Razak vs State of Karnataka

Anand Byrareddy, J.—The facts of the case are:

It was alleged that the present appellant, on the morning of 19.2.2003, was found driving a jeep near the bus stand of Nittakki village limits and was found unauthorizedly transporting two sandal wood billets, totally weighing 13 Kilograms and two rose wood sizes and was arrested on that ground and produced before the Court of JMFC, and remanded to custody, but was later released on default bail. A charge sheet having been filed against the accused after investigation, a case had been registered and the matter had been committed to the Court of Sessions, Shimoga.

The Trial Court thereafter proceeded to frame charges for offences punishable under Sections 87 and 104A of the Karnataka Forest Act, 1963 (Hereinafter referred to as the "KF Act", for brevity). The accused having pleaded not guilty and having claimed to be tried, the prosecution had tendered evidence through its witnesses PW. 1 to PW. 4 and marked several exhibits and the material objects. The court, after having recorded the statements of the accused u/s 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the "Cr.P.C.", for brevity) and after having heard the counsel for the parties, had framed the following points for consideration:

"1. Whether the prosecution, beyond all reasonable doubt, proves that on 19.2.2003 in the morning hours, near the Bus stand in the limits of Nittakki village, the accused was found in illegal possession of two sandal wood billets weighing 13 Kgs. and he was found transporting the same in a Jeep bearing Reg. No. MEZ-1848?.

Whether the prosecution, beyond all reasonable doubt, proves that the accused in addition to sandal wood billets was found transporting two rose wood sizes unauthorisedly in Jeep No. MEZ-1848?"

The said points were answered in the affirmative and the court had convicted the appellant and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- for the offence punishable u/s 87 and further sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- for the offence punishable u/s 104A of the KF Act. It is that which is under challenge in the present appeal.

The learned counsel for the appellant would contend that having regard to the stringent and inflexible punishment attracted for the offences alleged, the degree of proof required to bring home the charges is equally high and in that view of the matter, he would draw attention to the serious lacunae in the proceedings, which are even taken note of by the Trial Court. However, to the serious prejudice and detriment of the appellant, the Trial Court has held that the same would not vitiate the proceedings, while seeking to justify the lapses, which is impermissible in law. The benefit of doubt would have to be given to the accused.

The learned counsel for the appellant would particularly draw attention to the fact that from the inception of the alleged seizure and till completion of the trial, the prosecution has not complied with the mandatory requirements of law. No independent witnesses were examined. The Trial Court has proceeded erroneously in accepting the reason that no person was available near the bus stand in the limits of Nittakki village when the village is located half a furlong away from the bus stand. PW1 and PW2, along with others, could have easily secured a witness from the village to act as a panch for the search and seizure. The learned Counsel would hence submit that the Trial Court having failed to follow the provisions as contemplated under the Cr.P.C. and the KF Act, is sufficient ground to reject the prosecution case.

And further that there was a glaring circumstance of PW4, who is a Range Forest Officer of another range, who had no knowledge of the incident, in the absence of any intimation or requisition sent by PW3 to have visited the spot and to give an opinion, after examining the seized billets. Exhibit P4, which is said to be a certificate signed by PW4, is a cyclostyled form and the details are hand written by a sub-ordinate and hence no credibility could be attached to the evidence of PW4 or Exhibit P4.

The learned State Public Prosecutor, on the other hand, seeks to justify the findings of the trial court.

It is to be noticed that the Trial Court has taken note of the following circumstances, namely, that the prosecution had not produced the requisition sent to PW4, the Range Forest Officer, who in turn, is said to the Range Forest Officer, Anavatti, on 10.4.2003, to examine the sandal wood and rose wood seized. The certificate of inspection was not issued in the hand writing of the said PW4, but was written by a sub-staff member on a cyclostyled form. The words ''Rose wood '' was said to have been scored out. But these are held by the Court to be insignificant details. In this regard, it is to be kept in view, that the certificate issued u/s 62-C of the KF Act, is the evidence that would be relied upon by the Court, in support of the fact that the forest produce involved is of the description as alleged. Admittedly, the examination made by PW4 was of a casual and cursory nature. The purpose of his examination and certification is to have on record a complete and authentic document, as to the complete particulars of the forest produce involved, as an expert witness. There can be no compromise on the accuracy and thoroughness of inspection and reflection of the same in the report. The witness has merely stated that the markings made on the subject wood by the Department were noticed or that the wood smelt like sandalwood, could hardly be the nature of evidence expected from a trained expert. The admitted circumstance that the details were entered in a cyclostyled form by a person other than PW4 and the fact that even the weight of the wood was not ascertained during the inspection or that the witness had not bothered to atleast initial the corrections made on that form, would render the same as an invalid certificate. This would constitute a lacuna going to the root of the matter. This is sufficient ground to set aside the judgment of the trial court, in having proceeded to accept the certificate of PW. 4.

The further serious discrepancy highlighted, is the fact that the Mahazar, Exhibit P1 was drawn up by PW. 1 and PW. 2. both foresters, upon seizure of the sandal wood and rose wood. This was between 6-00 AM and 7-00 AM. There is no independent witness to the Mahazar. The seizure was made at a village bus stop. The village was said to be a few hundred metres from the bus stop. According to the witnesses, there was no person available in the vicinity and they did not choose to secure any person in the locality. This has been condoned by the Trial Court as having been sufficiently plausible that no one was available. The requirement of independent witnesses to a mahazar drawn up on search and seizure of incriminating material is imposed, in order to guard against possible chicanery and unfair dealings on the part of the officers carrying out a search and anything that is unearthed in the course of the search, was really found there and was not introduced by the officers conducting the search. It is in order to avoid allegations against the officers themselves and it is in the interest of the concerned officers themselves to have independent and respectable witnesses to corroborate their statements. In the instant case on hand, the excuse put forth, to the effect that at the time of day and place, no person was available cannot be accepted. This circumstance would also vitiate the proceedings.

Consequently, the appeal is allowed. The judgment of the court below is set aside and the accused is acquitted. The bail bond furnished stands cancelled and the fine amount, if any, paid shall be refunded to the accused.