Kerala High Court
Standard Essential Oil Industries vs Forest Range Officer on 1 March, 2005
Equivalent citations: 2005CRILJ2915, 2005(2)KLT250
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT A.K. Basheer, J.
1. Is the order of confiscation of sandalwood oil passed under Section 61A of the Kerala Forest Act (for short 'the Act') illegal and without jurisdiction? The above question has arisen in the following facts and circumstances.
2. On April 16, 1993 Kasaragod Police recovered 125 litres of sandalwood oil from the residence of appellant No. 1, the Managing Partner of M/s. Standard Essential Oil Industries which is engaged in extraction, purchase and sale of sandalwood oil. The police seized the contraband invoking the power under Section 52 of the Act since the appellants could not produce satisfactory and reliable documents in relation to the contraband. The police was of the view that appropriate action as contemplated under Section 61A of the Act had to be initiated by the Forest Officials concerned. Subsequently, the sandalwood oil was handed over to the Forest authorities. After complying with the statutory formalities and after hearing the appellants, the Authorised Officer, Divisional Forest Officer, Kannur passed an order confiscating the sandalwood oil. The above order, a copy of which is on record as Ext.P11, was challenged by the appellants in the Original Petition filed under Article 226 of the Constitution of India. It was primarily contended by the appellants that the sandalwood oil was legally procured by the appellants. Since the appellants had not committed any forest offence, the sandalwood oil was not liable to be confiscated under Section 61-A of the Act. In other words, since no enumerated article like timber, charcoal, firewood or ivory was involved in the instant case, there was no question of any forest offence having been committed. Therefore, the Authorised Officer was not justified in invoking the power of confiscation under Sub-section (2) of Section 61-A of the Act. The other contention was that the documents which were produced by the appellants had clearly established that the entire quantity of sandalwood oil was manufactured/purchased by the appellants.
3. The learned Single Judge held that the order of confiscation was legal and valid in as much as the sandalwood oil being a forest produce as defined under Section 2(f) of the Act, the presumption available under Section 69 of the Act could be invoked. Therefore, in the absence of any satisfactory evidence regarding the possession of sandalwood oil by the appellants, the department was justified in ordering confiscation. Accordingly, the Original Petition was dismissed. Hence this Writ Appeal.
4. It is contended by the learned counsel for the appellants that the power of confiscation given under Section 61-A of the Act could not have been invoked by the Authorised Officer since sandalwood oil is not one of the four enumerated items under the above section. It is true that Section 61-A provides that 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 said property under Sub-section (1) of Section 52, shall produce it before an officer authorised by the Government without any unreasonable delay. Sub-section (2) of Section 61-A empowers the Authorised Officer to confiscate the property so seized, if he is satisfied that a forest offence has been committed in respect of such property. Sub-section (2) also refers to timber, charcoal, firewood or ivory only and nothing else. Learned counsel submits that Section 61-A does not refer to sandalwood oil. On the contrary, four other specific produce or items have been referred to in the above statutory provision. Therefore, the authorised officer did not get any authority or jurisdiction to pass an order of confiscation.
5. "Forest offence" means an offence punishable under the Act or any Rule made thereunder (Section 2(d)). Section 2(f) defines forest produce, the relevant portion of which reads as hereunder:
"(f) forest produce includes:
(i) the following whether found in or brought from, a forest or not, that is to say:--
timber, charcoal, wood oil, gum, resin, natural varnish, bark lac, fibres and roots of sandalwood and rosewood".
