State Vs. Sahadev Dalal - 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]. - when he was found in the reserved forest removing the sal log, which is timber, he can well be said to have committed an offence covered by clause (b) of sub-section (3) of section 27. in other words, the respondent in the reserved forest was found removing a forest produce.k.p. mohapatrah, j.1. this appeal is directed against the judgment passed by the learned judicial magistrate, nayagarh, acquitting the respondent of an offence punishable under section 27 of the orissa forest act, 1972 (shortly stated 'the act').2. prosecution case, in brief, is that on 23-9-1979 at about 5.00 p.m., p.ws. 1 and 2. both forest guards, were patrolling compartment no. 7 of hatimunda reserved forest. they detected that the respondent was unauthorisedly carrying away a green sal log of the size of 13' x 3'-10' in a bullock-cart from the said forest. they seized the log by seizure list (ext. 1) and gave it to the zima of p. w. 4 by zimanama (ext. 2). the bullock-cart and the bullocks could not be seized because the respondent forcibly took them away. p. w. 1 submitted an offence report (ext. 3) and the forester (p. w. 3) made an enquiry and submitted the prosecution report.3. the respondent denied the occurrence.4. on a consideration of the prosecution evidence, the learned magistrate found as follows:--'.......i find that though the evidence of the forest department people is not false, the case is barred by limitation as the offence report is instituted against the accused on 23-9-1979 and the cognizance was taken on 17-9-1980 which is after more than six months, and it is a case under section 27(2) of the orissa forest act and the accused is punishable only with fine. the cognizance should have been taken within the six months according to section 468(2)(3), cr. p.c.'be it noted that the order of acquittal was recorded only on the ground of bar of limitation and not on the merits of the case.5. mr. p.k. mohanty, learned addl. govt. advocate, contended that the case was under section 27(3)(b) of the act and as such, the period of limitation is three years under section 468(2)(c), cr. p.c. accordingly, the order of cognizance was not barred by limitation.mr. r. k. kar, learned counsel appearing for the respondent, on the other hand, urged that the case squarely falls within the ambit of section 27(2)(b) of the act and, therefore, the period of limitation is six months, as provided in section 468(2)(a), cr. p.c.the contentions require careful consideration.6. section 27(2)(b) is quoted below for easy reference:--'(b) causes any damage by negligence in felling any tree or cutting or dragging any timber or removing any forest produce.'if an offence falls within the aforesaid provision, then the punishment is only fine which may extend to rs. 1,000/ -. it is also necessary to quote sub-section (3) of section 27 of the act, so far it is relevant:--'(a) xxx xxx(b) quarries stone, burns lime or charcoal or collects, subjects to manufacturing process or removes any forest produce;xxx xxx xxx'if any offence falls within the aforesaid provision, then the punishment is imprisonment which may extend to two years or fine, prior to its amendment by orissa act 9 of 1983.7. the simple case against the respondent is that he was found removing a timber. there is no allegation against him that he caused any damage to the reserved forest by felling the tree. may be somebody else caused damage by felling the tree, but he was simply found removing it from the reserved forest. p. ws. 1 and 2 stated in their evidence that they found the respondent transporting and removing the sal log in the reserved forest. they did not state that the respondent himself felled the tree either deliberately or on account of negligence and thereby caused damage to the reserved forest. to my mind, it appears that clause (b) of sub-section (2) of section 27 lays emphasis on causing damage by negligence and thereby removing any forest produce. in other words, if a person is found removing any forest produce by causing any damage by negligence in felling any tree, he can be said to have committed an offence thereunder. but in this case the respondent was found removing the forest produce, i.e., the sal log, which, according to the definition in section 2(g)(i)(a), is forest produce. when he was found in the reserved forest removing the sal log, which is timber, he can well be said to have committed an offence covered by clause (b) of sub-section (3) of section 27. in other words, the respondent in the reserved forest was found removing a forest produce. in my opinion, therefore, there was a prima facie case against the respondent under section 27(3)(b) of the act. the punishment for the offence being imprisonment extending to two years, the period of limitation is three years under section 468(2)(c), cr. p.c. the order of cognizance was, therefore, within limitation. the learned judicial magistrate, therefore, committed an error of law in holding that the order of cognizance was barred by limitation.8. the learned magistrate disposed of the criminal case on the ground of limitation only and not on merits on consideration of the evidence. therefore, it is necessary to remand the case to him for re-trial. while doing so, he shall record his finding on the evidence already recorded without permitting any of the parties to adduce any further evidence. in formulating his opinion, he shall not be influenced by any of the observations made by this court.9. in the result, the appeal is allowed and the order of acquittal is set aside. the criminal case is remanded to the court of the learned magistrate for re-trial in accordance with law in the light of the observations made above. the parties shall appear in the said court to receive direction on 16th october, 1989.