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TMI Blog1999 (2) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... is a natural forest wood. (ii) Kattha is produced after processing Khair wood which takes a period of about 40-45 days. Firstly upper layer of the Khair wood is removed at the Kattha producing factories. Then inner hard wood is cut into small chips and boiled in water at about 102°C. Thus another liquor is prepared which is made thick by evaporation process. It is put into aluminium containers which are put into chillers. By this process thick liquor is formed into crystals and this crystallised and freezed liquor is filtered through vacuum filter. By this process water of the crystallised and freezed liquor is sucked. Thereafter the substance so recovered is mashed to make it uniform and given shape of about 1.5 milimetre thick plates. These plates are pressed by Hydraulic press to remove further water contents. Thereafter these plates are cut into 2" x 2" cakes. These cakes are dried in dehumidifier for about 15 days. Again these cakes are put in room through which normal air is passed for about 5 days. (iii) the mill Kattha so obtained by the above process is eatable and marketable item and not a forest produce within the meaning of Section 2(4) of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Metropolitan Magistrate, X, Kanpur Nagar. As the Kattha manufactured by the petitioner company is not a forest produce, Respondent No. 2 had no jurisdiction to seize them or the vehicle carrying them and arrest the driver driving the vehicle. Provisions of Indian Forest Act and U.P. Transit of Timber and other Forest Produce Rules, 1978 are also not applicable in its case. (vii) Rule 3 of the U.P. Transit of Timber and other Forest Produce Rules, 1978 is violative of Articles 19(1)(g) and 301 of the Constitution inasmuch as it imposes a prohibition for moving any forest produce without transit pass. This is an unreasonable restriction, since it covers all forest produce irrespective of circumstance. Such restriction, which is wholly unreasonable, is not in the public interest. Before making the Rules aforementioned previous sanction of the President under Article 304 of the Constitution of India has not been taken. 2.1 In the supplementary affidavit following facts have been stated :-- "2. That Webstor Dictionary defines the word CATECHU & TANNIN in the following manner: CATECHU -- Any of several dry astringent substances; containing 40-45% Tannin obtained from c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Krishi Utpadan Mandi, Samiti, Bareilly by the petitioner also shows that kattha is a forest produce, since such passes are issued by the Samiti for all forest produces which are purchased/sold/transported from their respective areas. U.P. Government Notification No. 7027/17-121-62 dated 10-11-64 (appended as Annexure C.A. 2) clearly shows that it includes forest produce, whether processed or not for the purpose of U.P. Krishi Utpadan Mandi Adhiniyam. The Forest Officer was fully justified in his acts because there was violation of Rule 3 aforementioned, which is punishable under Rule 28. The seizure report was submitted by the Range Officer, Kanpur Range and not by Respondent No. 2. Without mentioning the factum of filing of this writ petition the petitioner filed applications in the Court of Metropolitan Magistrate, X, Kanpur Nagar, seeking release of the seized Kattha and the vehicle, which were disposed of by order dated 27-3-96 directing the forest officials to give supardgi of the seized kattha and the vehicle till the pendency of the trial. The directions were complied with by the Range Forest Officer, Kanpur Range. The claim made in paragraphs 2 to 4 of the Supplementary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce of such plants. (iii) Wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and (iv) Peat, surface soil, rock, and minerals including limestone, laterite, mineral oils, and all products of mines or quarries." 5.1. The definition of the forest produce is inclusive and thus wide and includes Catechu under Clause (e) and under (b) (i) all other produce of trees not mentioned herein which will include khair trees which is found in forest or brought from forest. 6. In the book 'Economy Botany' referred to in the supplementary affidavit of the petitioner it is stated as follows :-- "Cutch -- Acacia catechu (L.f.) Willd.; Eng. Black cutch, Catechu; Hindi -- Khair, Khadira; Family -- Moimolsaccae, A tree native of India and Burma. In India, it is found in the Punjab, Madhya Pradesh, Uttar Pradesh and Bihar. The plant serves as a host for lac insect. Cutch is obtained from the heartwood of the tree. It is used as a dyeing stuff and as a masticatory. It is extensively used for dyeing canvas, fishing nets and ropes. In India, Kattha industry is mostly located in Bareilly, Gwalior and Bombay. Small ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name catechu also is applied to an extract obtained from areca nuts, or betel nuts, the seeds of the fruit of Areca catechu a palm of southeastern Asia. It consists of the alkaloid arecoline, which is used as a worming agent in animals." 