IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 556 of 2001()
1. STATE OF KERALA
... Petitioner
Vs
1. BHARATH BHOOSHAN AGARWAL
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.SUNNY MATHEW
The Hon'ble MR. Justice V.K.MOHANAN
Dated :19/12/2008
O R D E R
V.K.MOHANAN, J
- - - - - - - - - - - - - - - - - - - - - - - -
Crl. Appeal No.556 of 2001 (C.R.)
- - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 19th day of December, 2008.
J U D G M E N T
This Criminal Appeal is preferred by the State, aggrieved by
the order of acquittal passed by the Sessions Court, Kozhikode Division as
per its judgment dated 20.11.2000 in Criminal Appeal No. 167 of 1997.
The impugned order arose out of the judgment dated 19.8.1997 in C.C. No.
237 of 1994 of the Court of Judicial Magistrate of First Class – II
Thamarassery. C.C. No. 237 of 1994 was instituted upon a complaint filed
by the Forest Range Officer, Thamarassery alleging commission of offence
under Section 27(1)(d) of the Kerala Forest Act as amended by Section 3
(iii)(d) of the Kerala Forest (Amendment) Ordinance, 1992 which was later
repealed as per Kerala Forest (Amendment) Act, 1993.
2. The case of the complainant is that on 4.1.1994, on getting secret
information that sandal wood oil was being illegally transported, the forest
officials went to the Air Port at Karipur. From the Air Port premises, they
recovered 460 kilograms of sandal wood oil which was kept for exporting to
various foreign countries. On their detection and further investigation the
forest officials found that such bulk quantity of sandal wood oil is belonging
to the first accused firm of which the second accused is the Managing
Crl. Appeal No.556 of 2001 -2-
Partner. Consequently, on the next day i.e. 5.1.1994, the office premises
of the 1st accused was searched as a result of which the officials seized a
further quantity of 73.6 kilograms of sandal wood oil. Thus the allegation is
that the respondent herein/accused before the trial court kept in his
possession so much quantity of sandal wood oil, which is a major forest
produce, in contravention of the Kerala Forest Act and therefore he is liable
to be prosecuted and punished for the said offence.
3. After collecting the materials and on completing the investigation,
the appellant/complainant preferred a complaint before the trial court. On
the appearance of the accused and after hearing him, a formal charge was
framed against him under Section 27(1)(d) of the Kerala Forest Act which
was read over and explained to the accused to which he pleaded not guilty.
Thereafter, PWs.1 to 4 were examined from the side of the complainant
and Exts.P1 to P11 series were marked. MO.1, material objects were
identified and marked. After the prosecution evidence, the incriminating
circumstances which emerged out through prosecution evidence were put
to the accused when he was examined under Section 313 of the Code of
Criminal Procedure and he denied the same. It is the further case of the
accused that he is a licenced manufacturer of sandal wood oil and holding
valid licence issued by the Central Excise Department for the manufacture
Crl. Appeal No.556 of 2001 -3-
of sandal wood oil. It is also the case of the defence that the firm of the
respondent herein/accused is a registered dealer under the Kerala Sales
Tax Act and Central Sales Tax Act and the firm is maintaining regular
registers regarding the purchase of raw materials. It is also their contention
that the firm being a licenced factory for the manufacture of sandal wood
oil, the Forest Transport Rules were not applicable to them. It is also their
contention that for the manufacturing of sandal wood oil, no licence is to be
obtained from the Kerala Forest Department. Thus, the sum and substance
of the defence is that the possession of sandal wood oil is a legitimate one
and the seizure of the same by the forest officials was illegal. On the basis
of the rival contentions, the trial court formulated two issues; among them,
the second one is about the punishment to be awarded. The first issue is
“Is it proved that the accused was found in possession of such a quantity of
sandal wood oil which is a forest produce illicitly removed from the reserve
forests and thus committed an offence under Section 27(1)(d) of the Kerala
Forest Act?” After an elaborate consideration of the evidence of both oral
and documentary, the trial court found that the accused was guilty of the
offence charged against him. Accordingly, he was sentenced to undergo
rigorous imprisonment for a period of three years and also to pay a fine of
Rs.2,000/- in default to undergo simple imprisonment for a period of six
Crl. Appeal No.556 of 2001 -4-
months and also found that the accused was guilty under Section 3(iii) read
with Section 23 of the Kerala Forest Produce Transit Rules and accordingly
he was sentenced to undergo rigorous imprisonment for a period of six
months. It was ordered that the substantial period of sentence shall run
concurrently. In this case the property involved was already released to
the accused, on the basis of the order of the Chief Judicial Magistrate,
Kozhikode issued in terms of the direction issued by this court, on
depositing a sum of Rs. 9,93,640/- and also on furnishing bank guarantee
for Rs.5,06,360/- by the accused. The trial court as per its judgment
directed that the amount so deposited and the bank guarantee so furnished
were to be forfeited.
