Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 664 (KAR)

Subbaiah, S/o. Thimmaiah v. State by R. F. O.

2021-06-11

SREENIVAS HARISH KUMAR

body2021
JUDGMENT : The accused who have been convicted for the offences punishable under section 379 IPC and section 86 of the Karnataka Forest Act read with section 34 IPC have preferred this appeal challenging the judgment dated 28.12.2013 in S.C 56/2013 on the file of I Additional Sessions Judge, Chikkamagaluru. Each of them has been sentenced to undergo simple imprisonment for a period of five years and fine of Rs.50,000/-with default imprisonment period of three months in relation to offence under section 86 of the Karnataka Forest Act, and simple imprisonment for a period of two years with fine of Rs.2,000/-with default sentence of ten days for the offence under section 379 IPC. 2. The prosecution case in brief is that on 23.11.2012, the forest officials were on patrolling duty at Gubburu near Karkeswara Reserve Forest Area. The accused were found in possession of six sandalwood billets weighing 28 kgs. They were transporting the same without any valid pass or permit. The forest officials seized the sandalwood billets and arrested the accused. 3. When the prosecution went into trial, it examined five witnesses PWs 1 to 5 and relied upon 9 documents, Exs. P1 to P9 and 6 material objects, MOs1 to 6, all being sandalwood billets. The learned Sessions Judge, having assessed the evidence, arrived at a conclusion that the evidence of the witnesses and the documents produced by them would establish the prosecution case beyond reasonable doubt. 4. Though the appellants have raised many grounds in the memorandum of appeal, the learned counsel for the appellants, Sri Ganesha, submitted that he would confine his arguments to grounds (e) and (f) of the memorandum of appeal. He argued that the prosecution examined PW4, the Range Forest Officer and got marked Ex.P5, the certificate issued by him. His testimony does not establish that he could issue a certificate after examining the seized articles. There is no document to show that he had undergone training, section 62-C of the Karnataka Forest Act (for short referred to as ‘the Act’) has not been followed. 4.1. The next point of argument is that the Forest Officer who is said to have seized the sandalwood billets did not comply with sections 62(3) and 71-A of the Act. There is no document to show that he had undergone training, section 62-C of the Karnataka Forest Act (for short referred to as ‘the Act’) has not been followed. 4.1. The next point of argument is that the Forest Officer who is said to have seized the sandalwood billets did not comply with sections 62(3) and 71-A of the Act. This is mandatory in view of the judgment of this court in the case of BHANUPPRAKASH A AND ANOTHER vs STATE BY THE ACF, CHIKMAGALORE [ILR 2006 KAR 3216]. Non-compliance of this statutory provision vitiated the entire trial and therefore the accused would be entitled to acquittal. In support of his contention he also relied upon another judgment of the Supreme Court in the case of STATE OF KARNATAKA vs PRAKASH AND OTHERS [ (2019) 14 SCC 229 ]. 5. The learned High Court Government Pleader submitted that the evidence given by PW4 discloses that he had been trained to examine the seized articles. When he himself gave evidence, production of a certificate for having undergone training is not necessary. Moreover if his cross-examination is perused, there is nothing to show that he has been discredited in any manner. As regards compliance of section 62(3) read with section 71A of the Act, he argued that Ex.P9 shows the compliance. The learned trial Judge has clearly discussed this aspect of the matter. Therefore, the two grounds urged by the appellants counsel are not very material and he submitted that this appeal deserves to be dismissed. 6. If the judgment of the trial court is perused, it is found that PW4, a Range Forest Officer underwent training in the year 1983-84 and that he had the experience of testing timber, sandalwood billets in number of cases. Ex.P5 is the certificate issued by him. His evidence cannot be doubted. 6.1. With regard to compliance of sections 62(3) and 71A of the Act, the learned trial Judge has held that PW5 after completion of investigation prepared a report as per Ex.P9 and sent it to the DCF at Koppa. In fact PW5 Rangaswamy obtained permission from DCF, Koppa, for filing charge sheet. These events indicate that DCF had the knowledge of all the proceedings and therefore compliance of section 71-A of the Act does not arise. In fact PW5 Rangaswamy obtained permission from DCF, Koppa, for filing charge sheet. These events indicate that DCF had the knowledge of all the proceedings and therefore compliance of section 71-A of the Act does not arise. He has also held that probably PW5 might not have produced the sandalwood billets before DCF due to lack of knowledge. 7. Since the appellants counsel confined his arguments to two points referred to above, it is enough if the correctness of the findings of the trial court is examined. 