Full Judgment Text
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CASE NO.:
Appeal (crl.) 259-260 of 1997
PETITIONER:
State of M.P.
RESPONDENT:
S.P. Sales Agencies & Ors.
DATE OF JUDGMENT: 29/03/2004
BENCH:
Y.K. SABHARWAL & B.N. AGRAWAL.
JUDGMENT:
J U D G M E N T
B.N. AGRAWAL,J.
These appeals by special leave have been filed against judgment
rendered by Gwalior Bench of Madhya Pradesh High Court whereby two
petitions filed under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as ‘the Code’) by Respondent Nos. 1 and 3 have
been allowed and seizure of stock of kattha and cutch under the provisions
of Section 52 of the Indian Forest Act, 1927 (‘Act’ for short) for violation of
provisions of rule 3 of Madhya Pradesh Transit (Forest Produce) Rules,
1961 (hereinafter referred to as ‘the Transit Rules’) and the consequent
proceedings have been quashed.
The short facts are that on 2.5.1988 a truck bearing No. USR-1147 was
intercepted by the police near Shinde Police Outpost under Indra Ganj
Police Station in the District of Gwalior within the State of Madhya Pradesh
and it transpired that 281 cases of kattha manufactured by M/s. Harsh
Wood Products (Respondent No. 2) were loaded therein at their factory
premises, the same having been purchased by M/s. K.S. Finance
Corporation (Respondent No. 3) without obtaining transit pass as required
under rule 3 of the Transit Rules. Thereafter, the matter was reported to
the Sub-Divisional Forest Officer, Gwalior, who initiated a confiscation
proceeding under Section 52 of the Act and on 23.5.1988 an order of
confiscation was passed whereafter an appeal was taken to the
Conservator of Forest under Section 52A of the Act, who remitted the
matter to the original authority. On remand, the original authority again
passed order of confiscation of kattha seized which was confirmed in
appeal whereafter a revision bearing No. 1147/88 was preferred under
Section 52B of the Act before the Sessions Judge, Gwalior, challenging
order passed in appeal and the same was admitted. During the pendency
of the revision application, the seized stock of kattha was released by way
of interim measure.
On 15.8.1991 another truck bearing No. MP-07-A-8740 was found
loaded with 160 bags of cutch which were purchased by M/s. S.P. Sales
Agencies (Respondent No. 1) from its manufacturer M/s. Harsh Wood
Products (Respondent No. 2) and as no transit pass, as required under the
Rules, was obtained for its movement, it was seized and made over to the
Sub-Divisional Forest Officer, Gwalior. Respondent No. 1 thereafter filed an
application before the Chief Judicial Magistrate, Gwalior, for release of the
seized articles, but the prayer was refused and the same was upheld by the
Sessions Court whereafter Respondent No. 1 preferred an application
before the High Court of Madhya Pradesh under Section 482 of the Code
which was allowed on 17.12.1991 and the seized cutch was ordered to be
released by way of interim measure. Respondent Nos. 1 and 3 thereupon
filed two separate applications under Section 482 of the Code before the
High Court which were registered as Miscl. Criminal Case No. 2475 of 1995
and 2466 of 1995 respectively for quashing the seizure of aforesaid stock of
kattha and cutch and consequent proceedings. The High Court by its order
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dated 7.9.1995 allowed both the applications and quashed the seizure and
consequent proceedings on grounds, inter alia, that kattha and cutch were
not forest produce within the meaning of Section 2(4) of the Act and
confiscation proceeding could not have been initiated as no criminal
prosecution was launched pursuant to the seizure. In view of the aforesaid
order, Criminal Revision No. 1147/88 which was filed before the Sessions
Court against the appellate order in relation to seized stock of kattha
became infructuous and accordingly the same was withdrawn on 1.11.1995.
Challenging the aforesaid order dated 7.9.1995 passed by the High Court,
two petitions were filed before this Court for grant of special leave in which
leave to appeal having been granted, the present appeals are before us.
The main question that falls for our consideration is as to whether
‘kattha’ and ‘cutch’ are forest produce within the meaning of Section 2(4) of
the Act . For deciding this question, it would be necessary to refer to
Section 2(4) of the Act which reads thus:-
"S.2.- Interpretation Clause.- In this Act, unless there is
anything repugnant in the subject or context, -
(4) "forest-produce" includes \026
(a) the following whether found in, or brought
from, a forest or not, that is to say:-
timber, charcoal, caoutchouc, catechu,
woodoil, resin, natural varnish, bark, lac,
shellac gum, mahua flowers, mahua seeds
tendu leaves, kuth and myrobalans, and
(b) the following when found in, or brought from
a forest, that is to say:-
(i) trees and leaves, flowers and fruits,
and all other parts or produce not
hereinbefore mentioned, of trees,
(ii) plants not being trees (including grass,
creepers, reeds and moss), and all
parts or produce of such plants,
(iii) wild animals and skins, tusks, horns,
bones, silk, cocoons, honey, and wax,
and all other parts of produce of
animals, and
(iv) peat, surface soil, rock, and minerals
(including limestone, laterite, mineral
oils, and all products of mines or
quarries);
(v) standing agricultural crops."