4. Challenging the above order of conviction and sentence and order
of forfeiture of the money deposited and the bank guarantee, the accused
therein preferred Criminal Appeal No. 167 of 1997 before the Sessions
Court, Kozhikode. The lower appellate court by its judgment dated
20.11.2000 allowed the appeal and set aside the conviction and sentence
and the accused was acquitted of the said offences. But, at the same time,
the case was remitted back to the lower court for re-trial after framing a
charge under Rule 3(iii) read with Rule 23 of the Kerala Forest Produce
Transit Rules and to dispose of the case afresh in accordance with law and
Crl. Appeal No.556 of 2001 -5-
after giving an opportunity to both the complainant and the accused to
adduce whatever further evidence, they deem fit to adduce. It is the above
order of acquittal, challenged in this appeal by the State.
5. I have heard Smt. Lakshmi Rani.K.L., learned Public Prosecutor
and also Mr. Sunny Mathew, learned Counsel for the respondent/accused.
6. The learned Public Prosecutor submitted that the order of
acquittal passed by the learned appellate court is absolutely unwarranted,
unfounded and perverse. According to the learned Public Prosecutor,
there is no dispute from the part of the defence regarding the seizure
effected by the forest officials. The Public Prosecutor submits that the only
contention raised by the defence is to the effect that the accused has got a
manufacturing licence for the manufacture of the sandal wood oil and
therefore seizure of sandal wood oil is effected from the legitimate
possession. It is the case of the learned Public Prosecutor, that the trial
court, after consideration of the entire matter in its all seriousness, came
into a conclusion that the accused has committed the offences which were
charged against him. But on the other hand, according to the Public
Prosecutor, the lower appellate court due to wrong notion of law and
without considering the entire facts and circumstances involved in the case
and overlooking the evidence adduced by the prosecution came into an
Crl. Appeal No.556 of 2001 -6-
erroneous conclusion that the accused has not committed the offence
charged against him. According to the learned Public Prosecutor, the
appellate court was of the opinion that the accused was liable to be
proceeded only for the offence under Rule 3(iii) read with Rule 23 of the
Kerala Forest Produce Transit Rules and no other offence lie against the
accused. Thus the learned Public Prosecutor pointed out that the finding
arrived on by the lower appellate court is diametrically opposed to the
provisions of the Forest Act.
7. The learned Public Prosecutor pointed out that the “sandal
wood oil” comes within the definition of Section 2(f) “Forest Produce”, in the
Kerala Forest Act, 1962, in view of the decision of the Supreme Court in
Forest Range Officer v. Mohammed Ali [1993 (1) KLT 886 (SC)]. It is
also the case of the learned Public Prosecutor that the sandal wood oil
being a forest produce, it is for the accused to give an exact account and
convincing explanation as to how he came in possession of such quantity
of article and on his failure to make proper account, the offence is
attracted especially in the light of Section 69 of the Kerala Forest Act. The
learned Public Prosecutor pointed out that lower appellate court has
miserably failed to understand the applicability of Section 69 of the Act in
the present case and the said court simply has gone to the extent to say
Crl. Appeal No.556 of 2001 -7-
that only the provisions of the Kerala Forest Produce Transit Rules, 1975
would be attracted. The learned Public Prosecutor also pointed out that
the lower appellate court has simply set aside the order of conviction and
sentence passed by the trial court without application of mind, especially
ignoring the fact that the contraband article involved in the case is a
valuable forest produce. Therefore the Public Prosecutor submitted that
the order of acquittal of the lower appellate court is liable to be set aside
and the conviction and sentence imposed by the trial court may be
restored.
