Posted On by &filed under High Court, Orissa High Court.


Orissa High Court
Prabhu Dayal Agrawal vs State Of Orissa on 31 October, 2000
Equivalent citations: 2001 CriLJ 754, 2000 II OLR 687
Author: P Tripathy
Bench: P Tripathy


JUDGMENT

P.K. Tripathy, J.

1. This criminal revision is directed against the judgment dated 4.8.1998 in Criminal Appeal No. 45 of 1997 passed by the Sessions Judge, Bolangir.

2. The background fact relevant for the purpose is noted as hereunder:

Petitioner was arrested and produced before the S.D.J.M., Sonepur on 5.2.1994 for being illegally possessing 149 pieces of woods and planks of different size totally measuring 67.69 c.ft. On 17.11.1994 the prosecution report was submitted against the petitioner
Under Sections 34, 39, 45 and 73 of the orissa Forest Act, 1972 read with Rule 4 of Orissa Timber and Other Forest Produce Transit Rules, 1980, and learned S.D.J.M. on that date took cognizance of the offences under Rule 21 of the said Rules. On 30.3.1995 petitioner pleaded not guilty to the accusation and claimed for trial. During the trial, in his defence petitioner admitted the fact of seizure of the aforesaid woods and planks but claimed that the same were validly acquired under receipts. In course of the trial petitioner examined three witnesses as defence witnesses and also relied upon the documents vide Exts. A, B and C series. Out of that Ext. A is the statement of the petitioner on 5.2.1992 before the Forester that the said woods and planks were collected by his son viz., Ashok Kumar Agrawal who had collected those woods and planks and 7 days may be granted to him to produce the permit in support of possession of woods and planks. Exts. B and C series are the four receipts filed in proof of purchase of different quantity of sawn sizes and planks from Samaleswari Saw Mills on different dates between 17th February, 1993 to 9th November; 1993. Petitioner was examined as D.W.2, is son Ashok Agrawal as D.W. 1 and the Proprietor of the Saw Mill as D.W.3. Learned S.D.J.M. in his judgment dated 9.5.1996, in 2(b)CC No. 1 of 1994/T.R.No. 547 of 1994 while accepting the factum of seizure as an admitted fact found the defence evidence and the claim of the accused regarding purchase of the said woods and planks were not proved. He found that some of the receipts i.e. Exts. B and C and B/1 and C/1 were fabricated subsequently for the purpose of the case and apart from that the receipts filed by the accused describing the sizes of woods and planks do not fully tally with the articles which were seized. Therefore, he entertained a reasonable doubt about purchase of such woods and planks as claimed by the accused and his son. Nonetheless, he found the accused not guilty on the ground that there was no clinching evidence to prove that the said sawn sizes and planks had been brought from forest or sized in the Mill after collecting it from forest and apart from that those planks and woods were not seized during the course of transit. For that reason, he found the petitioner not guilty and acquitted him of the charge. After passing the order of acquittal in the same judgment in the concluding paragraph, learned S.D.J.M. observed that the seized articles be returned to the accused and no reason was assigned for passing such an order. Thereafter, the petitioner approached the S.D.J.M. and also the Officer who had seized the articles to release the seized woods in his favour and ultimately filed Criminal Misc. Case No. 24 of 1997
Under Section 452(1), Cr.P.C. and learned S.D.J.M. issued a direction to the Ranger of Sonepur Forest Division to return the seized articles to the petitioner. Thereafter, the State of Orissa filed Criminal Appeal No. 47 of 1997 in the Court of Sessions Judge, Bolangir challenging the aforesaid Criminal Appeal No. 45 of 1997. When the appeal was subjudice in the Court of Sessions Judge, Bolangir on 19.7.1997 petitioner filed an application under Articles 226 and 227 of the Constitution of India in this Court vide OJC No. 13489 of 1997/The said OJC was disposed of on 11.11.1997 in which it was observed by this Court that the question of condonation of delay being a matter for consideration of the appellate Court, that be considered by learned Sessions Judge, Bolangir who should also dispose of the matter expeditiously in accordance with law. On 19.1.1998 application Under Section 5 of the Limitation Act filed by the State was allowed and on 4.8.1998 the impugned judgment was passed with a direction to confiscate the seized timber to the State.

3. Mr. D.P. Dhal, learned counsel appearing for the petitioner argues that the aforesaid fact scenario gives rise to a strange sequence of the events where the judgment of the S.D.J.M. acquitting the petitioner and directing for return of the seized articles to the petitioner was not challenged, but at a later stage when learned S.D.J.M. in continuation of his order in the judgment passed a fresh order nay further order for delivery of the seized articles, the same was challenged before the Sessions Judge and entertained by him both incorrectly and illegally. Accordingly, he prays to set aside the order of appellate Court and to issue direction to the Officer in custody of the wood to deliver the same in favour of the petitioner.

4. Learned Addl. Standing Counsel, on the other hand, argued that neither the action taken by the State is illegal nor the order passed by learned Sessions Judge in unjust or improper inasmuch as learned S.D.J.M. after disbelieving valid possession of the wood and planks by the petitioner passed an illegal and unjustifiable order directing for release of the seized articles in favour of the petitioner both in the judgment in the criminal trial and order in the application
Under Section 452(1), Cr.P.C. vide Criminal Misc. Case No. 24 of 1997. Accordingly, he defended the impugned judgment and prayed to dismiss the criminal revision.

