Karnataka High Court

Ejaj vs State Of Karnataka on 1 December, 2021

Bench: V Srishananda

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 1ST DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.887/2012

BETWEEN

1 . EJAJ
    S/O SABJAN
    AGED ABOUT 53 YEARS,
    COOLIE WORK
    R/O SANTHE MAIDANA
    ALDUR POST,
    CHIKMAGALUR TALUK


2 . JAFFAR [email protected]
    AGED ABOUT 23 YEARS,
    S/O EJAJ, COOLIE WORK,
    R/O SANTHE MAIDANA,
    ALDUR POST,
    CHIKMAGALUR TALUK
                                    ...PETITIONERS
(BY SRI CHIDAMBARA G S, ADVOCATE)
                               2

AND

STATE OF KARNATAKA
BY R F O, ALDUR RANGE,
CHIKMAGALUR TALUK
                                              ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W. 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 6/1/2012 PASSED BY THE PRL. SESSIONS JUDGE,
CHIKAMAGALUR IN CRL.A. No.17/2010 AND ALSO THE
JUDGMENT AND ORDER DT.19/12/2009 PASSED BY THE
PRL. CIVIL JUDGE (JR.DN.) & JMFC, CHIKMAGALUR IN
C.C.No.725/2004 AND ACQUIT THE PETITIONERS.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

Heard Sri G.S.Chidambara, learned counsel for the

Revision Petitioners and Sri V.S.Vinayaka, learned High

Court Government Pleader for the respondent and perused

the records.

2. This Revision Petition is filed by the

accused/Revision Petitioners, who suffered an order of

conviction in C.C.No.725/2004 on the file of the Principal

Civil Judge (Jr.Dn.) and JMFC, Chikmagalur by Judgment

dated 19.12.2009, whereby they have been convicted for

the offences punishable under Sections 50(k) and 62 of the

Karnataka Forest Act and Section 22 of the Karnataka

Preservation of Trees Act, which was confirmed in Criminal

Appeal No.17/2010, on the file of the Principal Sessions

Judge, Chikmagalur by judgment dated 06.01.2012.

3. Brief facts of the case are as under:

PWs.1 to 3 were on patrolling duty on 20.05.2003 in

forest area of Aldur Range. On receipt of the credible

information, went to Santhe Maidana of Aldur, where they

have found accused Ejaj S/o Sabjan, who was cutting

timber and they apprehended Ejaj and enquired him as to

how he got the timber and from where, he has stored it.

The said person did not answer properly to the Forest

Officials and was not able to show the license to store

nandi and nerale logs stored by him. Immediately, the

Head of the raid party treated the same as illegal timber

and seized the same and drafted a mahazer. There

afterwards, the said Ejaj was taken to custody by the Head

of the raid party and case came to be registered against

Ejaj and others. The matter was investigated thoroughly

and after thorough investigation, a charge sheet is also

came to be filed against the accused persons for the

offences punishable under Sections 50, 62 and 80 of the

Karnataka Forest Act and Section 8 read with Section 22 of

the Karnataka Preservation of Trees Act. During the

pendency of the case, accused No.1 died and the trial was

proceeded against accused Nos.2 to 4 by securing their

presence and charge was framed. Since the accused

pleaded not guilty, the prosecution proceeded to examine

3 witnesses namely PWs.1 to 3 and relied on 4 documents,

which were marked and exhibited as Exs.P1 to 4 and two

wooden planks were marked as MOs.1 and 2 and Saw was

marked as MO.3.

4. On conclusion of the prosecution evidence,

accused statements as contemplated under Section 313

Cr.P.C were recorded, wherein accused Nos.2 to 4 denied

all the incriminatory materials found in the prosecution

evidence. However, accused persons did not choose to

lead any evidence nor place their version on record by

adducing oral evidence or filing a written submissions as is

contemplated under Section 313(5) Cr.P.C. Thereafter,

learned Magistrate heard the parties in detail and after

considering the materials on record especially the oral

testimony of PWs.1 to 3 and mahazer marked at Ex.P1 and

also taking note of wooden flanks marked at Mos.1 and 2

were seized from the custody of the accused persons

without proper licence, convicted the accused persons for

the aforesaid offences and passed the sentence as under:

"The accused No.2 to 4 are found guilty of the offence punishable U/Ss.50(k) and 62 of Karnataka Forest Act and Section of Karnataka Preservation of Trees Act.

