Allowed

Raja Kishore Prasad v. State

Orissa HC9 Aug 2016CRLMC/200/2004

Case brief

AI extract

What is this about?

The High Court of Orissa quashed an order taking cognizance of an offence under forest transit rules. The court held that since the owner of the seized wood was not a party to the prosecution report despite producing evidence, continuing proceedings against the managers was unsustainable.

What did the court decide?

The impugned order dated 6.9.2001 passed by the S.D.J.M., Angul in 2 (b) C.C. Case No.105 of 2001 in taking cognizance of the offence is quashed.

Raja Kishore Prasad Vs State — Criminal Trial and Appeal | Orissa HC (2016)

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IN THE HIGH COURT OF ORISSA: CUTTACK

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CRLMC NO. 200 OF 2004

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An Application under section 482 of the Code of Criminal Procedure, 1973 in connection with 2 (b) C.C. Case No.105 of 2001 pending on the file of Sub-Divisional Judicial Magistrate, Angul.

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Rajkishore Prasad and another ……… Petitioners -VersusState of Orissa ……… Opposite party For Petitioners: - Mr. Devashis Patnaik For Opposite Party: - Mr. Deepak Kumar Addl.Standing Counsel.

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P R E S E N T:-

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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-----------------------------------------------------------------------Date of Hearing and Judgment- 09.08.2016

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S. K. SAHOO, J . The petitioners have filed this application under

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section 482 of Cr.P.C. challenging the order dated 6.9.2001 passed by the learned S.D.J.M., Angul in 2 (b) C.C. Case No.105 of 2001 in taking cognizance of offence under Rule 21 of the

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Orissa Timber and Other Forest Produce Transit Rules, 1980 (hereafter “1980 Rules”) which arises out of Offence Report No.4

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of 2001-2002 submitted by the Forest Range Officer, Purunagarh Range, Angul Division, Angul.

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It is the prosecution case that on 21.04.2001 Forest Range Officer, Purunagarh Range, Angul on getting information from his staffs, rushed to Karadagadia liquor Bhati premises, Angul and reached there at about 9.30 a.m. and he found that S.P., Angul with the police staff, Collector, Angul with Revenue staff and Excise personnels were present at the spot. In the liquor Bhati premises, some teak, sal and non-sal sizes were found which were accordingly seized as per the measurement. It is the further prosecution case that the petitioners were found present in the liquor Bhati and they disclosed that one Narayan Prasad is the owner of the liquor Bhati and they are the managers and they further stated that their owner had purchased the sal, teak and other wood from the Forest Department depot for the purpose of furnishing windows, doors etc. for his building. It further appears that since no T.T. permit and cash memos were produced by the petitioners in respect of those sizes of wood, those were seized and the offence report was prepared. It is the further prosecution case that subsequently, the owner of the liquor Bhati namely Narayan Prasad produced cash memos and the bills etc. issued by O.F.D.C. Ltd. in respect of the seized sizes and on verification, it

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was found that he had purchased timber from O.F.D.C. vide cash memos and sawn it in the corporation saw mill and he had also purchased sal sizes and sal dhima vide O.F.D.C. cash memos. On verification of the seized sizes as well as the cash memos produced by Narayan Prasad, it was found that there were excess of 26 pieces of misc. sizes and accordingly, offence report was prepared for violation under Rules 4 and 14 of the 1980 Rules punishable under Rule 21 of the said 1980 Rules and section 56 of the Orissa Forest Act, 1972.

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It is the contention of the learned counsel for the petitioners that as per the documents available on record, it is Narayan Prasad who had purchased those seized sizes of wood from O.F.D.C. Ltd. and sawn it in the corporation saw mill for his house work and he has also produced cash memos before the Forest officials which were also seized. It is the further contention that if the said Narayan Prasad failed to produce cash memos in respect of some misc. sizes of wood then he was answerable for that and the petitioners who were the mangers of the liquor Bhati of Narayan Prasad in which the seized sizes were kept temporarily by the owner and were in no way connected with the seized sizes of wood, should not have been arrayed as accused.

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It is the further contention of learned counsel for the petitioners that on a bare reading of the Prosecution Report, it cannot be said that the petitioners have contravened any of the provisions of 1980 Rules and no prima facie case under Rule 21 of the 1980 Rules is made out and therefore, when Narayan Prasad has been left out while submitting the prosecution report, the continuance of the proceeding against the petitioners is absolutely illegal and therefore, the proceeding should be quashed.

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Learned counsel for the petitioners relying upon the

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case of State of Orissa -Vrs.- Illamat Mian reported in 2015 Criminal Law Journal 2961 contended that since the seized sizes of the wood were found inside the liquor Bhati of Narayan Prasad and cash memos and the bills etc. were produced by the owner, the prosecution of the petitioners under Rule 21 of the 1980 Rules is impermissible.

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Learned counsel for the State on the other hand supported the impugned order passed by the learned S.D.J.M., Angul and contended that the petitioners were in possession of the seized sizes of sal, teak and non-sal wood which were found

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from the premises of the liquor Bhati and they were the managers of the liquor Bhati at the relevant point of time and

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therefore, the prosecution report has been rightly submitted against them.

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Rule 21 of the 1980 Rules prescribes punishment for contravention of any of the provisions of the 1980 Rules. In this case, there are accusation that Rules 4 and 14 of the 1980 Rules have been violated. Rule 4 of the 1980 Rules deals with “Transit Permit” which is to be issued by the Divisional Forest Officer or by Asst. Conservator of Forests authorized by him in that behalf and in certain cases, Range Officer or a Forester being duly authorized by the D.F.O. in that behalf can also issue transit permit where there is no necessity of verification at the stump site. Rule 14 of the 1980 Rules deals with bearing of hammer mark of the Orissa Forest Department and registered property mark of the owner while the timbers including round wood billets of certain sizes were on transit.

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In view of the materials available on record, it prima facie appears that the owner of the seized sizes of the teak, sal and non-sal was none else but one Narayan Prasad and he had also produced cash memos and bills of O.F.D.C. Ltd before the Forest Range Officer, Angul and if any extra misc. seizes were found in the liquor Bhati premises then Narayan Prasad is answerable for that in as much as the petitioners were the managers of the liquor Bhati and Narayan Prasad is the owner of

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the liquor Bhati who had kept the seized materials there for a temporary period in connection with his building work. In absence of any other materials on record particularly when the prosecution has left out Narayan Prasad from the prosecution report, the prosecution of the petitioners under Rule 21 of 1980 Rules is not sustainable in the eye of law.

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Considering the submissions made by the learned counsel for the respective parties and perusing the materials available on record, I am of the view that the submission of prosecution report against the petitioners as well as the impugned order of the learned S.D.J.M., Angul suffers from nonapplication of mind and it has resulted in miscarriage of justice and therefore, in order to prevent abuse of process of the Court and to secure the ends of justice, I am inclined to invoke my power under section 482 of Cr.P.C. and quash the impugned order.

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Accordingly, the Criminal Misc. Case is allowed and the impugned order dated 6.9.2001 passed by the learned S.D.J.M., Angul in 2 (b) C.C. Case No.105 of 2001 in taking cognizance of offence under Rule 21 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 stands quashed.

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S. K. Sahoo, J.

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The 9^th August, 2016/Pravakar

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Orissa High Court, Cuttack

Raja Kishore Prasad v. State

Case brief

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Raja Kishore Prasad v. State

Case brief

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