Jigga vs State

N. Ananda, J.—The appellant (hereinafter referred to as accused No. 3) in S.C. No. 16/2006 was tried along with accused Nos. 1 and 2 for offences punishable under Sections 86 and 87 of Karnataka Forest Act, 1963 (for short ''the Act'') read with Section 34 of IPC. Accused Nos. 1 to 3 are convicted for offence punishable u/s 86 of the Act read with Section 34 of IPC and are acquitted of offence punishable u/s 87 of the Act. Therefore, accused No. 3 is before this Court. I have heard learned counsel for accused No. 3 and the learned SPP for State.

It is the case of the prosecution that on 5.4.2005 at about 6.40 a.m. near Talavane School at Adigebylu village, accused 1 to 3 found felling sandalwood tree and they were in illegal possession of 35 Kgs. of sandalwood billets and committed offences punishable under Sections 86 and 87 of the Act. In view of conviction of accused for an offence punishable u/s 86 of the Act, the following points would arise for determination:

(i) Whether the prosecution has proved that on 5.4.2005 at 6.40 a.m., accused No. 3 along with accused Nos. 1 and 2, were found in possession of 35 Kgs. of sandalwood billets without valid licence or permit?

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

(iii) Whether the impugned judgment calls for interference?

(iv) To what order?

In order to bring home guilt of accused, prosecution is required to prove that accused were in illegal possession of sandalwood billets and that billets found in possession of accused were sandalwood billets. The evidence of prosecution witness viz., P.W. - 1. Forester would reveal that accused Nos. 1 to 3 were found cutting sandalwood tree at 6.00 a.m. on 5.4.2005 and on seeing police officers viz., P.Ws. 1 to 3, they took to their heels; they were chased and apprehended and found in possession of sandalwood billets; the sandalwood billets were examined by P.W. - 1 who confirmed that they are sandalwood billets and issued a certificate marked as Ex. P-4.

The learned counsel for accused No. 3 referring to Section 62-C 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 vs. The State of Karnataka) dated 7.11.2012 and an unreported judgment of this Court in Criminal Appeal No. 840/2008 (in the case of T.R. Shanmukha vs. The State of Karnataka) dated 21.8.2013, would submit that P.W. - 1 - S.M. Shivarathreshwaraswamy, the then Forester of Koppa Range, Koppa, had not been notified as officer competent to examine forest procedure 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 21.5.2010, reading as hereunder:-

The Government of Karnataka herein notifies as per Rule 62(c) of Karnataka Forest Act, 1963 authorising 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 5.4.2005. P.W. - 1 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 62-C 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 P.W. - 1 to hold that billets seized from possession of accused No. 3 are sandalwood billets. In the circumstances, impugned judgment cannot be sustained. In the result, I pass the following:-

ORDER

The appeal is accepted. The impugned judgment is set aside. Appellant (accused No. 3) in S.C. No. 16/2006 on the file of Prl. Sessions Judge, Chikmagalur, is acquitted of an offence punishable u/s 86 of the Act. His bail bonds stand cancelled. If accused No. 3 has deposited fine in terms of the impugned judgment, the same shall be refunded to him.