A perusal of the above definition under Section 2 of the Act clearly shows that sandalwood oil would necessarily fall within the definition of forest produce. If the Authorised Officer is satisfied that a forest offence has been committed, he gets jurisdiction to confiscate the property. Though only four items have been referred to in Clauses 1 and 2 of Section 61-A of the Act, sandalwood oil which can only be extracted from sandalwood tree, will come within the ambit of forest produce as defined under the Act. Since an offence committed in relation to a forest produce will come within the ambit of "forest offence" and if the Authorised Officer is satisfied that such an offence is believed to have been committed, an order of confiscation can be passed under Section 61-A read with Section 69 of the Act. A narrow or restricted meaning cannot be given to the provisions contained in Section 61-A so as to exclude all forest produce other than timber, charcoal, firewood or ivory from the ambit of the above section. Thus, in our view, the contention that the Authorised Officer was not empowered to invoke the power under Section 61-A of the Act in the instant case, is wholly untenable. It is also pertinent to note that in State of Karnataka v. K.A. Kunchindammed, (2002) 9 SCC 90, their Lordships of the Supreme Court have held that sandalwood oil is a forest produce.
6. Learned counsel for the appellants has placed heavy reliance on a decision rendered by a Division Bench of this Court in Store of Kerala v. Thankaraj, 2001 (1) KLT 633. In the above decision, the Division Bench had held that the presumption under Section 69 of the Act would not be available to the Government to sustain an order of confiscation of ivory under Section 61-A of the Act, since ivory is not a forest produce as defined in Section 2(f) of the Act. It is contended by the learned counsel that the presumption under Section 69 would arise only if a forest produce is involved. Since this Court has held that a confiscation under Section 61-A would be bad even in respect of an enumerated item like ivory, the position will be such worse if the confiscation is ordered in respect of any produce which is not enumerated at all. But in our view, the dictum laid down in Thankaraj's case (supra) can be easily distinguished. The Division Bench had taken the above view since ivory is not included in the definition contained in Section 2(f) of the Act and it was therefore that the Division Bench had held that the benefit of presumption available under Section 69 would not be available to the department. But sandalwood oil is undoubtedly a forest produce as we have already found in the earlier part of this judgment. The decision in Thankaraj's case will in fact go against the appellant. The ratio in the above decision is to the effect that if the subject matter of the confiscation proceedings is a forest produce, the presumption under Section 69 of the Act could necessarily be available. In that view of the matter, the appellants cannot draw any support from the above decision.
7. There is yet another aspect of the matter. Section 69 of the Act mandates that when, in any proceedings taken, or in consequence of anything done under the 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. Since, for the foregoing reasons, we have held that sandalwood oil is a forest produce, the benefit of the presumption as provided under Section 69 of the Act was available to the department. Consequently, an order under Section 61-A of the Act was liable to be passed.
8. Learned Special Government Pleader has vehemently contended that the impugned order passed by the Authorised Officer ought to have been challenged by the appellants under Section 61-D of the Act before the District Court concerned. It is contended by the learned Government Pleader, the appellants were not justified in invoking the extraordinary jurisdiction under Article 226 of the Constitution when an efficacious alternate remedy was available to them. There is considerable force in the above contention. But in our view, the appellants need not be relegated to the statutory remedy available to them in the peculiar facts and circumstances of this case, for reasons more than one. The learned Single Judge has held that the findings entered by the Authorised Officer are not liable to be interfered with. We have been taken through the relevant portions of the order passed by the Authorised Officer. We have no hesitation to hold that the learned Single Judge was justified in holding that the findings do not suffer from any illegality or infirmity. When the findings of fact of a quasi judicial authority are based on sufficient and reliable evidence, this Court will be loathe to invoke its extra ordinary jurisdiction under Article 226 of the Constitution to upset those findings of fact. The order passed by the Authorised Officer contains cogent reasons supported by satisfactory and reliable materials. Therefore, no interference is warranted under Article 226 of the Constitution of India.
7. Having regard to the entire facts and circumstances, we have no hesitation to hold that Ext.P11 order passed by the Authorised Officer, respondent No. 2, is legal and valid. The Authorised Officer had jurisdiction to pass the above order as provided under Section 61-A(2) of the Act. There was no jurisdictional error as far as the impugned order is concerned. There is no merit in any of the contentions raised by the appellants.
The Writ Appeal fails and it is accordingly dismissed. No costs.