B.K.PATEL, J. CRIMINAL REVISION NO.199 OF 2003 (Decided on 2.7.2010) BHIKERAM MEHERA ………. Petitioner. .Vrs. STATE OF ORISSA ………. Opp.Party. ORISSA FOREST ACT, 1972 (ACT NO. 14 OF 1972 ) - SEC.83. For Petitioner - M/s. D.P.Dhal, S.K.Tripathy, P.K.Routray & B.K.Mishra. For Opp.Party - Additional Government Advocate. B.K.PATEL, J. This revision is directed against the judgment dated 6.12.2008 passed by the learned Additional Sessions Judge, Titilagarh in Criminal Appeal No.41/22 of 2001 confirming the judgment dated 19.9.2001 passed by the learned J.M.F.C., Kantabanji in 2(b) C.C.No.22 of 1993 by which the petitioner was convicted under section 83 of the Orissa Forest Act (hereinafter referred to as ‘the Act’), and sentenced to undergo S.I. for one month and pay fine of Rs.500/-, in default, to undergo S.I. for a further period of one month. 2. Prosecution case is that on 23.3.1992, on the strength of search warrant issued by the Executive Magistrate, officials of the Forest Department conducted raid on the house and premises of the petitioner in presence of the Executive Magistrate. They recovered and seized 112 pieces of hand dressed and hand sawn Teak, Bija and Shishu sizes, one Shishu log, two hand saws and other equipments for making furniture. Subsequently enquiry revealed that seized forest produces were removed from Chatradandi and Munda reserved forests. It was alleged that the petitioner was habitual smuggler of forest produces and was running an illegal furniture making unit. On conclusion of enquiry, prosecution report was submitted against the petitioner for commission of offences under sections 27(2)(b) and 83 read with Section 73 of the Act. Defence plea was one of complete denial. In order to substantiate the allegations prosecution examined six witnesses and relied upon documents marked Exts. 1 and 2. No defence evidence was adduced. 3. On appraisal of evidence on record, it was held by the learned J.M.F.C. that the prosecution has failed to establish the allegation of commission of offence under section 27 of the Act by the petitioner. However, taking the aid of provisions under sections 73 and 73-A of the Act, learned J.M.F.C. held that the petitioner was liable to be punished under Section 83 of the Act for having found guilty of removing and transporting forest produce i.e. timbers from the reserved forests without any authority and to be in illegal possession of the same, for which he failed to produce any document or authority. 4. It was submitted by the learned counsel for the petitioner that the petitioner all along, including in his statement recorded under section 313 Cr.P.C., denied recovery of any forest produce from his possession. It was further submitted that in order to attract liability for punishment under section 83 of the Act, prosecution is required to establish contravention of specific provision under the Act and Rules made thereunder. It was strenuously contended that at no point of time the petitioner was accused of contravention of any specific provision of the Act or any of the Rules made thereunder. The judgment passed by the learned J.M.F.C. also is altogether silent regarding contravention of any specific provision. The petitioner having not been made aware regarding the provision, contravention of which is alleged under section 83 of the Act, conviction of the petitioner under section 83 of the Act for contravention of provision not brought to his notice is not sustainable. 5. It was contended by the learned counsel appearing for the State that though learned J.M.F.C. has not recorded any finding regarding contravention of any specific provision under the Act or any Rules made hereunder, learned Additional Sessions Judge has categorically mentioned in the impugned appellate judgment that the petitioner violated Rules 12 and 14 of the Orissa Timber and Other Forest Produce Transit Rules,1980. 6. Having perused the trial court record upon reference to rival contentions, it is found that on the basis of prosecution report, cognizance of commission of offences under Section 27 (2)(b), 73 and 83 of the Act by the petitioner was taken by the learned J.M.F.C., Kantabanjhi on 6.11.1993. Prosecution report did not spell out violation of any specific provision. Order dated 15.5.1997 reveals that while explaining the particulars of offence to the petitioner also no specific provision under the Act or any of the Rules made thereunder was alleged to have been contravened. Statement of the petitioner recorded under Section 313 of the Cr.P.C. also reveals that the petitioner was not told regarding contravention of any specific provision. Judgment passed by the trial Magistrate also is silent regarding contravention of any