P. Mani vs The State

David Annoussamy, J.

This is a revision petition against conviction and sentence. The case of the prosecution was a follows :-

The Sub-Inspector of police, Abiramapuram police station, on reliable information that sandalwood was stocked illicitly in Suba Kalyana

Mandapam, Rangachari Road, Mylapore, went to the place at 4:30 p.m. on 23-2-1980. When the police party reached the Mandapam he saw

the accused attempting to escape from the door step of the building and he was apprehended. The police searched the building. The Sub-

Inspector, P.W. 2 asked the accused to open a small room underneath the staircase in the rear portion of the Mandapam. When that room was

opened. P.W. 2 was able to clearly scent sandalwood and on peeping inside the room he found sandalwood logs weighing 437.500 KGS. After

seizing the sandalwood and arresting the accused, he referred the matter to the Forest Department and the Assistant Conservator of Forest, Forest

Protection Squad, Madras-17 filed a complaint before the XVII Metropolitan Magistrate, Madras for an offence under R. 3(1) read with R. 7 of

the Tamil Nadu Sandalwood Possession Rules, 1970 read with S. 56D of the Tamil Nadu Forest Act, as it stood amended. The accused was

found guilty of the offence by the trial Court which sentenced him to rigorous imprisonment for one year and a fine of Rs. 3000/-. On appeal, the

first Additional Sessions Court, Madras confirmed the conviction, and sentenced by judgment dated 8-9-1982. Against that judgment, the present

revision petition is filed.

The main ground of revision is that the prosecution has not proved that the accused was in possession of the sandalwood logs seized and that

neither the trial Court nor the appellate Court had given a clear finding on that point. The evidence of P.W. 3, the Forest Officer in this connection

is to the effect that he learnt from enquiries that one Dr. Rajan was the owner of the Subha Kalyana Mandapam, that one Krishnamurthy was the

lessee of the same and that the accused was the person in charge. In this case it is clear that the sandalwood logs were seized from a portion of the

Subha Kalyana Mandapam. The person who is deemed to be normally in possession of the building is the lessee. Anybody can be in possession of

any portion of the building only as a sub-lessee or through any other special arrangement. In order to implicate the accused, evidence will have to

be adduced to show that the accused was in effective possession of the portion of the building from whether the sandalwood logs were seized.

P.W. 3, the Forest Officer, the complainant in this case, has failed to adduce any evidence in this regard. His cursory statement that he learnt from

enquiry that the accused was in charge of the building is utterly inadequate.

The other way in which the accused was attempted to be shown to be in possession of the building was the way in which he was apprehended

and the way in which the sandalwood logs were recovered. In this connection, P.W. 2 the Sub-Inspector of Police would depose that on receiving

reliable information, that sandalwood was stocked in Subha Kalyana Mandapam, he went to the said building with his police party, that upon

seeing the party, the accused attempted to slip away and was apprehended. The evidence of P.W. 2 in this respect is not very clear, As per his

evidence, the accused was not known to him and did not also know that the accused was the person who was involved in the case. Therefore, the

only circumstances which enabled him to identify the accused is that he slipped away. This circumstance should have been described with more

details by P.W. 2 in order to show how he was able to understand that he could be the person involved in the matter. He does not say how many

other persons were there at that time, how the accused slipped away and at what distance he was apprehended.

The Courts below have come to the conclusion that the petitioner was the person who was in possession of sandalwood logs in believing that

the room in which the sandalwood logs were stocked was locked, that the accused was having the key and that he opened the room with that key.

But there is no evidence to that effect. P.W. 2 would only depose that he asked the accused to open the room and that the accused opened it. He

has also clearly admitted that no key was seized in the course of his cross-examination. Therefore the conclusion arrived at by the Courts below on

the belief that the accused was having the key of the room in which the sandalwood logs were stocked and that he opened the room with that key

in the presence of P.W. 2 is supported by no evidence whatsoever.

From the depositions of P.W. 2 and P.W. 3, it is not possible to hold that the accused was in possession of the sandalwood logs seized. The

evidence of P.W. 3 was only to the effect that he learnt from enquiry that the accused was in charge of the building in respect of which one

Krishnamoorthy was a lessee. P.W. 2 only deposed that the accused attempted to slip away without elaborating that evidence in such a way to

enable the Court to ascertain whether the conduct of the accused at that stage was such as to draw the conclusion that he was the person having

illicit possession of the Sandalwood logs. It is unfortunate that in this case no proper enquiry was made to show who was the real possessor of the

sandalwood seized, though it was within the reach of both P.W. 2 and P.W. 3 to ascertain the truth of the matter. It appears that both of them did

not want to probe into that aspect of the case and they were satisfied with having the accused as a scapegoat. At any rate it is not proved from the

evidence on record that the accused was in possession of the sandalwood logs.

The learned Public Prosecutor would contend that as per S. 56-D of the Tamil Nadu Forest Act, there will be a presumption in favour of the

prosecution and that, therefore, the prosecution need not prove its case. That section reads as follows :

56-D. Presumption as to commission of offence in respect of scheduled timber -

Whenever any person is accused of any offence under this Act in respect of any scheduled timber, it shall be presumed until the contrary is proved

that such person has committed such offence.

The cardinal principle in criminal jurisprudence in all civilized countries is that the accused is presumed innocent until he is proved to be guilty. This

has been incorporated in the Universal Declaration of Human Rights in its Art. 11 which reads as follows :

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has

had all the guarantees necessary for his defence.

Section 56-D of the Act which reverses entirely that position is exceptional in nature. Therefore, while giving effect to this section one has to see

that its scope is restricted to its real import and that an arbitrary action is not taken against a citizen under the guise of giving effect thereto. The

section would not mean that an accusation, however frivolous, flimsy or arbitrary may be, has to be presumed to be true until the contrary is

proved. The section would come into operation only when a person is reasonably accused. The accusation should invariably satisfy the test of the

reasonableness.

In this case the accusation places from the complaint filed by the Forest Officer. In that complaints, serial No. 9 which gives the substance of the

complaint is reproduced below :

History of the case, nature and date of enquiry by the undersigned.

On information on 23-2-1980, the S.I. of Police, E-4 Abirampuram and his party raided the Subakalyana Mandapam at 12, 13, Rangachari

Road, Mylapore. They have seized the seizures listed in column 7 under the cover of mahazar the accused. (sic). He has enquired and after

ascertaining that the accused was not having any permit or licence for the seizure arrested and produced the accused before the XVII Metropolitan

Magistrate Court, Saidapet who has remanded him for 15 days. Since the accused was in possession of sandalwood in contravention of Tamil

Nadu Sandalwood Possession Rule 3(1) r/w 7 of the Tamil Nadu Sandalwood Possession Rules, 1970, and amended as Act 45 of 1979, the

charge was framed.

It would be seen from this portion that though there is a recital as to the seizure of sandalwood, and to the absence of licence, there is no reference

whatsoever to the point as to how the complainant satisfied himself that the accused was in possession of sandalwood. The reference to such a

satisfaction is not also found in the other portion of the complaint. The accusation is not therefore reasonable. For the application of the principle

embodied in S. 56-D, the complaint should be complete in every aspect so that the accused person who has the burden of proof can defend

himself and adduce rebuttal evidence advisedly. Therefore, S. 56-D cannot be pressed into service in this case in order to sustain the conviction

when the case of the complainant was defective from the very beginning on the essential point as to whether the accused was the person from

whose possession the sandalwood was seized.

In the result, the revision petition is allowed. The conviction and sentence imposed on the revision petitioner are set aside and he is acquitted.

Petition allowed.