PRABHU DAYAL AGRAWAL Vs. STATE OF ORISSA

JUDGEMENT

(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 illegally possessing 149 pieces of woods and planks of different sizes totally measuring 67.69 C.ft. On 17-11-1994 the prosecution report was submitted gainst the petitioner under Sections 14, 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 cognisance 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, his son Ashok Agrawal as D.W.1 and the Proprietorof 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 gulity 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 retutrned 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 order of learned S.D.J.M., Sonepur. The same was registered as 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 O.J.C.N. 13489 of 1997. The said O.J.C. 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, 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 illegaly. 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.