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TMI Blog2021 (10) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant proved that the produce was procured properly? - HELD THAT:- There can be no dispute that sandalwood oil is a forest product. However, Section 27 (1) (d)- which enacts the offence- and which has been applied in this case, points to the offender s conscious mental state when it enacts that whoever knowingly receives or has in possession any major forest produce illicitly removed from a Reserved Forest would be subjected to the prescribed punishment. The presumption under Section 69 is with respect to not a conscious mental state, or a direction by the legislature that a certain state of affairs is deemed to exist, but with respect to ownership of the property i.e. that it belongs to the state, unless the contrary is proved. In the present case, the State had to show, that the forest produce was illicitly removed, or was illicitly in the possession of the accused, and in either case, that the same was within his knowledge. This foundational fact has to be proved beyond reasonable doubt. Thereafter, the accused has to establish, a credible or reasonable explanation - The state no doubt has led evidence to show that the goods seized bore the labels of the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its movement too was illegal. 3. In the criminal proceedings which ensued after initiation of the complaint, the appellant denied criminal responsibility arguing, among others, that sandalwood oil was not a forest produce and rather, that sandalwood was. It was urged, that regardless of this, a valid and subsisting licence authorized the appellant to manufacture sandalwood oil. The prosecution examined four witnesses; the appellant relied on the testimony of two defense witnesses. After considering the materials on record, the Judicial Magistrate Thamarasserry (hereafter the trial court ) by judgment dated 19.08.1997 convicted the appellant as charged and sentenced him to pay ₹ 2000 as fine and undergo rigorous imprisonment for three years under Section 27 (1) (d) of the Act and six months, under Rule 3 (iii) read with Rule 23 of the Kerala Forest Produce Transit Rules (hereafter the Rules ). 4. Aggrieved by the conviction recorded and sentence imposed on him, the appellant approached the Court of Session, Kozhikode Division (hereafter the Sessions Court ) which by its judgment dated 20.11.2000 , upset the findings of the trial court. The Sessions Court accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial and compelling reasons. It was held that there were no compelling or substantial reasons justifying interference by the Sessions Court of the appellant s conviction. The High Court thereafter concluded by observing that a purposive interpretation of the Act had to be given in view of the underlying objects which were for the general public good. 7. It is argued on behalf of the appellant by Mr. Ranjit Kumar, learned senior counsel, that the High Court failed to appreciate that an offence is said to be committed only when the article in question is forest produce . Relying on the definition of that term in the Act, it was submitted that Section 2(f)(i) Section 2 (f) reads as follows: (f) forest produce includes- (i) the following whether found in or brought from a forest or not that is to say.- timber, charcoal, wood-oil, gum, resin, natural varnish bark lac, fibres and roots of sandal wood and rosewood; and (ii) the following when found in, or brought from, a forest, that is to say,- (a) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees; (b) plants not being trees (including grass, creepers, reeds and moss) and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant had in fact, discharged the burden placed upon them by producing registers maintained regarding details of individuals and firms from whom they had purchased the red oil. Therefore, the prosecution was under a duty to prove that such entries were false. Having been maintained in the ordinary course of business, the courts, especially the trial court and the High Court, failed to consider that the prosecution was unable to establish that the source of the sandalwood oil and therefore, the basis for its possession was illegal. 10. Highlighting that Section 27 applied only where the court found that when a firm or concern knowingly receives, or has possession of any forest produce illicitly removed, learned senior counsel urged that the prosecution in this case failed to prove either. The prosecution never alleged that the appellant had knowingly received or were in possession of any forest produce illicitly removed from the reserve forest. Likewise, it was not its case that any forest produce had been illegally removed from the reserve forest and that any proceedings were pending for that purpose. Learned counsel submitted that the courts below failed to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such possession was lawful, that the forest produce was procured through legitimate sources and not in a manner contrary to law. 13. Learned counsel argued that the mere statement on the part of the appellant that they used to deal in sandalwood oil, processed or produced from red oil as the raw material (which in turn was extracted from sandalwood), was insufficient to discharge the initial burden placed upon them by law. Counsel highlighted that once their possession of the forest produce was established the appellant relied upon certain entries in the central excise registers and other records, to explain that the source of such articles were legitimate. By themselves, such documents were insufficient. The presumption under Section 69 operated firstly after the State established possession of forest produce. In this case, sandalwood oil is a forest produce. The seizure of the appellant s sandalwood oil at the airport and the subsequent search and seizure of 73.6 kgs of sandalwood oil from their premises, resulted in the discharge of the foundational onus that lay upon the State. Therefore, Section 69 and the presumption enacted by it were attracted. The burden was then shift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or forests, other than Reserved Forests and a land proposed to be constituted a Reserved Forest, without taking precautionary measures to prevent the spread of fire into Reserved Forest and land proposed to be constituted a Reserved Forest; or (d) knowingly receives or has in possession any forest produce illicitly removed from a Reserved Forest; or a land proposed to be constituted a Reserved Forest; or (e) in a Reserved Forest or in a land proposed to be constituted a Reserved Forest- (i) cultivates or clears or breaks up any land for cultivation or for any other purpose or puts up any shed or other structures or plant trees; or (ii) damages, alters or removes any wall, ditch embankment, fence hedge or railing; or (iii) cuts of fells any trees or girdles, marks, lops, taps, uproots burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same; (iv) trespasses or pastures cattle or permits or causes cattle to trespass; or (v) quarries stones, burns lime or charcoal or collects or subject to any manufacturing process or removes any forest produce; or (vi) causes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is very dear for preservation to maintain ecology. Forest produce defined under Section 2(f) is an inclusive definition. It is settled law that the word include is generally used as a word of extension. When used in an interpretation clause, it seeks to enlarge