STATE OF KERALA Vs. BHARATH BOOSHAN AGGARWAL

JUDGEMENT

(1.) This Criminal Appeal is preferred by the State, aggrieved by the order of acquittal passed by the Sessions Court, Kozhikode Division as per its judgment dated 20-11-2000 in Criminal Appeal No. 167 of 1997. The impugned order arose out of the judgment dated 19-8-1997 in C.C. No. 237 of 1994 of the Court of Judicial Magistrate of First Class II, Thamarassery. C.C. No. 237 of 1994 was instituted upon a complaint filed by the Forest Range Officer, Thamarassery alleging commission of offence under Section 27(1)(d) of the Kerala Forest Act as amended by Section 3 (iii)(d) of the Kerala Forest (Amendment) Ordinance, 1992 which was later repealed as per Kerala Forest (Amendment) Act, 1993.

(2.) The case of the complainant is that on 4-1-1994, on getting secret information that sandal wood oil was being illegally transported, the forest officials went to the Air Port at Karipur. From the Air Port premises, they recovered 460 kilograms of sandal wood oil which was kept for exporting to various foreign countries. On their detection and further investigation the forest officials found that such bulk quantity of sandal wood oil is belonging to the first accused firm of which the second accused is the Managing Partner. Consequently, on the next day i.e.5-1-1994, the office premises of the 1st accused was searched as a result of which the officials seized a further quantity of 73-6 kilograms of sandal wood oil. Thus the allegation is that the respondent herein/accused before the trial court kept in his possession so much quantity of sandal wood oil, which is a major forest produce, in contravention of the Kerala Forest Act and therefore he is liable to be prosecuted and punished for the said offence.

(3.) After collecting the materials and on completing the investigation, the appellant/complainant preferred a complaint before the trial court. On the appearance of the accused and after hearing him, a formal charge was framed against him under Section 27(1 )(d) of the Kerala Forest Act which was read over and explained to the accused to which he pleaded not guilty. Thereafter, P.Ws. 1 to 4 were examined from the side of the complainant and Exts. P-1 to P-11 series were marked. M.O.1, material objects were identified and marked. After the prosecution evidence, the incriminating circumstances which emerged out through prosecution evidence were put to the accused when he was examined under Section 313 of the Code of Criminal Procedure and he denied the same. It is the further case of the accused that he is a licenced manufacturer of sandal wood oil and holding valid licence issued by the Central Excise Department for the manufacture of sandal wood oil. It is also the case of the defence that the firm of the respondent herein/ accused is a registered dealer under the Kerala Sales Tax Act and Central Sales Tax Act and the firm is maintaining regular registers regarding the purchase of raw materials. It is also their contention that the firm being a licenced factory for the manufacture of sandal wood oil, the Forest Transport Rules were not applicable to them. It is also their contention that for the manufacturing of sandal wood oil, no licence is to be obtained from the Kerala Forest Department. Thus, the sum and substance of the defence is that the possession of sandal wood oil is a legitimate one and the seizure of the same by the forest officials was illegal. On the basis of the rival contentions, the trial court formulated two issues; among them, the second one is about the punishment to be awarded. The first issue is "Is it proved that the accused was found in possession of such a quantity of sandal wood oil which is a forest produce illicitly removed from the reserve forests and thus committed an offence under Section 27(1) (d) of the Kerala Forest Act?" After an elaborate consideration of the evidence of both oral and documentary, the trial court found that the accused was guilty of the offence charged against him. Accordingly, he was sentenced to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs. 2,000 in default to undergo simple imprisonment for a period of six months and also found that the accused was guilty under Section 3(iii) read with Section 23 of the Kerala Forest Produce Transit Rules and accordingly he was sentenced to undergo rigorous imprisonment for a period of six months. It was ordered that the substantial period of sentence shall run concurrently. In this case the property involved was already released to the accused, on the basis of the order of the Chief Judicial Magistrate, Kozhikode issued in terms of the direction issued by this Court, on depositing a sum of Rs. 9,93,640 and also on furnishing bank guarantee for Rs. 5,06,360 by the accused. The trial court as per its judgment directed that the amount so deposited and the bank guarantee so furnished were to be forfeited.