Kerala Forest Act – ss.2(f), 27, 69 – Appellant convicted and sentenced by Trial Court u/s.27 (1) (d), u/r.3(iii) r/w r.23 of the Transit Rules – Acquitted by Sessions Court – Acquittal reversed by High Court – On appeal, held: Sandalwood oil in question is a forest product – However, High Court erred in holding that its seizure ipso facto meant that the appellant had conscious knowledge about its illicit nature or origin; or the inability to account for a transit pass implied that it was procured illegally, thus attracting s.27 – Appellant furnished documents explaining how they had sourced the sandalwood oil – Evidence furnished to the State was not even produced in Court – State did not discharge its burden of proving beyond reasonable doubt that the appellant had knowledge of the fact that the goods were illicit in origin – High Court concluded incorrectly that the result of s.69 is a presumption that places the reverse burden of proof in respect of an offence – Impugned judgment set aside – Kerala Forest Produce Transit Rules – rr.3 (iii), 23 – Code of Criminal Procedure, 1973 – s.378. Criminal Law – Mens rea – Held: Generally, there is a presumption that mens rea is an essential ingredient in every offence – That presumption can be displaced either by the phraseology of the law creating the offence or by the subject matter with which it deals; both must be considered – Kerala Forest Act – Income Tax Act, 1961 – s.278E – Essential Commodities Act – s.10E. Kerala Forest Act – s.69 – Presumption under – When not applicable – Discussed.
Allowing the appeal, the Court
HELD: 1.1 Rule 3 of the Kerala Forest Produce Transit Rules prescribes that no one can import or export timber or other forest produce or transport it, unless a pass as prescribed by the Rules, accompanies its movement. Rule 3 (3) prescribes the procedure for obtaining such a pass. Rule 23 of the Rules, prescribes that any contravention of the rules would attract a punishment for a term that can extend to six months or fine that can extend to rupees five hundred, or both. [Para 16][683-D-E]
1.2 The impugned judgment, so far as it proceeded on the assumption that sandalwood oil is forest produce, is based on a correct appreciation of law. In the present case, the appellant did not dispute ownership of the articles seized. Section 69 of the Act enacts presumption, that when possession of a forest produce is found with someone, that it is deemed to belong to the state (or central) government. Now, this presumption is a rebuttable one; several decisions of this court have said that the burden of proving the foundational facts, which will give rise to the presumption, is upon the prosecution. In the present case, there is no contest about the fact that the goods were seized from the premises of the appellant, and belonged to him. The goods seized from the airport, were to be shipped to overseas destinations. In these circumstances, this court is of the opinion that the foundational facts, i.e., possession of the forest produce, were proved by the State. [Paras 20, 21][688-E-H; 689-A]
Noor Agha v. State of Punjab (2008) 16 SCC 417; Bhola Singh v. State of Punjab (2011) 1 SCC 653; Gangadhar @ Gangaram v. State of Madhya Pradesh Decision of Supreme Court dtd. 05.08.2020 in Cr. A. No. 504/2020 – relied on.
1.3 Sandalwood oil is a forest product. However, Section
27 (1) (d)- which enacts the offence- and which has been applied in this case, points to the offender’s conscious mental state when it enacts that whoever “knowingly receives or has in possession any major forest produce illicitly removed from a Reserved Forest” would be subjected to the prescribed punishment. The presumption under Section 69 is with respect to not a conscious mental state, or a direction by the legislature that a certain state of affairs is deemed to exist, but with respect to ownership of the property i.e., that it “belongs to the state, unless the contrary is proved.” This is a significant aspect, because unlike some statutes, the Act in the present case, does not create a presumption about a culpable mental state of the alleged offender. Instead, the nature of the presumption is that it relates to the ownership of the forest produce. This important aspect has a bearing on the matter. Generally, there is a presumption that mens rea is an essential ingredient in every offence. Yet, that presumption can be displaced either by the phraseology of the law creating the offence or by the subject matter with which it deals; both must be considered. Therefore, in the present case, the State had to show, that the forest produce was illicitly removed, or was illicitly in the possession of the accused, and in either case, that the same was within his knowledge. This foundational fact has to be proved beyond reasonable doubt. Thereafter, the accused has to establish, a credible or reasonable explanation. [Paras 23-25][689-G-H; 690-A-D; 692-F-G]
Nathulal v. State of Madhya Pradesh AIR 1966 SC 43; Umashanker v. State of Chhattisgarh (2001) 9 SCC 642 : [2001] 3 Suppl. SCR 646; Raghunath Singh v. State of M.P. 1967 JLJ 234 (SC) – relied on.
1.4 The State no doubt led evidence to show that the goods seized bore the labels of the 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. It is here, that the presumption under Section 69 cannot apply; it merely directs a presumption that the forest produce belongs to the government. The appellant had produced documents (in the form of 45 invoices and receipts) to show the origin of the goods, and where they were purchased from, to say that they were procured in 104 transactions. The question, therefore, is whether by operation of Section 27 (1) (d), the initial presumption was established. The evidence on record showed that the cartons seized from the airport were bound to destinations in Germany, France, Spain, etc. The 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. The State had not discharged its burden of proving beyond any doubt, that the appellant had knowledge of the fact that the goods were illicit in origin. [Paras 26, 27][692-G-H; 693-A, C-F]
1.5 The High Court fell into error, in holding that the presumption that the seizure of forest produce belonging to the State, automatically can result in a presumption of culpable mental state of the accused- in other words, that seizure of the goods ipso facto meant that the appellant had conscious knowledge about their illicit nature or origin, or that the accused’s inability to account for a transit pass, implied that they procured the goods illegally, thus attracting Section 27. Such a leap of reasoning is not justified, given that the appellants had furnished a series of documents explaining how they had sourced the oil in question. The 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 the court have concluded adversely that the appellant’s participation in the auction of the seized goods and their purchase, implicated them. There can be several reasons for such a conduct, including their wish to fulfil contractual obligations. The interference by the High Court with the acquittal recorded by the Sessions Court, in this case, is not warranted. The High Court concluded incorrectly that the result of Section 69 is a presumption that places the reverse burden of proof in respect of an offence - no such inference can be drawn from the plain text of that provision; and Section 27 (1) (d) requires conscious knowledge, of the nature of the goods, i.e., their illicit origin, which compels proof by the prosecution, beyond reasonable doubt. The materials on the record show that the evidence in the possession of the defence and furnished to the State, was not even produced in court, nor was the primary evidence to substantiate the state’s contentions in that regard, proved. The impugned judgment is in error and set aside. [Paras 2830][693-F-H; 694-A-E]
Suresh Lohiya v. State of Maharashtra (1996) 10 SCC 397: [1996] 5 Suppl. SCR 130 – held inapplicable. Forest Range Officer v. P. Mohammed Ali 1993 Supp
(3) SCC 627; Standard Essential Oil Industries v. Forest Range Officer (2018) 16 SCC 180 :[2018] 3 SCR 532 – relied on.
Ghure Lal v. State of Uttar Pradesh (2008) 10 SCC
450 : [2008] 11 SCR 499 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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