(1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, ropes, chains, boats, vehicles or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.
(2) Every Officer seizing any property under this Section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, except where the offender agrees in writing to get the offence compounded 3[under Section 72] 4[either produce the property seized before an officer not below the rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (hereinafter referred to as the authorised officer] or make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made :
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior and the Divisional Forest Officer.
2[(2-a) When an authorised officer seizes an forest produce under Sub-Section (1) or where any such forest produce is produced before him under Sub-Section (2) and he is satisfied that a forest offence has been
1. Re-numbered vide Odisha Ext. Gazette No. 2037/Legis.-dt.15.12.1990.
2. Substituted vide O.A. No. 12 of 2003 Notfn. No. 6282/Legis. OG.E. No. 660, dt. 5.5.2003.
3. Inserted ibid.
4. Inserted vide Odisha Act 9 of 1983-See O.G.E. No. 444-D/18.4.1983.
5. Substituted ibid.
29 committed in respect thereof, 5[he shall] order confiscation of the forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles or cattle used in committing such offence.
(2-b) No order confiscating any property shall be made under Sub- Section (2-a) unless the person from whom the property is seized is given—
(a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property;
(b) an opportunity of making a representation in writing within such reasonable times as may be specified in the notice against the grounds for confiscation; and
(c) a reasonable opportunity of being heard in the matter.
(2-c) Without prejudice to the provisions of Sub-Section (2-b) no order of confiscation under Sub-Section (2-a) of any tool, rope, chain, boat, vehicle or cattle shall be made if the owner thereof proves to the satisfaction of the authorised officer that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the tool rope, chain, boat, vehicle or cattle, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use.
(2-d) Any Forest Officer not below the rank of a Conservator of Forests empowered by the Government in this behalf by notification, may, within thirty days from the date of the order of confiscation by the authorised officer under Sub-Section (2-a), either suo motu or on application, call for and examine the records of the case and may make such inquiry or cause such inquiry to be made and pass such order as he may think fit :
Provided that no order prejudicial to any person shall be passed without giving him an opportunity of being heard.
(2-e) Any person aggrieved by an order passed under Sub-Section (2-a) or Sub-Section (2-d) may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property has been seized, and the District Judge shall, after giving an opportunity to the parties to be heard, pass such order as he may think fit and the order of the District Judge so passed shall be final.]
(3) The property seized under this section shall be kept in the custody of a Forest Officer or with any third party, until the compensation for compounding the offence is paid or until an order of the Magistrate directing its disposal is received.
1[Provided that the seized property shall not be released during pendency of the confiscation proceeding or trial even on the application of
1. Added vide O.A. No. 12 of 2003 Notfn. No. 6282/Legis. O.G.E. No. 660, dt.5.5.2003.
30 the owner of the property for such release.]
Explanation :— For the purposes of this Section and Section 59, cattle shall not include buffaloes, bulls, cows, calves and oxen.
NOTES
(1) Section 56 - Seizure of vehicle, seizes and planks belonging to the petitioner by Forest Officials–Initiation of confiscation proceeding– Authorised Officer closed the proceeding and directed release of seized vehicle and articles on the ground that produce seized do not attract the provisions of Forest Act–Petitioner filed writ petition claiming compensation for the illegal seizure and detention of the vehicle–No malafide shown on behalf of the Forest Officials and initiation of confiscation proceeding was in accordance with law–Held, claim of compensation not tenable : (2012) 51 OCR - 352.
(2) Section 56 - Seizure of vehicle for transportation of Sal and Kurum planks without T.T. Permit-confiscated by authorised officer–Appeal was dismissed by District Judge–Vehicle was seized by Police and handed over to forest department–Enquiry was conducted by the Forester–Rule 4(2) of Odisha Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980 not complied with–Confiscation order sed-aside–Vehicle released in favour of petitioner : (2012) 51 OCR - 258.
(3) Section 56 - Odisha Timber and Other Forest Produce Transit Rules, 1980 - Rule 4 - Transportation of teak logs - No document produced in support of such transportation - Confiscation proceedings - Appeal against order of confiscation passed by Authorised Officer allowed - Writ - Findings of fact arrived at by the appellate authority on examination of the oral and documentary evidence - High Court in a writ petition has hardly any jurisdiction to disturb the said finding of fact unless it is proved that such finding is perverse and without any evidence to support the same - Rule 4(2) of the 1980 Rules has also not been followed in the manner prescribed under the Rule : 2012 (I) OLR 933, (2012) 52 OCR - 511.
(4) Section 56 - Confiscation proceeding - Petitioner claim that no forest produce was seized - Doors, which are finished products, belonging to them, were found in the seized vehicle - Authorised Officer found that sizes and planks shown to have been seized in the seizure list were in fact dismantled parts of the doors - Held, seized articles are finished products for which the seizure itself has been held to be unjustified - Reassembling dismantled sizes and planks to doors would involve availing of services of carpenter - Petitioners have to incur expenses for the same - Cost to reassemble 8 nos. of doors is assessed at Rs. 2400/- Direction issued :
2012 (I) OLR 433, (2012) 51 OCR - 349.
