M/S Standard Essential Oil Industries vs The Forest Range Officer Kasargod

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1747 OF 2008

M/s. Standard Essential Oil Industries & Anr. …Appellant (s)

Versus

Forest Range Officer Kasargod & Ors. …Respondent (s)

J U D G M E N T

R.K. Agrawal, J.

1) The present appeal has been filed against the impugned

judgment and order dated 01.03.2005 passed by the High Court of

Kerala at Ernakulum in W.A. No. 1458 of 2004 whereby the

Division Bench of the High Court dismissed the appeal preferred by

the appellants-herein while confirming the order of confiscation of

sandalwood oil which was upheld by learned single Judge of the

High Court in O.P. No. 15114 of 1998, vide order dated 19.05.2004.

Signature Not Verified Digitally signed by ASHA SUNDRIYAL

Brief facts :-

Date: 2018.04.19

2) 17:26:45 IST Reason:

1 (a) The appellant-firm is engaged in the business of purchase and

sale of sandalwood oil. N.A. Abdulrahiman (Appellant No. 2) and

N.A. Abdulla Haji are partners in the firm and also running a

factory at Vidyanagar, Kasargod, for the extraction of sandalwood

oil. On 16.04.1993, at about 10:30 P.M., the Kasargod Police

conducted a search in the premises bearing door No. C.P. 31/786

called “Rahmith Manzil” and seized 125kgs of sandalwood oil kept

in five barrels and removed the same to the local police station.

(b) The above premise also happens to be the residence of the

managing partner of the appellant firm and his family members.

The seizure of the oil was reported to the Superintendent, Central

Excise, Kasargod apprehending violation of the Central Excise Rules

in removing the oil from the factory to the residential premises.

(c) Consequently, the partners of the appellant-firm were served

with show cause notice by the Authorized Officer under the Kerala

Forest Act, 1961 (hereinafter referred to as ‘the Act’) proposing to

confiscate 125 kgs of sandalwood oil seized from the

aforementioned residential building.

(d) The appellants replied to the show cause notice and contended

that the above quantity is the accounted stock of the firm i.e., 75

kgs. of sandalwood oil was manufactured in the factory premise

2 itself as supported by stock register whereas 50 kgs of sandalwood

oil was purchased from M/s Punjab Aromatic, A.G. Road, Calicut-2

on 15.04.1993 and in support of this claim, invoice of the said

purchase was also produced.

(e) It is the case of the appellants herein that this quantity of 125

kgs of sandalwood oil has been removed to the residence of the

managing partner on account of maintenance work carried out in

the factory which is in the adjacent compound. After considering

the objections put forward in reply to the show cause notice, the

Divisional Forest Officer, vide order dated 03.07.1998, ordered

confiscation of the 125 kgs of sandalwood oil.

(f) The appellants being dissatisfied with the order dated

03.07.1998 filed a writ petition before the High Court bearing OP.

No. 15114 of 1998 which came to be dismissed vide order dated

19.05.2004.

(g) The appellants, being aggrieved by the order dated

19.05.2004, preferred an appeal to the Division Bench of the High

Court being No. 1458 of 2004. The Division Bench, vide order dated

01.03.2005 upheld the order of confiscation and dismissed the

appeal.

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(h) Consequently, the appellants have filed this appeal by way of

special leave before this Court.

3) Heard Shri Sanjay R. Hegde and Shri Pallav Sisodia, learned

senior counsel for both the parties and perused the relevant

material placed before us.

Point(s) for consideration:-

4) The issue arises for consideration is as to whether the High

Court erred in upholding the order of confiscation under Section

61-A of the Act and whether confiscation of sandalwood oil can be

ordered under Section 61A or 69 of the Act?

Rival contentions:-

5) Learned senior counsel appearing for the appellants contended

that the High Court has misdirected itself in framing the question

which arises in the present case to the effect that the order of

confiscation of sandalwood oil passed under Section 61A of the Act

is illegal and without jurisdiction. It is further contended that the

entire judgment proceeds on the basis that the confiscation is made

under Section 61A of the Act, which is patently and factually

incorrect. It is further contended that the confiscation has

admittedly been made under Section 69 of the Act after the

4 Authorized Officer finds that confiscation under Section 61A of the

Act will not lie and the same was also confirmed by learned single

Judge of the High Court.

6) Learned senior counsel further contended that the High Court

erred in upholding the order of confiscation under Section 61A of

the Act because the said Section authorize the confiscation where

Forest offence is believed to have been committed in respect of

timber, charcoal, firewood or ivory, which is the property of the

Government. The Authorized Authority accepted the legal position

that sandalwood oil is not a commodity included under Section 61A

of the Act.

7) He further contended that the Division Bench of the High

Court committed a grave error in not appreciating the fact that

Section 69 of the Act is only a rule of evidence which facilitates the

proceedings under the Act and the said Section nowhere gives the

power to confiscate. Even otherwise, documentary evidence

available are sufficient to rebut the presumption under Section 69

of the Act and to hold that sandalwood oil did not belong to the

Central or the State Government and the same is the property of

the appellants herein.

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8) Learned senior counsel finally contended that the judgment

and order of the High Court being adverse in law, is liable to be set

aside.

9) Per contra, learned senior counsel appearing on behalf of the

respondents submitted that the High Court has rightly upheld the

order of confiscation under Section 61A of the Act which empowers

the authorized officer to confiscate the property in respect of which

a forest offence is believed to have been committed.