8. Per contra, the learned counsel appearing for the
respondent/accused submitted that the accused is the holder of a valid
licence issued by the competent authority namely the Central Excise
Department of the Central Government and being a manufacturer, the
accused is entitled to possess whatever quantity of sandal wood oil and
such possession cannot be termed or treated as illegal or illegitimate
possession. In reply to the argument of the Public Prosecutor that Section
69 of the Act is applicable in the present case, the learned Counsel for the
respondent/accused submitted that accused cannot be shouldered with
such burden in the absence of any allegation in terms of Section 27(1)(d) of
the Act. Learned counsel invited my attention to Section 27(1)(d) which
Crl. Appeal No.556 of 2001 -8-
runs as follows:
“27. Penalties for trespass or damage in Reserved Forests and
acts prohibited in such forests:-[(1) Any person who –
(a) xxx xxx xxx xxx xxx
(b) xxx xxx xxx xxx xxx
(c) xxx xxx xxx xxx xxx
(d) knowingly receives or has in possession of any forest
produce illicitly removed from a Reserved Forest or a land proposed to
be constituted a Reserved Forest; or(e) xxx xxx xxx xxx xxx”
Thus according to the counsel, unless there is an allegation and proof that
the accused has knowingly received or in possession of the sandal wood
oil which is a forest produce, illicitly removed from a reserved forest or land
proposed to be stated as the reserved forest, no offence will be attracted
especially the accused has got valid licence to manufacture sandal wood
oil. The learned counsel submits that the only allegation of the prosecution
is that the accused was found in possession of sandal wood oil and in the
absence of further allegation and proof that such possession was in
pursuance of illicit removal of forest produce from a reserved forest or a
land proposed to be constituted as reserved forest, no offence would lie. In
the present case, according to the counsel as the accused is a holder of
Crl. Appeal No.556 of 2001 -9-
valid licence, even if such allegations are there, the accused is not liable for
the said offence. It is also the case of the learned counsel that the lower
appellate court after considering the entire materials on record, came into
the conclusion that the accused was not guilty of the offence charged
against him and thus the innocence of the accused is reinforced and in
such a situation this court will not be justified in interfering with such an
order of acquittal.
9. I have carefully considered the contentions advanced by both the
Public Prosecutor as well as the counsel for the respondent. I have also
perused the materials and evidence on record.
10. PW1, Forest Range Officer deposed before the court in terms of
the prosecution case. According to him, on getting secret information, he
along with other forest officials went to the Air Port at Karipur and on
searching the premises, detected 37 cartons of sandal wood oil weighing
about 460 kilograms, kept in the premises of the Karipur Air Port. The said
articles were seized as per Ext.P1 Mahazar. He had further deposed that
on further investigation it was revealed that, in the office premises of the
accused namely Punjab Aromatics, more quantities of sandal wood oil
were kept and accordingly on 5.1.1994, search was conducted in that office
premises and seized about 73.6 kilograms of sandal wood oil. Ext.P2 is
Crl. Appeal No.556 of 2001 -10-
the Mahazar for the second seizure. The respondent herein/ accused was
arrested from there and taken to the forest office situated at Mathottam,
Beypore. According to PW1, the accused illegally collected sandal wood
oil and possessed the same in contravention of the provisions of Kerala
Forest Act. PW1 is the Officer who conducted the investigation and filed
Ext.P4 charge sheet. Exts.P5 and P6 are marked through PW1 which are
Form I report dated 4.1.1994 and 5.1.1994. Ext.P7 is the signed statement
of the accused given on 12.1.1994. PW2 was the Flying Squad Range
Officer of the Kozhikode Flying Squad Range, who deposed that he along
with other forest officials, as per the direction of Divisional Forest Officer,
Kozhikode went to the Karipur Air Port on 4.1.1994 and effected the
seizure from the Air Port as well as from the office premises of Punjab
Aromatics. PW2 also deposed in tune with deposition of PW1. PW3 was
also a Divisional Forest Officer, Flying Squad who participated in the
proceedings along with PWs.1 and 2. He had also deposed in terms of the
prosecution case. PW4 was the Divisional Forest Officer, Kozhikode.
