Sidheswar Panda Vs. the State - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' in the absence of any evidence that these logs were government property, i fail to understand how the conviction of the petitioner can stand for illegal removal of forest produce from a reserved area. the rules at best raise a presumption that in the absence of evidence, it shall be presumed that they are government property, but this is only a rule of evidence and the accused cannot be convicted on a mere presumption. . i am not satisfied that the prosecution has established any connection between the logs seized and the government forest logs. it may well be that the accused may have obtained these logs from elsewhere outside the hindol area. it may also be that he had failed to explain wherefrom he had obtained them. it does not therefore follow that the failure of the accused to explain satisfactorily relieves the prosecution of the burden to prove that these constituted government property and had been illegally removed.orderpanigrahi, c.j.1. the petitioner has been convicted under rule 97 of the hindol forest rules read with section 26 (f) and (g), forest act and sentenced to pay a fine of rs. 50/- in default to undergo r. i. for one week. the facts proved against him in brief are that he was found in possession of 31 pieces of sal timber on 17-7-51. the forester paramananda das suspected that these might have been removed from the government forest and demanded the production of permit from the accused. the accused said that he had got the timber logs from one mr. naylor under a permit and that the logs had borne hammer marks. no permit was produced and the prosecution evidence is that there were no hammer marks. on these facts, the petitioner, along with 4 others, was prosecuted for a forest-offence but the other persons have been acquitted by the magistrate and the petitioner alone was found guilty of being in possession of forest produce without a permit.2. the trial court itself remarks 'there is absolutely no evidence on record to show that the seized timber's were felled or removed from any government forest by any one of the accused persons.' in the absence of any evidence that these logs were government property, i fail to understand how the conviction of the petitioner can stand for illegal removal of forest produce from a reserved area. the rules at best raise a presumption that in the absence of evidence, it shall be presumed that they are government property, but this is only a rule of evidence and the accused cannot be convicted on a mere presumption. it was the duty of the prosecution to establish that some timbers had been felled and removed from the government forest, and that the timbers in possession of the accused corresponded to the logs illegally removed from the government forest.. i am not satisfied that the prosecution has established any connection between the logs seized and the government forest logs. it may well be that the accused may have obtained these logs from elsewhere outside the hindol area. it may also be that he had failed to explain wherefrom he had obtained them. it does not therefore follow that the failure of the accused to explain satisfactorily relieves the prosecution of the burden to prove that these constituted government property and had been illegally removed. i would therefore hold that the offence has not been brought home to the accused and that his conviction cannot stand.this revision is accordingly allowed and the conviction and the sentence of the petitioner must be set aside, and the fines if paid must be refunded; and the sale-proceeds of the logs shall be paid over to the petitioner.

Judgment:
ORDER

Panigrahi, C.J.

1. The petitioner has been convicted under Rule 97 of the Hindol Forest Rules read with Section 26 (f) and (g), Forest Act and sentenced to pay a fine of Rs. 50/- in default to undergo R. I. for one week. The facts proved against him in brief are that he was found in possession of 31 pieces of sal timber on 17-7-51. The forester Paramananda Das suspected that these might have been removed from the Government forest and demanded the production of permit from the accused. The accused said that he had got the timber logs from one Mr. Naylor under a permit and that the logs had borne hammer marks. No permit was produced and the prosecution evidence is that there were no hammer marks. On these facts, the petitioner, along with 4 others, was prosecuted for a forest-offence but the other persons have been acquitted by the Magistrate and the petitioner alone was found guilty of being in possession of forest produce without a permit.

2. The trial court itself remarks 'there is absolutely no evidence on record to show that the seized timber's were felled or removed from any Government Forest by any one of the accused persons.' In the absence of any evidence that these logs were Government property, I fail to understand how the conviction of the petitioner can stand for illegal removal of forest produce from a reserved area. The rules at best raise a presumption that in the absence of evidence, it shall be presumed that they are Government property, but this is only a rule of evidence and the accused cannot be convicted on a mere presumption. It was the duty of the prosecution to establish that some timbers had been felled and removed from the Government forest, and that the timbers in possession of the accused corresponded to the logs illegally removed from the Government forest.. I am not satisfied that the prosecution has established any connection between the logs seized and the Government forest logs. It may well be that the accused may have obtained these logs from elsewhere outside the Hindol area. It may also be that he had failed to explain wherefrom he had obtained them. It does not therefore follow that the failure of the accused to explain satisfactorily relieves the prosecution of the burden to prove that these constituted Government property and had been illegally removed. I would therefore hold that the offence has not been brought home to the accused and that his conviction cannot stand.

This revision is accordingly allowed and the conviction and the sentence of the petitioner must be set aside, and the fines if paid must be refunded; and the sale-proceeds of the logs shall be paid over to the petitioner.