BHIMASEN BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is directed against the conviction of the petitioners for an offence Under Section 27 of the Orissa Forest Act (hereinafter referred to as 'the Act') read with Rule 21 of the Orissa Timber and other Forest Produce Transit Rules, 19&0 (for short 'The Timber Transit Rules') on the allegation of committing offence prohibited Under Section 5 of the Act and contravening provision of the Timber Transit Rules. The offence report submitted against the petitioners was that the Vigilance Staff, Berhampur and the Range Officer N.K. Jena with his staff, while patrolling at Parrikimai and Baghipada area detected truck bearing No. ORL 1177 carrying,1000 bamboos and non -Sal pieces. The petitioner No.. 1 was the driver of the truck and the -petitioner No. 2 was another occupant. There were other persons also in the truck but they have been subsequently let off and are not concerned in the present revision. On demand neither the driver nor the petitioner Mo. 2 could produce any valid permit in respect of the forest produce for which the vehicle along with the forest produce was seized and simultaneously a confiscation proceeding as well as criminal prosecution was launched. It is the admitted case of the parties ' that the confiscation proceeding has since ended in favour of the petitioners with no order for confiscation passed. The learned trial Court took the view, which was also confirmed in appeal, that there was no valid permit in respect of the transported forest produce and as such, finding the provisions of Rule 21 of the Timber Transit Rules to have been violated by the petitioners, convicted and sentenced them to Rl of four months each and fine of Rs. 1000/ - each, in default to undergo RI for one month each. The conivction and the sentence were confirmed in appeal.

(2.) MR . Ghose, the learned counsel appearing for the petitioners submits, in assailing the judgments of conviction and sentence that in fact Ext, A. the permit was filed in support of the defence showing permit to have been issued in respect of the bamboos and non -Sal pieces but that the Courts below took an erroneous view of the permit being not transferable and being not in the name of the petitioner No. 2 and the driver's name being not mentioned in the permit and that Ext, A was not a valid permit and such the transport was illegal. - -

(3.) A reference to Ext. A, the certified copy of which .is available on records, does not show it to have been issued under the Timber Transit Rules. The permit is not in Form i of the said Rules. The permit however shows to have been issued in favour of a number of persons, It is explained by the learned Additional Standing Counsel that the permit has been issued in the Form appended to Schedule of Rates for forest Produce in Orissa Rules, 1977 (for short, 'Schedule of Rates Rules ) and that though such a permit was issued, yet it was not transferable and being not in the name of the petitioners, the prosecution against them had bean rightly launched and they had been correctly convicted. The Schedule of Rates Rules has been framed Under Section 36 (d) of the Act for the purpose of payment to be made by the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber or other forest produce for their own use and for trade. Rule 8 of the Schedule of Rates Rules provides permit to be issued in the form appended to the rules to the inhabitants of towns and villages in the vicinity of protected forests for removal of timber, bamboos, firewood and charcoal for their own use, and of other forest produce for trade purposes on payment as mentioned in Schedule II. The form provides to record the name of the purchaser, the number of cart and name of the carter, the description of produce and it? number, quantity and value. Ext. A however has left the column No. 2, regarding the number of carts and the names of the carters, in this case of the truck, blank. A reading of the - Schedule of Rates Rules and the Timber Transit Rules shows that while the Timber Transit Rules permit Timber and other forest produce to be transported from out of a forest on the basis of permit issued under the Timber Transit Rules the Schedule of Rates Rules makes specific provision for issue of permits to the inhabitants of towns and villages in the vicinity of protected forests for removal of the forest produce for their own use or for trade. The Schedule of Rates Rules is thus by way of an exception to the Timber Transit Rules making a specific provision. If a permit has been granted under the Schedule of Rates Rules, a permit under the Timber Transit Rules is not necessary. The prosecution having been launched for violation of Rule 21 of the Timber Transit Rules was itself misconceived since there was in fact existence of a permit covering the trans - ported forest produce under the Schedule of Rates Rules. There is also no authority for the proposition, as has been also conceded by the learned Additional Standing Counsel, that the permit issued under the Schedule of Rates Rules is not transferrable. As the permit itself shows it had been granted in favour of a number of persons. It is the case of the petitioner No. 2 that he had been engaged as an agent by all those persons to transport the forest produce on their behalf. DW 1 is an advocate who was also one of the persons in whose favour the permit had been issued, and vouchsafed to the fact that the petitioner No. 2 in fact had been authorised to transport the forest produce on their behalf. In that view of the matter, it has to be held that both the Courts below have proceeded on wrong footing of the permit though in existence to be not transferrable and have purported to convict the petitioners for violation of Rule 21of the Timber Transit Rules whereas in fact that Rule has no application