According to him, he along with other officials went to the spot in
pursuance of the information received in the morning of 4.1.1994 about the
illicit possession and attempt to export the sandal wood oil. According to
PW4, when they reached in the Karipur Air Port, he saw a person
Crl. Appeal No.556 of 2001 -11-
unloading paper boxes from a maruthi van in front of the Air Port.
According to him, the person who was found unloading the paper boxes,
ran away from the spot on seeing them. He had also deposed about the
inspection and search in the office and the factory of the accused and
consequent recovery of sandal wood oil from there. Through PW4, Ext.P3
series of invoices seized from the Air Port were marked. PW4 has
categorically stated that accused was not able to convince the forest
officials regarding the source of the sandal wood oil. Ext.P8 is the sanction
order to prosecute the accused which is produced through PW4. Exts.P9
and P9(a) were also marked through PW4. Subsequently PW1 was
recalled and the grading reports No.34 of Agmark, 35 of Agmark, 36 of
Agmark, 37 of Agmark, Kozhikode are marked as Ext.P10 series. The
reports received from the Senior Marketing Officer, Directorate of
Marketing and Inspection, Kochin were marked as Ext.P11 series (3 in
number). The sample bottle containing sandal wood oil was marked as
MO1.
11. As I indicated earlier, the contention raised by the defence is
that he is a licenced manufacturer of sandal wood oil and holding valid
licence issued from the Central Excise Department. According to the
accused, he can manufacture and possess whatever quantity of sandal
Crl. Appeal No.556 of 2001 -12-
wood oil he wants and being a licenced manufacturer of sandal wood oil,
the Forest Transit Rules are not applicable and no licence is required from
the Forest Department for manufacture of sandal wood oil. Thus the
possession of sandal wood oil is permissible and legal and no action can
be taken at the hands of the forest officials. DW1 is the Inspector of
Central Excise, Kozhikode Range and through him Ext.D1 photocopy of the
manufacturing licence was marked. DW2 is the office manager of the
accused firm through whom Ext.D2 was marked which is a receipt issued
by the DFO for receipt of certain documents seized from the office of the
accused.
12. I have carefully perused the depositions of the witnesses, both
prosecution and defence and also perused the documentary evidence. As
pointed out earlier, the first issue framed by the trial court is in terms of
Section 27(1)(d) of the Act. Prosecution witnesses had categorically stated
that the sandal wood oil, recovered from the possession of the accused
was, forest produce, which was illicitly removed from the reserve forest. In
Ext.P4 charge the allegation is as follows:
“1. Name of offence and under what section and
the liable:Crl. Appeal No.556 of 2001 -13-
Kerala Forest Act Section 27(1)(d), Kerala
Forest (Amendment) Ordinance 1992 Section 3(1)(d).2. Scence and date of offence:-
4.1.94
4/230
,
5.1.94.”Both in Ext.P1 and Ext.P2 Mahazar the allegations are specifically
stated.
