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SUPREME COURT OF INDIA
Indira Banerjee, S. Ravindra Bhat, JJ.
Bharath Booshan Aggarwal - Appellant
Versus
State of Kerala - Respondents
Criminal Appeal No. 834 of 2009
Decided On : 06-10-2021
(A) Kerala Forest Act, 1961 – Sections 27 and 69 read with Rule 23 of Kerala Forest Produce Transit Rules, 1975 – Illegal possession of Sandalwood oil – Conviction and sentence – Impugned judgment, so far as it proceeded on assumption that sandalwood oil is forest produce, is based on a correct appreciation of law – Appellant did not dispute ownership of articles seized – Goods were seized from premises of appellant and belonged to him – Goods seized from airport, were to be shipped to overseas destinations – In these circumstances, foundational facts, i.e. possession of forest produce, were proved by State – However, State had to show that forest produce was illicitly removed, or was illicitly in possession of accused, and in either case, that same was within his knowledge – This foundational fact has to be proved beyond reasonable doubt – Thereafter, accused has to establish, a credible or reasonable explanation – State has led evidence to show that goods seized bore labels of appellant’s firm and further that no transport licence was available – However, this per se does not establish illicit possession of forest produce within his knowledge – For a court to so conclude, prosecution had to, in addition, prove beyond reasonable doubt, foundational fact that accused had knowingly removed forest produce illicitly – It is here that presumption under Section 69 cannot apply; it merely directs a presumption that forest produce belongs to government – Impugned judgment, by reversing decision of Sessions Court, is in error – High Court fell into error in holding that presumption that seizure of forest produce belonging to State, automatically can result in a presumption of culpable mental state of accused – Such a leap of reasoning is not justified, given that appellants had furnished a series of documents explaining how they had sourced oil in question – State’s absence of diligence in producing those materials (which were in its possession) and proving that they were without credibility, cannot result in a conviction – Nor could court have concluded adversely that appellant’s participation in auction of seized goods and their purchase, implicated them – There can be several reasons for such a conduct, including their wish to fulfil contractual obligations – Interference by High Court, with acquittal recorded by Sessions Court, is not warranted – Evidence in possession of defence and furnished to State, was not even produced in court, nor was primary evidence to substantiate State’s contentions in that regard, proved – Impugned judgment set aside. (Paras 20, 21, 25, 26, 27, 28, 29 and 30)
(B) Criminal Law – Mens Rea – Generally, there is a presumption that mens rea is an essential ingredient in every offence – Yet, that presumption can be displaced either by phraseology of law creating offence or by subject matter with which it deals – Both must be considered – Nature of mens rea that would be implied in a statute creating an offence depends on object of Act and the provisions thereof. (Para 24)
Facts of the case:
Present appeal by special leave, questions a judgment of the Kerala High Court1 reversing the judgment of the learned Sessions Judge and consequently, restoring the conviction and sentence (of 3 years’ imprisonment) for the offence punishable under Section 27 of the Kerala Forest Act, 1961.
Findings of Court:
Receipts, or primary evidence produced by the appellant, was not exhibited in the court; nor was any evidence led to show that in fact, such effort to trace the sellers of the oil was made by the State, and that the evidence furnished by the appellant was unbelievable. In these circumstances, it could not be said that the State had discharged its burden of proving beyond any doubt, that the appellant had knowledge of the fact that the goods were illicit in origin.
Result : Appeal allowed.
DICTUM:
JUDGMENT :
S. RAVINDRA BHAT, J.
1. This appeal by special leave, questions a judgment of the Kerala High Court1[Dated 19-12-2008, in Crl. A No. 556/2001] reversing the judgment of the learned Sessions Judge and consequently, restoring the conviction and sentence (of 3 years’ imprisonment) for the offence punishable under Section 27 of the Kerala Forest Act (hereafter “the Act”).
2. The first appellant is a partner of the appellant’s firm, and claims to be manufacturer and trader of sandalwood oil. On 4 January 1994, upon receipt of information, officials of the Kerala Forest Department seized 37 cartons containing 460 kgs of sandalwood oil at Karipur airport, belonging to the appellants. Later a criminal complaint was filed by the State, wherein it was alleged that the appellants’ premises were searched in the course of investigation, which in turn yielded in seizure of another 73.6 kgs of sandalwood oil. The appellant resisted the charges of illegal possession of forest produce, and its movement, stating that they processed and manufactured sandalwood oil, which was then exported to four different countries. The complaint filed by the Kerala Forest Department, alleged that sandalwood oil was a forest produce and without a transit licence, its movement too was illegal.
3. In the criminal proceedings which ensued after initiation of the complaint, the appellant denied criminal responsibility arguing, among others, that sandalwood oil was not a forest produce and rather, that sandalwood was. It was urged, that regardless of this, a valid and subsisting licence authorized the appellant to manufacture sandalwood oil. The prosecution examined four witnesses; the appellant relied on the testimony of two defense witnesses. After considering the materials on record, the Judicial Magistrate Thamarasserry (hereafter “the trial court”) by judgment2[dated 19.08.1997] convicted the appellant as charged and sentenced him to pay Rs. 2000 as fine and undergo rigorous imprisonment for three years under Section 27 (1) (d) of the Act and six months, under Rule 3 (iii) read with Rule 23 of the Kerala Forest Produce Transit Rules (hereafter “the Rules”).
4. Aggrieved by the conviction recorded and sentence imposed on him, the appellant approached the Court of Session, Kozhikode Division (hereafter “the Sessions Court”) which by its judgment3[dated 20.11.2000], upset the findings of the trial court. The Sessions Court accepted the appellant’s plea and held that in view of the certificate issued by the Central Excise authorities, his possession of sandalwood oil in the factory could not be termed as illegal and that a conviction under Section 27 could be recorded only if it was found that sandalwood oil was removed illegally, or without authorization from any reserve forest, or area proposed to be constituted as reserve forest.
5. Aggrieved by the appellant’s acquittal and in view of the findings of the learned Sessions Judge, the State appealed. The High Court, which considered this appeal reversed the judgment of the Sessions Court on two counts. It was held by the impugned judgment that though the appellants held a licence to manufacture sandalwood oil, nevertheless they failed to account for possession of such a large quantity of sandalwood oil. When charged with commission of the offence in question, the accused concerned or individual was bound to show a proper account of the raw materials collected and used to manufacture sandalwood oil. Relying upon the testimony of PW-4, who had stated that the accused failed to furnish the dates and details regarding procurement of crude sandalwood and crude sandalwood oil (popularly known as ‘red oil’), the court held that during the trial too, the appellant had failed to give any particulars with respect to persons from whom purchase of these raw materials were made. The failure of the defence to explain this vital aspect rendered the findings of the Sessions Court, vulnerable. Taking note of Section 69 of the
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