Learned counsel on behalf of the appellant submitted that according
to the definition of ‘forest produce’ referred to above, catechu is a forest
produce and kattha and cutch both form part of catechu. In support of this,
reference was made to Webster’s Third New International Dictionary,
Volume I, page 352, wherein ‘catechu’ has been defined to mean " 1. any
of various dry, earthy, or resinous astringent substances obtained by
extraction and evaporation from the wood, leaves, or fruits of various
tropical Asiatic plants: as a :an extract of the heartwood of an East Indian
acacia that is used for dyeing, tanning, preserving fish nets and sails, and
formerly in medicine \026 called also black catechu b: GAMBIER \005. 2: an East
Indian spiny tree (Acacia catechu) that has twice-pinnate leaves, yellow
flowers, and flat pods and is the source of catechu". Similarly, in the
Shorter Oxford English Dictionary, at page 276 ‘catechu’ has been
defined to mean "a name given to several astringent substances, containing
from 40 to 55 per cent of tannin, which are obtained from Acacia .. and
other Eastern trees and shrubs." In Chamber’s Twentieth Century
Dictionary compiled by Rev. Thomas Davidson and revised and
expanded by J. Liddell Geddie, at page 148 ‘catechu’ has been defined
to mean "a substance used in tanning and dyeing, and medicinally as an
astringent, obtained from the heart-wood of several East Indian trees, as the
betel-nut." In New Encyclopaedia Britanica, Volume 2, 15th Edition, at
page 949, ’catechu’ has been defined to mean "extract used in dyeing and
tanning obtained from several plants, its chief sources are the wood of two
species of Acacia."
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‘Kattha’ has been defined in Oxford Hindi-English Dictionary,
edited by R.S. McGREGOR, at page 162 to mean "an astringent and
narcotic vegetable extract from the plant or tree Acacia .. (eaten in betel leaf
with lime, which it turns red)." ‘Acacia’ has been botanically defined in
Comprehensive English-Hindi Dictionary of Governmental and
Educational Words & Phrases, 4th Edition, at page 14, to mean, inter
alia, khair. ‘Khair’ has been defined in Oxford Hindi -English Dictionary
edited by R.S.McGREGOR at page 244, to mean "the plant or tree of
acacia which is a source of gum, timber and the astringent extract used with
pan leaves."
At this juncture, it may be useful to refer to the decision of this Court
in the case of Himachal Pradesh Marketing Board and others v.
Shankar Trading Co. Pvt. Ltd. and others ,(1997) 2 SCC 496, wherein
question had arisen as to whether kattha is a forest produce within the
meaning of Himachal Pradesh Agricultural Produce Markets Act, 1969
wherein agricultural produce is defined under Section 2(a) to mean all
produce as specified in the Schedule of the Act and as kattha is specifically
enumerated in the Schedule of the said Act, this Court came to the
conclusion that kattha is an agricultural produce within the meaning of
Section 2(a) of the said Act. In that case, stand was taken before this
Court on behalf of the parties that kattha is extracted from wood of tree
known as khair and khair wood becomes the essential and basic raw
material for the manufacture of kattha inasmuch as the said wood is not
used in manufacturing of kattha alone but is also used and utilized for the
manufacturing of forest medicines etc. and in order to obtain kattha,
khairwood is processed through various physical and chemical processes to
obtain its end product. Further, in that case, method for the manufacture
of kattha and cutch was placed before this Court to show that kattha and
cutch both are end products of khair wood, which method has not been
denied by the parties in the present case, and the same runs thus :
"(a) Long logs of khairwood are converted into small logs in
sawmills.
(b) In order to remove the bark and sapwood either manual
process is adopted or khair logs are peeled through
peeling machine.
(c) The khairwood so peeled/debarked is known as
heartwood.
(d) Heartwood is again converted in small pieces in sawmill.
(e) Small pieces of wood are converted into small chips in
chipping machine.
(f) Standard size chips are removed/separated from odd size
chips.
(g) Odd size chips are converted into standard chips in
disintegrator machine.
(h) Standard size chips are boiled in closed vats.
(i) Mother liquor so obtained is concentrated in pan with
steam.
(j) Thick liquor obtained is allowed for fermentation with
treatment with chemicals.
(k) The fermented material is allowed to cool in cold storage.
Cold storage is operated with the help of compressor and
other allied machinery. This process is known as
crystallization.
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(l) The crystallized material is allowed to filter through
hydraulic press and/or vacuum filter press to obtain paste
and also remove the cutch (Tannin).
(m) Filtered product is converted into small blocks with the help
of machine or manually.
(n) Small blocks are converted into tablets of different sizes.
These tablets so obtained are allowed to dry in drying
chamber. Drying chamber is operated with humidifier and
other machinery.
(o) Dry product is known as kattha."
In view of the foregoing discussion and definitions extracted above
from various dictionaries, catechu means any of the various dry, earthy, or
resinous astringent substances extracted from wood, leaves or fruits of
various tropical Asiatic plants, viz., acacia and other trees and shrubs.
