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.

2) Brief facts :-  

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(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

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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

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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

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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

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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

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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

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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

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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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