STATE OF ORISSA Vs. JAGADISH CHANDRA JENA

JUDGEMENT

(1.) An order of confiscation passed by the Authorised Officer-cum-Divisional Forest Officer, Baripada Division, Baripada, having been set aside in appeal with a direction to release the vehicle bearing registration number WGB 6909, the State is before us for quashing the same and restoring the order of confiscation.

(2.) The impugned order (Annexure-1) is assailed by the petitioner-State, inter alia, on the ground that it proceeds on an erroneous interpretation of Section 55(2-c) of the Orissa Forest Act, 1972 (in short, 'the Act') and due to failure on the part of the learned District Judge, Balasore to take notice of the material on record. Elaborating the contention, Mr. Jairaj Behera, the learned Additional Government Advocate submitted that the learned District Judge has proceeded on an assumption that the burden to establish the guilt is on the prosecution whereas under Section 56(2-c), it is on the person who has been charged. It is further submitted that the finding that non-service of the notice to show cause on the person charged, is also erroneous as the Court has proceeded on an erroneous presumption that a notice in writing informing him of the grounds on which it is proposed to confiscate the vehicle in question was not served. Our attention is invited to Annexure-3, a memo dated 17-9-1990 wherein the action proposed and the grounds on which it is proposed find place. A seizure-list dated 20-1-1990 was also enclosed to this memo which was sent by registered post with acknowledgment due. Accordingly, it is submitted that the impugned order cannot be sustained and is liable to be quashed.

(3.) While refuting the contentions advanced by the learned Additional Government Advocate, Mr. Mukherji, learned Senior Advocate appearing on behalf of the opposite party No.1, contends that the impugned order is proper and calls for no interference. By making a reference to Section 56(2-c) of the Act, the learned Counsel contends that before the vehicle in question can be confiscated, what is required to be proved is that the owner/his agent/the person charged against, either had the knowledge that the vehicle in question had been used for commission of the offence or there was connivance in the commission of the offence. It is submitted that in the case at hand, none of the statutory requirements is fulfilled.