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Karnataka High Court · body

2013 DIGILAW 927 (KAR)

Abdul Khader v. State of Karnataka

2013-08-14

A.S.PACHHAPURE

body2013
Judgment : 1. The appellants have challenged their conviction and sentence for the offence punishable under Section 87 of the Karnataka Forest Act (hereinafter called as 'the Act' for short) on a trial held by the learned Sessions Judge, Udupi. 2. The facts reveal that PW1 - Raghava, the Sub Inspector of Police, Kundapur Police Station was on rounds in a departmental jeep and on 07.06.2006 at about 5.00 p.m., when PW2 - Jayaramashetty, PW3 -Gopala Poojary and others went near Basrur Murukai Junction, they observed the appellants with gunny bags and suspecting an unlawful act stopped them and when they started running away by throwing gunny bags, they chased and caught them. On inspection of the bags, one bag was containing 8 sandalwood pieces, another 7 pieces and they were weighing 23.400kgs. The appellants were arrested on the spot and mahazar (Ex.P1) was drawn in the presence of PW4 and others and a case was registered against the appellants for the offence punishable under Sections 86 and 87 of the Act. During the course of investigation, statements was recorded, the seized sandalwood pieces were sent for examination and confirmation letter (Ex.P5) was obtained. After complying the formalities, chargesheet was laid against the appellants for the aforesaid charges. During the trial, prosecution examined PWs.1 to 4, got marked documents Exs.P1 to P6 and Mos.1 to 3. After recording the statement of appellants under Section 313 Cr.P.C. as no defence evidence was led, the Trial Court heard the respective counsel and on appreciation of the material on record, convicted the appellants for the charge under Section 87 of the Act and they were ordered to undergo imprisonment for five years and to pay fine of Rs.50,000/- each in default to undergo simple imprisonment for six months. It is against the conviction and sentence, the present appeal is filed. 3. I have heard learned Counsel for the appellants and learned High Court Government Pleader. 4. It is against the conviction and sentence, the present appeal is filed. 3. I have heard learned Counsel for the appellants and learned High Court Government Pleader. 4. Learned Counsel for the appellants would contend that the evidence of PWs.1 to 3 do not inspire confidence of the Court and he submits that Ex.P5 -the confirmation letter said to have been issued by the Assistant Conservator of Forest cannot be looked into for the sole reason that officer who has issued certificate had no authority by the State Government to issue such certificate and therefore, he claims that there is violation of Section 62(C) of the Act. Therefore, on this ground, he seeks an order of acquittal. 5. On the other hand, learned High Court Government Pleader supporting the judgment and order of the Court below submits that in case, if the certificate was to be doubted, learned Sessions Judge would have called upon the prosecutor to examine the author of Ex.P5 to satisfy himself about the authority and as the accused did not avail this opportunity, he submits that impugned order cannot be interfered with. 6. Now, as could be seen from the provisions of Section 62(c) of the Act, if a certificate is produced which is 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 if he is authorized by the State Government, such certificate could be used as evidence of the facts stated in it. But, if any doubt arises, the provision confers discretion on the Court to direct either the prosecutor or the accused to file an application and the author could be examined by the Court to prove the contents of the said certificate. 7. Perusal of Ex.P5 would reveal that the certificate has been issued by the Assistant Conservator of Forest, Kundapur and the said officer is above the rank of Range Forest Officer and therefore, in case if he is authorized by the State Government and if he has training as contemplated under the said provision, he can issue the certificate. Perusal of Ex.P5 further reveals the specific mention of the fact that he had training in wood identification and he has certified the seized wood as sandalwood pieces. 8. Perusal of Ex.P5 further reveals the specific mention of the fact that he had training in wood identification and he has certified the seized wood as sandalwood pieces. 8. Then the only question that remains for consideration is "Whether there is any notification by the State Government authorizing the author of Ex.P5, the Assistant Conservator of Forest to issue such certificate or not?" The above point could have been verified by the learned Sessions Judge by securing the notification or in case, if needed, the author of Ex.P5 could have been examined when the provisions of Section 62(c) of the Act confers discretion on him to examine the officer who has issued such certificate. Having not exercised this discretion, the Trial Court has committed an error in believing the certificate Ex.P5. Therefore, I am of the opinion that it is a fit case where the matter has to be remitted to the Trial Court with a direction to examine the author of Ex.P5 and also to satisfy itself as to whether he had any authority from the State Government to issue such certificate. 9. In the result, the appeal is allowed. The judgment and order convicting the appellants for the charge under Section 87 of the Act and sentence thereon is set aside and the matter is remitted back to the Trial Court to examine the author of Ex.P5 i.e., the Assistant Conservator of Forest to satisfy itself whether he had any such authority and to dispose of the case in accordance with law.