(5) Section 56 - Confiscation proceedings - Appellate authority set aside the confiscation proceeding holding that the forest department failed to adduce evidence regarding commission of forest offence - Writ - Appellate authority has jurisdiction to consider an appeal by re-appreciation of evidence on record - Both questions of law as well as fact may be dealt with in appeal - Little scope for re-appraisal of evidence in a writ proceeding - 31 Discussing the facts, findings and evidences held Authorised Officer does not appear to have considered such evidence which squarely supports the owner’s plea that seized wood were dismantled parts of old wooden furniture - State has failed to make out any cogent ground for interference - Direction issued - Cost assessed at Rs. 5,000/- payable to the owner :
2012 (Supp. I) OLR - 539, (2012) 51 OCR - 267.
(6) Section 56 - Vehicle seized for committing offence under the Act, 1972 - Order of confiscation of the vehicle - Writ with prayer to deliver the vehicle on depositing cost as assessed - Held, O.P. No. 3 may assess the value of the aforesaid vehicle and send the same to O.P. No. 2- It will be open for the O.P. No. 2 to release the vehicle in favour of the petitioner on his depositing the value of the vehicle, as assessed by the O.P. No. 2 : 2010 (I) OLR 16 : 109 (2010) CLT 599.
(7) Sections 56, 64 - Odisha State Financial Corporation Act, 1951 - Confiscation proceeding - Vehicle financed by O.S.F.C. and under hire purchase agreement - Release of the sale proceeds - Discussing the facts, contention and provisions of law held, by virtue of the provision in Section 56 read with Section 64(2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by the O.S.F.C. : 2008 (I) OLR (FB) 796 : AIR 2008 Ori.
119 : (2008) 40 OCR 52.
(8) Section 56 - Vehicle seized for illegal transportation of Arguna Kanda - Confiscation proceeding - Release of vehicle - Relying in the case reported in 2003 (II) OLR 530, direction for release of vehicle on conditions stated : 2007 (II) OLR 605 : (2007) 38 OCR 276 : CLT (2007) Supp. Crl.
1258.
(9) Section 56 - Odisha Saw Mill and Saw Pits (Control) Act - Sec.
13 - Odisha Timber other Forest Produce Transit Rule Rules - 21 - Cognizance of offence under - Submission that Sec. 56 of the Odisha Forest Act and Sec. 13 of Odisha Saw Mill and Saw Pits (Control) Act not being penal section, the Court below ought not have taken cognizance against the petitioner under those sections - Held, those two sections are not penal sections - Cognizance taken thereunder is quashed - Order taking cognizance under Rule 21 of the O.T.T. Rules passed by the Trial Court is confirmed :
2007 (ll) OLR 97 : (2007) 37 OCR 349 : CLT (2007) Supp. Crl. 558.
(10) Section 56 - Confiscation - No notice given to owner before confiscation - Matter raised before Authorised Officer and appellate authority - Said question not considered in its proper perspective - Writ - Held, no proper notice was given to the petitioner before the vehicle was directed to be confiscated - Confiscation proceeding set aside - Direction issued :
2006 (ll) OLR 78 : (2006) 34 OCR 712.
(11) Section 56 - Confiscation of vehicle - Vehicle in question was involved in commission of a forest offence - Requirement of section casts a burden on the owner to prove to the contrary and the findings arrived at by the lower courts clearly indicate that neither the Authorised Officer nor the appellate authority were satisfied by the evidence led by the owner - Held, a forest offence has been committed - No further consideration - Order passed by the Authorised Officer and the appellate authority 32 confirmed : 2006 (Supp.- II) OLR 346 : (2006) 35 OCR 558.
(12) Section 56 - Odisha Timber and Other Forest Produce Transit Rules, 1980 - Rules 4, 12 and 14 - Vehicle seized for carrying sal leaves - Confiscation proceedings - Writ - Any person who collects sal leaves which are found outside the forest and does not bring leaves from the forest does not commit any offence - Vehicle was intercepted on the main road and there is no allegation by the prosecution that the vehicle was carrying leaves which were collected from the forest - Held, sal leaves seized from the petitioner’s vehicle cannot be treated as forest produce - Confiscation proceeding in the present case cannot be upheld : 2006 (II) OLR 109 :
(2006) 34 OCR 641 : 102 (2006) CLT 65 : 2006 Cri.L.J. 3718 (Ori.).
(13) Section 56 - Transportation of mango planks - No valid document or Timber Transit Permit for transporting such planks - Order of confiscation - District Judge on appeal by O.P. No. 1 imposed fine instead of confiscation of the seized truck - Writ - When subject of confiscation is found liable for confiscation, then in absence of specific provision in the statute, a Court cannot allow release of such articles on payment of fine - Provision of law in the section does not provide for imposition of fine in lieu of confiscation - Order of District Judge being illegal and contrary to the Statutory provision, the same is set aside and order of confiscation of the Authorised Officer is maintained : 2006 (Supp.-I) OLR 920 : (2006) 34 OCR 714.
(14) Section 56 - Odisha Timber and Other Forest Produce Transit Rules (1980), Rule 4 - Forest Offence - Alleged transportation of kendu leaves without T.T. Permit - Claim of dept. of alleged transportation supported by statement of driver and other documents on record and never refuted by owner of vehicle - Case for violation of Rule 4 of T.T.
Rules thus established - Mere non-examination of Police Officer, who initially seized truck or non-mentioning details of allegations in notice to petitioner - Would be of no consequence : 2006 Cri.L.J. 1337 (Ori.) : 2005 (Supp.)
OLR 921.
