Bombay High Court
Fresenius Kabi Oncology Ltd And Anr vs The State Of Maharashtra And Anr on 22 December, 2023
Author: A. S. Gadkari
Bench: A. S. Gadkari
2023:BHC-AS:39646
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 667 OF 2010
WITH
CRIMINAL WRIT PETITION NO. 668 OF 2010
WITH
CRIMINAL WRIT PETITION NO. 3285 OF 2010
WITH
CRIMINAL WRIT PETITION NO. 3425 OF 2011
WITH
CRIMINAL WRIT PETITION NO. 3426 OF 2011
WITH
CRIMINAL WRIT PETITION NO. 3427 OF 2011
WITH
CRIMINAL WRIT PETITION NO. 3428 OF 2011
1. Fresenisu Kabi Oncology Ltd.
Formerly known as Dabur Pharma Ltd.,
a Company Duly registered under the Companies
Act, 1956, having its registered office at B-310,
Som Datt Chabers-I Bhikaji Cama Place
New Delhi - 110 066.
2. Dr. Jayanta Chattopadhyay
Site Head - (Factory Manager) Fresenius
Kabi Oncology Ltd. Formerly Known as
Dabur Pharma Ltd. Kalyani Plant,
West Bengal .. Petitioners
Versus
Digitally
1/18
signed by
VAISHALI VAISHALI
ANIL TIKAM
ANIL Date:
TIKAM 2023.12.28
12:58:56
+0530
::: Uploaded on - 28/12/2023 ::: Downloaded on - 02/03/2024 01:43:30 :::
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
1. The State of Maharashtra
Through the Public Prosecutor
High Court (A.S.), Bombay.
2. Conservator of Forests
Kolhapur Wild Life
Kolhapur - 416 003, Maharashtra .. Respondents
Mr. Subhash Jha, a/w. Venkita Subramaniam, Meena Mishra, M. Sheth,
Krunal Jadhav, Ritesh Kesarwani, Shraddha Kataria and Praveena
Venkatraman, i/b. Law Global, Advocates for the Petitioners in all Petitions.
Ms. Mahalakshmi Ganpathy, APP for the Respondent-State.
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 3rd NOVEMBER, 2023.
PRONOUNCED ON : 22nd DECEMBER, 2023.
JUDGMENT [PER: SHYAM C. CHANDAK, J.]
1) Present Petitions are filed under Article 226 of the Constitution
of India read with Section 482 of the Criminal Procedure Code, (Cr.P.C.),
seeking to quash and set aside the criminal cases mentioned in the chart
hereinbelow, wherein the Petitioners have been made accused. The offences
alleged against the Petitioners are same and/or similar. Only distinction is
that the theft of the subject matter "Forest Produce" has been committed at
different locations of the forest/non-forest land of the Respondents. For the
sake of brevity, a chart showing C.R. No.; Case No.; Accused Nos. and
Sections of the Acts applied is given hereunder.
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
1) CWP J.M.F.C. Court, Accused The Wildlife Protection Act 1972:
667/2010 at Shirala. Nos. Secs. 27, 29,30,31,35,39,50,51 & 52.
108 & Indian Forest Act 1927:
109 Secs. 26 (1) a, c, d, f, 41 and 42(e)(h)
RCC No. The Indian Penal Code:
39/2008 Secs. 107, 117 and 120-A
The Bombay Forest Rules, 1942:
Rules 66 & 129.
2) CWP J.M.F.C. Court, Accused The Wildlife Protection Act 1972:
668/2010 at Shirala. Nos. Secs. 27, 29,30,31,35,39,50,51 & 52.
42 & 43 Indian Forest Act 1927:
SCC No. Secs. 26 (1) a, c, d, f, 41 and 42.
183/2006 The Indian Penal Code:
Secs. 107, 117 and 120-A.
The Bombay Forest Rules, 1942:
Rules 66 & 129.
3) CWP J.M.F.C. Court, Accused The Wildlife Protection Act 1972:
3285/2010 at Malkapur, Nos. Secs .27, 29,30,31,35,39,50,51 & 52.
Shahuwadi 49 & 50 Indian Forest Act 1927:
Secs. 26(1)a, c, f, 41 and 42.
