JOGENDER SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) In all these writ applications common questions of law having been raised, they were heard together and are being disposed of by this common judgment. The petitioner in each of these writ applications assails the legality of the notice issued by the forest authority for initiating a confiscation proceeding under the provisions of the Orissa Forest Act and has prayed to quash the said confiscation proceeding as well as to declare Ss. 56, 57, 59 and 64 of the Orissa Forest Act, 1972 (hereinafter referred to as the "Act"), as amended by Amendment Act of 1982, as ultra vires. In each of the writ applications, as the vehicle of the petitioner was found to be involved in commission of a forest offence, the same was seized and thereafter the Divisional Forest Officer issued notice to the petitioner to show cause as to why the vehicle involved in the commission of forest offence shall not be confiscated. The petitioner thereafter has approached this Court for the reliefs as already stated.

(2.) During hearing of those writ applications, Mr. Jena for each of the petitioners contends that conferment of power of confiscation upon the Authorised Officer under sub-section (2-a) of Section 56 of the Act is liable to be struck down as no sufficient guideline has been indicated for exercise of that power. The learned counsel further urges that in respect of the same offence, providing for confiscation before the forest authorities and providing for a criminal trial before the magistrate under the Code of Criminal Procedure Code amounts to double jeopardy and, therefore, Section 56(2-a) must be held to be unconstitutional. According to Mr. Jena, the provision for confiscation is much more harsh, unreasonable and arbitrary than the power of a magistrate under the Criminal Procedure Code and, therefore, the said provision should be struck down. Mr. Jena also urges that the provisions of the Orissa Forest Act with regard to confiscation and interim release having ousted the jurisdiction of the criminal court, the said provisions must be held to be ultra vires. Mr. Jena further argues that against an order of confiscation an appeal lies to the district Judge as provided in Section 56(2-a) of the Act and against a conviction in a criminal case an appeal is maintainable to the Sessions Judge and this may create an anomalous situation and two conflicting judgments may emerge and, therefore, the provisions meant for confiscation must be held to be illegal. Lastly, Mr. Jena argues that against the decision of the Authorised Officer not to release the seized vehicle on temporary zima, no appeal being provided for, the provision itself must be held to be unconstitutional.

(3.) In course of hearing of these writ applications, Mr. S. N. Sinha appearing for the Bank (opposite party No. 3) raises a contention that the order of confiscation must be subject to the Bank's right as the vehicle in question has been hypothecated to the Bank. But it is not necessary for us to consider that question since the Bank has not come against any order and it is the constitutional validity of the different provisions of the Act urged by the petitioner which are required to be considered. In that view of the matter, we do not think it appropriate to entertain and consider the contention raised by Mr. Sinha appearing for the Bank.