(15) Section 56(2) - Truck found carrying processed kendu leaves without valid documents and T.T. permit - Confiscation proceedings - Confiscation order passed - Appeal before District Judge dismissed - Writ - In a proceeding under the Sec., the Department has to simply show prima facie materials indicating involvement of the concerned vehicle in a forest offence - If such onus is discharged by the Department, then the burden shifts on the owner of the vehicle to establish that he had no knowledge or connivance in commission of the forest offence and that he had taken all reasonable and necessary precaution against misuse of the vehicle by the driver or his agent - In the present case facts / statement shows that driver had been authorised to transact the business of the truck during the absence of the owner - Once this was established and once the petitioner offered no evidence to show that he had taken reasonable and necessary precaution against use of vehicle in any illegal work, the protection provided under Sec. 56 Sub-Sec (2-c) was not available - Sec. 56(2) of the Act nowhere contemplates that fine can be imposed in lieu of confiscation of the offending vehicle : 2005 (Supp.) OLR 921 :
(2005) 32 OCR 372.
33
(16) Section 56 - Odisha Forest Produce Transit Rules, 1980 - Rule - 4 - Vehicle seized by the Forest Officials alongwith timbers for violation of the provisions - Order of confiscation of vehicle as also the timbers to the State - Plea of petitioner that the driver due to threat at the point of Bhujali loaded the timbers - Held, no material with regard to threat - No report lodged before the Police - No plausible explanation is forthcoming as to why the driver did not do so - Petitioner to substantiate his stand has examined no independent witness - No cogent reason to interfere : 2005 (Supp.) OLR 507 : CLT (2005) (Supp.) (Cri.) 226.
(17) Sections 56, 64 - Procedure for confiscation against a vehicle - Confiscation not to be subject to satisfaction of any encumbrances - Claim of petitioner of hypothecation of the confiscated vehicle - Scope of - Case issue to be referred to Larger Bench : 99 (2005) CLT 38 : 2004 (II) OLR
627.
(18) Sections 56, 64 - Confiscated vehicle - Release of sale proceeds in discharge of loan liability - When a proceeding for confiscation is undertaken, under Sec. 56 of the Act against a vehicle, at that stage, there is no debaring provision in that section or any other provision in that Act to make the order of confiscation subject to satisfaction of any encumbrances - Property confiscated under Sec. 56 shall vest in the State Government free from all encumbrances - Hypothecated vehicle remained as a charge for discharge of loan amount - If sale proceeds is to be released for repayment of loan, then that negatives the purpose of Section 56 inasmuch as the loanee-cum-the registered owner of the hypothecated vehicle gets the reward of repayment of his loan which otherwise would have been an additional burden on him - Order referring the issue to a Larger Bench : 2004 (II) OLR 627 : (2004) 29 (OCR) 875.
(19) Vehicle confiscated under Sections 56 and 64 - sale proceeds released in discharge of loan liability - There is no debarring of provision in that section to make ten order to confiscation subject to the satisfaction of any encumbrance when proceedings for confiscation of a vehicle is undertaken under Sec. 56 of the Act - property confiscated under the said section vests with the State Government free from all encumbrance whereas hypothecated vehicle remains as a charge for discharge of the loan amount - It is an admitted benefit to the owner of the vehicle - Order referred to a larger Bench for decision - 2004(II) OLR-627.
(20) Section 56 - Truck found carrying 92 pieces of teak planks - owner of the truck taking plea before authorised officer in confiscation proceeding that the illegal transportation was without her knowledge or connivance - plea not sustainable unless cogent evidence is produced - Owner of the truck would be liable for any act of commission or omission of the driver - Hon’ble Court confirmed the order of confiscation of the truck passed by the authorised officer - (2003) 23 OLR-458.
(21) Confiscation of vehicle under Sec. 56 - It should be proved by the owner that the vehicle was, so used without his knowledge or connivance or the knowledge or connivance of his agent - Moreover, he should also prove that he and his agent had taken all reasonable precaution against commission of forest offence - In the instant case owner admitted 34 that the driver had committed the offence - 2002(II) OLR-216.
(22) Section 56 - Confiscation of vehicle - Owner to prove that the same has been used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of the article in question - To escape the order of confiscation it must be further proved that each of the concerned persons had taken all reasonable and necessary precautions against use of the vehicle in question in respect of forest offence - In the present case owner admitting that the vehicle was managed by driver - Owner liable for any act or omission committed by driver : 2002 (II) OLR 216 : (2002) 23 OCR 458 : 94 (2002) CLT 290 : 2002 Cri.L.J.
3913 (Ori).
(as amended in 1983) - Sec. 56 (before and after amendment) and sec. 57 - Distinction between prior and after amendment of Sec. 56 explained - After amendment two courses are open, one before Magistrate and another before the authorised officer - All these matter relate seizure and confiscation - Interim order as to custody for release can be made by the officer who made the order of confiscation - In the instant case the Conservator of Forests has no power to pass interim order of custody - The authorised officer can pass such order - Direction given : 2001 (I) OLR 613 : (2001) 21 OCR 111.
