Art. 227 | Not Proper To Re-appreciate Evidence & Substitute Own Findings Only Because Second View Possible: Orissa High Court Reiterates

While dismissing the petition which called for reappreciation of evidence, a Single Judge Bench of Justice Krushna Ram Mohapatra observed,

"This Court is in seisin of the matter under Article 227 of the Constitution. Hence, it will not be proper to re-appreciate the evidence and substitute its own finding only because a second view may be possible."

Brief Facts:

In the intervening night of 28/29th March, 2017, while the Forester of Bhatangpadar Section along with other forest staff were patrolling, they stopped a vehicle (hereinafter "the offending vehicle") at about 2.30 AM and detected that it is loaded with 54 numbers of 0.52 cum of fresh cut teak planks for which they detained the driver of the offending vehicle. On being asked he could not produce the TT Permit for its transportation. Accordingly, the offending vehicle was seized and confiscation proceeding was initiated for violation of Rules 4 and 12 of the Odisha Timber and other Forest Transit Rules, 1980 ('TT Rules').

The petitioner in this writ petition sought to challenge the order passed by the District Judge, Kalahandi, whereby he confirmed the order of confiscation passed by Authorized Officer-cum-Assistant Conservator of Forest, Kalahandi North Division, Bhawanipatna in respect of the vehicle.

Petitioner's Contentions:

Mr. Debashish Kumar Panda, counsel for the petitioner, contended that the petitioner had never instructed the driver to transport the forest produce in his vehicle. The vehicle was being used for conveyance of children to Central School, Bhawanipatna. He alleged that neither the Authorized Officer nor the Appellate Authority has taken into consideration the deposition of the driver as well as the petitioner to the effect that the driver was never instructed to transport teak planks in the offending vehicle.

He further submitted that the driver in his deposition clearly stated that the teak planks were loaded in the offending vehicle under threat of some persons. All these materials were not taken into consideration by the Authorized Officer as well as the Appellate Authority while directing for confiscation of the vehicle, he pleaded.

He relied on a decision of the High Court in Gurudev Singh Rai v. Authorized Officer-cum-Assistant Conservator of Forests & Anr., AIR 1992 Orissa 287, wherein the Court while upholding the decision of the Authorized Officer, directed to release the vehicle by compounding of offence on payment of fine. He, therefore, prayed for setting aside the impugned order and to release the offending vehicle on payment of reasonable fine to be determined by the Court.

Respondent's Contentions:

Mr. Ajodhya Ranjan Dash, the Additional Government Advocate submitted that the grounds raised by the petitioner in the writ petition were also raised before the Appellate Court and the same were taken care of discussing the materials available on record and relevant case law. He argued that looking at the facts and circumstances of the case as well as the gravity of offence, it should not be compounded.

He further submitted that the plea taken by the petitioner that he had not instructed the driver and had no knowledge about involvement of his vehicle in forest offence cannot be accepted as a specific plea was taken by the petitioner to the effect that the vehicle was being used for conveyance of children to Central School, Bhawanipatna. But the vehicle was seized in the intervening night of 28/29th March, 2017. Thus, learned Appellate Court disbelieved the plea taken by the petitioner.

Further, the counsel for the petitioner contended that teak planks were loaded in the offending vehicle by threatening the driver cannot be believed, he argued, as the matter was never informed to the police. Thus, he contended that the High Court, while exercising power under Article 227 of the Constitution, should not re-appreciate the evidence and substitute its own finding. He also pointed out that the petitioner has raised plea of compounding the offence by payment of fine, which indicates that the vehicle of the petitioner was involved in the forest offence.

Court's Observations:

The Court observed that the driver, being employed by the petitioner, was acting as his 'agent' to drive the vehicle. Again, there is no material on record except oral statement of the owner as well as the driver himself to the effect that the petitioner had no knowledge of involvement of the offending vehicle in forest offence. The Court noted that there is no cogent evidence available on record to arrive at a conclusion that either the petitioner or his driver had any knowledge of such transportation.

The Court further noted the deposition of the driver to the effect that the teak planks were loaded in the offending vehicle under threat of some antisocial persons. However, the Court took strong exception to fact that the matter was never informed to the local Police. The case of the petitioner is that the vehicle was being used for conveyance of children to Central School, Bhawanipatna, but when he contacted the driver at 10.30 PM of intervening night of 28/29th March, 2017, the driver informed that he is going to his village to bring his family members and the petitioner had never objected to the same. Thus, the Bench held,

"It clearly shows that the Petitioner had permitted his driver to ply his vehicle other than the purpose for which it was engaged. Thus, the plea of loading of the teak planks in the offending vehicle by threatening the driver, was an afterthought and made out only to escape the legal consequences of committing a forest offence."

After perusing the impugned order, the Court was of the view that the District Judge, Kalahandi has considered the submission made by the counsel for the petitioner in its entirety and discussed the same with reference to the materials on record and case law. Thus, the Bench concluded that it will not be proper for it to re-appreciate the evidence and substitute its own finding only because a second view is possible.

Accordingly, the writ petition was dismissed.

Case Title: Abhiram Chatria v. State of Odisha & Ors.

Case No.: W.P.(C) No. 7554 of 2019

Order Dated: 12^th August 2022

Coram: K.R. Mohapatra, J.

Counsel for the Petitioner: Mr. Debashish Kumar Panda, Advocate

Counsel for the Respondents: Mr. Ajodhya Ranjan Dash, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 139