Hamza vs State of Karnataka

N. Ananda, J.—The appellants (hereinafter referred to as ''accused 2 & 3'') were arrayed as accused 2 & 3 in S.C. No. 16/2006 and they were tried for offences punishable under sections 86 & 87 of the Karnataka Forest Act, 1963 (for short, ''the Act''). Accused No. 1 was absconding. Therefore, the case against accused No. 1 was separated. The learned Sessions Judge has held accused 2 & 3 guilty of an offence punishable u/s 87 of the Act and sentenced them to undergo simple imprisonment for a period of five years and pay fine of Rs. 50,000/- each, in default to undergo simple imprisonment for a period of 1 1/2 years. I have heard Sri M. Arun Shyam and Sri Maheshkiran Shetty, learned counsel for accused 2 & 3 and Sri M. Narayana Reddy, learned SPP for State.

In view of conviction of accused 2 & 3 for an offence punishable u/s 87 of the Act, the following points would arise for determination:--

(1) Whether prosecution has proved that accused 2 & 3 along with absconding accused No. 1 during intervening night of 07/08.08.2003 at about 12.30 a.m. were found in illegal possession of 25 kilograms of sandalwood billets, without licence near Kulanje School building on Shankarnarayana-Siddapura Road and thereby committed an offence punishable u/s 87 of the Act?

(2) Whether the learned trial Judge has properly appreciated evidence on record?

(3) Whether the impugned judgment calls for interference?

(4) To what order?

In order to bring home guilt of accused 2 & 3, prosecution has relied on evidence of PW1 to PW3, documents marked as Ex. P.1 to Ex. P.4 and material objects marked as M.O.1 to M.O.8.

During the relevant period, PW1-Bhaskar K., was working as a Forester in Hebri Zone, Udupi District. PW1 has deposed; on 07.08.2003 at about 11 p.m., he received credible information regarding cutting and transportation of sandalwood billets from reserve forest; therefore, PW1 secured PW2-K. Narayana Naika (Forest Guard), CW3- Krishnamurthy and CW4-Lakshmana Koolala and reached Kulanji School building situate by the side of Shankarnarayana-Siddapura Road; at about 12.30 a.m. (during intervening night of 07/08.08.2003), a motorcycle carrying three persons was fast approaching from Siddapura side; PW1 & PW2 gave a signal to stop motorcycle; those persons felled motorcycle on road and tried to run away from that place; PW1 and other forest officials chased them and they were able to apprehend accused 2 & 3; accused No. 1 ran away from that place and they were not able to apprehend accused No. 1; PW1 & other forest officials took accused 2 & 3 to the place where they had felled motorcycle; PW1 and other forest officials found two gunny bags containing 11 sandalwood billets, which were weighing 25 kilograms; they were seized under a mahazar; accused 2 & 3 and sandalwood billets along with incriminating articles were produced before PW3-Neelaiah (Range Forest Officer).

During cross-examination, PW1 has admitted that he has not entered credible information in Station House Diary; PW1 & PW2 had seen motorcycle from a distance of 50 metres. During cross-examination of PW1, nothing has been elicited to discredit his evidence.

The evidence of PW2-K. Narayana Naika lends substantial corroboration, to evidence of PW1 that accused 2 & 3 and sandalwood billets and other incriminating articles were produced before PW3, who was then working as Range Forest Officer, Hebri Zone, Shankaranarayana Range, Udupi, District.

At the relevant time, PW3-Neelaiah was working as Range Forest Officer. PW3 has deposed; on 08.08.2003 at about 8 a.m., accused 2 & 3 and 11 sandalwood billets and other incriminating articles and instruments used for cutting sandalwood billets such as a saw, a chopper, an axe, a chisel and a crow-bar were produced before him; PW3 examined billets and confirmed that they are sandalwood billets and issued a certificate marked as Ex. P.4.

During cross-examination, PW3 has denied suggestion that he was not competent to give certificate in terms of Ex. P.4.

On re-appreciation of evidence of PW1 to PW3, I find apprehension of accused 2 & 3 near place and time of incident as deposed by PW1 & PW2 and seizure of billets from possession of accused 2 & 3 cannot be suspected. Accused 2 & 3 have not offered any explanation for their presence near reserve forest. The learned trial Judge has rightly held accused 2 & 3 were apprehended at about 12.30 a.m., during intervening night of 07/08.08.2003 by PW1.

The learned counsel for accused 2 & 3 referring to section 62C of the Act and also by relying on the judgments of this court, reported in Raghavendrachari Vs. State of Karnataka, ; an unreported judgment of this court in Criminal Appeal No. 994/2007 (in the case of Saleem v. The State of Karnataka) dated 07.11.2012 and an unreported judgment of this court in Criminal Appeal No. 840/2008 (in the case of T.R. Shanmukha v. The State of Karnataka) dated 21.08.2013 would submit that PW3-Neelaiah, the then Range Forest Officer of Shankaranarayana Range had not been notified as officer competent to examine forest produce and give a report.

In the aforestated judgments, this court has held that Notification in relation to certifying officer is mandatory.

The learned State Public Prosecutor has relied on Notification issued by Government of Karnataka on 21.05.2010, reading as hereunder:--

The Government of Karnataka hereby notifies as per Rule 62(c) of Karnataka Forest Act, 1963 authorizing the following trained forest officers to issue of certificates for offence cases irrespective of forest produce.

1) Range Forest Officer

2) Assistant Conservator of Forests

3) Deputy Conservator of Forests

4) Conservator of Forests

5) Chief Conservator of Forests.

In the case on hand, offences are alleged to have been committed on 07/08.08.2003. PW3 apart from asserting that he was competent to certify and give certificate has not produced Notification issued by Government of Karnataka to prove that he had been notified to exercise powers u/s 62C of the Act and certificate issued by him was valid in the eye of law. Therefore, learned trial Judge should not have relied upon the contents of Ex. P.4 issued by PW3 to hold that billets seized from possession of accused 2 & 3 are sandalwood billets. In the circumstances, impugned judgment cannot be sustained.

In the result, I pass the following:--

ORDER

The appeals are accepted. The impugned judgment is set aside. Accused 2 & 3 in S.C. No. 16/2006, on the file of Presiding Officer, Fast Track Court at Udupi are acquitted of an offence punishable u/s 87 of the Act. The rest of the impugned judgment is confirmed. The bail bonds executed by accused 2 & 3 stand cancelled. If accused 2 & 3 have deposited fine in terms of the impugned judgment, the same shall be refunded to them.