(23) Section 56 — Though prima facie such submission may appear to be attractive, on deeper scrutiny, this cannot be accepted, Section 57 itself provides that the officer may release the property on the execution by the owner of the property, a bond for production of the property released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which science has been made. However the expression which has been inserted by Odisha Act 9 of 1983 to the effect, and where a report of such seizure has been made to the Magistrate under Sub-Section (2) of that section, makes it clear that the power of release can be exercised only when such seizury has been made to Magistrate under Sub-Sec. (2) of Sec. 56 and not otherwise. This becomes more clear in view of the latter portion of Sec. 57 to the effect that the property is to be released on execution by the owner of a land for production of property so released if and when so required before the Magistrate having jurisdiction to try the offence. In other words, where the seizure has not been reported to the Magistrate, Sec. 57, by virtue of its plain languages is not applicable. It has to be noticed that under Sec. 56(2) as it stood before amendment effected by Odisha Act of 1983, seizure was required to be reported to the Magistrate having jurisdiction to try the offence, except where the offence was to be compounded. In other words, all seizures except where the offence was being compounded by the department, itself, were required to be reported to the Magistrate and the offences were required to be tried by him. The insertion of the expression and where a report of such seizure has been made to Magistrate under Sub-Sec. (2) of that section in Sec. 57 was found necessary in view of the amendment effected in Sec. 56(2) by Odisha Act a of 1983, where, for the first time the following was inserted in Section 56(2).
(either produce the property seized before an officer not below the 35 rank of an Assistant Conservator of Forests authorised by the State Government in this behalf by notification (herein after referred to as the authorised officer), or, In fact, by Odisha Act 9 of 1983, procedures relating to confiscation by the authorised officer and other provisions relating to appeal, etc. were inserted in the shape of Sec. 56 (2-a) to (2e). In other words in addition to or in lieu of question or trial by Magistrate the Act has not contemplated a separate confiscation proceeding before the Authorised Officer. After the amendment in 1983, if a seizure is made, the officer seizing such property may produce the property seized before the authorised officer and/or make a report of such seizure to the Magistrate having jurisdiction to try the offence. Sec. 56 (2a) envisages that where such forest produce is seized by the authorised officer under Sub-Sec. (1) or is produced before him under Sub-Sec. (2) he may order confiscation of such forest produce so seized or produced together with all tools, ropes, chains, boats, vehicles, or cattle used in committing such offence, subject to other conditions as envisaged in Sub-Sections (2-b) and 2-c) being fulfilled, if Section 57 would have continued to remain as such without any amendment, the general power of release of property could have been exercised by the concerned officer as indicated in Sec. 57. However, the insertion of that section of the expression and where a report of such seizure has been made to Magistrate under Sub-Sec. (2) of that section, makes it clear that such power of release can be exercised only where the seizure is reported to the Magistrate and the property is to be released with a direction to produce the same before the Magistrate as and when required by the Magistrate, where seizure is not reported to the Magistrate and the property is produced before the Authorised Officer, such a contingency would not arise.
The question would arise as to whether the property seized by the authorised officer or produced before the authorised officer can at all be released before conclusion of a confiscation proceeding before the authorised officer. It is, of course, true that in view of the interpretation already given to Section 57, the question of interim release of the property by the authorised officer before whom confiscation proceeding is pending would not be governed by Sec. 57. However, that would not prevent the authorised officer to consider giving interim release of the property or the vehicle, since it is the authorised officer who can direct confiscation other conclusion of the proceeding it can be concluded that he has got ancillary or implied power to deal with the matter relating to custody of property during pendency of the proceeding. However, where the authorised officer is already in seisin of the property, any other statutory authority envisaged under Sec. 57 cannot direct release of the property or vehicle.
It was also contended that since the Conservator of Forests can exercise suo motto power of revision being moved by any person under Section 56(2d) after the order of confiscation, as a revisional authority, it must be taken that he has got power to pass any order even during the pendency of confiscation proceeding. The revisional order envisaged is Sec. 56(2a) is only confined to final order of confiscation and there is no such revisional power in respect of any other order. There cannot be any 36 dispute that the authorised officer, while acting under Sec. 56(2a) or the Conservator of Forests, while acting under Sec. 56(2-d) acts as a quasi judicial authority and the orders of such authority are subject to the appellate jurisdiction of the District Judge having jurisdiction. However, this revisional jurisdiction and the appellate jurisdiction of the District Judge are relatable to final confiscation order. It is of course true that when matter comes to them either in revision or in appeal as contemplated in Sec. 56(2-d) and 56(2-e), they can pass any interim order relating to custody of the property/ vehicle or otherwise. However, it cannot be said that they have an authority while the matter is still pending before the authorised officer.
In such view of the matter, it would not be proper to give a direction to give effect to the order passed by the Conservator of forests. However, the authorised officer is now directed to consider the question of interim release of the vehicle of the petitioner. It is further directed that whether interim release of the vehicle is given or not, the confiscation proceeding itself should be finalised as soon as possible.
Subject to the aforesaid observations, the writ application is disposed of- There will be no order as to costs - (2001) 21 OCR-111.
(24) Section 56 (before and after amendment) and after amendment of Sec. 56 explained — After amendment, two courses are open, one before Magistrate and another before the authorised officer - All these matters relate to seizure and confiscation - Interim order as to custody for release can be made by the officer who made the order of confiscation - In the instant case, the Conservator of Forests has no power to pass interim order of custody - The authorised officer can pass such order.
If Sec. 57 would have continued to remain as such without any amendment, the general power of release of property could have been exercised by the concerned officer as indicated in Sec. 57. However, the insertion in that section of the expression (and where a report of such seizure has been made to Magistrate under Sub-Sec. (2) of that section makes it clear that such power of release can be exercised only where the seizure is reported to the Magistrate and the property is to be released with a direction to produce the same before the Magistrate as and when required by the Magistrate, where seizure is not reported to the Magistrate and the property is produced before the authorised officer, such a contingency would not arise.
