IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 64 of 2003 ------------------------------------------- CC.107/1998 of JFCM, CHITTUR .................... REVN. PETITIONER/COMPLAINANT: STATE, REP.BY FOREST RANGE OFFICER, KOLLENGODE. BY PUBLIC PROSECUTOR RESPONDENTS/ACCUSED: 1. K.M.KUNJIMOIDEEN, S/O. KUNJALI HAJI, KAKKAMOOLIKKEL VEEDU, CHEMMENKADAVU TOWN HALL, MALAPPURAM (MANAGING PARTNER, SOUTH INDIA PERFUMES VENNAMOOLA, GOPALAPURAM). 2. M.K.SALEEM, S/O. MUSAHAJI, KULUKKUPARA HOUSE, MANNARKODU (MANAGING PARTNER, SOUTH INDIA PERFUMES, VANNAMOOLA, GOPALAPURAM). BY ADV. SRI.K.GOPALAKRSHNA KURUP SRI.M.RAMESH CHANDER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.64 of 2003 -------------------------- ORDER Respondents, the accused in C.C.No.107/1998, were discharged by Judicial First Class Magistrate, Chittur under Section 245(1) of Code of Criminal Procedure. Respondents are running a factory under the name and style 'South Indian Perfumes, Vannamada, Gopalapuram'. On getting information that they are extracting sandalwood oil unauthorisedly, the Assistant Conservator of Forests, along with other officials, conducted a search in the factory on 3.11.1996. It was found that sandalwood oil is being extracted from the factory. On verifying the Register of Raw-materials and Components and Sandalwood Oil Stock Register, it was found that only sandalwood sapwood was purchased in the factory and the total stock of sandalwood sapwood on that day was 17859 kgs. When the stock was personally verified, it was found CRRP 64/03 2 that apart from sandalwood sapwood, in seven sacks, sandalwood chips and in two sacks sandalwood pieces were stocked. Finding that they were not shown in the stock register and there was no records authorising custody of sandalwood pieces or sandalwood chips, which were kept there for extraction of sandalwood oil, they were separately weighed and it was found that in one sack, there was 90 Kgs of sandalwood pieces and in the other sack also there was 90 Kgs and in the seven other sacks, 62 Kgs, 20 Kgs, 70 Kgs, 72 Kgs, 50 Kgs, 60 Kgs, and 47 Kgs making a total of 381 Kgs of sandalwood chips were stored. Sandalwood pieces and chips were seized under Exhibit P1 seizure mahazar. Exhibit P1 itself shows that the process of seizure was finished at 5 p.m. and the seized sandalwood pieces and chips were taken, for production before the Nenmara Divisional Forest Officer, the authorised Officer, for confiscation as provided under Section 61A of Kerala Forest Act. After completing the investigation, a complaint in Form CRRP 64/03 3 No.2 was filed by Forest Range Officer, Kollengode Range alleging that petitioners committed offences under Sections 3(1)(1)(d) and (e)(III) V & VI read with Section 27 of Kerala Forest Act. 2. Learned Magistrate took cognizance of the offences and issued summons for trial as warrant case, not on police report. Petitioners appeared before the learned Magistrate. In the presence of the petitioners, the then Assistant Conservator of Forests, who effected the seizure, was examined as PW1 and the Forest Range Officer was examined as PW2. Exhibit P1 mahazar and Exhibit P2 occurrence report were marked. Learned Magistrate, thereafter heard the prosecution and the defence and by the impugned order dated 30.6.2000, discharged the petitioners finding that prosecution has no definite case from where the sandalwood seized were collected and whether they were unauthorisedly and illegally collected and transported and the total quantity of sandalwood found in the factory was not weighed and the seized sandalwood was not produced CRRP 64/03 4 before the court and therefore, no prima facie case is made out to proceed with the case. The order of discharge is challenged in this revision by the State. 3. Learned Public Prosecutor and learned counsel appearing for the respondents were heard. 4. Learned Public Prosecutor, relying on the decision of the Apex Court in State of Kerala v. Ancy Philip (2008 (3) KLT 477), argued that finding of the learned Magistrate that for non production of the forest produce seized the accused is to be discharged is illegal. Learned Public Prosecutor also pointed out that it is the specific case of the prosecution that respondents were not authorised to be in possession of any sandalwood pieces or sandalwood chips and the sandalwood pieces and the chips seized under Exhibit P1 are forest produce as defined under the Act and the presumption available under Section 69 of Kerala Forest Act establishes that they are the properties of the Government and therefore, the order of CRRP 64/03 5 discharge is illegal. 5. Learned counsel appearing for the respondents argued that in the light of the Division Bench decision of this Court in Ancy Philip v. State of Kerala (2006 (1) KLT 699), learned Magistrate was justified in discharging the accused for non production of the forest produce. It is argued that it is for the court to decide whether the articles seized under Exhibit P1 are forest produce or not and without producing them, the question cannot be decided and therefore, the order of discharge is legal. Learned counsel also argued that learned Magistrate, on the evidence, was fully justified in discharging the accused, as ingredients of the offence was not prima facie made out. 6. The order of discharge passed by the learned Magistrate establishes that learned Magistrate was ignorant of the definition of forest produce as provided under Kerala Forest Act. The findings on their face are perverse. CRRP 64/03 6 7. Exhibit P1 seizure mahazar shows that at the time of seizure, PW1 had verified the stock register and all other records available at the factory. Exhibit P1 also shows that as per the records maintained in the factory, factory could be in possession of only sandalwood sapwood and that too, to the extent of 17859 Kgs. as on 3.11.1996. Exhibit P1, with the evidence of PW1, establish that in addition to the sandalwood sapwood, there were nine sacks, out of which, in two sacks, there were sandalwood pieces and in the seven other sacks there were sandalwood chips. Exhibit P1 also establishes that the sandalwood pieces found in the factory are raw or semi raw, indicating that they