BOMBAY HIGH COURT QUASHES CHARGES OF ILLICIT PURCHASE OF CAMPTOTHECIN FRAMED AGAINST PETITIONERS AS THE SAME WAS NOT A “FOREST PRODUCE”

INTRODUCTION

A two-Judge Bench of the High Court of Judicature at Bombay comprising of Justice A.S Gadkari and Justice Shyam C. Chandak passed an Order dated 22.12.2023 in Fresenisu Kabi Oncology Ltd. Formerly known as Dabur Pharma Ltd and Dr. Jayanta Chattopadhyay vs. The State of Maharashtra and Conservator of Forest in Criminal Writ Petition No. 667 of 2010 along with other connected Petitions and held that as the subject Campothecin is not a “Forest Produce”, the charges framed against the Petitioners regarding illicit purchase of such alleged “Forest Produce” in the Ld. Court of Judicial Magistrate, First Class (JMFC), at Shahuwadi and Shirala of Kolhapur and Sangli Districts respectively, were held unjustifiable and hence, were quashed.

FACTS

i) There is a small tree called Narkya, which is found in the western Ghats of Maharashtra and is called Nothapodyts nimmoniana (formerly known as Mapia foetida). On detection of illicit felling of Narkya trees in Chandoli National Park, Maharashtra in April 2005, about 27 offences were registered and enquired and total 12 Complaints were filed in the Ld. Court of Judicial Magistrate, First Class (JMFC), at Shahuwadi and Shirala of Kolhapur and Sangli Districts respectively.

ii) That the said Complaints were filed against 490 offenders (as many of the Accused were repeated in various cases, the net number of Accused persons came to about 223), for the offences punishable under the provisions of Wildlife (Protection) Act, 1972, the Indian Forest Act,1927, and the Bombay Forest Rules, 1942.

iii) The prime accused in all these cases were Accused No. 1- Jagdish Dhavale and Accused No. 2 – Kasam Chanchal Shaikh. The Investigation Team successfully discovered the entire chain of accused persons involved in the crimes, right from cutting Narkya trees till manufacturing ‘Campothecin’, an alkaloid manufactured out of the wood chips of Narkya trees.

iv) During the investigation of the crimes, various vehicles including animals, weighing machines and mobile phones used in the crimes were seized. Large numbers of bags containing Narkya wood chips worth Lakhs of Rupees were seized from Chandoli National Park and other places. 1110 Kgs of Naykya extract were seized from Hyderabad and Ahmedabad. Further, 22 Kgs of Camptothecin valued at Rs. 44 Lakhs was seized from the Plant of Fresenisu Kabi Oncology Ltd. (formerly known as Dabur Pharma Ltd) at West Bengal and Dr. Jayanta Chattopadhyay, Manager of the said Plant, i.e. the Petitioners herein. It was supplied by the Accused, Coral Drugs Pvt. Ltd.

v) That, 0.250 Kgs. of Camptothecin was seized from the Accused, Coral Drugs Pvt. Ltd. About 4.40 Kgs. of crude Camptothecin worth Rs.44,500/- was seized from Ahmedabad. The seized stolen property comprised of Narkya wood chips, Crude Jelly, Crude Camptothecin and final product Camptothecin. In short, all the above products were derived/extracted from the stolen Narkya wood.

vi) That to get the Camptothecin, the Narkya billets were powdered, then converted to jelly and therefrom, a drug/alkaloid named Camptothecin was derived at Haryana and Delhi and it was sold to the Petitioner No.1 in West Bengal. The Team from Wildlife Department visited the said Plant, explored the nexus and seized the said 22 Kgs. of Camptothecin from the Petitioner No. 1’s Plant. The materials seized were the subject matter of the criminal proceedings in RCC No. 39/2008, SCC No. 183/2006, SCC No. 79/2006, RCC No. 79/2006, RCC No. 46/2007, RCC No. 33/2008, RCC No. 45/07 in the Ld. Court of J.M.F.C., Shirala, Dist. Sangli and J.M.F.C., Shahuwadi, Dist. Kolhapur.

vii) Aggrieved, the Petitioners / Accused persons filed various Petitions under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), seeking quashing and setting aside the criminal cases mentioned hereinabove.

