TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 376
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....on, which in turn yielded in seizure of another 73.6 kgs of sandalwood oil. The appellant resisted the charges of illegal possession of forest produce, and its movement, stating that they processed and manufactured sandalwood oil, which was then exported to four different countries. The complaint filed by the Kerala Forest Department, alleged that sandalwood oil was a forest produce and without a transit licence, 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 Rs. 2000 as fine and undergo rigorous imprisonment for three years under Section 27 (1) (d) of t....
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...., the High Court concluded that the reliance on the manufacturing licence alone to explain the possession of sandalwood oil did not in any manner absolve the appellant of criminal responsibility. 6. The High Court also relied upon a decision of this court in Ghure Lal v. State of Uttar Pradesh (2008) 10 SCC 450 to say that the appellate court can interfere with the order of acquittal only for substantial 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....
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.... a long time back. 9. Learned counsel submitted that the High Court failed to consider the distinction between Section 27 and Section 69 of the Act. It was emphasised that Section 69 refers to only forest produce whereas Section 27 refers to forest produce illegally removed from a reserve forest. The High Court convicted the appellant holding that the presumption under Section 69 applied. 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.....
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.... 627 and submitted that the decision later rendered in Standard Essential Oil Industries (supra), in fact, emphatically states that "forest produce", as defined in the Act, includes sandalwood oil. Learned counsel for the State submits that once there is no dispute with respect to possession of sandalwood oil - as in this case -the onus clearly lay upon the appellant to prove that 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 p....
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....als (including lime- stone, laterite), mineral oils and all products of mines or quarries". Section 27 reads as follows: "27. (1) Any person who- (a) does any act prohibited by section 7; or (b) sets fire to a Reserved Forest or kindles or leaves burning any fire in such manner as to endanger the same; or (c) sets fire to jungles 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 fa....
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..... These essential oils are obtained from any forest wood. Sandalwood as observed by the High Court is forest produce. Even its roots thereof are also included as forest produce. They are also timber within the meaning of Section 2(k) of the Act. The purpose of the Act is to conserve forest wealth 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 ....
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....ing. The legislature does not intend to restrict the word wood oil nor do we find any compelling circumstances in the Act to give restricted meaning that only oil derived from Dipterocarpus trees to be wood oil as contended for the accused and which found acceptance by the learned Single 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 ....
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....ber, charcoal, firewood it includes wood oil, gum, resin, natural varnish bark, roots of sandalwood, etc. However, the use of the specific words "timber, charcoal, firewood and ivory" under Section 61-A instead of "any forest produce or ivory" makes it clear that the intention 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....
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....t is of the opinion that the distinction sought to be made defeats the purpose of the Act, because illegally procured forest produce, such as sandalwood, rosewood, or other rare species, and then worked upon, resulting in a product -predominantly based on the essential 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 ....
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....ppellants) were dismissed by the court. This witness also stated that the yield of sandalwood oil is to the extent of 4% from sandalwood. 23. 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." 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....
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....mity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities 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....
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....owledge. This foundational fact, as previously discussed, has to be proved beyond reasonable doubt. Thereafter, the accused has to establish, a credible or reasonable explanation. 26. 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....