specific provision under the Act or Rules for which the petitioner was held to be liable to be punished under Section 83 of the Act. However, it was held in the appellate judgment at para-7: “It is not disputed that the accused could not produce any permit or authority lawfully authorizing his possession of the aforesaid forest produce. Since he has not retained and produced for inspection the relevant permit or authority the learned Magistrate has rightly held that the accused violated Rule-14 and 12 of Orissa Timber and other Forest Produce Transit Rules, 1980 and in the absence of any special penalty provided for the violation of these rules he has rightly convicted the accused u/S 83 of Orissa Forest Act.” 7. Section 83 of the Act reads as follows: “Any person contravening any provision of this Act or the Rules made thereunder for the contravention of which no special penalty is provided, shall be punishable with imprisonment for a term which may extend to two, months or with fine which may extend to one thousand rupees, or with both.” The plain language of Section 83 of the Act makes it clear that liability for punishment under Section 83 would arise only when a person contravens any provision of the Act or the Rules made thereunder for the contravention of which no special penalty is provided. 8. There is absolutely no scope to hold that no punishment has been provided for contravention of provisions under the Orissa Timber and Other Forest Produce Transit Rules, 1980. Section 45 of the Act provides for the power of the State Government to make rules to regulate the transit and possession of timber and other forest produce. Section 46 of the Act provides that in making any rule under Section 45 of the Act the State Government may provide that a breach thereof shall be punishable with imprisonment and with fine. Rule 12 of the Orissa Timber and Other Forest Produce Transit Rules, 1980 provides for retention of transit permit by the person to whom it is 2 issued under the said Rules so long as the forest produce covered by the transit permit remains in his possession and to produce it for inspection if and when required. Rule 14 of the Rules requires putting of hammer mark and registered property mark on timbers on transit. Rule 21 of the Rules as it stood prior to amendment in the year 2006, providing for ‘Penalties’, reads: “Whoever contravenes any of the provisions of these rules shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to rupees one thousand or with both: Provided that double the amount of penalty as aforesaid may be inflicted in cases where the offence is committed after 10 a.m. and before 5 p.m. or after making preparation for resistance to lawful authority or where the offender has been previously convicted for a similar offence.” 9. Thus, the Orissa Timber and Other Forest Produce Transit Rules provide for penalties for violation of provision contained therein. In such circumstances, prosecution of the petitioner under Section 83 of the Act for alleged contravention of Rules 12 and 14 of the Rules as observed by the learned Additional Sessions Judge, Titilagarh is misconceived. It is obvious that the prosecution never indicated as to which provision under the Act or any Rule made thereunder was violated by the petitioner so as to make him liable for punishment under Section 83 of the Act. 10. In Narayan Das v. The State : 1980 CLR 227, prosecution under Section 7 of the Essential Commodities Act for violation of an order made under Section 3 of the said Act culminated in conviction of the petitioner. It was held by this Court that as the particular order said to be violated was neither mentioned in the charge nor in any other document exhibited, the prosecution was wholly misconceived and the conviction was not sustainable. In Gayadhar Ojha alias Ojhar v. State of Orissa : 1991 CRI. L.J.2642, it was held by this Court that it is only in case of violation of Orders or infraction of any provision of any Order or Rule framed under Section 45 of the Act by the government which has been made punishable under that particular Order or Rule. Since the trial court has not taken cognizance of the offences alleged to have been committed under the Timber Transit Rules or Saw Pits Rules, the entire proceeding has been vitiated on account of gross irregularity. When cognizance has not been taken, no trial could have proceeded far less to speak of any conviction thereunder. 11. In view of the above, the revision is allowed. The impugned judgments passed by the learned Additional Sessions Judge, Titilagarh in Criminal Appeal No. 41/22 of 2001 and the learned J.M.F.C., Kantabanjhi in 2(b)C.C. No. 22 of 1993 are set aside. Revision allowed. 3