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CASE NO.:

Appeal (crl.) 259-260 of 1997

PETITIONER:

State of M.P.

RESPONDENT:

S.P. Sales Agencies & Ors.

DATE OF JUDGMENT: 29/03/2004

BENCH:

Y.K. SABHARWAL & B.N. AGRAWAL.

JUDGMENT:

J U D G M E N T

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

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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 \026

(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 \026 called also black catechu b: GAMBIER \005. 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."

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`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.

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(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 \026 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

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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.