SCC No. The Indian Penal Code:
79/2006 Secs. 107, 117 and 120-A.
The Bombay Forest Rules, 1942:
Rules 66 & 129.
4) CWP J.M.F.C. Court, Accused The Wildlife Protection Act 1972:
3425/2011 at Malkapur, Nos. Secs. 27, 29,30,31,35,39,50,51 & 52.
Shahuwadi 43 & 44 Indian Forest Act 1927:
Secs. 26 (1) a, c, f, 41 and 42.
RCC No. The Indian Penal Code:
79/2006 Secs. 107, 117 and 120-A.
The Bombay Forest Rules, 1942:
Rules 66 & 129.
5) CWP J.M.F.C. Court, Accused The Wildlife Protection Act 1972:
3426/2011 at Malkapur, Nos. Secs. 27, 29,30,31,35,39,50,51 & 52.
Shahuwadi 21 & 22 Indian Forest Act 1927:
Secs. 26(1) a, c, d, f, 41 and 42.
RCC No. The Indian Penal Code:
46/2007 Secs. 107, 117 and 120-A.
The Bombay Forest Rules, 1942:
Rules 66 & 129.
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
6) CWP J.M.F.C. Court, Accused The Wildlife Protection Act 1972:
3427/2011 at Shirala Nos. Secs.27, 29,30,31,35,39,50,51 & 52.
62 & 63 Indian Forest Act 1927:
RCC No. Secs. 26 (1) a, b, c, d, f, 41 and 42.
33/2008 The Indian Penal Code:
Secs. 107, 117 and 120-A, 120-B.
The Bombay Forest Rules, 1942:
Rule 129.
7) CWP J.M.F.C. Court,
Accused The Wildlife Protection Act 1972:
3428/2011 at Malkapur, Nos. Secs.27, 29,30,31,35,39,50,51 & 52.
Shahuwadi 21 & 22 Indian Forest Act 1927:
Secs. 26 (1)a, c, d, f, 41 and 42.
RCC No. 45/07 The Indian Penal Code:
Secs. 107, 117 and 120-A.
The Bombay Forest Rules, 1942:
Rules. 66 & 129.
2) Heard Shri Subhash Jha, learned counsel for the Petitioners and
Ms. Mahalakshmi Ganpathy, learned APP for the Respondents-State. Perused
the Petitions, the documents annexed thereto and the affidavit-in-reply by
Respondent No.2. All the Petitions have been opposed by Respondent No.2
by its common affidavit-in-reply, filed in W.P. No.668 of 2010.
2.1) In the first six Petitions, Rule was issued on 22 nd February, 2013
and in the last petition on 9th July, 2013.
3) The prosecution case giving rise to filing of these Petitions, as
can be discerned and briefly stated as under:-
3.1) Narkya is a small tree, found in the western Ghats of
Maharashtra. It is called Nothapodyts nimmoniana (formerly known as
Mapia foetida). On detection of illicit felling of Narkya trees in Chandoli
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
National Park in April 2005, preliminary, 27 offences were registered,
enquired and total 12 complaints have been filed in the Court of Judicial
Magistrate, First Class, at Shahuwadi and Shirala of Kolhapur and Sangli
Districts respectively against total 490 offenders (since many of the accused
are repeated in various cases, the net numbers of accused is about 223), for
the offences punishable under the provisions of the Wildlife (Protection) Act,
1972, the Indian Forest Act, 1927 and the Bombay Forest Rules, 1942.
3.2) The prime accused in all these cases are 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 the Narkya trees up-to manufacturing the
Camptothecin from its chips.
3.3) During investigation of the crimes, various vehicles including
animals, weighing machines, mobile phones used in the crimes were seized.
Large numbers of bags containing Narkya wood chips worth lacs of rupees
were seized from Chandoli National Park and other places. 1110 Kgs. of
Naykya extract were seized from Hyderabad and Ahmedabad. 22 Kgs. of
Camptothecin valued at Rs.44.00 lacs were seized from the plant of the
Petitioners, at West Bengal. It was supplied to them by the accused Coral
Drugs Pvt. Ltd. That, 0.250 Kgs. of Camptothecin was seized from Coral
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
Drugs Pvt. Ltd. About 4.40 Kgs. of crude Camptothecin worth Rs.44,500/-
were seized from Ahmedabad. Thus, 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.