Acting U/S.255(1) of Cr.P.C., the accused No.2 to 4 are required to be sentenced for the above said offences.

The accused No.2 to 4 are convicted and sentenced to undergo SI for 3 months and to pay a fine of Rs.1,000-00 each for the offence punishable U/S.104 of Karnataka Forest Act and

in default of payment of fine, they shall undergo simple imprisonment for one month.

The accused No.2 to 4 are also further convicted and sentenced to undergo SI for one month and to pay a fine of Rs.1.000-00 each for the offence punishable U/S.22 of Karnataka Preservation of Trees Act and in default of payment of fine, they shall undergo simple imprisonment for 15 days.

Both the sentences against the accused No.2 to 4 shall run consecutively and in default of payment of fine, the default sentences shall also run consecutively."

5. Being aggrieved by the same, accused Nos.2

to 4 preferred an appeal in Criminal Appeal No.17/2010.

Learned Judge in the First Appellate Court, after securing

the records, re-appreciated the materials on record not

only confirmed the order passed by the learned Magistrate

but also supplemented additional reasons by placing

reliance on the judgments rendered by this Court in the

case of Jayakanth Vs. State of Karnataka reported in

ILR 2008 KAR 5197 and in the case of Boraiah @

Pujari Boraiah vs. State of Thalak Police reported in

ILR 2004 KAR 2531 and dismissed the appeal of the

accused persons. Being aggrieved by the same, accused

Nos.3 and 4 have preferred this Revision Petition.

6. In the Revision Petition, the following grounds

are raised:

The impugned judgments and orders of the courts below are illegal, opposed to law, facts and circumstances of the case and hence liable to be set-aside.

The courts below erred in convicting the petitioners for the offences punishable under sections 50(k) and 62 of the Karnataka Forest Act and under section 22 of the Karnataka Preservation of Trees Act. The petitioners have not committed any offence much less the offences alleged against them.

The courts below failed to notice that the prosecution has failed to prove the commission of offence by the petitioners by producing cogent and reliable materials. The prosecution has not examined any independent witnesses to prove that the petitioners were cutting and having the possession of Nandi and Nerale logs by

putting saw pit. Except examining the Forest Officials as PWs.1 to 3 the prosecution has not examined any other witnesses. The alleged mahazar-Ex.P1 is prepared by the said officials and they themselves have signed the same as panch witnesses. There are no other independent signatories to the maha::ar and the prosecution has failed to prove that the mahazar was drawn in the spot as per law. Therefore the judgment and orders impugned are liable to be set-aside. The courts below failed to notice that admittedly the alleged place of incident is a public road and surrounded by open place and houses. Under such circumstances if really alleged incident of cutting timber illegally has taken place then the forest Officials ought to have taken signatures of the independent witnesses to the alleged mahazar. The theory of prosecution that they called the persons but they did not come to act as witnesses cannot be believed as there is no details of the persons to whom they have asked and as to why they have refused to act as witnesses. Hence, when the drawing of mahazar at the spot and seizure of the

Nandi and Nerale logs from the custody of the accused itself is not proved the conviction and sentence is bad in law and liable to be set-aside.