The question would arise as to whether the property seized by the authorised officer or produced before the authorised officer can at all be released before the authorised officer. It is of course, true that in view of the interpretation already given to Sec. 57 the question of interim release of the property by the authorised officer before whom confiscation proceeding is pending would not be governed by Sec. 57. However, that would not prevent the authorised officer to consider giving interim release of the property or vehicle since it is the authorised officer who can direct confiscation after conclusion of the proceeding, it can be concluded that he has got ancillary or implied power to deal with the matter relating to custody of the property during pendency of the proceeding. However, 37 where the authorised officer is already in seisin of the property, any other statutory authority envisaged under Sec. 57 cannot direct the release of the property or vehicle.
It was also contended that since the conservator of forests can exercise suo motu power of revision, being moved by any person under Sec. 56(2-a) after the order of confiscation as a revisional authority, it must be taken that he has got power to pass any order even during the pendency of confiscation proceeding. The revisional order envisaged in Sec. 56(2-a) is only confined to final order of confiscation and there is no such revisional power in respect of any other order.
There cannot be any dispute that the authorised officer, while acting under Section 56(2a) or the Conservator of Forests, while acting under Sec. 56(2-d) acts as a quasi-judicial authority and the orders of such authorities are subject to the appellate jurisdiction of the District Judge, having jurisdiction. However, this revisional Jurisdiction and the appellate Jurisdiction of the District Judge are relatable to final confiscation orders.
It is of course true that when matter comes to them either in revision or in appeal as contemplated in Sec. 56(2d) and 56(2-e), they can pass any interim order relating to custody of the property/vehicle or otherwise.
However, it cannot be said that they have any authority while the matter is still pending before the authorised officer.
In such view of the matter, it would be proper to give direction to give effect to the order passed by the Conservator of Forests. However the authorised officer is now directed to consider the question of interim release of the vehicle of the petitioner. It is further directed that whether interim release of the vehicle is given or not, the confiscation proceeding itself should be finalised as soon as possible - Subhranta Vrs. State - 2001(I) OLR-613.
(25) Section 56 - Confiscation proceedings with regard to transportation of contraband forest produce - Challenged by the petitioner (owner of vehicle) on the ground that he had no knowledge of his vehicle being so used for commission of forest offence — In view of the statement under Section 161 Cr.P.C. that he had authorised the driver to carry woods on hire, the above plea is not tenable - More so, whether the owner or the driver had necessary knowledge or not or whether they had connived or not are all questions of disputed facts, which cannot be entertained under writ jurisdiction - The order of the authorised officer directing interim release of vehicle was not interfered with - 1999 Cri.L.J.-2612 (Odisha).
(26) Section 56 - Authorised Officer, the DFO made confiscation of vehicle - Necessary provision excludes mensrea as an essential condition - It must be proved by the owner of the vehicle that forest produce were carried in his vehicle with his knowledge and he had taken precaution - It is not necessary that no order of confiscation be passed on the factum of seizure of forest produce, is established - Position of law explained- the vehicle can be confiscated, even of the owner be acquitted - The scope and purpose of Rule 21 and Sec. 56 are entirely different - Principles enunciated - 1998 (15) OCR-49.
38
(27) Section 56-143 pieces of sal wood was seized from a vehicle having no transit permit - Under Section 161 Cr.P.C. statement, the owner of the vehicle should that he had authorised the driver to carry the same on hire - In this context, the plea of the owner that he had no knowledge of the same cannot be accepted - It rests on the appreciation of evidence, whether the same is sufficient to establish the case against the petitioner by the authorised officer - 1998(15) OCR-366.
(28) Sections 56 - Confiscation proceedings - Power of appellate authority - Can be exercised only against “confiscation order” of authorised officer - Order of authorised officer releasing goods is a “non-confiscation order” - Appeal against - Cannot be entertained by conservator of forests :
1998 (II) OLR 646 : AIR 1999 Ori. 37.
(29) Confiscation proceeding under Section 56 - On the finding that the person was found to be in illegal possession of seized forest produce authorised officer passed order of confiscation - The same was supported by other materials on record- Confiscation order upheld - 1994(7) OLR-36.
(30) Section 56 - Seizure of forest produce without any hammer mark and the person possessing the same failed to produce any document for such lawful possession - Confiscation proceedings started and the Magistrate having jurisdiction to try such offence was informed - Authorised officer is competent to place order of confiscation and not the Magistrate - Thus such confiscation order was upheld - 1994(7) OLR-36.
(31) Section 56 - Police Officer seized the vehicle and not the Forest Officer Application seized the made for the release of the vehicle - It was held that the Magistrate has the Jurisdiction and power to dispose of the matter - 1988(1) OLR-116.
(32) Section 56 - The petitioner was the owner of the truck, involved in a forest offence and was seized by a Police Officer - The petitioner made an application for release of the truck to the Magistrate but the Magistrate came to the conclusion that he has no jurisdiction in view of the amendment of Sec. 56 of the said Act — The Court held that when a vehicle is seized by a Police Officer and not by the authorised Forest Officer and produced before the Magistrate, the Magistrate has got the competence to pass necessary orders for the same - 1988(II) OLR-195.
(33) Confiscation of vehicle under Sub-Sec. (1) and (2a) of Sec.
56— It is necessary that the authorised officer should record his satisfaction that a forest offence has been committed while confiscating the vehicle, used in such commission - 1987 (II) OLR-169.