8. Section 62-C of the Act states that a document purporting to be a certificate issued by a forest officer not below the rank of Range Forest Officer who has undergone training in the examination of forest produce and authorized by State Government to issue certificate may be used as evidence of facts stated in the certificate in any proceeding, and if the court thinks fit to examine such officer, it may summon him on the application of the prosecution or the accused. The language is very plain to understand. Mere production of the certificate issued by the authorized officer during trial is enough. It is not necessary always that such officer must be summoned to the court, only when the court thinks fit, that too when an application is made by the prosecution or the accused, the officer may be summoned. In this case, PW4 was the Range Forest Officer who examined the seized sandalwood billets and issued the certificate as per Ex.P5. It is quite clear that not only the certificate is produced but the officer has been examined. Therefore, there is compliance of section 62-C of the Act. The argument of learned counsel for the appellants is that PW4 has not produced certificate that he has undergone trial. Except a suggestion to him in the cross-examination that he has not undergone training, his competency to issue certificate has not been assailed in any manner. His evidence cannot be discarded. The judgment of the Supreme Court in the case of Prakash and Others (supra) is not applicable because in the said case there was no evidence to show that the Range Forest Officer who issued the certificate had undergone training for examining the forest produce. The same is not the case here. Therefore, there is no merit in the argument of appellants counsel so far as this point is concerned. 9. The same is not the case here. Therefore, there is no merit in the argument of appellants counsel so far as this point is concerned. 9. But, it appears there is no compliance of section 62(3) read with section 71-A of the Act. Section 62(3) of the Act envisages that the officer seizing the property shall, as soon as possible, make a report of such seizure to the concerned authorized officer under section 71-A of the Act. Section 71-A of the Act begins with a non-obstante clause and states that if the forest offence is believed to have taken place in respect of certain items or property as mentioned therein, the officer who seizes the property in accordance with section 62(1) of the Act, shall without unreasonable delay produce them before an officer authorized by the State Government in this behalf by a notification in the official gazette. The officer so authorized should not be an officer below the rank of Assistant Conservator of Forests. The coordinate bench of this court in the case of Bhanuprakash A(supra) has held compliance of this provision is mandatory and its noncompliance vitiates the prosecution. If the entire evidence is perused, nowhere it is forthcoming that the officer who seized the sandalwood billets produced them before the authorized officer without any delay. The trial court has held that Ex.P9 is the compliance of section 71-A of the Act and that it was within the knowledge of the Deputy Conservator of Forests that sandalwood had been seized. Ex.P9 is an order passed by the Deputy Conservator of Forests according permission to file charge sheet and to produce the seized sandalwood billets to the court. This order cannot be construed as compliance of section 71-A of the Act, there must be separate document evidencing the production of the seized property before the authorized officer. This requirement is mandatory because the authorized officer has to take further action in accordance with section 71-A (2) and (3) of the Act. The findings of the trial court Judge is based on his assumption which is not permitted. When an action is to be taken strictly in accordance with law, a proof to that effect must be produced before the court. Therefore, it may be stated that there is no proof of production of seized sandalwood billets before the authorized officer. The findings of the trial court Judge is based on his assumption which is not permitted. When an action is to be taken strictly in accordance with law, a proof to that effect must be produced before the court. Therefore, it may be stated that there is no proof of production of seized sandalwood billets before the authorized officer. As held by the coordinate bench of this court in Bhanuprakash A (supra), the seizure would get vitiated and consequently the trial also gets vitiated and the accused are entitled to be acquitted. 10. From the above discussion, I arrive at the conclusion that this appeal deserves to be allowed. Accordingly, the following : ORDER (a) Appeal is allowed. (b) The judgment dated 28.12.2013 in S.C.56/2013 on the file of I Additional Sessions Judge, Chikkamagaluru, is set aside. (c) The appellants/accused are acquitted of the offences punishable under section 86 of the Karnataka Forest Act and section 379 read with section 34 of Indian Penal Code. (d) The bonds executed by the appellants pursuant to order dated 24.2.2014 in this appeal are cancelled. (e) If the appellants have deposited the fine amount, the same may be refunded to them.