SUMAN AGARWAL Vs. DIVISIONAL FOREST OFFICER, RAIRAKHOL

JUDGEMENT

(1.) NOTICE on behalf of the opposite parties has been accepted by Sri C.A. Rao, learned Standing Counsel for the Forest Department. We have heard learned counsel for the petitioner Sri Rabinarayan Nayak and the learned Standing Counsel for the Forest Department - opposite parties. Sri C.A. Rao has received instruction. However, counter affidavit has not been filed. Therefore, counter affidavit may be filed within two weeks.

(2.) LIST this case in the week commencing 22nd of September, 2008 for final disposal at admission stage. We have considered the question of interim release of the vehicle, which is a Bus bearing Registration No.OR -02 -AJ -8199. It appears that on 1.8.2008, 58 bundles of Kendu Leaves were found loaded on the roof of the above noted passenger bus. The Forest Officers raided the bus and recovered the Kendu Leave bundles and seized the same along with the passenger bus. For Kendu leaves in Orissa there is a special Act namely Orissa Kendu Leaves (Control of Trade) Act, 1961, in short "Act, 1961", which provides specific provisions regarding offence as well as power of entry, search, seizures etc. and also the procedure according to which the provisions of Sections 102 and 103 of the Code of Criminal Procedure relating to search and seizure shall, so far as may be, apply to searches and seizures under that Section. The Act was enforced on 5th January, 1962. Thereafter the Orissa Forest Act, 1972 came into force with effect from 11.7.1972.

(3.) NO doubt, 'Kendu Leave has been included in the definition of 'Forest Produce in the Orissa Forest Act and the definition of the 'forest offence is given as an offence punishable under the Forest Act or the Rules framed thereunder. But Sri C.A. Rao relying on the provision of the Orissa Timber and Other Forest Produce Transit Rules, 1980 which have been framed under the Act, 1972 submits that there was necessity to obtain a permit for transportation of Kendu Leaves. However Clause 5 of the aforesaid Rules, 1980 indicates the cases in which permit shall not be required, as under :