Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 80 (KAR)

ABDULGAFUR ABDULGANI SHUNTI v. STATE OF KARNATAKA

2013-01-17

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This criminal appeal is filed under Section 374 Cr.P.C. against the judgment dt. 17.12.2007 passed by the Dist. & S.J., U.K, Karwar in S.C. No. 8/2006 convicting the appellants for the offence punishable under Section 86 of Karnataka Forest Act, and etc.1. This appeal is filed challenging the judgment dated 17.12.2007 passed in S.C. No. 8/2006 by the learned Sessions Judge, U.K, Karwar, convicting the appellants of the offence under Section 86 of the Karnataka Forest Act (hereinafter referred to as 'K.F. Act' for brevity) and sentencing them to undergo R.I. for 7 years and 6 months and to pay a fine of Rs. 3,000/- each, in default of payment of fine to undergo imprisonment for a period of 3 months. 2. It is the case of the prosecution that on 30.06.2005 at about 7.15 p.m. at Sirsi-Karigundi road, the appellants were found transporting sandal wood of 5 kgs worth Rs. 4,000/- without having valid permit, thereby they are alleged to have committed the offence under Section 86 of K.F. Act. 3. After securing the presence of the accused before the Court, the prosecution in order to prove the case has examined in all 4 witnesses and got marked documents as per Ex.P.1 to 4 and produced samples of billets at M.O.1 to 4. The defence of the accused was one of total denial, however, by the judgment impugned in this appeal, the learned Sessions Judge was pleased to convict the appellants herein and sentenced them as aforesaid. Being aggrieved by the said order of conviction and sentence, the accused have filed this appeal. 4. Heard Sri Ganapathi Bhat, learned counsel for the appellants and Sri Banakar, learned S.P.P. for the State. 5. Learned counsel appearing for the appellants submit that that the prosecution has not adduced any independent evidence and that the witnesses examined by the prosecution are only the official witnesses. It is further submitted by him that at the time when the offence was committed, it was a busy road and therefore there would naturally be some independent persons. Since no independent witnesses are examined by the prosecution, the accused are entitled for an acquittal. It is further submitted by him that PW2 is the officer who has given a certificate as per Ex.P.1 to the effect that the seized material is sandalwood. Since no independent witnesses are examined by the prosecution, the accused are entitled for an acquittal. It is further submitted by him that PW2 is the officer who has given a certificate as per Ex.P.1 to the effect that the seized material is sandalwood. However, P.W.2 has not given any authorization as required under Section 62(c) of the K.F. Act authorizing him to issue certificates after testing the wood as sandalwood. In the absence of authorization given to him by the State to issue such a certificate, the very conviction is bad in law. He has cited a ruling reported in 2010 (3) AIR Kar. R. 110 (Raghavendrachari vs. State of Karnataka) wherein it is stated as under: "Forest Act (16 of 1927), Sections 62C and 87-Illegal transportation of sandalwood billets-Conviction under Section 87 of Act-Challenge as to-Sandalwood alleged to have been seized from accused from check post by Range Officer-Seized material examined by Assistant Forest Conservator and he issued a certificate-However, no independent witness examined in support of prosecution other than concerned officials-Also certificate has not been issued by authorized officer as prescribed under Section 62C of Act, which cannot be relied on-Nothing on record to connect guilt with accused-Accused was given benefit of doubt and acquitted." He further submits that the prosecution has not proved the case against the appellants beyond reasonable doubt. Hence he submits that the accused may be acquitted by allowing this appeal. 6. Sri Banakar, learned S.P.P. for the State, on the other hand submits that the prosecution has examined P.W.1 who has stated that on the date of offence the accused-appellants were found in possession of Sandalwood without any valid permit or licence and therefore they have committed the offence under Section 86 of K.F. Act. There is no animosity between the accused and the prosecution witnesses so as to falsely implicate these appellants. He submits that the learned Sessions Judge has rightly believed the evidence of PW1 to 4 and there is no ground to disbelieve the evidence of PW1 to 4. Hence he submits that the order of conviction may be sustained. 7. I have perused the records of the case carefully. 8. P.W.1-Venkatesh is the Constable of Sirsi New Market Police Station. He has deposed before the Court that on 30.06.2005 on receipt of credible information, he accompanied the PSI of his Station near one place called Karigundi. Hence he submits that the order of conviction may be sustained. 7. I have perused the records of the case carefully. 