Khair tree is one of the types of acacia tree and log of wood of the said tree
is basic raw material for the manufacture of kattha and cutch. After
employing series of activities to the log of khairwood, various substances,
namely, cutch and kattha etc., are extracted which are known as one of the
types of catechu. This being the position, we hold that cutch and kattha
come within the sweep of expression ’catechu’ which has been enumerated
in the definition of forest produce, as such kattha and cutch are forest
produce within the meaning of Section 2(4) of the Act and the High Court
was not justified in holding otherwise.
The next question that arises in the present case is as to whether
confiscation proceeding can be initiated under Section 52 of the Act only
after launching of criminal prosecution or it is open to the Forest Authorities
upon seizure of forest produce to initiate both or either. Under Section 52
of the Act when a forest officer or a police officer has reasons to believe that
a forest offence has been committed in respect of any forest produce, he
may seize the same whereupon confiscation proceeding can be initiated.
‘Forest offence’ has been defined under Section 2(3) of the Act to mean an
offence punishable under this Act or any rule framed thereunder. Section
41 empowers State Government to frame rules for regulating transit of
forest produce. Section 42 further empowers the State Government to
frame rules prescribing thereunder penalties for breach of the rules framed
under Section 41 of the Act. Section 76 confers additional powers upon the
State Government to make rules for, inter alia, carrying out provisions of the
Act. Purporting to act under Sections 41, 42 and 76 of the Act, the
Government of Madhya Pradesh framed Transit Rules referred to above,
rule 3 whereof lays down that no forest produce shall be moved either within
the State of Madhya Pradesh or beyond its territory without obtaining a
transit pass. Sub-rule (1) of rule 29 lays down that whosoever contravenes
any of the provisions of these Rules shall be liable to be punished with
imprisonment for a term which may extend to one year or with fine which
may extend to one thousand rupees or with both.
In the present case, the allegations are that by committing breach
of rule 3 a forest offence within the meaning of Section 2(3) of the Act has
been committed for which a criminal prosecution under rule 29 of the Transit
Rules as well as a confiscation proceeding under Section 52 of the Act
could be initiated. From the scheme of the Act, it would appear that for
contravention of rule 3, two independent actions are postulated \026 one
criminal prosecution and the other confiscation proceeding. The power of
confiscation, exercisable under Section 52 of the Act, cannot be said to be
in any manner dependant upon launching of criminal prosecution as it has
nowhere been provided therein that the forest produce seized can be
confiscated only after criminal prosecution is launched, but the condition
precedent for initiating a confiscation proceeding is commission of forest
offence, which, in the case on hand, is alleged to have been committed.
Reference in this connection may be made to a decision of this Court in the
case of Divisional Forest Officer & Anr., vs. G.V. Sudhakar Rao and
others, (1985) 4 SCC 573, wherein it has been clearly laid down that the
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two proceedings are quite separate and distinct and initiation of confiscation
proceeding is not dependant upon launching of criminal prosecution. In the
said case, the Court observed thus:
"The conferral of power of confiscation of seized timber or forest
produce and the implements etc. on the Authorized Officer under
sub-section (2-A) of Section 44 of the Act on his being satisfied
that a forest offence had been committed in respect thereof, is not
dependent upon whether a criminal prosecution for commission of
a forest offence has been launched against the offender or not. It
is a separate and distinct proceeding from that of a trial before the
court for commission of an offence. Under sub-section (2-A) of
Section 44 of the Act, where a Forest Officer makes a report of
seizure of any timber or forest produce and produces the seized
timber before the authorized officer along with a report under
Section 44(2), the authorized officer can direct confiscation to
Government of such timber or forest produce and the implements
etc. if he is satisfied that a forest offence has been committed,
irrespective of the fact whether the accused is facing a trial before
a Magistrate for the commission of a forest offence under Section
20 or 29 of the Act."
In the case of State of W.B. vs. Gopal Sarkar, (2002) 1 SCC 495,
while noticing the view taken in the case of G.V. Sudhakar Rao (supra),
this Court has reiterated that the power of confiscation is independent of
any criminal prosecution for the forest offence committed. This being the
position, in our view, the High Court has committed an error in holding that
initiation of confiscation proceeding relating to kattha was unwarranted as
no criminal prosecution was launched.
Ordinarily, we would have set aside the impugned judgment
rendered by the High Court, directed the revision arising out of confiscation
proceeding relating to kattha to be restored and disposed of on merit and
granted liberty to the Forest Authorities to consider desirability of launching
prosecution against Respondent Nos. 1, 2 and 3 and initiating confiscation
proceeding in relation to the stock of ‘cutch’ seized in the year 1991. But, in
the present case, we do not propose to adopt that procedure in view of the
fact that the stock of cutch was seized in the year 1991, but no confiscation
proceeding has been initiated as yet, the revision application arising out of
the confiscation proceeding relating to the kattha seized was withdrawn
more than eight years ago on 1.11.1995, the same having become
infructuous in view of the impugned judgment and criminal prosecution has
not been launched so far pursuant to seizure of the stock of kattha and
cutch. Accordingly, we are not inclined to interfere with the impugned
judgment.
In the result, the appeals fail and the same are dismissed.