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2021 (10) TMI 376 - SC - Indian LawsReserve forest - removal of sandalwood oil illegally, or without authorization from any reserve forest, or area - presumption of culpability in the event possession - rebuttable presumption - Section 27 of the Kerala Forest Act - HELD THAT:- 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. Whether the appellant proved that the produce was procured properly? - HELD THAT:- There can be no dispute that 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 proved.” In the present case, the State had to show, that the forest produce was illicitly removed, or was illicitly in the possession of the accused, and in either case, that the same was within his knowledge. This foundational fact has to be proved beyond reasonable doubt. Thereafter, the accused has to establish, a credible or reasonable explanation - The state no doubt has led evidence to show that the goods seized bore the labels of the appellant’s firm and further that no transport licence was available. However, this per se does not establish illicit possession of forest produce within his knowledge. The High Court fell into error, in holding that the presumption that the seizure of forest produce belonging to the State, automatically can result in a presumption of culpable mental state of the accused- in other words, that seizure of the goods ipso facto meant that the appellant had conscious knowledge about their illicit nature or origin, or that the accused’s inability to account for a transit pass, implied that they procured the goods illegally, thus attracting Section 27 - the materials on the record show that the evidence in the possession of the defence and furnished to the state, was not even produced in court, nor was the primary evidence to substantiate the state’s contentions in that regard, proved. Appeal allowed.
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