the meaning of the words or phrases occurring in the body of the statute. Craies on Statute Law, 7th Edition at p. 64 stated the construction to be adopted to the meanings of the words and phrases that The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver . At p. 214 it is stated that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause of the inclusive definition is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that word would be properly appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge. The purposive interpretation would aid conservation of sandalwood, a valuable forest wealth, prevent illicit felling and transportation of them and make the manufacturers of sandalwood oil accountable for the possession of sandalwood trees or chips or roots etc. Incorporation of sandalwood oil ex abundenti cautela in Karnataka Act and absence thereof in sister Acts operating in South India does not detract from giving it its due meaning. The expert opinion is only an opinion evidence on either side and does not aid us in interpretation. This Court in Aditya Mills Ltd. v. Union of India [(1988) 4 SCC 315] did not adopt the dictionary meaning as it may be to some extent delusive guide to interpret entries in Central Excises and Salt Act. In Kishan Lal v. State of Rajasthan [1990 Supp SCC 742] of which one of us, Sahai, J. was a Member, this Court was to consider the word sugar whether under Rajasthan Agricultural Produce Marketing Act, 1961 an agricultural produce. It was contended that the Khandsari Sugar was not an agricultural produce. Repelling that contention, this Court held that the word agricultural produce includes all produce whether agricultural, horticultural, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the legislature in providing armoury under Section 61-A is only with regard to certain category specified therein and not for every forest produce as defined under Section 2(f) of the Act. Undoubtedly, sandalwood oil is a forest produce but Section 61-A of the Act is limited only to the categories specified therein and does not give power of confiscation of sandalwood oil. 22. Further, we find force in the contention of the appellants that Section 69 of the Act is only a rule of evidence which raises a mandatory presumption that a forest produce, unless proved otherwise, is a property of the Government in case where any proceedings are going on under the Act or anything is done under the Act. The section operates only as a tool to help the Government in proving its title to the property but the said section cannot be read as to give any power of confiscation of the property. (emphasis supplied) 19. In Suresh Lohiya (supra), this court struck a discordant note, drawing a distinction between nature s gifts such as charcoal, mahua flowers, or minerals and, article produced with the aid of human labour which, according to it, was not included in the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential forest produce, would escape the rigors of the Act. Therefore, Suresh Lohiya cannot be considered a binding authority; its dicta should be understood as confined to the facts of that case. For these reasons, it is held that the impugned judgment, so far as it proceeded on the assumption that sandalwood oil is forest produce, is based on a correct appreciation of law. 21. In the present case, the appellant did not dispute ownership of the articles seized. Section 69 of the Act enacts presumption, that when possession of a forest produce is found with someone, that it is deemed to belong to the state (or central) government. Now, this presumption is a rebuttable one; several decisions of this court have said that the burden of proving the foundational facts, which will give rise to the presumption, is upon the prosecution. Noor Agha v. State of Punjab (2008) 16 SCC 417; Bhola Singh v. State of Punjab (2011) 1 SCC 653 and Gangadhar @ Gangaram v. State of Madhya Pradesh, judgment dated 5th August, 2020 in Cr. A. No. 504/2020. In the present case, there is no contest about the fact that the goods were seized from the premises of the appellant, and belonged to him. The go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence- and which has been applied in this case, points to the offender s conscious mental state when it enacts that whoever knowingly receives or has in possession any major forest produce illicitly removed from a Reserved Forest would be subjected to the prescribed punishment. The presumption under Section 69 is with respect to not a conscious mental state, or a direction by the legislature that a certain state of affairs is deemed to exist, but with respect to ownership of the property i.e. that it belongs to the state, unless the contrary is proved. 24. This is a significant aspect, because unlike some statutes For example, Income Tax Act, 1961: Section 278E. (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation - In this sub-section, 'culpable mental state' includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof. Umashanker v. State of Chhattisgarh (2001) 9 SCC 642 underlined the existence of mens rea, as follows: 7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions by the multitudes in our country. But these provisions are not meant to punish unwary possessors or users. 8. A perusal of the provisions, extracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The state no doubt has led evidence to show that the goods seized bore the labels of the appellant s firm and further that no transport licence was available. However, this per se does not establish illicit possession of forest produce within his knowledge. For a court to so conclude, the prosecution had to, in addition, prove beyond reasonable doubt, the foundational fact that the accused had knowingly removed the forest produce illicitly. It is here, that the presumption under Section 69 cannot apply; it merely directs a presumption that the forest produce belongs to the government. 27. In the opinion of the court, the impugned judgment, by reversing the decision of the Sessions Court, is in error. The Sessions Court had clearly recorded that the appellant s explanation that as L-4 Central Excise licence holders they were absolved of any responsibility in relation to observance of any other law, was misplaced and wholly inadequate. The appellant could legitimately bring into existence an excisable produce but that did not absolve them of the liability to follow other obligations in regard to procurement of regulated or controlled commodities, or even other aspects relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that the interference by the High Court, with the acquittal recorded by the Sessions Court, in this case, is not warranted. Ghure Lal (supra) no doubt, reviewed the consistent law declared that an appellate court should not interfere with the findings of the trial court merely because it prefers a plausible view, unless there are compelling reasons for it to do so. It is precisely in such cases, where appellate interference is unwarranted, that the State is entitled to appeal to the High Court under the Criminal Procedure Code, 1973. The relevant provision is as follows: 378. Appeal in case of acquittal. (1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. However, the facts reveal otherwise: one, the High Court concluded incorrectly that the result of Section 69 is a presumption that places the reverse burden of proof in respect of an offence - no s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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