3.4) To get the Camptothecin, the Narkya billets were powdered,
then converted to jelly and therefrom drug/alkaloid Camptothecin was
derived at Harayana and Delhi and it was sold to 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. The materials seized
are the subject matter of the criminal proceedings in the Court of J.M.F.C.,
Shirala, Dist. Sangli and J.M.F.C., Shahuwadi, Dist. Kolhapur. The companies
namely Universal Chemical Industries, Hyderabad, Somaiya Farms and
Organic Products Pvt. Ltd., Gujarat and Naturite Agro Products, Hyderabad
are also accused in the cases.
Submissions:
4) Mr. Jha, learned counsel for the Petitioners submitted that,
various processes are adopted for bringing about the requisite chemical
change i.e. Camptothecin from the original raw material Mappi Foetida
(Narkya), which is a "Forest Produce". He submitted that, Camptothecin
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
being the finished product does not retain the original character and
properties of the basic "Forest Produce". Therefore, the Camptothecin is not
a "Forest Produce", as defined in the Forest Act. To accept this argument, Mr.
Jha, learned counsel has referred the Order of the Calcutta High Court
passed by the learned Single Judge in W.P. No.21014 (W) of 2005. Further,
Mr. Jha, learned counsel referred the Order of the Division Bench in FM
Appeal No.930 of 2006 which upheld the Order of the Single Judge and
pointed us the flow chart as to how Camptothecin is isolated from Narkya
trees. This chart was discussed in the judgment by the Division Bench.
Lastly; the learned counsel submitted that the Order of the Division Bench
has not been interfered with by the Apex Court when it was challenged by
Respondent No.2 in SLP (Civil) No.21405 of 2012.
4.1) Mr. Jha, learned counsel for the Petitioners submitted that, there
are many accused in the said cases. As alleged, Accused Nos.1 and 2 are
mainly responsible for arranging labours, causing them to cut the Narkya
trees, making its chips, transporting it to various places with the help of
certain other accused persons and then reaching it to various companies for
further processing and to extract from it the medicinal essence and powder
Camptothecin. But the Petitioners were not at all involved in this entire
process or combinations of the acts for that matter. What is alleged against
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the Petitioners is that, they purchased total 22 Kgs. of fine Camptothecin
from Coral Drugs Pvt. Ltd., but without verifying as to whether said
Camptothecin was extract of the stolen trees or not. However, the invoices
produced on record clearly indicate that, said Camptothecin was purchased
by the Petitioners for its then market price totaling to Rs.44,00,000/-. That
apart, there is no material showing that when the Petitioners purchased said
22 Kgs. of Camptothecin, they knew that it is extracted from the stolen
forest produce. Thus, the Petitioners are the bonafide purchasers of
Camptothecin and are innocent. Nevertheless, the Petitioners have been
made accused and prosecuted, which is illegal. Hence, all the Petitions may
be allowed.
4.2) To support his submissions, Mr. Jha, learned counsel has relied
upon the following decisions.
1. Forest Range Officer & Ors. Vs. P. Mohd Ali & Ors., [1993 Supp (3) SCC
627],
2. State of M.P. Vs. S.P. Sales Agencies & Ors. [(2004) 4 SCC 448],
3. Fatesang Gimba Vasava & Ors. Vs. State of Gujarat & Ors., [1986 SCC
Online Guj 34.],
4. Suresh Lohiya Vs. State of Maharashtra & Anr., [(1996)10 SCC 397],
5. Tej Bahadur Dube (Dead) By Lrs. Vs. Forest Range Officers (S.W.)
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
Hyderabad, [(2003) 3 SCC 122],
6. Madhavrao Jiwajirao Scindia & Ors. Vs. Sambhajirao Chandrojirao Angre
& Ors., [(1988) 1 SCC 692],
7. Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar & Anr., [(2010) 10
SCC 673] and
8. Rajiv Thapar & Ors. Vs. Madanlal Kapoor., [(2013) 3 SCC 330]
5) In contrast, Ms. Mahalakshmi Ganpathy, learned APP submitted
that, it is not disputed by the Petitioners that, the Camptothecin in question
was seized from them and it is extracted from the Narkya trees, illegally cut
and stolen from the forest areas. Looking at the process of making the
Camptothecin, it is apparent that except changing the chips of the stolen
trees into the Camptothecin, no other change occurred thereto. Therefore,
the seized Camptothecin is falling within the expression "Forest Produce".
