petitioner, has assailed the conviction firstly on the submission that the cognizance of the offence having been taken under Sections 27 and 37 of the Orissa Forest Act, a conviction under Rule 21 of the Transit Rules could not have been made and that secondly the seizure of the logs could not be said to have been from the possession of the petitioner since it was the evidence of the seizure witnesses that the mill had no fence and that the seizure was not evidenced by independent witnesses.
4. So far as the first submission is concerned, it is seen that the prosecution report was submitted by the Range Officer, Aska, detailing the allegations against the petitioner and mentioning that he had committed offences under Sections 27 and 37 of the Orissa Forest Act as also under the Orissa Timber and other Forest Produce Transit Rules, 1980. The learned Magistrate recorded an order on 22-6-1981/20-6-1981 of the prosecution report having been received under Sections 27 and 37 of the Orissa Forest Act and cognizance being taken. On 4-12-1981 after appearance of the petitioner, an order was also recorded that particulars of the offence under Sections 27 and 37 of the Orissa Forest Act were explained to him. Such facts are the basis of the submissions of Mr. Misra that cognizance having never been taken under the Transit Rules, a conviction thereunder is not possible.
5. It is frankly admitted by the learned Additional Government Advocate that as per the allegations in the prosecution report, no offence under Sections 27 and 37 of the Orissa Forest Act was committed. It is his submission however that the petitioner was all throughout aware of the allegations against him which were contained in the prosecution report copy of which had also been supplied to him. He faced the trial only for such offence. All the witnesses stated regarding such fact whom he cross-examined and hence there cannot be possibly any prejudice to the petitioner for a wrong provision having been mentioned while taking cognizance. There is much force in the contention since except from mentioning Sections 27 and 37 of the Orissa Forest Act in the order taking cognizance, there was never any allegation against the petitioner under those Sections. The only allegation against him was of the raid party having raided his mill and to have discovered some logs for which necessary transit permits were not available. The offence thus squarely fell under Rule 21 of the Transit Rules there being violation of Rules 4 and 12 of the said Rules. There was thus absolutely no prejudice to the petitioner. Section 71 of the Orissa Forest Act provides the trial of the offences under the Act to be summary type. Section 262 read with Section 251, Cr.P.C. provides that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. As the order of 4-12-1981 discloses the particulars to have been disclosed to the petitioner, it would implicitly show that the particulars of the allegations of violation of the Transit Rules were explained to him and he pleaded not guilty to the same. Section 465, Cr.P.C. provides that merely because of an error, omission or irregularity in the procedure, a sentence or order passed by a court of competent jurisdiction is not to be reversed unless there has been failure of justice occasioned thereby. Besides, as was decided by the Supreme Court in AIR 1964 SC 1541 : (1964 (2) Cri LJ 468), Jamuna Singh v. Bhadai Shah, even where formal orders are not recorded of taking cognizance, yet the fact of cognizance having been taken by the court can be inferred from the orders passed by the court. In AIR 1958 AP 318 : (1958 Cri LJ 606), Gowri Thimma Reddy v. the State of Andhra Pradesh, it was pointed out that while taking cognizance, Section 190, Cr.P.C. does not make it obligatory that any provision of law is to be quoted by the Magistrate. An error therefore in the mention of the particular provision under which cognizance is taken, does not vitiate the cognizance itself. In view of that, the submission of Mr. Misra must be rejected.
6. As regards seizure, the evidence regarding the same is overwhelming. All the witnesses except PW 6 have consistantly stated of the logs to have been seized inside the mill premises. PWs 2 and 3 have been more specific to say that the logs were seized near the cutting machines of the mill. As such, merely because the witnesses stated that the mill had no fences around it would not show a possibility that the logs were not inside the premises but were outside it. As a matter of fact there has been also no suggestion to the witnesses that the logs were discovered outside the mill premises. The further submission that no independent witnesses were examined to prove seizure is also not correct since PW 6 is admittedly an independent witness though he did not support the prosecution. It is well settled in law that where seizure witnesses turn hostile, the evidence of the departmental witnesses can be relied upon to prove the fact of seizure unless there is intrinsically anything which appears to make their evidence non-trustworthy. In that view of the matter, it must be held that the judgments passed by the forums below are not liable to be interfered with.
7. In the result, the revision has no merit and is dismissed.