As per Ext.P1:-
“………
, , , . , , 52 . ............." (emphasissupplied) Ext.P2:- "............... , , Crl. Appeal No.556 of 2001 -14- , 52 ...................... " (emphasissupplied)In this juncture it is apposite to peruse the charge framed in the trial court,
which reads thus:
“That you on 4th January 1994 at the entrance of the
Airport at Karipur, kept in your possession, without any
valid licence or any other valid documents, 37 cartons of
sandal wood oil weighing 460 kg. and also in your
premises viz. Punjab Aromatic at Kozhikode, kept in your
possession 73.6 kg. of sandal wood oil which is a major
forest produce, illicitly removed from reserve forest and
thus committed an offence punishable u/s. 27(1)(d) of
the Kerala Forest Act as ammended by Sec.3(1)(d) of the
Kerala Forest Amendment Ordinance 1992, within my
cognizance.I hereby direct that you be tried before this
court on the said charge.” (emphasis supplied)In the light of the above discussion and the above materials it can be seen
that the specific case of the prosecution is that the seized sandal wood oil
is a forest produce which is illicitly removed without any authority from the
reserve forest and thereby the accused has committed the offence as
charged against him. Therefore, the contention of the defence that there is
no pleading and proof in terms of Section 27(1)(d) of Kerala Forest Act is
Crl. Appeal No.556 of 2001 -15-
untenable.
13. As pointed out earlier the accused did not dispute the allegation
that the accused was found in possession of the seized sandal wood oil.
Therefore the question to be considered is now very specific and clear as
to the legal right of the accused to possess such quantity of sandal wood
oil. The learned counsel submitted that the accused has got valid licence
for manufacturing sandal wood oil and therefore it cannot be treated as
illicit or illegal possession but it is legitimate possession on the basis of
licence issued by the competent authority. But the learned Public
Prosecutor submitted that merely because of the fact that the accused is
holder of manufacturing licence, the same does not authorise the accused
to possess and handle or transport or export unaccounted quantity of
sandal wood oil without disclosing the source of such raw material of
sandal wood oil or refined oil.
14. The learned Public Prosecutor on the strength of the decision of
this court reported in Baby v Forest Range Officer and others [ILR
1986(2) Kerala 57] submitted that it is for the accused to give proper
account as to how he came into possession of that much quantity of
sandal wood oil, otherwise, in view of Section 69 of the Forest Act, it is to
be held that such forest produce is Government property. Relying upon the
Crl. Appeal No.556 of 2001 -16-
decision in Easwaran Kochukunju v Sirkar [1928 (18) TLJ 123], the
learned Public Prosecutor submitted that the burden is on the accused to
show that he has got authority to possess that much quantity of sandal
wood oil which is recovered from his possession. According to the learned
Public Prosecutor Section 69 is incorporated in the Act with a view to fix the
burden, on the accused to give an account regarding the possession of the
forest produce. On the other hand, learned counsel for the accused
submitted that there is no such allegation that the article which was seized
was illicitly removed from the forest and in the absence of such allegation
especially, the accused has got a valid licence from the competent
authority, he is not bound to account for the possession. I am afraid to
accept such contention. Section 69 of the Act reads:
"69. Presumption that timber or forest produce belongs to Government :- When, in anyproceedings taken under this Act, or in consequence of
anything done under this Act, a question arises as to
whether any forest produce is the property of the
Central or State Government, such produce shall be
presumed to be the property of the Central or State
Government, as the case may be, until the contrary is
proved.”From the words used in Section 69 namely “until the contrary is proved”
and on reading other part of Section which runs, “it shall be presumed
Crl. Appeal No.556 of 2001 -17-
that the forest produce is the property of the Central or State
Government when the question arises as to whether any forest
produce is the property of the Central or State Government in any
proceedings taken under this Act or consequences are shown under
this Act”, it is for the person/accused, against whom proceedings are
taken under the present Act, to prove that the forest produce is belonging
to him or he has authority for the possession or ownership or to deal with
the same. The object of the Act, itself is clear from the preamble which has
been declared in an unequivocal language. It is crystal clear that it is an
Act to unify and amend the law relating to the protection and management
of forests in the State of Kerala. This Court in Baby’s case (cited supra)
has held:
” 8. The statutory scheme of the Act also would not
support the contention of the writ petitioner. Special
provisions had been made into the Forest Act, by an
amendatory process, to effectively contain the loot of the
forest. Important provisions were introduced under the
Amendatory Act of 1975, (Act 28 of 1975). Section 69
provides for a statutory presumption that the forest produce
belongs to the Government and casts the burden on the
person proceeded against to establish the contrary. In the
present case, a confiscation can be avoided if the owner of
the vehicle satisfies the officer that the timber belonged to
