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2024 DIGILAW 128 (KAR)

Rahmathkhan @ Hubli v. State

2024-02-12

SHIVASHANKAR AMARANNAVAR

body2024
JUDGMENT : Mr. Shivashankar Amarannavar, J. - This appeal is filed by appellants - accused Nos. 1 and 2 praying to set aside the judgment of conviction and order of sentence dated 17.11.2012 passed in S.C. No. 189/2012 by the Presiding Officer, FTC-IV, Mysuru. Appellants - accused Nos. 1 and 2 have been convicted for offence under Section 87 of the Karnataka Forest Act (hereinafter for the sake of brevity referred to as 'the Act') and sentenced to undergo simple imprisonment for 3 years and to pay fine of Rs. 5,000/-. In default, to undergo simple imprisonment for a period of 8 months. The appellants - accused Nos. 1 and 2 have been acquitted for offence under Section 86 of the Act. 2. Factual matrix of the prosecution is that on 01.11.2010 P.W.3 - Yashwanthakumar, Police Inspector, N.R. Police Station along with his staff was on patrolling duty. At about 11.00 am when they were going to Pushpashrama ring road, R.S. Naidu Nagar, they found the appellants - accused Nos. 1 and 2 going in TVS XL moped. On seeing the Police the appellants - accused Nos. 1 and 2 were frightened and took deviation towards Hale Kesare road. On suspicion N.R. Police staff surrounded the appellants - accused Nos. 1 and 2 at Varuna Channel over bridge and found that appellant - accused No. 1 who was riding the moped was possessing one air bag and appellant - accused No. 2 was the pillion rider. The appellants - accused Nos. 1 and 2 tried to escape by leaving the vehicle there itself. Ultimately the appellants - accused Nos. 1 and 2 were caught hold by N.R. Police staff and they were found in possession of sandalwood chiltas in the air bag. N.R. Police secured 2 panchas and seized the sandalwood chiltas under mahazar and arrested the accused persons. On enquiry, appellants - accused Nos. 1 and 2 told that they were carrying the said sandalwood chiltas for the purpose of sale to the tourists. Appellants - accused Nos. 1 and 2 were brought to the Police Station and P.W.3 gave report and case came to be registered. After getting the report of P.W.1 as to the kind of wood and its valuation, charge sheet came to be filed against appellants - accused Nos. 1 and 2 under Sections 86 and 87 of the Act. Appellants - accused Nos. 1 and 2 were brought to the Police Station and P.W.3 gave report and case came to be registered. After getting the report of P.W.1 as to the kind of wood and its valuation, charge sheet came to be filed against appellants - accused Nos. 1 and 2 under Sections 86 and 87 of the Act. The trial Court framed charge against the appellants - accused Nos. 1 and 2 for offence under Sections 86 and 87 of the Act. In order to prove the charge the prosecution examined P.W.1 to P.W.4 and got marked Ex.P.1 to Ex.P.0 and M.O.1 and M.O.2. Statement of appellants - accused Nos. 1 and 2 came to be recorded under Section 313 of Cr.P.C. The trial Court after hearing arguments formulated point for consideration and after appreciating the evidence on record convicted the appellants - accused Nos. 1 and 2 for offence under Section 87 of the Act and acquitted them for offence under Section 86 of the Act by the impugned judgment which has been challenged in this appeal. 3. Heard learned counsel for appellants - accused Nos. 1 and 2 and learned HCGP for the respondent - State. 4. Learned counsel for appellants - accused Nos. 1 and 2 would contend that the appellants are two persons i.e., accused Nos.1 and 2 and they possessed about 05.00 KGs of sandalwood chiltas and as per proviso to Section 87 of the Act a person can possess up to 3 KGs for bonafide domestic use. He submits that considering the said aspect, that is, accused are two persons and the total quantity seized is 05 KGs, they can possess 3 KG each without license for bonafide domestic use. Therefore, the offence under Section 87 of the Act is not attracted. With this he prayed to allow the appeal and acquit appellant - accused Nos. 1 and 2. 5. Per contra, learned HCGP appearing for the respondent State would argue that the trial Court on appreciation of the evidence record has rightly convicted appellant - accused Nos. 1 and 2 for offence under Section 87 of the Act. She supported the reasons assigned by the trial Court. She further argued that the defence of the appellants - accused Nos. 1 and 2 is total denial of prosecution case. 1 and 2 for offence under Section 87 of the Act. She supported the reasons assigned by the trial Court. She further argued that the defence of the appellants - accused Nos. 1 and 2 is total denial of prosecution case. She contends that to claim benefit under the proviso to Section 87 of the Act appellants - accused Nos. 1 and 2 must have to admit the possession of sandalwood chiltas and thereafter they have to establish that they possessed the same for bonafide domestic use. She further contended that considering the said aspect the trial Court has rightly rejected the contention of appellants-accused Nos. 1 and 2 in paragraph No. 27 of the impugned judgment. On these grounds she prayed for dismissal of the appeal. 