AGRAWAL GRAPHITE INDUSTRIES Vs. AUTHORISED OFFICER-CUM

JUDGEMENT

(1.) Biswanath Rath, J. This writ petition involves a challenge to the judgment and order dated 28.1.2010 passed by the Additional District Judge, Nuapada in Misc. Judl. Appeal No.5/2008 confirming the order dated 17.11.2008 passed by the Authorised Officer-cum-Assistant Conservator of Forests in the Confiscation Proceeding in O.R. No.02Kh of 2006-07 C.P. No.6 of 2006-07.

(2.) Short background involving the case is that on receipt of information from reliable source, concerned Forest Guard proceeded towards Bichhinapali (Nehena) Village and performed night patrolling duty on 16.4.2006 at about 10 p.m. Finding moving of a dumper truck bearing Regn. No.OSS-1461, he stopped the truck/dumper, checked, verified and found that 16 numbers of Teak logs equivalent to 0.5124 Cu.M. were loaded along with Graphite in the truck. The Forest Guard finding forest produce loaded in the truck asked the driver to produce valid permit in relation to the loaded Teak logs, the driver failing to produce any document told the Forest Guard that the forest produces were loaded by one Hero Kumar Bag and he had no valid permit for the said transportation. Consequently, the vehicle and the forest materials were taken into custody along with the truck dumper. The truck and the driver along with the materials were brought to the Range Office compound. Consequently, OR No.2kh of 2006-07 was registered for alleged violation of the provisions of Section 37 of the Orissa Forest Act, 1972, Rule 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 read with Section 56 of the Orissa Forest Act, 1972. The case was handed over to the Forester of Khariar Section with intimation of seizure to the Judicial Magistrate First Class, Khariar and also to the Divisional Forest Officer, Khariar Division by the Range Officer, Khariar Range. The Forester on preliminary enquiry submitted his enquiry report to the Range Officer. Thereafter the Range Officer submitted the case record along with his supervisory enquiry report, vide Memo No.528 dated 24.7.2006 for necessary trial of the case under Section 56 of the Orissa Forest Act to the Authorised Officer-cum-A.C.F., Khariar Forest Division. As the case was required to be tried under Section 56 of the Orissa Forest Act, 1972 for violation of Rules 4 and 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980, the trial was undertaken by the Authorised Officer-cum-A.C.F., Khariar Division. On notice in the Forest Offence Case, the owner appeared and filed show cause. This apart, the owner was also examined as a witness and cross-examined. Similarly, the Forest Department also produced copy of the report and copies of the statements recorded during preliminary enquiry. This apart the Forest Department also examined their witnesses and produced their documents in satisfaction of their case. Based on the materials available on record and the pleadings of the respective parties, the Authorised Officer- cum-A.C.F., Khariar Division by final order dated 17.11.2008 concluded the proceeding observing that there has been commitance of forest offence under Section 33 of the Orissa Forest Act and Rules 4 and 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 with involvement of truck dumper bearing Regn. No.OSS-1461 with full knowledge and consent of the driver in-charge of the vehicle and accordingly directed for confiscation of the truck/dumper along with 16 numbers of green Teak logs to be confiscated to State releasing thereby the Graphite loaded with due permission in the truck/dumper involved in favour of the rightful owner further also recommended the case to the Judicial Magistrate First Class, Khariar for trial involving Hero Kumar Bag and the driver for appropriate action for their criminal involvement in the offence.

(3.) Assailing the impugned judgment and order, Sri K.K.Jena, learned counsel for the petitioners on reiteration of the grounds taken in the Memorandum of Appeal contended that the impugned judgment and order suffer on account of the following :-