were cut very recently. The sandalwood sapwood received at the factory for the last time was only on 21.12.1995. When the factory could only be in lawful possession of sandalwood sapwood and PW1 found that in the factory there were sandalwood pieces and sandalwood chips, there was no necessity to weigh the sandalwood sapwood to ascertain CRRP 64/03 7 whether they are in excess of the stock or not. Finding of the learned Magistrate could have been appreciated, if the prosecution case is that the stock found in the factory was in excess of the permitted stock of sandalwood sapwood. That is not the case herein. When there was no authorisation and there could not be any sandalwood chips or pieces inside the factory, there was no necessity to weigh the sandalwood sapwood to find out whether the sandalwood pieces and the chips found in the factory are within the stock shown in the stock register. Therefore, the finding of the learned Magistrate that for the failure to weigh the stock of sandalwood sapwood, no prima facie case is established is unsustainable. 8. Forest Produce is defined under Section 2(f) of Kerala Forest Act as follows: 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 sandalwood CRRP 64/03 8 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 all parts or produce of such plaints; and (c) silk cotton, honey and wax; (d) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries). Therefore, when the prosecution case is that there were sandalwood pieces and chips in the factory, when only sandalwood sapwood should have been there, there was no necessity for the prosecution to prove that the sandalwood pieces or chips were either found in the forest or brought from the forest. The question whether the seized timber or its produce were found in or brought from the forest shall be relevant only in the case of other timber and not in the case of sandalwood or CRRP 64/03 9 rosewood. In view of clause (i) of sub-section (f) of Section 2 of Kerala Forest Act, mere possession of a timber, charcoal, wood-oil, gum or chips or pieces of sandalwood is sufficient to hold that they are forest produce. The question whether the sandalwood pieces or chips were found in the forest or brought from the forest are not all relevant. 9. Section 69 of Kerala Forest Act provides for the presumption. Under Section 69, when, in any proceedings taken under the Act, or in consequence of anything done under the 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, until the contrary is proved. Therefore, once the forest produce is seized from the possession of the accused, Section 69 mandates that a presumption is to be drawn that it belongs to the Government, until the contrary is proved. Therefore, there was no necessity for the prosecution either to allege or to prove that the CRRP 64/03 10 sandalwood pieces and chips seized were that of a particular sandalwood tree cut from a particular forest or are found in the forest or transported as found by the learned Magistrate. In such circumstances, learned Magistrate could not have legally discharged the accused on this ground also. 10. What remains is only the ground of non production of the forest produce before the Magistrate. Though the Division Bench of this Court in Ancy Philip's case (supra) held that non production of the forest produce is fatal and if not produced, no prosecution would lie, that decision was reversed by the Honourable Supreme Court in State of Kerala v. Ancy Philip (supra). Their Lordships held: In the instant case, the forest officials had allegedly seized 41 rosewood timber and 54 rosewood billets. The High Court has relied on S.54 of the Act which refers :disposal of the property according to law”, would necessarily mean that the disposal of the property confiscated under the provisions of S.61A has to be under the orders of Magistrate. It is true that in addition to the criminal prosecution, the appellants are CRRP 64/03 11 entitled to proceed against timber under Section 61A of the Act, but timber can also be disposed of after obtaining necessary orders from the Magistrate concerned under S.54 of the Act. However, the Single Judge and the Division Bench had misinterpreted the above provision, namely, S.54 and held that disposal can only be done after physical production of timber fore the Magistrate and after obtaining necessary orders. This is a perverse finding. The same was not warranted by the provisions of law, as the prosecution has to produce the relevant records showing such seizure and the officer, who has seized those articles, has to satisfy that an offence has been committed by the accused. As rightly pointed out, the High Court did not consider the effect of the non- obstante clause in S.61A as well as the legal presumption available under S.69 of the Act. Likewise, the interpretation to S.54 is not acceptable. We accept the stand taken by the State and set aside the order of the High Court and the Special Magistrate is permitted to proceed with the trial of the accused in accordance with law. Exhibit P1 itself shows that proceedings were initiated, immediately after the seizure, to confiscate the forest produce under Section 61A of Kerala Forest Act. It is recorded in Exhibit P1 that the seized sandalwood pieces and chips are being produced before the authorised officer, namely, the Divisional Forest Officer, Nenmara, for confiscation under Section 61A of Kerala Forest CRRP 64/03 12 Act. In such circumstances, finding of the learned Magistrate that for non production of the forest produce, the accused is to be discharged is illegal. The order of discharge, therefore, can only be set aside. Revision is allowed. The order of discharge passed by Judicial First Class Magistrate, Chittur in C.C.No.107/1998 dated 30.6.2000 is set aside. C.C.No.107/1998 is remanded to the learned Magistrate to proceed as provided under Section 246 of Code of Criminal Procedure. Respondents are directed to appear before the Magistrate on 21.07.2010. Send back the records immediately. 22nd June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 64/03 13 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.64 of 2003 -------------------------- ORDER 22nd June, 2010