6. On the grounds made out and considering the arguments advanced, the following point arises for my consideration: "Whether the trial Court erred in convicting appellants - accused Nos. 1 and 2 for offence under Section 87 of the Karnataka Forest Act? 7. My answer to the above point is in the negative for the following reasons: P.W.3 - Police Inspector of N.R. Police Station, when along with his staff was on patrolling duty, at that point of time, he found these appellant - accused Nos. 1 and 2 moving on moped and on seeing the Police they took deviation and left their moped and started to run in the dark. They were caught by P.W.3 and his staff. On verification of the air bag possessed by appellant - accused Nos. 1 and 2, in the presence of panchas, they found sandalwood chiltas which came to be seized under mahazar - Ex.P.6. P.W.3 gave report as per Ex.P.7 and produced appellants - accused Nos. 1 and 2 and FIR was registered as per Ex.P.8. 8. P.W.2 is a panch to the seizure mahazar Ex.P.6 and he has deposed regarding drawing of mahazar and seizure of sandalwood chiltas contained in the air bag possessed by the accused persons which was weighing about 05.00 KGs. Nothing has been elicited in his cross-examination to disbelieve his evidence. Said evidence of P.W.2 and P.W.3 will establish the seizure of sandalwood chiltas from possession of appellants - accused Nos. 1 and 2. P.W.4 - Police Sub-Inspector who took up further investigation has filed charge sheet. Nothing has been elicited in his cross-examination to disbelieve his evidence. Said evidence of P.W.2 and P.W.3 will establish the seizure of sandalwood chiltas from possession of appellants - accused Nos. 1 and 2. P.W.4 - Police Sub-Inspector who took up further investigation has filed charge sheet. P.W.1 is the Assistant Conservator of Forest and he has examined the seized chiltas and opined that those 144 chiltas are of sandalwood and the value is about Rs. 3,011/- and issued survey report as per Ex.P.1. Evidence of P.W.1 will establish that the seized chiltas are of sandalwood and they are weighing about 3.819 KGs and their value may be Rs. 3,011/-. The above evidence on record will establish that appellant - accused Nos. 1 and 2 possessed sandalwood chiltas weighing 3.819 KGs and it attracts offence under section 87 of the Act. 9. Learned counsel for appellant - accused Nos. 1 and 2 by referring to the provisions contained in Section 87 of the Act submits that for possessing sandalwood up to 3 KGs no license is required and as the accused persons are 2 persons sandalwood chiltas seized from them is about 3.819 KGs and it is well within the limit of 3 KG each by the accused persons. 10. To consider the said contention of the learned counsel for appellant - accused Nos. 1 and 2 it is necessary to extract the proviso contained under Section 87(1) of the Act which reads as under: "Provided further that no such licence shall be necessary for possession of sandalwood up to three kilograms and sandalwood oil upto one hundred grams for bona fide domestic use." 11. The accused persons, to claim benefit under proviso to Section 87(1) of the Act, have to admit that they are in possession of sandalwood chiltas and it is up to 3 KGs and they possessed the same for bona fide domestic use. On perusal of cross-examination of prosecution witnesses it is clear that defence of accused persons is denial of the prosecution case and denial of seizure of sandalwood chiltas from their possession. The appellants - accused Nos. 1 and 2 did not admit that they were in possession of sandalwood chiltas and it is within the limit contained in second proviso to Section 87(1) of the Act. Further, the appellants - accused Nos. The appellants - accused Nos. 1 and 2 did not admit that they were in possession of sandalwood chiltas and it is within the limit contained in second proviso to Section 87(1) of the Act. Further, the appellants - accused Nos. 1 and 2, on enquiry, told that they possessed the said sandalwood chiltas for sale to tourists. Apart from that the appellants - accused Nos. 1 and 2 must establish that they were possessing the sandalwood chiltas for bona fide domestic use. The appellants - accused Nos. 1 and 2 did not establish that they possessed the sandalwood chiltas for domestic use. Therefore, the appellants - accused Nos. 1 and 2 are not entitled for the benefit of second proviso to Section 87(1) of the Act. 12. The trial Court, considering all these aspects, has rightly convicted the appellants - accused Nos. 1 and 2 for offence under Section 87 of the Act. 13. The appellants - accused Nos. 1 and 2 have been sentenced to undergo simple imprisonment for 3 years and to pay fine of Rs. 5,000/- for offence under Section 87 of the Act. As per Section 87(2)(i) of the Act sentence for the first offence is, "term of imprisonment shall not be less than 5 years and the amount of fine shall not be less than Rs. 50,000/-". Sentenced imposed on the appellants - accused Nos. 1 and 2 is lesser than the minimum sentence. The State has not preferred any appeal challenging the order of sentence. Therefore, in an appeal filed by the appellants - accused Nos. 1 and 2 sentence cannot be enhanced. 14. In view of the above, the following; ORDER I. The appeal is dismissed. II. The judgment of conviction and order of sentence dated 17.11.2012 passed in S.C. No. 189/2012 by the Presiding Officer, FTC-IV, Mysuru, is affirmed.