State
of M.P. Vs. S.P. Sales Agencies & Ors
[2004] Insc 211 (29
March 2004)
Y.K.
Sabharwal & B.N. Agrawal. 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 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
(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 called also black catechu b: GAMBIER .
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." `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.
(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 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 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.
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