Before making any confiscation order for any forest produce seized the authorised officer should be satisfied about such commission - Any non compliance makes the order bad in law.
(34) Sections 56 and 57 — Forest Officer seized the vehicle and proceedings under Sec. 56(2a) pending authorised officer rejected the petition under Sec. 57 for interim release of the vehicle - Remedy under Secs. 397, 401 and 482 of Cr.P.C., not maintainable - 1987(II) OLR - 33.
(35) Amended Section 56 — The vehicle carrying forest material was confiscated by the D.F.O. - In appeal, such confiscation order vacated- 39 Direction for prohibiting other transport contractors from carrying forest materials, alleged to be involved in offence, issued such other in without jurisdiction.
The Divisional Forest Officer excluded his jurisdiction by issuing a direction that because some persons for their alleged involvement in forest offence, should not be engaged as transport contractors. Such a direction seems to be arbitrary. It has also been brought to our notice that such confiscation order has been vacated in appeal and the proceeding has not been adjudicated finally. It should be borne in mind by the forest Officers that they should act within the ambit of their jurisdiction as vested by Law 1985(1) OLR-130.
(36) Seizure of vehicle along with forest produce — Under the Criminal Procedure Code, the Magistrate cannot exercise power to release the same— 1984 CLR-147; 1985 Cr.L.J.-984.
(37) Sections 56(2-a) - ‘Produce’ - The term ‘produce’ means the seized articles being made available to the Authorised Officer for the purpose of consideration of the matter relating to confiscation or release of the seized article in favour of bona fide claimant : 2006 (Supp.- I) OLR 490 :
(2006) 34 OCR 719 : 102 (2006) CLT 344 : 2006 Cri.L.J. 3596 (Ori.)
(38) Section 56(2-a) - Timber and Other Forest Produce Transit Rules, 1980 - Rule 4, 12 and 21 - Jeep seized for illegal transportation of hand sawn sal - Order of confiscation - Discussing the facts and provisions of law held, factum of seizure is an admitted fact - Case for committing a forest offence by carrying such hand sawn sal seized without valid transit permit makes out the case of the Department in support of the order of confiscation - Petitioner utterly failed to prove that his vehicle was used without his knowledge or connivance or the knowledge or connivance of the driver - Order of confiscation does not suffer from any illegality, perversity or jurisdictional error : 2005 (I) OLR 132 : 2005 Cri.L.J. 1928 (Ori.).
(39) Section 56(2-a) Forest Office Violation of Rules 4, 5, 12 of Odisha Timber Transit Rules, 1980 - Illegal transportation of forest products - Confiscation of vehicle involved - price of seized articles calculated at Rs.10,000/-. For release of vehicle fine of Rs.20,000/- imposed - (Mrs.)
Sailabala Bock and others Vrs. The Authorised Officer-cum-Assistant Conservator of Forest, Keonjhar Division, Keonjhar and others - 95(2003) CLT-261.
(40) Vehicle to be produced as and when required by the Authorised officer or by the Magistrate trying the offence in the confiscation proceeding or the trial of the offence - Vehicle to be released on furnishing of cash and property security and a bond in terms of the section - 2003(I) OLR-530.
(41) Sections 56 and 64 - Read with Odisha State Financial Corporation Act, 1951 - Section 29 - Truck hypothecated by O.S.F.C.
seized by forest officials confiscation under the Forest Act, Held when a proceeding for confiscation is undertaken under Section 56 of the Act against a vehicle for committing any forest offence at that stage, there is no debarring provision in that section or any other provision in that Act to 40 make of confiscation subject to satisfaction of any encumbrances.
Property confiscated under Section 56 shall vest in the State Government free from all encumbrances. Therefore, in the context of claim of the petitioner of hypothecation of the confiscated vehicle the provision in Section 56 has to be read together with provision in Sub-Section (2) of Section 64 of the Act - (2004) 29 OCR-875; 2004(II) CLR-627.
(42) Section 56(2-a) - Confiscation proceeding under - Confiscation order confirmed in appeal - Writ petition challenging the proceeding and the appellate order - Appreciation of evidence on record by the writ court - Held, no illegality done by the authorised officer - 93 (2002) CLT-498.
(43) Section 56(2-a) - Order of confiscation - Not free from encumbrances Loan advanced by O.S.F.C. keeping the vehicle confiscated on a charge - O.S.F.C. has a right to recover the same, treating the loan as public demand - 93 (2002) CLT - 499.
(44) Section 56 (2-a) - Truck purchased on availing loan from Odisha State Financial Corporation - Truck used for the purpose of illegally transporting forest produce - Truck under proceedings of the Act, directed to be confiscated - O.S.F.C. dues remained unpaid - Whether O.S.F.C.
would be deprived of getting their money ? - State Financial Corporation an instrumentality of the State - Facts stated on recovery of dues when co-lateral security available and when loan amount treated as a charge - Loan advanced can be treated as a public demand as per O.P.D.R. Act and being treated as a charge, any confiscation of the vehicle shall be subject to the charge of O.S.F.C. : 2002 (I) OLR 331 : 93 (2002) CLT 498 : AIR 2002 Ori. 130.
(45) Provisions under Section 56, Sub-Sections 2(a), 2(d), 2(e) and 2(4) explained - Order in case of confiscation or non-confiscation is appealable to the District Judge - The conservator of forest has got no appellate power against an order of non-confiscation under Sub-Section 2(a) - He can call for record of the case for examination, in case of confiscation made by the authorised officer - That power can be exercised suo motu or on an application - The impugned order, in the instant case quashed and the order of authorised officer confirmed 1998 (15) OCR-
310.