him. Under section 61B(2), to avert confiscation, he has to
satisfy the authorities that the transport of the illicit timber
was without the knowledge or connivance of the owner, hisCrl. Appeal No.556 of 2001 -18-
agent or the person in charge of the vehicle. In that
attempt, the petitioner had signally failed. The confiscation
cannot therefore be characterised as in any way unjustified
or even unduly harsh.9. The objective behind a particular legislation, has
necessarily to be taken note of while construing its
provisions, and in adjudicating the honest action of the
officials in the course of the implementation of such well
meant social legislation. A statute with such stringent
provision may be enacted to save the national economy:
such as the Customs Act or the Foreign Exchange
Regulation Act. The legislative measure may again be
conceived in the larger public interest such as the Essential
Commodities Act intended to ensure equitable distribution
of commodities essential for the sustenance of the
community at large. The background in which legislation
regarding forest had been made, and had been improved
from time to time, both by the Parliament and by the State
Legislatures, has to be viewed in the larger background.
When the legislature has taken note of the colosal
depredation of the forest wealth, and when it is scientifically
established that such wanton waste of forest-cover would
take the country perilously near desertification and a total
disturbance of the ecology and environment, the Court
should be slow to give a narrow interpretation to such well-
meant statutory provisions. It is useful in that background
to bear in mind the importance assigned by the Constitution
for the protection of the forest, by incorporating a positive
duty on the State in that behalf under Directive Principles of
State policy (Article 48 A), and also casting a Fundamental
Duty on the citizen (Article 51A) for such protection and
preservation of the forest. (emphasis supplied)10. The recognition of the importance of the forest
by the Parliament by a constitutional amendment, in a
sense, is the result of a world-wide movement for the
protection of the environment. As for this part of the
country, such a concern for the protection of forest had
been evinced even by administrators of an alien regime.
The custom of persons in possession of adjacent lands
keeping guard over the forests as a means of preventing
their destruction had been recognised as far back as 1858.
In a proclamation of August, 1854, where the rights of a
Government to the forest and hills had been reiterated, anCrl. Appeal No.556 of 2001 -19-
obligation in relation to the protection of forests was
provided in the following terms:“Therefore in future each should guard the
forest in the neighbourhood of his lands as ordered
above, only the leaves, grass, dry leaves and fuel
necessary for the aid of cultivation of his lands should
be used and other people should not enter that forest.If any one cuts trees and forests contrary to the
order given above, the same shall be attached and
those cut the same shall be punished according to law.”The details of such measures and the history of the
law relating to forest have been sketched in a classic
judgment of the Madras High Court, The Secretary of State
of India v. M. Krishnayya.“15. In the decision in Mohd. Ashique v. State of Maharashtra
(2008(8) Supreme 192), the Apex Court has held that the forest is a
national wealth which is required to be preserved. In the above case, the
relevant provision is Section 61-B of the Forest Act. In paragraph 6 of
the above decision it is held:
“6. While considering the present controversy, the
purpose behind erecting the Forest Act cannot be ignored or
allowed to be defeated. In State of West Bengal v. Sujith Kumar
Rana (AIR 2004 SC 1851) this court has made the following
observations in paras 19 and 20:19. The provisions of law referred to herein before leave
no manner of doubt that upon seizure of forest
produce, timber or vehicles etc. the concerned
authority has an option to report the factum of such
seizure both to the concerned Magistrate as also the
authorised officer, save and except in the cases which
would fall within the purview of the proviso appended
to sub-section (2) of section 52 of the Act, as
amended by the State of West Bengal. The report in
relation to such seizure is required to be made eitherCrl. Appeal No.556 of 2001 -20-
for (1) confiscation of the seized property; (2)
prosecution of the offender; or (3) for both.20. The legislature has inserted the aforementioned
provisions with a laudable object. Forest is a national
wealth which is required to be preserved. In most of
the cases, the State is the owner of the forests and
forest produce. Depletion of forests would lead to
ecological imbalance. It is now well-settled that the
State is enjoined with a duty to preserve the forest so
as to maintain ecological balance and, thus with a view
to achieve the said object forest must be given due
protection. Statutes which provide for protection of
forest to maintain ecological balance should receive
liberal construction at the hands of the superior
courts. Interpretive exercise of such power should be
in consonance with the provisions of such statutes not
only having regard to the principle of purposive
construction so as to give effect to the aim and object
of the legislature; keeping the principles contained in
Articles 48-A and 51-A(g) of the Constitution of India
in mind. The provisions for confiscation have been
made as a deterrent object so that felling of trees and
deforestation is not made”.