8. P.W.1-Venkatesh is the Constable of Sirsi New Market Police Station. He has deposed before the Court that on 30.06.2005 on receipt of credible information, he accompanied the PSI of his Station near one place called Karigundi. When the jeep arrived at the spot, two persons were running from the scene and they are the accused present before the Court. The Police Jeep followed the said two persons and they were apprehended and while checking the bag in the possession of the accused it was found that there were Sandalwood chips, the same were seized and a mahazar has been recorded. In the cross-examination it is elicited that the said scene of occurrence is 1 km away from the Police Station. It is further elicited that at the time of apprehension of the accused there was vehicle traffic as well as the persons were moving on the road. It is also elicited that there are shops and houses around the scene of occurrence, however, it is elicited that no seal has been put on the property to show that the said property has been seized at the scene of occurrence. It is also further elicited that no chit has been stuck on the sandalwood billets to show that the said billets were seized at the scene of occurrence. He does not remember as to how many persons were there at the spot, however, he has stated that when they apprehended the accused there were no other persons. He further states that he is not aware as to what type of dress the accused were wearing at the time of offence. P.W.1 has denied the suggestion that no forest produce has been seized at the spot. 9. P.W.2-Shashidhar Hegde is the Assistant Conservator of Forest. He has stated before the Court that he is working as a Forest Officer and he has tested the sandalwood billets and issued a certificate as per Ex.P.1. His signature is marked as Ex.P.1(a). In the cross-examination he has admitted that only because there is smell of sandalwood oil, the wood cannot be classified as sandalwood. It is suggested to him that he has not tested any sandalwood billets. 10. His signature is marked as Ex.P.1(a). In the cross-examination he has admitted that only because there is smell of sandalwood oil, the wood cannot be classified as sandalwood. It is suggested to him that he has not tested any sandalwood billets. 10. P.W.3-Sathish has stated that on the date of incident the Police called him to the Police Station to accompany them for conducting araid. When they reached the Sirsi-Karigundi road two persons started running with a white bag in their hands. On enquiry it was found that that there were sandalwood billets of about 3 kgs weight. Another person was in possession of about 2 kg of Sandalwood. The said Sandalwood is seized. Thereafter the panchanama as per Ex.P.2 has been drawn. He has identified the accused as the persons who are present and who ran away from the scene of occurrence and subsequently were apprehended. The answers elicited through P.W.1 are also elicited from this witness and also regarding the availability of independent witnesses around. 11. P.W.4 is the PSI of Sirsi Market Police Station, who was also present at the time of raid and apprehension of the accused along with sandalwood billets. He has also stated regarding the possession of bag with A1 and A2 and the Sandalwood in the said bags. The accused when questioned have denied their complicity in the crime and they have stated that no Sandalwood has been seized from the possession nor they are transporting any sandalwood billets, however, by the judgment impugned, the learned Sessions Judge has convicted the appellants as aforesaid and sentenced them accordingly. 12. The accused when questioned have denied their complicity in the crime and they have stated that no Sandalwood has been seized from the possession nor they are transporting any sandalwood billets, however, by the judgment impugned, the learned Sessions Judge has convicted the appellants as aforesaid and sentenced them accordingly. 12. On a careful consideration of the entire material on record, it is seen that at the very outset, the prosecution has not complied with the mandatory provisions of Section 62(c) of the K.F. Act, Section 62(c) of the K.F., Act reads as under: "Certificate of Forest Officer to be an evidence.-Any document purporting to be a certificate under the hand of a Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce and who is so authorized by the State Government in this behalf in respect of forest produce, submitted to him for examination and report, may be used as evidence of the facts stated in such certificate in any proceedings under this Act, but the Court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Forest Officer as to the subject matter of his certificate". 13. It is seen that PW2 has given a certificate as per Ex.P.1 to indicate that the seized material is the Sandalwood. However, there is no authorization by the Government authorizing PW2 to issue such a certificate. Hence no reliance can be placed on Ex.P.1. Unless it is proved that the materials seized is Sandalwood, no person can be convicted under Section 86 of the Act. In that view of the matter, relying on the ruling reported in 2010 (3) AIR Kar R 110, I am of the opinion that the prosecution has not proved its case against the accused beyond reasonable doubt and hence the accused are entitled for an order of acquittal. Accordingly, the following order is passed. ORDER The appeal is allowed. The order of conviction and sentence passed against the accused is hereby set aside and the accused are acquitted of the offences leveled against them. The bail bonds executed by the accused is hereby cancelled. The fine amount, if deposited, shall be refunded to them.