Any other interpretation would defeat the very object of the Forest Act. The
relevant presumption is against the Petitioners. As such, there is no
substance in the submissions put forward for the Petitioners. Hence, all the
Petitions may be dismissed.
6) The Petitioners have not disputed that, said 22 Kgs. of
Camptothecin was seized kept aside. Respondent No.2 did not offer any
comment as to the averment by the Petitioners that they had purchased the
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
seized Camptothecin for total amount of Rs.44 lacs from the accused M/s.
Coral Drugs Pvt. Ltd., under the invoices at pg. Nos.79 and 80 in Cril. W.P.
No.3426 of 2011 (one invoice is not produced). Therefore, and looking at
the rival arguments, first; it must be seen as to whether the seized
Camptothecin is a "Forest Produce" or not. The inclusive definition of "Forest
Produce" as mentioned in Section 2, sub-Section (4) of the Indian Forest Act,
is as follows:
"Forest-produce" includes--
(a) the following whether found in, or brought from, a forest or not, that is
to say-- timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural
varnish, bark, lac, mahua flowers, mahua seeds, 3 [kuth] and myrabolams,
and
(b) the following when found in, or brought from a forest, that is to say--
(i) trees and leaves, flowers and fruits, and all other parts or produce not
hereinbefore mentioned, of trees,
(ii) plants not being trees (including grass, creepers, reeds and moss), and
all parts or produce of such plants,
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and
wax, and all other parts or produce of animals, and
(iv) peat, surface soil, rock and minerals (including lime-stone, laterite,
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
mineral oils, and all products of mines or quarries);
7) In this context it is material to note that, during investigation,
Respondent No.2 wrote a letter dated 16 th July, 2005 to Petitioner No.1 to
dispatch said 22 Kgs. of Camptothecin to the Forest Department, claiming
that it is a stolen "Forest Produce". In turn, Petitioner No.1, through
Petitioner No.2, gave a reply dated 19 th July, 2005, that it received the said
Camptothecin under purchase Order for price. Hence, it is no way connected
with the raw material sourcing of its suppliers. That, Camptothecin is highly
toxic and hazardous, hence needs special arrangement to carry. Therefore, it
was requested to take samples of the same and to allow the Petitioners to
keep aside that Camptothecin in their custody. Then, on 19 th July, 2005 the
Camptothecin was kept aside as per direction of Respondent No.2. On 5 th
September, 2005, Petitioner No.1 wrote a letter and informed to Respondent
No.2 that the subject Camptothecin is an essential raw material for some of
its products. It has a definite shelf life. Hence, it was requested to allow the
Petitioners to consume the Camptothecin. This letter did not get reply in
time from Respondent No. 2. Therefore, Petitioner No.1 filed a W.P.
No.21014 (W) of 2005 before the Calcutta High Court, wherein, the learned
Single Judge held that Camptothecin is not a "Forest Produce". The
submission on behalf of Petitioner No.1 that, it was bonafide purchase for
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
value without notice remained unshaken. The Camptothecin was not seized.
Hence, said letter dated 19th July, 2005 was quashed. The said Order was
challenged by Respondent No.2 in FM Appeal No.930 of 2006, wherein, the
Division Bench considered the definition of the "Forest Produce" and as to
how Camptothecin is isolated from Narkya tree and held that, it cannot be
said to be a forest produce within the definition of forest produce. The
Division Bench has referred in its Order the following flow chart showing the
derivation/isolation of Camptothecin.