HIGH COURT ANALYSIS

The High Court of Judicature at Bombay, vide Order dated 22.12.2023, made the following observations:

1) The Division Bench considered the decision in the case of Suresh Lohiya vs. State of Maharashtra and anr., [(1996) 10 SCC 397], wherein the Supreme Court observed that,

“we may also state that, according to us the view taken by the Gujarat High Court in Fatesang case (supra) is correct, because though bamboo as a whole is forest produce, if a product, commercially new and distinct, known to the business community as totally different is brought into existence by human labour, such an article and product would cease to be a forest-produce. The definition of this expression leaves nothing to doubt that it would not take within its fold an article or thing which is totally different from, forest produce, having a distinct character”

2) The High Court in view of this observation, held that factually Camptothecin is produced through various chemical processes and the changes were permanent in character, the Division Bench upheld the Judgment of the learned Single Judge and dismissed the FM Appeal No.930 of 2006 filed by the Respondent No. 2- the Forest Control Department. The Respondent No.2 challenged this dismissal before the Apex Court in SLP (Civil) No.21405 of 2012, wherein, after hearing the parties at length, it was held that “on the peculiar facts of this case, the judgment of the High Court does not call for any interference”.

3) Further the Bench observed that once it was authoritatively held by the Apex Court that Camptothecin is not a forest produce, the question of holding otherwise did not arise herein. Hence, the Court held that the subject Camptothecin is not a “Forest Produce”. As a result, prosecution of the Petitioners in the aforementioned Criminal Cases was held unwarranted.

4) That the High Court also observed that in Bharat Bhooshan Aggrawal vs. State ofKerala, [2021 SCC Online SC 881], the Supreme Court held that:

“22. It is noteworthy that, in Suresh Lohiya (supra) this Court made no reference and did not advert to Forest Range Officer vs. P. Mohammed Ali, (reported in 1993 Supp (3) SCC 627). In Suresh Lohiya also, we notice this Court sought to interpret the interplay between “forest produce”, “timber” and “tree” and concluded that articles or products created by human toil are not per se forest products. This Court is of the opinion that the distinction sought to be made defeats the purpose of the Act, because illegally procured forest produce, such as sandalwood, rosewood, or other rare species, and then worked upon, resulting in a product – predominantly based on the essential forest produce, would escape the rigors of the Act. Therefore, Suresh Lohiya cannot be considered a binding authority; its dicta should be understood as confined to the facts of that case. For these reasons, it is held that 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”

5) Further, the High Court held that they cannot take a divergent view that the seized Camptothecin was a “Forest Produce” because in the decision of P. No.21014 (W) of 2005, the Calcutta High Court considered the decision in the case of Mohammed Ali (supra) and then passed the Order which remained intact up-to the Apex Court.

6) The Bench further observed that the Petitioner No.1 was engaged in manufacturing pharmaceutical products relating to cancer treatment. The Petitioner No.2 was the Manager of the Petitioner No.1. The Petitioners had claimed that they had purchased the subject Camptothecin for a total amount of Rs.44,00,000/-. This assertion was not commented against by the Respondent No.2. It was not the case of the Respondents that the invoices produced by the Petitioner, were false. Further, the Letter dated 16.07.2005 executed by the Respondent No.2 clearly mentioned that the Camptothecin was delivered to the Petitioner No.1 by M/s. Coral Durgs Pvt. Ltd. under its three Invoices, (i) dated 09.04.2005 -10Kgs, (ii) dated 28.05.2005-10 Kgs and (iii) dated 09.07.2005- 2 Kgs. There was no material against the Petitioners which showed that before purchasing and till receiving said Camptothecin, they knew that it was derived/extracted from the chips of the stolen Narkya trees. Therefore, the learned Single Judge of the Calcutta High Court observed that, the submission on behalf of Petitioner No.1 that it was a bonafide purchaser for value without notice remained unshaken. That apart, it was highly improbable that Petitioner No.1 Company would buy an illegal “Forest Produce” for such a huge price, that too at the risk of its prosecution for serious offences. Subsequently, in the above background also, the prosecution of the Petitioner in the cases RCC No. 39/2008, SCC No. 183/2006, SCC No. 79/2006, RCC No. 79/2006, RCC No. 46/2007, RCC No. 33/2008, RCC No. 45/07 was not justifiable in law.

CONCLUSION

The High Court Judicature at Bombay held that the continuation of the cases registered against the Petitioners at the instance of the Respondent No. 2 would be an abuse of the process of the law. Therefore, the cases, RCC No. 39/2008, SCC No. 183/2006, SCC No. 79/2006, RCC No. 79/2006, RCC No. 46/2007, RCC No. 33/2008, RCC No. 45/07 filed against the Petitioners, were liable to be quashed and set aside. Thus, the Petitions seeking quashing of the Criminal Cases filed against the Petitioners, were, thereby, allowed.

 

Kartik Khandekar

Associate

The Indian Lawyer