5. Learned Sessions Judge in the impugned judgment held that when the petitioner failed to produce any transit pass for taking the seized wod and planks from Sonepur to Binka, which is situated at a distance of 30 km. apart the abrupt conclusion of the S.D.J.M. in the judgment for release of the seized properties in favour of the petitioner and thereafter passing similar order in Criminal Misc. Case No. 24 of 1997
Under Section 452(1), Cr.P.C. is palpably wrong and therefore unenforceable. The facts involved in this case and the contention advanced by the parties in addition to the reasonings assigned by the learned
S.D.J.M. and the Sessions Judge, in the context, is already indicated above. Since this Court finds that neither learned S.D.J.M. nor the Sessions Judge could appreciate the fact in proper perspective, therefore, this Court without further discussing the provisions in Section 452 vis-a-vis the facts and circumstances involved in this case decides to remand the matter for appropriate adjudication. The reason for the same is as follows:

(i) Petitioner at the stage of his defence proved his statement Ext. A where he stated that the wood and the planks had been brought by his son Ashok Agrawal. He did not clearly claimed exclusive ownership over the said seized property. At the time of search and seizure he also wanted a few days time to produce the permit in support of transporting the seized property. His further evidence in the Court was that when he went and showed the relevant permit the Forest Officer declined to entertain the same on the ground that he had already submitted a prosecution report. The other evidence in his defence produced during the trial were found not reliable by the S.D.J.M. In that respect even comment was made regarding fabrication of receipts by the owner of the Saw Mill in favour of the petitioner. When the evidence stood in that manner learned S.D.J.M. without properly reading the provision in Rule 12 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 and the provisions of law in Chapter VIII of the Orissa Forest Act, 1972 besides admittedly without hearing the prosecution relating to the mode of disposal of the seized property passed the order directing for return of the seized property in favour of the petitioner;

(ii) During the trial petitioner did not produce any transit permit and relevancy and consequence of that was not at all considered;

(iii) According to the provision in Section 452(1), Cr.P.C. at the time of delivery of judgment in a criminal trial, the Court of Magistrate may pass appropriate order for the disposal by (a) destruction or (b) confiscation or (c) delivery of the seized property to any person claiming to be entitled to possession thereof or (d) to pass any other appropriate order relating to mode of disposal of such property. Learned S.D.J.M. adopted the mode of delivery of the property to the petitioner who as noted above, did not prove to be entitled to possession i.e., valid possession and did not adduce any evidence in that respect. Nonetheless, when throughout the trial petitioner has advanced the contention admitting the seizure of the property, therefore, it is not fair to adopt the reasoning followed by learned Sessions Judge in the impugned judgment without making a proper inquiry relating to the entitlement of the petitioner. Since learned S.D.J.M. passed the order for disposal of the property whimsically and arbitrarily followed by another order
Under Section 452(1), Cr.P.C. (as per order in the Criminal Misc. Case) without affording an opportunity of hearing to the prosecution, therefore, such orders are non-sustainable.

6. The thrust of the argument of Mr. Dhal was that when in the acquittal judgment direction for delivery of the property has already been made and no appeal having been preferred against that order now it is not permissible to re-consider the matter afresh. Technically the aforesaid contention has substance. But while exercising revisional power
Under Section 401, Cr.P.C. as well as keeping in view the provision in Section 482 power of this Court is wider enough to take care of such a situation and to streamline the dispute for its appropriate adjudication. Though appreciating the aforesaid argument but not accepting the same, as ordered above, this Court feels it just and proper that the matter relating to the disposal of the property be enquired into by learned S.D.J.M. and to pass appropriate order in accordance with law notwithstanding the incorrect and whimsical order passed in the judgment in the aforesaid criminal trial.

7. For the sake of clarity it may be noted that the property after being seized was in the custody of the concerned forest official. Therefore, the said officer or any officer who received the property in his charge shall be liable to return the same either for delivery of possession in favour of the petitioner or for confiscation, as the case may be as per the order of learned S.D.J.M. Thus, the Divisional Forest Officer shall make verification of records from his office file and file an affidavit clearly stating as to in whose possession the seized property was/is kept and who is liable to account for the same. This order is being passed with a view to cut short the matter relating to the disposal of the property in the manner order
Under Section 452(1), Cr.P.C, shall be passed besides making the concerned officer in charge of the seized property to account for the same or to pay the cost thereof without hampering the interest of the State or burdening the State exchequer, as the case may be, In other words, such officer shall be personally liable to account for the seized property whether it is liable to be returned to the petitioner or confiscated to the State and the plea of damage to the: seized property shall not be entertained and such officer shall be liable to pay from his entitlement from the Government of Orissa i.e., salary or any other fund. Therefore, the concerned D.F.O., by virtue of this direction shall file his affidavit within 15 days from the date of receipt of notice from the S.D.J.M., and thereafter learned S.D.J.M., may issue notice giving opportunity of hearing to the concerned forest official who is to account for the seized property.

8. In view of the aforesaid discussions and findings while setting aside the orders of the Courts below this Court directs the learned S.D.J.M., Sonepur to conduct an inquiry in accordance with law and to dispose of the Criminal Misc. Case No. 24 of 1997 afresh. All endeavour and efforts be made by him to dispose of the matter as expeditiously as possible and preferably within a period of three months from the date of receipt of a copy of this order. In the event of delay a comprehensive report should be submitted to this Court for appropriate orders at this end.

9. The Criminal Revision Case is allowed accordingly.


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