JUDGMENT :

Biswajit Mohanty, J.

1. The question that has been referred to be answered by this Full Bench is as follows;

"Whether the Orissa Forest (Detection, Enquiry and Disposal of Forest Offence), Rules 1980 have any application to the proceeding before the Authorised Officer under Section 56 of the Orissa Forest Act, 1972?"

2. The short facts of the case are as follows;

"On 23.8.2009 while one K.C. Dalabehera, Forester and other forest staffs were performing night patrolling duty, they intercepted a truck bearing registration No. WB-33-A-5229 near Khandadhip bridge at Rairakhol on suspicion that the truck was used for transporting Kendu Leaves. On checking the vehicle, it was found that it contained 924 bundles of processed Kendu leaves covered with rice bran (kunda) and tarpaulin. On being asked, the driver of the truck, namely, Ajit Prasad and helper - Chiranjit Patra could not produce any document or authority in support of transportation of Kendu leaves. Accordingly, the vehicle along with Kendu leaves were seized in presence of witnesses. On the basis of aforesaid detection, the driver and helper of the vehicle were taken into custody and forwarded to the court of the learned S.D.J.M., Rairakhol along with advance Prosecution Report for committing offences under Rules - 4 and 21 of the O.T.T. Rules, 1980 and Section-14 of the Orissa Kendu Leaves (Control and Trade) Act, 1961 and further confiscation proceeding in respect of the aforesaid vehicle and Kendu leaves under Section-56 of the Orissa Forest Act, 1972, for short "the Act" was initiated. Vide order dated 18.6.2010, the Authorised Officer-cum-Assistant Conservator of Forest, Rairakhol Division on consideration of materials on record, passed the order for confiscation of the truck, Kendu leaves and other accessories. Against the order of the Authorised Officer, the petitioner moved the learned District Judge, Sambalpur in F.A.O. No. 29 of 2010 and on 24.11.2010, learned District Judge dismissed the said appeal. Challenging both the above noted orders, the present writ application was filed. While hearing this writ application, there was a cleavage of opinion between the two Hon'ble Judges of this Court constituting the Division Bench regarding applicability of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offence) Rules, 1980, for short "the 1980 Rules" to the proceeding before the Authorised Officer under Section-56 of "the Act". Accordingly, this matter has come before this Full Bench for an answer to the above noted dispute/question. While Hon'ble Justice C.R. Dash has held that "the 1980 Rules" apply to compounding proceedings alone and the same have nothing to do with the confiscation proceeding before the Authorised Officer or trial proceeding before the Magistrate; Hon'ble Justice L. Mohapatra (as His Lordship then was) relying on the decision in the case of Rabinarayan Sahu v. Forest Range Officer, Sorada and others reported in 2008 (II) OLR 592 disagreed with the view taken by Hon'ble Justice C.R. Dash. However, Hon'ble Justice L. Mohapatra observed that there existed no reference to the confiscation proceeding in "the 1980 Rules". In such background, Hon'ble Justice L. Mohapatra was of the view that the question as to whether the above 1980 Rules had any application to the proceeding before the Authorised Officer under Section-56 of the Orissa Forest Act or not be referred to a Larger Bench or the view of a third Hon'ble Judge be taken on the matter. Accordingly, this matter has come before this Full Bench."

3. In order to appreciate the things properly, let us first refer to the relevant statutory provisions of "the Act" & its later amending Acts and "the 1980 Rules" in its entirety.

Relevant Provisions of "the Act" as it stood prior to Orissa Act 9 of 1983 also known as the Orissa Forest (Amendment) Act, 1982.

"56. Seizure of property liable to confiscation- (1) When there is reason to believe that a forest offence has been committed in respect