(46) Section 56 (2a) - District Judge having jurisdiction in the area has to decide the appeal and not the Sessions Judge - He may be holding both the posts, but in order to avoid future complications he has to dispose of the appeal as a District Judge, As per the interpretation of Sub-Sec. (2-e) of Sec. 56, the District Judge alone is competent to deal in the appeal - Therefore a case (appeal) disposed of by another Judge is illegal - 1992(II) OLR-300.
(47) Section 56(2) - Bags of Kendu leaves was detected at Sambalpur booked for Bombay - This, amounting to inter - district movement, provisions of Sec. 56(2) attracted.
It was held in a recent decision (i.e. State of Odisha Vrs. Kiran Sankar Panda - 71 (1991) CLT-187) it was held that if a forest offence is committed with the knowledge or connivance of the driver or the owner of 41 the vehicle, such vehicle is liable for confiscation, even if the owner might have no knowledge or connivance - It was further pointed out in order to avoid confiscation it must further be proved that each of the concerned persons had taken all reasonable and necessary pre-caution against the same - 1992(1) OLR-305.
(48) Section 56(2) - The petitioner’s truck was found Kendu leaf bags at Noohi bahal check gate in the district of Sambalpur - The vehicle was driven by the petitioner himself - The documents produced by the petitioner was suspected by the Forest Official, who contacted the Range Officer and by the time the Range Officer arrived, the petitioner had left the truck and disappeared. Later on, the document was found to be forged and it was confirmed that the petitioner was involved in illegal transportation of Kendu Leaves. This led to confiscation proceeding ending against the petitioner and his appeal was also rejected.
It was directed to release the vehicle on payment of a fine of Rs.60,000.00 in cash - 1992(1) OLR-305, AIR 1992 Odisha-287.
(49) Section 56(2-a) - One Biswanath Behera was found to be carrying timber valued at Rs.5000.00 which was concealed under sand in a tractor - tractory, being driven by petitioner No. 2, which revealed illicit transport of timber with the knowledge of the petitioner - In such a situation, the tractor-trailer is liable for confiscation - The Court held that on perusal of records, it is seen that the said vehicle was involved in an earlier case regarding commission of forest offence, for which no opportunity was provided to the petitioner to explain his position with regard to the same - On this point the matter was remitted to the authorised officer for giving an opportunity to the petitioner to explain his conduct with regard to the said charge - 1990 (II) OLR-318.
(50) Sec. 56(2-a) - Ms empowers the District Judge alone to deal with appeal - Appeal disposed of by the Sessions Judge without Jurisdictionsuch order was set aside and District Judge was directed to hear and dispose of the same - (1991)4 OCR-585.
(51) Sec. 56(2-a) - Vehicle confiscated on a finding by the authorised officer that forest offence was committed - In his presence and in presence of the enquiry officer, statement was recorded - There was no violation of the rule of Natural Justice in view of clear provisions - (1990) 3 OCR-518;
AIR 1984 SC-1356; AIR 1973 SC-2701; AIR 1985 SC-85.
(52) It is well-settled that when an authority passes an order within his competence, it cannot fail only because it purports to have been made under a wrong provision, if it can be within its power under any other rule and that the worth of an order should be Judged on a due consideration of its substance and not the form - AIR 1950 SC -232; AIR 1954 SC -1929;
(1994) 7 OCR-765 (FB).
(53) Section 56(2-c), 56(2-e) - Vehicle carrying 93 bundles of kendu leaves unauthorisedly seized - Order of confiscation passed - Appeal before District Judge was dismissed - Writ - Liberal approach in the matter with respect to the property seized which is liable to confiscation is uncalled for as the same is likely to frustrate the provisions of the Act - In the instant 42 case, the petitioner had given the vehicle to his driver, who admittedly himself knowingly used the vehicle for commission of forest offence - Petitioner cannot escape the liability of confiscation as his driver, who was the agent-in-charge of the vehicle, knowingly used the same for commission of forest offence : 2010 (I) OLR 716 : (2010) 45 OCR 603 :
109 (2010) CLT 388.
(54) Sec. 56, 56 (2-d) empowers the Conservator of Forests to call for and examine the records of a case in which confiscation order was made by the authorised officer within thirty days from the date of such order and may make or cause to be made such enquiry and there after pass necessary orders. The Conservator is not vested with any appellate power, but it is in the nature of supervisory or revisional power, under which the Conservator may call for and examine records within twenty
(20) days from the order made by the authorised officer, it can be done suo motu or on an application - Therefore when the authorised officer has ordered release of seized goods/vehicles on payment of fine, it becomes an order of ‘non-confiscation’ and appeal in such a case shall lie to the District Judge and Conservator of Forest’s appellate power is without jurisdiction - AIR 1999 Odisha - 37.
(55) Jeep seized for illegal transportation of hand-sawn sal wood in violation of Rules 4, 12 and 21 of the Timber and other Forest Produce Transit Rules, 1980 - Confiscation Order - Fact of seizure was admitted - Order of confiscation, makes out a case of without any valid transit permit- The fact that it was neither within his knowledge, nor within the knowledge of the driver, could not be proved by the petitioner - Such order of confiscation does not suffer from any illegality, perversity or Jurisdictional error - 2005(1) OLR-132.
