CASE NO.: Appeal (crl.) 396 of 1995 PETITIONER: Tej Bahadur Dube (dead) by L.Rs. RESPONDENT: Forest Range Officer F.S.(S.W.), Hyderabad DATE OF JUDGMENT: 17/02/2003 BENCH: N.Santosh Hegde & B.P.Singh. JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
The original appellant has since died and this appeal is now
being pursued by his legal representatives.
The original appellant was charged for violation of Rules 3
to 7 of the A.P.Sandalwood and Red Sanders Wood Transit Rules,
1969 (the ‘Rules’) which is punishable under Section 29(4) (a) (i)
of the A.P. Forest Act, 1967 (the ‘Act’), before the II Metropolitan
Magistrate, Hyderabad on the ground that he along with another
person was transporting sandalwood pieces numbering 30,000 in a
lorry on 7.8.1982 from Hyderabad to Bombay. The said
transportation was alleged to be without permit and in
contravention of the Act and the Rules, stated herein above.
The trial court after considering the evidence on record came
to the conclusion that the appellant is a licensed dealer and stockist
in sandalwood and the sandalwood pieces found during the
transportation were not actually sandalwood as defined under
Section 2(o) of the Act but were products obtained after conversion
of the original sandalwood to certain shapes which are meant for
the purpose of being used as handles in other finished sandalwood
products and there being no requirement of law to obtain any
permit for transportation of such finished sandalwood products,
found the appellant not guilty of offences charged against him,
hence, acquitted him with a direction that the material objects,
namely, the sandalwood pieces seized should be returned to the
appellant.
In appeal, the High Court took a contrary view of the matter
and came to the conclusion that even if the goods seized were
products made out of sandalwood, the same required transit permit,
otherwise there is every likelihood of a person contravening the
provisions of the Rules if such goods are transported without the
knowledge of the authorities. On the said basis, it reversed the
findings of the trial court and found the appellant guilty of having
contravened Rule 3 of the Rules consequently held him liable for
punishment under section 29(4)(a)(i) of the Act and imposed a
sentence of three months simple imprisonment with a fine of
Rs.2,000/-. The High Court also directed M.Os 1 to 125 to be
confiscated to the Government. In this appeal, though the appellant
had died and the punishment imposed on him had abated, the
appeal is pursued by the legal representatives of the deceased
appellant because of the order of confiscation made by the High
Court.
Shri Kavin Gulati, learned counsel appearing for the
appellant contended while the trial court was justified in coming to
the conclusion that the finished sandalwood product did not require
transit permit, the High Court erred in proceeding on a
presumption that such a permit is necessary even though the
prosecution had failed to establish that in law such a permission
was necessary. Learned counsel contended the finding of the High
Court that a transit permit for transportation of finished
sandalwood is necessary because, otherwise there would be every
likelihood of circumventing the provisions of law is a ground
which is not sustainable in law. In support of this contention, he
relied on a judgment of this Court in Suresh Lohiya vs. State of
Maharashtra & Anr. (1996 10 SCC 397) wherein this Court while
considering a similar argument in regard to transportation of
bamboo, had held that a conviction based on such presumption is
unsustainable in law. Shri Prabhakar, learned counsel appearing for
the respondent-State primarily contended that the material seized
by the authorities were in fact sandalwood as defined under
Section 2(o) of the Act and merely because some conversion is
made on this sandalwood the same would not become finished
goods and would still remain to be sandalwood as defined under
the Act. Therefore, a transit permit is necessary for transportation
of such sandalwood. He also contended that the High Court was
justified in protecting the interest of the State by requiring a transit
permit to be taken while transporting such sandalwood.
As noticed above, the original appellant was a holder of a
licence to deal in and stock sandalwood. From the material on
record, it is seen that the said appellant had obtained necessary
permit from the competent authorities for converting the
sandalwood purchased by him into various types of handles which
is ultimately used in other sandalwood handicrafts which
permission was valid upto 31st of December, 1982 period covering
the period of seizure. The appellant had contended that it is
pursuant to the said permission he had converted the sandalwood
pellets into handles to be used in the other sandalwood artifacts
and he had informed the concerned authorities about such
conversion as per Ex.P-18 to P-27. It is also the case of the
appellant that converted sandalwood artifacts or parts thereof do
not require any transit permit and it is only sandalwood in its
original form or chips and powder of sandalwood which requires a
transmit permit. The trial Court has agreed with this submission of
the appellant. We also notice under the Rules and the Act what is
prohibited is the transportation of sandalwood as defined in
Section 2(o) of the Act and not sandalwood products which have
been converted into such products after obtaining proper
permission from the authorities. Such converted sandalwood
product under the Rules do not require any transmit permit. We say
so because Rules referred to in these proceedings do not
contemplate such transmit permit and the respondents have not
produced any other Rules to show such transit permit is required.
On the contrary, the respondent argues that even converted
sandalwood products require transit permit because they remained
to be sandalwood as contemplated under Section 2(o) of the Act. In
the absence of any specific Rules or provisions in the Act to this
effect, we are unable to agree with this argument. We are of the
opinion once sandalwood is subjected to certain process from
which a sandalwood product is lawfully obtained, then such
product ceases to be sandalwood as understood in Section 2(o) of
the Act.
The High Court, however, proceeded on the basis that if
such a restriction on transport of sandalwood product is not
inferred then there is likelihood of evasion of the provisions of the
Act, therefore, it proceeded on an inference that such transit permit
is necessary in law. We are unable to accept this reasoning of the
High Court which as rightly contended by the learned counsel for
the appellant cannot be sustained. We are supported in this view of
ours by the judgment of this Court in the case of Suresh Lohiya
(supra)
For the reasons stated above, we are of the opinion that the
respondents have failed to prove that the deceased appellant had
committed any such offence as charged against him, therefore, this
appeal must succeed.
For the reasons stated above, this appeal is allowed, the
impugned judgment of the High Court is set aside as that of the
trial court is restored. The respondent State shall return the
material objects seized from the deceased appellant, the same shall
be handed over to the legal representatives of the said deceased
appellant within three months from today. The appeal is allowed.