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Karnataka High Court · body

2013 DIGILAW 959 (KAR)

T. R. Shanmukha v. State of Karnataka

2013-08-21

B.V.PINTO

body2013
Judgment : 1. This appeal is filed challenging the Judgment dated 31.7.2008 passed by the Sessions Judge, I Fast Track Court, Shimoga in S.C.No.239/2006, convicting the appellants for the offence under Section 87 of Karnataka Forest Act and sentencing each of them to undergo S.I. for a period of five years and to pay a fine of Rs.50,000/-in default of payment of fine to undergo S.I. for one year. 2. It is the case of the prosecution that on 15.6.2003 at about 10.30 p.m. the appellant along with accused No.3 with common intention were found in possession and transportation of 101 Kgs of sandal wood billets in Maruti 800 Car bearing Registration No.KL-1O-M- 9129 on Bobbi Neratur Road, without valid permit, thereby they are alleged to have committed an offence under Section 87 of Karnataka Forest Act. 3. The prosecution in order to prove the case against the accused has examined in all 3 witnesses; got marked Exs.P1 to P10 and produced MO.1-sample Sandal wood piece. The defence of the accused was one of total denial. However, by the impugned Judgment, the learned Sessions Judge was pleased to convict the appellants and sentenced them as aforesaid while acquitting accused No.3 of the charges leveled against him. The convicted accused have filed this appeal. 4. The prosecution in this case has commenced on the basis of a mahazar drawn by PW.1 on 15.6.2003 at 10.45 p.m. to 00.45 a.m. (midnight) on 16.6.2013 in which it is stated that on that day, the Range Forest Officer, Thirthahalli on credible information regarding transportation of illicit sandal wood on the Bobbi Neratur Road went on a raid along with the staff in the departmental jeep and at about 10.30 p.m. while they were so moving, he found a Maruti vehicle coming from Neratur side and when they gave a stop signal, the Car was not stopped. Thereafter, they chased the said vehicle in the jeep and about 1 km away the Maruti Van dashed against the tree and at that time all the accused came out of the Car and ran away. However, accused Nos.1 and 2 were caught hold of, but accused No.3 escaped in the darkness. Thereafter, they were brought near the vehicle and when inspected it was found that there were 50 sandal wood pieces in the said vehicle. However, accused Nos.1 and 2 were caught hold of, but accused No.3 escaped in the darkness. Thereafter, they were brought near the vehicle and when inspected it was found that there were 50 sandal wood pieces in the said vehicle. The vehicle was a red coloured Maruti 800 Car but was having two different number plates on either side. The accused had no licence or permit to possess the sandal wood and therefore they were apprehended and mahazar as per Ex.P2 was drawn. PW.1 thereafter made entry in the Mahazar about the measurements of each piece of sandalwood and thereafter forwarded the same to the concerned authorities for taking action according to law. The case in FOC No.21/03-04 was registered and the information was sent to the Court. Thereafter investigation was commenced. Based on the information given by accused Nos.1 and 2, accused No.3 was traced and he was also apprehended. Thereafter charge sheet was filed. 5. In the court, PW.1-T.P.Shivaiah has been examined to prove the seizure of sandal wood and the Car. He has clearly stated regarding the apprehension of the accused after being chased in their departmental jeep and when the Maruti Car Collided with the standing tree by the side of the road, accused tried to escape from the scene of occurrence. He has also stated before the Court that accused Nos.1 and 2 were caught about 1 km away from the place, where the Car was abandoned and the accused was brought back to the place, where the Car was abandoned by the accused and thereafter in the presence of accused Nos.1 and 2, the car was inspected and that the said Car contained the forest produce, which was identified as sandalwood. He has stated that there were 50 pieces of sandal wood, which weighed about 101 Kgs. Accordingly, PW.1 prepared Mahazar as per Ex.P2 and got the signature of other witnesses. He has also stated that the Car was also seized at the spot. In the cross-examination, he has stated that accused was earlier involved in some other crime and it is suggested that the accused were arrested from their house and thereafter a false case was filed against them. It is also suggested that there is no connection between the accused and the sandal wood seized in this case. However, PW.1 has denied both the suggestions. 6. It is also suggested that there is no connection between the accused and the sandal wood seized in this case. However, PW.1 has denied both the suggestions. 6. PW.2-Subramanya was the Range Forest Officer of Mandagadde Forest Range during the relevant period. He has tested the sandal wood seized in this case and has issued a Certificate as per Ex.P4 certifying that the seized material is sandal wood. 7. PW.3-H.D.Gundappa is the Forest Guard. He has also stated that on the date of incident, he has accompanied PW.1 and other forest officials to the scene of occurrence and accused were apprehended after a chase when they abandoned the Maruti Car containing the sandal wood pieces. In the cross-examination, it is elicited that since it was night, he cannot say the distance from Neratur village to the bus top near which the incident occurred. 8. It is seen that from the aforesaid evidence of the prosecution witnesses, the learned Sessions Judge has found the accused guilty and sentenced them as aforesaid. 9. Heard Sri. Umesh P.B., learned counsel appearing for the appellant and Sri. Satish R.Girji, learned HCGP for the Respondent/State. 10. It is seen that in this case PW.2 has certified that the seized pieces are sandal wood and that he has issued a Certificate as per Ex.P4. However, the said Certificate does not comply with the provisions of Section 62(c) of the Karnataka Forest Act, which reads as follows: "62-C. 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 authorised 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." PW.2, who has issued a Certificate as per Ex.P4 which indicates that the seized material is sandal wood, has not produced any authorization issued by the Government authorizing him to issue such a Certificate. Hence, no reliance can be placed on Ex.P4 in the absence of authorization under Section 62(c) of Karnataka Forest Act. Provisions of Section 87 of Karnataka Forest Act cannot be made applicable to this case. Even otherwise, there are no independent witnesses examined by the prosecution. Though the Car was seized, the IO has not made any efforts to trace the registered owner of the said vehicle and to interrogate him to find out as to exactly who was the occupant of the Car on the date of incident. 11. Under the circumstances, the prosecution has not proved the offence against the appellants beyond all reasonable doubt and hence he is entitled for an order of acquittal. Accordingly, the appeal is allowed. The order of conviction and sentence passed against the appellant is set aside and he is acquitted of the charges leveled against him. Bail Bond executed by him is discharged. Fine amount, if deposited shall be refunded to him. 12. Sri. Sathish R. Girji, learned High Court Government Pleader has invited my attention to a letter No.LC/MISC/2013-14 dated:3.8.203 issued by the Principal Chief Conservator of Forests (HOFF), Aranya Bhavan, Malleshwaram, Bangalore-3, which states as follows:- "With reference to the above letter, it is submitted that we do not have any Notification authorizing the forest officers to certify the sandal wood. However, during the training period at the beginning of the service, officers including Range forest Officers, State Forest Service and Indian Forest Service levels, training is imparted on wood identification including sandalwood." 13. It is observed that in many cases of this nature, the prosecution is unable to secure an order of conviction only because no notification has been issued by the State under Section 62(c) of Karnataka Forest Act. It is required that the State Government shall issue a notification authorizing the Forest officers not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce to issue a Certificate certifying that the material is a forest produce as per Section 62(c) of Karnataka Forest Act. It is suggested that the State Government shall pass such an authorisation immediately in the interest of Justice so as to protect the forest wealth of the State.