10) He further contended that the authorized officer was well

within his powers to order confiscation even under Section 69 of the

Act as Section 69 of the Act enables him to presume that the

property belongs to the Government and the appellants have not

forwarded any reliable evidence to support his claim to the seized

quantity of the sandalwood oil and in the absence of any such

evidence, the order of confiscation was well within the parameters

of law and should not be disturbed.

11) Learned senior counsel for the respondents finally submitted

that the order and judgment of the Division Bench of the High

Court is in accordance with law and no interference is sought for in

this regard.

Discussion:-

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12) The very first issue that arises for consideration is whether

the judgment and order of the High Court is bad in law for framing

a wrong issue and to uphold the order of confiscation under Section

61A of the Act. The appellants herein contended that the High

Court has misdirected itself in framing the question as to the

validity of the order of confiscation under Section 61A of the Act in

the present case when both the authorities below rejected the idea

of order of confiscation under that Section and passed order under

Section 69 of the Act only.

13) To address the said issue, it is worthy to reproduce the

operating para of the decision of the order dated 03.07.1998 by the

Divisional Forest Officer which is as under:-

“In the light of the decision of the Hon’ble Supreme Court in C.A. 423/93, sandalwood oil will also come within the purview of wood oil as per Sec. 2 (F)(1) of Forest Act. Hence sandalwood oil can be confiscated under Section 69 of the Forest Act. The accused have failed to prove the ownership of the 125 kgs of sandalwood oil seized in the above case. Hence, I, K.K. Chandran, the Authorized Officer, presume that it is illegally acquired and hence ordered for confiscated under Section 69 of the Forest Act.”

The above order is in itself sufficient to show that the order of

confiscation is passed under Section 69 of the Act and not under

Section 61A. Further, a perusal of the order of learned single Judge 7 of the High Court dated 19.05.2004 shows that learned single

Judge rejected the very idea of confiscation of sandalwood oil under

Section 61A of the Act and held that though the order of

confiscation cannot be passed under Section 61A of the Act but by

virtue of Section 69 of the Act, unless a fact to the contrary is

proved, it can be presumed that the seized property belongs to the

Government and it enables the Government to possess the same.

Having gone through the judgment of the authorities below, it can

be concluded that the Division Bench has misdirected itself in

framing the issue and upholding confiscation under Section 61A

and, hence, on that account, the order is bad in law.

14) Moving further to the next question, whether in the light of

fact and circumstances of the present case, the order of confiscation

of sandalwood oil can be passed under Section 61A or Section 69 of

the Act. To appraise the said question, it is appropriate to discuss

the contours of Section 61A and Section 69. Section 61A states as

under:

"61A. Confiscation by Forest Officers in certain cases - Notwithstanding anything contained in the foregoing provisions of this Chapter, where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the

8 property under sub-section (1) of Section 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles, and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer).

(2) Where an authorised officer seizes under sub-section (1) of Section 52 any timber, charcoal, firewood or ivory which is the property of the Government, or where any such property is produced before an authorised officer under sub-section (1) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence.

69. Presumption that timber or forest produce belongs to Government.- When, in any proceedings 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.”

15) Section 61A of the Act was inserted to prevent the illicit

removal of timber, charcoal, firewood and ivory belonging to the

government from the forests. The said provision confers power of

confiscation on Forest Officers authorised by the Government in

certain cases. The essence of the Section lies in the fact that when

forest offence is satisfactorily believed to have been committed in

9 respect of timber, charcoal, firewood and ivory which is the property

of the Government then the authorized officer may confiscate the

property irrespective of the pendency of any criminal proceedings in

this regard. The question is whether the said Section also gives the

power to confiscate sandalwood oil.

16) A perusal of the definition of forest produce, as given by

Section 2(f) of the Act, shows that other than timber, 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 61A instead of

“any forest produce or ivory” makes it clear that the intention of the

legislature in providing armory under Section 61A 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 61A of the Act is

limited only to the categories specified therein and does not give

power of confiscation of sandalwood oil.

17) 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

10 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.

18) The power of confiscation of sandalwood oil get vested in the

authorities through Section 61A only after the Kerala Forest

(Amendment) Act, 2010 when certain specific provisions relating to

Sandalwood were inserted through Chapter VI A and Section 47H

which specifically provides as under:

“47H. Seizure of sandalwood, sandalwood oil etc. and confiscation thereon.—Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court, where an offence is believed to have been committed in respect of any sandalwood, the sandalwood, the sandalwood oil, mill, distilling unit, boiler-plant, tools, ropes, chains, boats, vehicles or any other contrivance used in the manufacture or distillation of sandalwood oil, or in the process of sale of sandalwood or sandalwood oil shall be liable to be seized under section 52 and the provisions contained in sections 61A, 61B, 61C, 61D, 61E and 61F shall mutatis mutandis apply to the seizure and confiscation thereof”.

(Emphasis supplied by us)

The present case being related to the situation prior to the time of

amendment in 2010 was made, the amended provisions do not

11 apply. Hence, the order of confiscation of sandalwood oil is liable to

be set aside.

19) In view of the above detailed discussion, we are of the

considered view that the High Court erred in upholding the order of

confiscation. Accordingly, this appeal is hereby allowed and the

order of confiscation is set aside. The parties to bear cost on their

own.

...…………….………………………J. (R.K. AGRAWAL)

.…....…………………………………J. (SANJAY KISHAN KAUL) NEW DELHI;

APRIL 19, 2018.

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