From the above decision of the Supreme Court and the decisions referred
to therein, it is crystal clear about the policy to be adopted by the court of
law when it interprets the provisions of the Forest Act. According to the
above decision it is the duty of the court to give effect and materialise the
object behind the purpose of very enactment. Our forest wealth and
treasure are not exclusively for the present generation, but the coming
generation has also got a traditional and ancestral right over it for its
enjoyment and therefore it is our hereditary obligation and duty to protect
Crl. Appeal No.556 of 2001 -21-
and preserve the same for the coming generation. Thus it is the
constitutional obligation of the State to protect and preserve the forest and
forest produce, not only for the present time but for the coming generation
also.
16. In the light of the above discussion it can be seen that Section
69 requires to draw a presumption that the forest produce is belonging to
the Government and thus casts the burden on the person, against whom
proceedings initiated including prosecution, to establish the contrary. The
very purpose of Section 69 itself is the protection of the forest produce.
Otherwise, as in this case, after obtaining or procuring illicitly raw materials
from the forest the same will convert into either crude sandal wood oil or
purified sandal wood oil. Such illicit removal from the forest may be either
a current one or it may be years back, but at any rate either the
Government or the forest authorities may not be in a position to trace back
the offences to its initial stage and to connect the accused with such
offence and in the meanwhile, the evidence might have been destroyed. A
few among our society under crazy pursuit to mint money and during such
pursuit they ignore, the constitutional values and social morality. Thus they
have chosen to exploit our national wealth like forest and forest produce
stealthily and by illegal means and in violation of legal and statutory
Crl. Appeal No.556 of 2001 -22-
limitations. Unless and until such provision like Section 69 is incorporated,
the Government will not be in a position to protect the forest and forest
produces thereby to discharge its constitutional obligations. Thus,
undoubtedly it is the burden of the accused “to prove the contrary”. In this
juncture, I would like to observe that it is desirable to legislate and incorporate
a special provision in the Kerala Forest Act, 1961 similar to that of Section 54
of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)
with respect to certain “forest produce” to be specifically notified.
