Kirtan Bhoi Vs. State of Orissa - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, 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 orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, 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 orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. r.k. dash, j.1. the petitioner stood prosecuted under section 16(1)(a)(i) of the prevention of food adulteration act (for short the act') for his having kept adulterated turmeric powder, an article of food, for sale for human consumption in his shop. learned judicial magistrate, first class, balangir, upon trial, found the petitioner guilty of the offence and consequently convicted and sentenced him to undergo imprisonment for six months and to pay a fine of rs. 1,000/-, in default to undergo simple imprisonment for a period of two months. feeling aggrieved, the petitioner carried appeal to the sessions court and the learned additional sessions judge on re-appraisal of 'the evidence concurred with the findings of the trial court and dismissed the appeal. hence the revision.2. several grounds have been taken challenging correctness of the findings recorded by both the courts below, but in course of argument the learned counsel for the petitioner confined his submission to the only ground that there was infraction of the mandatory provision of section 13(2) of the act, inasmuch as copy of the public analyst report was not supplied to the petitioner so as to afford him an opportunity to challenge the same by getting the sample analysed by the central food laboratory.3. the matter was heard by hon'ble l. rath, j. it was urged before his lordship on behalf of the petitioner that since the petitioner denied of having received the copy of the report was alleged to have been sent through registered post, non-filing of the acknowledgement receipt constitutes lack of proof of actual receipt of the report. in support of such contention reliance was placed on two earlier single bench decisions of this court reported in 70 (1990) clt 164 (srinivas pradhan v. state of orissa) and (1990) 3 ocr 374 (bidyadhar jena v. state of orissa). disagreeing with the view expressed in the aforesaid two judgments, his lordship referred the matter to be placed before an appropriate bench for decision. consequently the case was heard by the division bench on the question whether despatch of copy of the report by registered post, if proved, amounts to sufficient compliance of the requirement of section 13(2) of the act, having made an indepth study of the various judicial pronouncements governing the field, the court observed that in view of the presumption of due service as provided in section 27 of the general clauses act, the burden which initially lies upon the prosecution will stand discharged, provided it could prove that the required document had been duly sent by properly addressing, prepaying and posting by registered post. in view of such finding, the only question that remains to be considered from the available materials as to whether prosecution successfully proved that copy of the analyst's report had been sent despatched by registered post at the address of the petitioner. both the courts below appear to have not taken into consideration this aspect of the prosecution case while holding that there had been due compliance of the statutory requirement of section 13(2) of the act. the only evidence, reference of which can be made in the context, is of pw 1, the food inspector. admittedly he himself did not send the copy of the analyst's report by registered post. as deposed to by him, after filing of the prosecution report the c. d. m.o., bolangir sent the copy of the public analyst's report along with a letter by registered post intimating that if he so desired, he may make an application to the court to get the sample analysed by the central food laboratory, calcutta. he does not say as to if he has any persona! knowledge about the actual despatch of the report by registered post. neither the c. d. m.o. nor any of the staff of his office was examined to prove about the despatch of the copy of the analyst's report to the petitioner as required under law. it is needless to mention that pw 8 proved the postal receipt, ext. 13, but the same does not prove any-thing beyond the fact that some article was delivered at the post office and a receipt was granted. it does not prove that a copy of the public analyst's report contained in the registered cover that was sent at the address of the petitioner. therefore, merely on the basis of the postal receipt and without there being any positive evidence of actual despatch of the copy of the public analyst's report, it could not be said that there was sufficient compliance of the mandatory requirement of section 13(2) of the act. in that view of the matter, the judgment of the court below cannot he sustained.4. in the result the revision is allowed and the orders of conviction and sentence recorded against the petitioner are set aside.