Sathish and Sunil vs The State of Karnataka

N. Ananda, J.—The appellants (hereinafter referred to as ''accused 1 & 2'') were tried and convicted for an offence punishable u/s 87 of the Karnataka Forest Act, 1963 (for short, ''the Act''). Therefore, they are before this court. I have heard Sri Dinesh, learned counsel for accused and Sri B. Visweswaraiah, learned HCGP for State.

It is the case of prosecution that during intervening night of 27/28.03.2003 near Gajanur forest check post, accused 1 & 2 were found in illegal possession of sandalwood billets and sandalwood chips totally weighing 10 kilograms and they were unauthorisedly transporting the same on Hero Honda motorcycle bearing No. KA-20/J-5604 and thereby committed an offence punishable u/s 87 of the Act.

The learned trial Judge accepting the evidence of prosecution witnesses, in particular evidence of PW1, PW2 & PW4 has held accused 1 & 2 guilty of an offence punishable u/s 87 of the Act.

The learned counsel for accused would submit that prosecution witnesses are interested witnesses. The independent witnesses have not supported the case of prosecution. The evidence of PW3-B.G. Jagadeesh, the then Range Forest Officer of Shimoga Range that he had examined sandalwood billets and sandalwood chips and certified the same as sandalwood billets and sandalwood chips and issued certificate as per Ex. P.4 cannot be accepted. The prosecution has not produced notification, authorising PW3 to give certificate in relation to forest produce u/s 62C of the Act.

The learned HCGP would justify the impugned judgment.

The prosecution has relied on evidence of PW1- T. Rangappa, who at the relevant time was working as a Forester in Gajanur Range Forest. At the relevant time, PW2- Khaleel was working as a Forest Watcher. At the relevant time, PW3-B.G. Jagadeesh was working as Range Forest Officer of Shimoga Range Forest. At the relevant time, PW4-B. Channappa was working as the Range Forest Officer of Gajanur Range Forest.

PW1-T. Rangappa has deposed; on 28.03.2003 during night, they were working in Gajanur Forest Division, at that time, a motorcycle came from Thirthahalli side; they intercepted motorcycle; accused No. 1 was the rider of motorcycle; accused No. 2 was the pillion rider; between rider and pillion rider, there was a plastic bag, which contained sandalwood billets and sandalwood chips; accused did not produce any document as to how they came in possession of them; sandalwood billets and sandalwood chips were weighing 10 kilograms and they were seized under a mahazar and they were marked.

During cross-examination, PW1 has deposed; at the time of interception, they were inspecting all vehicles proceeding on road; accused 1 & 2 were found in possession of documents relating to motorcycle and he was not able to secure independent witnesses as it was 12 in midnight; sandalwood billets and sandalwood chips were weighed by using a spring balance. PW1 has denied the suggestion that accused 1 & 2 were not involved in theft or transportation of sandalwood billets and sandalwood chips.

The evidence of PW2-Khaleel lends substantial corroboration to evidence of PW1.

PW3-B.G. Jagadeesh has deposed; he had intercepted motorcycle and seized sandalwood billets and sandalwood chips and certified that they were sandalwood billets and sandalwood chips.

At the relevant time, PW4-B. Channappa was working as the Range Forest Officer, of Gajanur Range. PW4 has deposed; during intervening night of 27/28.03.2003 at about 2.30 a.m., PW1-T. Rangappa produced accused along with a Hero Honda motorcycle and sandalwood billets and sandalwood chips; PW4 arrested the accused and seized sandalwood billets and sandalwood chips under a property form; PW4 produced them before Deputy Conservator of Forest, Shimoga Division; after completing formalities of investigation, PW4 submitted chargesheet.

It is obvious that prosecution has relied on the aforestated witnesses of Forest Department. As could be seen from evidence of aforestated witnesses, accused 1 & 2 were intercepted when they were illegally transporting sandalwood billets and sandalwood chips. The incident had taken place during midnight. It would not be prudent to expect the prosecution to adduce evidence of independent witnesses. The accused have not offered any explanation for interception of Hero Honda motorcycle and their arrest during midnight of 27/28.03.2003.

The learned counsel for accused has questioned competence of PW3 to certify seized sandalwood billets and sandalwood chips.

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 HCGP 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 during intervening night of 27/28.03.2003. The Investigating Officer has not produced Notification issued by Government of Karnataka to prove that PW3 had been notified to exercise powers u/s 62C of the Act and certificate issued by PW3 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 and chips seized from possession of accused 1 & 2 were sandalwood billets and sandalwood chips.

In view of the above, I hold that prosecution has failed to prove that billets and chips stated to have been seized from possession of accused 1 & 2 were sandalwood billets and sandalwood chips and accused 1 & 2 were found in possession of 10 kilograms of sandalwood billets and sandalwood chips and committed an offence punishable u/s 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. 239/2007, on the file of Presiding Officer, Fast Track Court-II at Shimoga are acquitted of an offence punishable u/s 87 of the Act. The bail bonds executed by accused 1 & 2 stand cancelled. If accused 1 & 2 have deposited fine amount in terms of the impugned judgment, the same shall be refunded to them. The rest of the impugned judgment as it relates to disposal of properties is confirmed.