Full Judgment
L. Rath, J.
1. The petitioners who were prosecuted under Section 37 of the Orissa Forest Act, 1972 but were found guilty of contravention of Rule 4 of the Orissa Timber and Forest Produce Transit Rules, 1967 (hereinafter referred to as the 'T.T. Rules, 1967' and were sentenced to undergo S.I. for three months and to pay a fine of Rs. 500/- each, in default to undergo S.I. for one month more and the conviction having been confirmed in appeal but the sentence having been modified to only fine of Rs. I,000/- each in default to undergo S.I. for one month, have preferred this revision.
2. The facts on which the petitioners faced prosecution are that on 3-7-82 the concerned Forester received information of illegal felling of 28 Bija logs and one Dhanra log in the Bacluan Tikira (P.R.F.) and communicated the information to the Forest Range Officer, Kanika keeping watch on the logs. On 7-7-82 the Forest Guard having ascertained that the petitioners had gone in a truck to transport the logs from the forest, waited for the truck along with his staff. The truck came at around midnight loaded with 16 Bija logs and one Dhanra log and was seized as per the seizure list Ext. 1/4 and kept in the Zima of the owner of the truck Gouranga Mohanty, the petitioner No. 3. The owner offered to compound the offence and executed a bond to that effect but however he having failed to pay the compensation, prosecution report was submitted which culminated in the trial. The petitioners in defence adopted the plea that the truck was going to Hemgir Forest to bring chips and due to previous enmity the Forester, Kuber Chandra Naik (P.W. 9) had foisted a false case against them. Petitioner No. 2 also examined himself as a defence witness in the case.
3. Prosecution case was sought to be established by the evidence of P. Ws. 1, 2 and 3 who were local witnesses and P.Ws. 4 to 9 who were departmental witnesses. The trial court as well as the appellate court came to the conclusion on the basis of the evidence adduced of the offence alleged against the petitioners to be true and hence convicted the petitioners.
4. Mr. Panda, learned counsel for the petitioners, has assailed the conviction firstly on the ground that since cognizance of the offence was taken Under Section 37 of the Orissa Forest Act, no conviction could have been made for contravention of Rule 4 of the T.T. Rules, 1967; secondly that by the date the alleged offence was committed, the T.T. Rules of 1967 had been repealed and therefore conviction under Rule 4 of the said Rules is not sustainable, thirdly that the learned trial court having based the conviction upon the statement of the petitioners recorded by the I.O. treating the same as evidence merely because they were signed by them, the approach was perverse and not sustainable in law and, lastly, since the petitioners had agreed to compound the offence and had executed a bond for the same, no prosecution report could have been filed.
5. Each of the submissions of the learned counsel have no substance. So far as the question of cognizance having been taken Under Section 37 of the Orissa Forest Act, but the conviction made under Rule 4 of the T.T. Rules, 1967 is concerned, it is seen that the prosecution report stated in detail the offence committed by the petitioners and cognizance was taken in respect of that. Mere omission to state the correct provision of the statute under which the offence was committed or a wrong mention thereof would not make the cognizance of the offence ipso facto bad unless the petitioners show any prejudice having been caused to them thereby. The petitioners were all through aware of the charge against them and the incident relating thereto. Evidence was led only in such respect and one of the petitioners was also examined as a defence witness. Such question was considered and rejected by this Court in Criminal Revision No. 586/86 disposed of on 12-9-90 and hence the submission must outright be rejected. The submission that the 1967 T.T. Rules had expired by the alleged date of commission of the offence and therefore no offence could be said to have been committed under the said rules had no force since it is a mere wrong mention of the rules by the trial court as well as the appellate court for the correct rules, i.e. the Orissa Timber and other Forest Produce Transit Rules, 1980 of which Rule 4, so far as the offence alleged against the petitioners is concerned remained the same as in the T.T. Rules of 1967. No prejudice can be said to have been caused to the petitioners on such count and therefore the submission is not accepted.
6. The submission that the trial court based its conclusion of finding the petitioners guilty of the offence alleged on the basis of their signing statements before the I.O. admitting the offence and of having been caught red-handed, is factually not correct even though it may be said that the observations made by the trial court in that regard were wholly unwarranted. The conclusion of the trial court to convict the petitioners was based on the evidence of P.Ws. 1 to 9 which he discussed in detail. Having done so, he observed that it was not out of place to state that the I.O., P. W. 9, had recorded the statements of the petitioners wherein they had stated of having felled and transported the logs without any authority and of having been caught red-handed by P.W. 9 and his staff in presence of witnesses and that since petitioners 3 and 4 were English knowing persons and must have signed the statements being fully aware of the contents thereof, it would not preclude the Court, though the statements had not been proved, to peruse the same and form an opinion regarding the prosecution story. This was not available to be made since such statements were not admissible in evidence at all and could not have been looked into for the purpose of forming any opinion regarding the prosecution case and the court was to decide the matter uninfluenced by such statements. But however so far as the judgment itself is concerned, it was in no way affected by such observations. As regards the offer of the petitioners to execute bond, the relevant provision is contained in Section 56(2) and Section 72 of the Orissa Forest Act. Under Section 56(2) whenever any property is seized by an officer regarding which it is believed a forest offence have been committed, the officer is to place on the property a mark indicating that the same has been seized and is to submit a prosecution report or produce the property before the authorised officer except where the offender has approached in writing to get the offence compounded. Section 72 authorises the officer empowered by Government in that behalf to accept compensation from any person who has committed, or in respect of whom it can be reasonably inferred that he has committed, any forest offence other than offences Under Sections 66 and 67, the compensation amount being as provided for in the section. The procedure regarding compounding the offence is provided in the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rules, 1980. In the prosecution report it was stated that the petitioner No. 3, the owner of the truck, had agreed to compound the offence and had executed a bond for payment of Rs. 12,000/- towards the compensation on or before 13-7-82, but he having not paid the amount, the P.R. was submitted. The date of submission of the P.R. was 19-9-82. It is the submission of Mr. Panda that though the petitioner had executed a bond, no amount was specified to be paid therein and no amount was actually assessed or communicated to the petitioners and therefore it could not be said that there was any default in paying the amount and as such no prosecution could lie. P.W. 9 in his statement has stated on oath that the petitioners 3 and 4 had agreed to pay the compensation of Rs. 12,000/- but did not pay the amount for which he filed the prosecution report. Such statement in Court by P.W. 9 has not been challenged. Absolutely no cross-examination has been directed against the witness regarding his having not followed the provisions of the enquiry rules, or that in the bond executed by the petitioners no amount had been specified, or that the competent authority Under Section 72 either had not communicated its decision fixing the amount of compensation, or of the petitioners having never failed to pay the amount so fixed. No such fact being on record, the submission of Mr. Panda merits no consideration.
7. In the result, the revision has no merit and is dismissed.