17. In the present case, though the accused was holding licence for
manufacturing the sandal wood oil, he failed to give an account for the
possession of that much quantity of sandal wood oil. If he is engaged in the
manufacturing of the sandal wood oil, he is bound to show proper account of
the raw materials collected and utilized for the manufacturing of the sandal
wood oil. During the examination of PW4, he had categorically stated
that accused miserably failed to furnish the datas and details with
respect to the crude sandal wood and crude sandal wood oil. They have
also miserably failed to give the details of the persons with correct address
from whom the alleged purchase of crude sandal wood and crude sandal
wood oil was made. The above falsity of the defence version is sufficient to
hold that he had illicitly removed forest produce or knowingly received and
kept in possession of such forest produce after having illicitly removed from
Crl. Appeal No.556 of 2001 -23-
the forest. Therefore, in view of Section 69 of the Forest Act, I have no
hesitation to hold that the seized sandal wood oil, a forest produce, is the
property of the State Government. It is equally important to note that
Ext.D1 licence produced by the accused just authorising the holder of
licence to manufacture sandal wood oil does not permit or authorise to
possess unaccounted and unlimited or excessive quantity of finished or
purified sandal wood oil. If that be so, the accused being authorised person
to manufacture sandal wood oil, it is for the accused to give the account
regarding the raw materials collected and used for the manufacture of
purified sandal wood oil. Learned Public Prosecutor submitted that for
manufacturing 5430 kgs of sandal wood oil at least 5600 kilograms of
crude sandal wood oil is required. For the purpose of manufacturing 5600
kilograms of crude oil, at least 200 metric tons of sandal woods are
required. According to the learned Public Prosecutor, from the above
figures, for the purpose of producing 5600 kilograms of pure sandal wood
oil, large quantities of sandal woods are required. The learned Public
Prosecutor submitted that during the relevant period, sandal wood trees
and its wood could not be planted and sold without the permission and
authority from the Government, especially in the background that sandal
wood trees are mainly planted and nursed only in the sandal wood
Crl. Appeal No.556 of 2001 -24-
plantation of the State Government. Therefore, the seizure of this large
quantity of sandal wood oil has to be viewed very seriously and in the
absence of any proper account it has to be presumed that the same are
forest produce belonging to the State which is illicitly removed from the
reserve forest. Therefore merely because the accused is holding a licence
for the manufacture of sandal wood oil it cannot be treated as licence for
illicit removal and possession of either sandal wood oil or raw materials for
the manufacturing of sandal wood oil. In the light of the above factual and
legal position there was no scope for interference with the order of
conviction and sentence passed by the trial court.
18. The Apex Court, in the decision reported in Ghurey Lal v. State
of U.P. [2008(4) KLT SN 17 (C.No.17) SC), has held that the appellate
court can interfere with the order of acquittal passed by the court below
only for very substantial and compelling reasons. In the present case, the
trial court has actually convicted the respondent/accused which according
to me, is perfectly legal and valid. In the above case, the Apex Court has
enumerated seven circumstances which are treated as very substantial
and compelling reasons for the interference of the appellate court while
exercising its jurisdiction. The second circumstance mentioned therein is
‘the trial court’s decision was based on an erroneous view of law’. The third
Crl. Appeal No.556 of 2001 -25-
circumstances is ‘the trial court’s judgment is likely to result in grave
miscarriage of justice’. In the light of the above discussion, regarding the
scope of Section 69 of the Forest Act and the constitutional obligation of
State to protect and preserve the forest, the lower appellate court was not
justified in interfering with the order of conviction and the sentence.
Therefore, I am of the view that there are substantial and compelling
reasons to interfere with the order of acquittal passed by the lower
appellate court. Having regard to the above statutory provisions and in
view of the above decisions, I am of the view that the lower appellate court
has miserably failed to realise the legislative intention behind the very
enactment of the Forest Act, particularly Section 69 of the Forest Act, and
thus the order of acquittal was passed upon a wrong understanding of the
scope of Section 69 of the Act. Consequently, the order of acquittal
passed by the lower appellate court is liable to be set aside.
In the result, this appeal is allowed, setting aside the judgment of the
lower appellate court and the order of acquittal passed thereon. Thus the
order of conviction and sentence passed by the trial court is restored. The
respondent/accused is directed to appear before the Trial Court to receive
the sentence passed by it as per its judgment dated 19.8.1997 in C.C.
No.237 of 1994, within one month from the date of receipt of a copy of this
Crl. Appeal No.556 of 2001 -26-
judgment. If the accused/respondent fails to appear before the trial court to
receive the sentence as directed herein, the trial court is free to take further
steps to procure the presence of the accused and to implement the
sentence. The Registry is directed to forward a copy of this judgment to
the Chief Secretary to the Government of Kerala for their consideration.
V.K.MOHANAN,
Judge.
rhs/