Najibulla Khan and Rahman @ Abdul Rahman vs State of Karnataka

N. Ananda, J.—The appellants (hereinafter referred to as ''accused 1 & 2'') were arrayed as accused 1 & 2 and they were tried and convicted for an offence punishable u/s 379 IPC r/w section 87 of the Karnataka Forest Act, 1963 (for short, ''the Act''). I have heard Sri Hashmath Pasha, learned counsel for accused 1 & 2 and Sri B.T. Venkatesh, learned State Public Prosecutor for State.

It is the case of prosecution that on 08.02.2004 at about 3 a.m., (early morning) accused 1 to 3 were transporting 10 litres of sandalwood oil in Maruti Car bearing No. KA-01-M-2865 near Kamath Hotel on NH 4, within limits of Kallambella Police Station. On seeing police, accused No. 3 ran away from that place and he could not be apprehended, however, accused 1 & 2 were apprehended and they were brought to jurisdictional police station along with vehicle and seized sandalwood oil.

The learned trial Judge on appreciation of evidence of Investigating Officer and prosecution witnesses has held that on 08.02.2004 at about 3 a.m. (early morning), accused 1 & 2 along with absconding accused No. 3 came in a car and parked car near Kamath Hotel by the side of NH 4 within limits of Kallambella Police Station. After seeing police, they tried to escape. Accused 1 & 2 were apprehended and they were found in possession of 10 litres of sandalwood oil.

Sri Hashmath Pasha, learned counsel for accused 1 & 2 has made following submissions:-

I. The Investigating Officer namely PW 7-R.G. Ram, Police Inspector of CID, Forest Cell before proceeding to place of incident had not recorded information received by him from Deputy Superintendent of Police, CID, Forest Cell at Bangalore.

II. The prosecution has not produced notification, authorising Deputy Superintendent of Police, CID Forest Cell to investigate into forest offences.

III. The evidence of PW 8-Sanjay Mohan, the then Head of the Department of Wood Science and Technology and certificate issued by him as per Ex. P. 6 are hardly sufficient to hold that oil seized from possession of accused 1 and 2 is sandalwood oil.

IV. The prosecution has not produced any Notification to show that PW 8 was the notified officer to examine forest produce, including sandalwood oil in terms of section 62C of the Act.

The learned counsel for accused has relied on a decision of this court, reported in Raghavendrachari Vs. State of Karnataka, , wherein this court has held that issuance of notification u/s 62C of the Act and examination of forest produce by the Authorised Officer as per notification u/s 62C of the Act is mandatory. Therefore, non-compliance of provisions of section 62C of the Act would vitiate prosecution.

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 08.02.2004. The Investigating Officer has not produced Notification issued by Government of Karnataka to prove that PW 8 had been notified to exercise powers u/s 62C of the Act and certificate issued by PW 8 was valid in the eye of law. Therefore, learned trial Judge should not have relied upon the contents of Ex. P6 issued by PW 8 to hold that oil seized from possession of accused 1 & 2 is sandalwood oil.

In view of the above, I hold that prosecution has failed to prove that oil stated to have been seized from possession of accused 1 & 2 was sandalwood oil and accused 1 & 2 were found in possession of 10 litres of sandalwood oil and committed an offence punishable u/s 379 IPC r/w section 87 of the Act. Therefore, impugned judgment cannot be sustained. In the result, I pass the following:-

ORDER

The appeal is accepted. The impugned judgment is set aside. Accused 1 & 2 in S.C. No. 28/2006, on the file of Presiding Officer, Fast Track Court No. III at Tumkur are acquitted of an offence punishable u/s 379 IPC r/w section 87 of the Act. The rest of the impugned judgment as it relates to disposal of properties is confirmed. The bail bonds executed by accused 1 & 2 stand cancelled. If accused 1 & 2 have deposited fine in terms of the impugned judgment, the same shall be refunded to them.