6.3. Catechu, which means in Hindi Katiha, stands included within the definition of the word 'forest produce' whether found in, or brought from, a forest or not. 6.4. In Karnataka Forest Development Corporation v. Contreads Private Limited, AIR 1994 SC 2218, a question cropped up before a three Judges Division Bench of the Supreme Court, as to whether 'rubber sheets' are 'forest produce' within the meaning of Section 2(7) of the Karnataka Forest Act? The Court held that 'rubber sheets' are 'forest produce' as they remain natural rubber in spite of processing and in this connection commercial parlance test is not to be applied. This was held after taking into account that the main crop for the rubber tree is latex, a milky white dispersion of rubber in water, which is harvested by process of tapping; the latex is channelled into a container attached to them; the latex gels dned up on the tapping pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench observation of the Supreme Court in Environment Awareness Forum v. State of Jammu and Kashmir, 1999 (1) SCC 210 : (1998 AIR SCW 3841) when its order dated 4-3-97 passed in T.N. Godavarman Theromawad v. Union of India, AIR 1997 SC 1233, was breached :-- "3. From a perusal of the office notings, it appears that M/s. Bekay Katha Pvt. Ltd. represented to the State Government vide letter dated 18-3-1997 that this Court had exempted "minor forest produce from the ban on fellings" vide order dated 4-3-1997. On the basis of that representation, an office note was prepared in which para 65 reads thus : "Katha is a minor forest produce. The Katha is manufactured from the khair wood. In pursuance of the order dated 4-3-1997, there is now no ban on the felling of khair trees from the forest areas as per the working plan," 4. This note was put up before Mr. S.R. Bhagat, the then Additional Secretary, Forest, who on 20-3-1997 directed the forwarding of the representation of M/s. Bekay Katha Pvt. Ltd. to the Principal Chief Conservator of Forest for necessary action, "keeping in view the Supreme Court orders and the contractual obligations". The file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a wilful breach of the order of this Court." 6.9 From the aforesaid discussion it is clear that even factory made katha, which is catechu, is a forest produce within the meaning of the definition of the word 'forest produce' as defined under Section 2(4) of the Indian Forest Act. 6.10 The decision of Supreme Court in Rathi Khandsari Udyog v. State of U. P., AIR 1985 SC 679 is also relevant. The majority judgment, while adjudicating as to whether 'khandsari sugar' is covered by definition of the word 'agricultural produce', within the meaning of the word khandsari as defined in Section 2(a) of the U. P. Krishi Utpadan Mandhi Adhiniyam, 1964, held as follows:-- (i) since khandsari has not been defined by the Act, it must be construed in its popular sense that is to say in the sense in which people conversant with the subject-matter with which the statute is dealing, would attribute to it. This principle of construction was affirmed and reaffirmed by this Court in Commr. of I.-T. Andhra Pradesh v. Taj Mahal Hotel, AIR 1972 SC 168 and Profits and Spencer (Asia) Ltd. v. State of Haryana, AIR 1979 SC 300. (ii) The submission made that 'khandsari su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge of it for examination, or for the payment of such money, or in order that such marks may be affixed to it; and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots; (f) prohibit the closing up or obstructing of the channel or banks of any river used for the transit or timber of other forest produce, and the throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed; (g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such prevention or removal from the person whose acts or negligence necessitated the same; (h) prohibit absolutely or subject to conditions, within specified local limits, the establishment of sawpits; the converting, cutting, burning, concealing or marking of timber, the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or other implements used for marking timber; (i) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r destination specified in such pass. Provided that no transit pass shall be required for the removal-- (a) of any forest produce which is being removed for bona fide consumption by any person in exercise of a privilege granted in this behalf by the 'State Government' or of a right recognised under the Act, within the limits of a village in which it is produced; (b) of forest produce by contractors', agency from the forest managed by the Forest Department, in which case the movement shall be regulated by the relevant conditions of sale and terms of the corresponding agreement deed executed by the buyer; (c) of such forest produce as may be exempted by the State Government from the operation of these rules by notification in the Official Gazette. 8.6 Rule 4 of the aforesaid Rules reads thus:-- "4. Officers and persons to issue passes-- (1) The following officers and persons shall have power to issue passes under these rules-- (a) for forest produce belonging to Government or not owned by any other person, the Conservator of Forest, the Divisional Forest Officer, the Sub-Divisional Forest Officer or any other officer authorised in this behalf in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules reads thus :-- "25. Forest produce in transit may be stopped and examined by certain officer.-- (1) Any forest produce in transit to which these rules apply and any person, animal, vehicle, vessel or craft carrying such forest produce, may be stopped, detained, examined and checked at any place by any forest, police or revenue officer of the State Government not below the rank of Forest Guard, Sub-Inspector of Police or Kanoongo, as the case may be, if such officer shall have reasonable grounds for suspecting that any money which is due to Government in respect thereof has not been paid or that any forest offence has been or is being committed in respect thereof: Provided that no such officer shall vexatiously or unnecessarily detain any forest produce which, is lawfully in transit, not vexatiously or unnecessarily unload any such forest produce or cause the same to be unloaded, for the purpose of examination. (2) The person incharge of such forest produce shall furnish to any such officer all the information required by him in connection with the forest produce and he is transporting the same under a transit pass, shall produce such pass on demand for the inspectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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