IMPORTANT POINTS
Section 61A could not be invoked in case of sandalwood oil.
Section 69 is only a rule of evidence raising mandatory presumption. Cannot be read as to give any power of confiscation of the property.

JUDGMENT :

R.K. Agrawal, J.

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.

2. Brief facts :-

(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 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.

(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 mad