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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.