(56) Section 56 and Section 2(g) - Transit Permit Rules 2(1) (a) and 5(1)(i) and Rule 21 - Kendu leaves, being a forest produce, cannot be taken out of the district limit - Without a transit permit - Kendu leaves in the instant case, was transported without permit - Confiscation of vehicle upheld, after appreciation of evidence - 1998(15) OCR-58.
(57) Even if the owner might not have any knowledge or connivance in the matter, if the offence is committed with the knowledge or connivance of the driver of the vehicle, the same would be liable for confiscation - The view that connivance of the driver would be a separate matter to be decided in a separate proceeding is erroneous - 71(1991) CLT-157.
(58) When, in exercise of the powers under Sec. 56 of the Odisha Forest Act any forest produce along with the vehicle for committing any forest offence is seized the power to release such property lies with the prescribed authority and not with the Magistrate, in exercise of his powers under the provisions of Cr.P.C. - 57(1984) CLT-381; AIR 1986 SC-328;
1984 Cr.L.J.-984.
(59) Confiscation of truck involved in the commission of forest officer- Authorities failed to establish the mensrea of the owner of the truck involved in the commission of such offence - High Court set-aside the order of confiscation on the basis of evidence on record - Not interfered by the Apex Court (1998) 14 OCR (SC)-185.
43
(60) Prosecution report filed before S.D.J.M. after timber was seized by Forest Department Officer - For interim custody of the seized timber petitioner filed application - General provisions with regard to Sec. 451 and 457 are applicable and Sec. 57 of O.F.A. is no bar - (1992) 5 OCR-
332.
(61) About 90 quintals of mohua flower seized from a truck and the authorities directed confiscation for violation of Rules of the scheduled of Rates for the Forest Procedure Rules, 1977 - There being no clear finding under Rule 7 that such transport was for trade such confiscation order is liable to be quashed - (1993) 6 OCR-131.
(62) Fine can be imposed in lieu of confiscation when the authorities are satisfied about the undesirability of such confiscation - (1992) 5 OCR-
169.
(63) Section 56, 2(g) (ii) - Confiscation proceedings - Whether sal leaves are forest produce when they are not found in or brought from the forest ? - As per Sec. 2(g)(ii) of the Act, only when sal leaves are found in or brought from the forest, they are forest produce - In the instant case the vehicle in question was intercepted on N.H.5 - Nowhere in the seizure list and the statement attached to the P.R. there is any mention that these sal leaf plates were found in or brought from any forest - Applying the ratio (2006 (II) OLR 109) held, seized sal leaf plates do not come within the purview of Sec. 2(g) of the Act and the seizure made by the forest officials was illegal and arbitrary - Confiscation proceeding quashed : 2010 (II) OLR 911 : (2010) 47 OCR 976.
(64) Section 56, Sub-Sec. 2(a), 2(d), 2(e) - Petitioner being a licence holder under the Act, a truck carrying finished goods was seized and confiscated by the authorised officer - The articles and truck was released after enquiry - On an appeal, the Conservator directed a fresh enquiry - On a direction by the Conservator, the DFO confiscated the articles - The Conservator can exercise supervisory or revisional power by calling for records and examining the same if the authorised officer has ordered confiscation - This power can be exercised within thirty days of such confiscation, but no power of appeal is vested in him - Confiscation or non-confiscation order is appellable only to the District Judge - Hence such order of confiscation is without Jurisdiction - 1998(II) OLR-646.
(65) A truck was confiscated - District Judge heard the appeal who is also the Sessions Judge - But when the appeal was disposed of, he signed it as the sessions Judge - It was held that this is not a case of lack of jurisdiction, as he was empowered to have as the District Judge and decided the same in the said capacity - The said order does not become illegal merely because he signed the same as a Sessions Judge.
It has been the settled law that an order passed by a competent authority cannot be negatived simply because it purports to have been made under a wrong provision and the validity of an order is to be judged on a consideration of its substance - In P. Rajakothaith Vrs. Union of India- AIR 1950 SC-232 and Hukumchand and Mills Ltd. Vrs. State of M.P.- AIR 1954 SC-1929, the Supreme Court has made this point clear as follows :- 44 On an interpretation of the relevant provisions, the Court held that it is permissible to pass an order for payment of fine in lieu of or instead of confiscation - It was found that the truck involved is of 1961 model and is the only source of income of the petitioner and his family. The illegally carried forest products value was about Rs.6,000.00. It was felt that a fine of Rs.15,000.00 in line of confiscation would serve ends of justice - 1994(1) OLR-276.
(66) Section 56(1) and (2-a), and Section 85 - A vehicle can only be confiscated if there is satisfaction of the vehicle being used for commission of forest offence - It means that there must be a direct connection in between the vehicle and the forest produce - Only because of the fact that a car was moving ahead of the truck carrying forest produce, it cannot be said to be involved in forest offence and cannot be confiscated and can also not be said to have abated such offence under Sec. 85 of the Act - 1993(II) OLR - 295.
57. 1[***] NOTE Section 57 - To attract the prohibition under the section, two essential conditions must be fulfilled, firstly the offence alleged must relate to an offence under the Forest Act and the seizure must be under Sec. 56 of the Act; secondly the property seized should have been produced before the Divisional Forest Officer for initiation of the proceeding of confiscation :
2010 (I) OLR 756 : CLT (2010) Supp. Cri. 458 : 2010 Cri LJ 3991 (Ori.)