BHARATH BOOSHAN AGGARWAL versus STATE OF KERALA

Citation: [2021] 8 S.C.R. 671 · Decided: 06-10-2021 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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BHARATH BOOSHAN AGGARWAL
v.
STATE OF KERALA
(Criminal Appeal No. 834 of 2009)
OCTOBER 06, 2021
[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]
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
[2021] 8 S.C.R. 671
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
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
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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 p

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