FLOW CHART FOR ISOLATION OF CAMPTOTHECIN
Booty (Mappia Foetida booty grounded)
MENTHAOL
EXTRACT METHANOL SYRUP
SYRUP + CHLORINATED
SOLVENTS
CHLORINATED SOLVENT SYRUP
CRUDE CAKE
PURIFICATION IN METHANOL +
CHLOROFORM
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
CONCENTRATION
CONCENTRATION
WET CAMPTOTHECIN
PURE DRY CAMPTOTHECIN
PACKING
8) In view of this chart, the Division Bench observed that,
"12.... said chart depicts that, Mappi Foetida no doubt is used as a raw
material. The said raw material is transformed to a finished product with
various chemical processes, changing other foreign materials in the manner
as follows.
"Mapia Foetida is grounded first with methanol. The extract of methanol
with Mapia Foetida is collected. Then the syrup is mixed with chlorinated
solvent to make a solution. Thereafter, crude cake is manufactured and/or
prepared from this solution. After purification of the crude cake in methanol
and chloroform, there is a process of concentration and filtering and then
V.A. Tikam 63-wp-667-2010 Final Common Judgment.doc
wet Camptothecin is brought about. The wet Camptothecin is dried and then
packed.
13. Thus, it is quite clear that, the original forest produce being the
raw material has to pass through a change. Science says, when there is a
chemical change, the ingredients used in the process lose its character and
transformed into a different component altogether, unlike physical changes,
e.g. once water is vapourised, until and unless the vapour is cooled, the
water remains in gaseous form. But once the cooling process is started, the
water can be brought back easily.
14. It is well known, there is a difference between physical change and
chemical change. Physical change can be brought about easily and at the
same time, the original material can also be brought back easily, but it is not
possible in the case chemical change.
15. Hence, it is an unacceptable argument, that Camptothecin retains
the original character of Mapia Foetida. According to us, Mapia Foetida is
not Camptothecin and it is a raw material".
9) In this regard, the Division bench considered the decision in the
case of Suresh Lohiya vs. State of Maharashtra and anr ., [(1996) 10 SCC
397], wherein the Hon'ble Supreme Court observed that, " we may also state
that, according to us the view taken by the Gujarat High Court in
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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". In view of this observations, that
factually Camptothecin is produced through various chemical process and
the changes are permanent in character, the Division Bench upheld the
Judgment of the learned single Judge and dismissed the FM Appeal No.930
of 2006. 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
is held that "on the peculiar facts of this case, the judgment of the High
Court does not call for any interference".
10) Thus, once it is authoritatively held by the Apex Court that
Camptothecin is not a forest produce, question of holding otherwise does
not arise herein. Hence, we hold that, the subject Camptothecin is not a
"Forest Produce". In this background, prosecution of the Petitioners in
impugned criminal cases is unwarranted.
11) No doubt, in the case of Bharat Bhooshan Aggrawal vs. State of
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Kerala, [2021 SCC Online SC 881], cited by learned APP, it is 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 ".
12) Nevertheless, in the case in hand, we cannot take a divergent
view that, the seized Camptothecin is a "Forest Produce" because in the
decision of W.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.
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13) Be that as it may, admittedly, Petitioner No.1 is engaged in
manufacturing pharmaceutical products related to cancer treatment.
Petitioner No.2 is Manager of Petitioner No.1. The Petitioners have claimed
that they had purchased the subject Camptothecin for total amount of
Rs.44,00,000/-. This assertion is not commented against by Respondent
No.2. It is not the case of the Respondents that the invoices produced by the
Petitioner, are false. On the contrary, the letter dated16th July, 2005 by
Respondent No.2 clearly mentions that the Camptothecin was delivered to
Petitioner No.1 by M/s. Coral Durgs Pvt. Ltd. under its said three invoices
(dated 09.04.2005 -10Kgs, 28.05.2005-10 Kgs and 09.07.2005- 2 Kgs.).
There is no material against the Petitioners showing 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 bonafide purchaser for
value without notice remained unshaken. That apart, it is 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.
Hence, in the above background also the prosecution of the Petitioner in the
aforesaid cases, is not justifiable in law.
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14) In the backdrop of the discussion, we are of the considered view
that continuation of the impugned cases registered against the Petitioners at
the instance of Respondent No.2 would be abuse of the process of law.
Hence, the abovementioned offences in the chart at Page Nos.3 & 4 are
liable to be quashed and are accordingly quashed and set aside.
15) All the petitions are allowed in the above terms.
16) Rule is made absolute in all the Petitions.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