The      courts    below        erred       in   drawing
presumption        under       section      80   of   the

Karnataka Forest Act. Said section has no application to the facts and circumstances of the present case in as much as in the case on hand the prosecution has failed prove that the accused persons were involved in the alleged offence and the said wooden k were seized from the custody of accused by producing cogent and acceptable logs materials and by examining independent witnesses. The petitioners were not at the spot at the time of alleged raid and there is no materials before the court as to where and when the petitioners were arrested and how the petitioners were involved in the offence. In the entire materials on record the name of the petitioner No.2 is no where shown as the person involved in the alleged offence. The 1st petitioner is shown as the owner of the house adjacent to the spot of incident for which also there is no proof and it is claimed

that as per the request of the petitioner No.1 the accused Nos. 1 & 2 were cutting the said wooden logs. However, to prove that as per the direction or request of petitioner No.1 the accused 1 and 2 were cutting the wood illegally is also not proved by the prosecution. Even the witnesses have not stated anything about the involvement of 2nd petitioner in the alleged offence. The MOs were not seized from the possession or custody of the petitioners. When the involvement of the petitioners in the alleged offence itself is not at all proved by the prosecution the conviction based on no materials is liable be set-aside.

The courts below failed to notice that the petitioners were innocent persons and have not involved in any offence. The judgments relied upon by the courts below are not applicable to the facts and circumstances of the present case. The courts below erred in holding that that in the absence of any proof regarding animosity betwee the accused and the forest Officials it cannot be said that a false case has bee instituted against them is

not sustainable is against law, facts and circumstances the case.

It is the mandatory requirement of section 62(3) of the said Act that in addition giving serial numbers, marks should be put with 1st alphabet of the office or station which the officials are attached to, along with the crime number of the case in some material or ink not easily erasable that may indicate that the article are seized in that case. The records do not speak compliance of these requirements of law. According to prosecution after seizing the Nandi and Nerale logs/sizes and the saw the Forest Officials have put the serial numbers to the same. As per their contention Sl.Nos 1 to 16 was given to said logs and SI No.17 were given to saw in red ink. However, the saw which is produced as MO-3 no such serial number or mark is found as also admitted by the witnesses. The courts below failed to appreciate these discrepancies in the evidence. Hence the conviction and sentence passed is illegal, opposed to law, facts and contrary to, materials on record.

The courts below erred in presuming that the petitioners have committed offence merely on

the basis of the alleged mahazars and evidence of the official witnesses.

The grant of permission for prosecution and procedure followed by the respondent is not in accordance with law and hence the order of conviction and sentence is not sustainable in law and liable to be set-aside. There is no compliance of section 62 and other mandatory provisions of the Karnataka Forest Act and the Rules by the respondent and on this count also the order of conviction is liable to be set-aside.

Even otherwise, the courts below failed to notice that the petitioners are not previously convicted of any offence and as such the courts below ought to have applied the benefit of release of petitioners on probation of good conduct on such terms as the court deems fit by invoking section 360 of Code of Criminal Procedure and failure to apply the said provision has vitiated the orders. Even otherwise, the conviction and sentence imposed is very much on the higher side and works out great injustice to the petitioners. The petitioner No.1 is aged about 53 years suffering from many ailments and the 2nd

petitioner is aged about 23 years. They are doing cooli work for their livelihood. There are no others to look after the family. Under such circumstances the order of conviction and sentence is liable to be set-aside. The judgment and order of conviction and sentence are otherwise illegal, posed to law, facts and circumstances of the case and hence liable to be set aside.

Reiterating the above grounds, learned counsel for the

Revision Petitioner Sri G.S.Chidambara, vehemently

contended that both the Courts have not properly

appreciated the materials on record and wrongly convicted

the accused persons resulting in miscarriage of justice and

sought for allowing the Revision Petition. He also

contended that the evidence of forest officials alone was

not sufficient enough to convict the accused for the

aforesaid offences and thus, sought for allowing the

Revision Petition. He further contended that admittedly,

Santhe Maidana had people in and around the place and

forest officials could have taken the assistance of some

other public for the purpose of drafting the mahazer and

seizure of the alleged illegal timber and such a course has

not been adopted by the forest officials and therefore, self

serving testimony of PWs.1 to 3 cannot be the basis for

recording an order of conviction and sought for allowing

the revision petition. Alternatively, he contended that since

the accused persons are the first time offenders, probation

may be granted to the accused persons and prayed for

allowing of the Revision Petition to that extent.

7. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that both the Courts have rightly appreciated the materials

on record and in fact, the learned Judge in the first

Appellate Court not only re-appreciated the materials on

record but also negated the contentions urged on behalf of

the Revision Petitioners by placing reliance on the

aforesaid judgments. Accordingly, no case is made out for

interference that too in the Revisional jurisdiction and

sought for dismissal of the Revision Petition. Insofar as

alternate plea is concerned, learned High Court

Government Pleader vehemently contended that Section

104-A is a penal provisions of the offences committed by

accused and language employed under Section 104-A of

the Forest Act does not allow perpetrator of crime to walk

away only with an order of fine and imprisonment is

emerged and sought for dismissal of the Revision Petition

in toto.

8. In view of the rival contentions and having

regard to the scope of the revisional jurisdiction, following

points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused persons are guilty of the offences punishable under Sections 50(k) and 62 of the Karnataka Forest Act and Section 22 of the Karnataka Preservation of Trees Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

9. In the case on hand, the Head of the raid party

is examined as PW.1. He deposed before the Court in a

categorical manner with graphic details about the incident.

Admittedly, on credible information, the raid party proceed

to Santhe Maidana of Aldur Village and found seized timber

in the custody of accused-Ejaj. On enquiry, he failed to

give any proper explanation nor produce the licence to

store the seized timber. Accordingly, the raid party

considered the seized timber as illegal and then seized the

same and drafted mahazer at Ex.P1. There afterwards,

accused-Ejaj was apprehended and case came to be filed

and investigated the matter and ultimately, the charge

sheet came to be filed. It is not the case of the accused

that seized timber is implanted by PW.1 so as to get an

order of false conviction against the accused. It is found

from the records that there is no previous enmity or

animosity between the accused and PWs.1 to 3. Under

such circumstances, why would falsely implicate MO.1

timber in the case so as to get a false conviction against

the accused is a question that remained unanswered.

Under such circumstances, learned Magistrate appreciating

the materials on record and taking note of the contents of

the seizure mahazer and MO.1 placed before the Court,

rightly convicted the accused for the aforesaid offences.

10. Learned Judge in the first Appellate Court,

reconsidered the entire matter in detail. Learned Judge in

the first Appellate Court while confirming the finding

recorded by the Trial Judge also placed its reliance on the

judgments of the Hon'ble High Court of Karnataka as

referred to supra.

11. Further, the first Appellate Court supplemented

the reasons as to why it is concurring with the finding

recorded by the Trial Magistrate. In the light of the

grounds urged in Revision Petition, this Court is of the

considered opinion that none of the grounds urged in the

Revision Petition would stand merit in view of the sound

and logical reasons recorded by the Trial Magistrate and

supplemented by the learned Judge in the first Appellate

Court. Accordingly, there is no legal infirmity, perversity in

reaching out such a finding by Trial Magistrate as well as

learned Judge in the first Appellate Court. Accordingly,

point No.1 is answered in the negative.

12. Insofar as the sentence is concerned,

admittedly, the charge sheet was filed showing the

accused persons as absconding accused. Accused

voluntarily surrendered before the Trial Magistrate and

took bail. Therefore, no period of imprisonment is there

insofar as the Revision Petitioners are concerned. In order

to appreciate what is the appropriate sentence in a given

case is necessary for this Court is culled out in Section

104A of the Forest Act, which reads as under:

"104-A. Restrictions on trade and transport of blackwood or Bite trees and timber thereof.- (1) No person other than. -

                    (a)      the State Government; or

                    (b)      the officers of the State Government

not below the rank of a 1[Deputy Conservator of Forest], authorised in writing in this behalf,

Substituted for the expression "Divisional Forest Officer" by Act No.20 of 2001

Shall purchase or transport any blackwood or bite tree (Dalbergia Latifolia) or timber thereof:

Provided that the purchase of any such tree or timber from the State Government or the aforesaid officers shall not be deemed to be a purchase in contravention of the provisions of this sub-section:

Provided further that the State Government may by order exempt any such tree or timber below such measurements as may be specified by it from time to time from the provisions of sub-

section (1).

(2) No person shall sell or otherwise dispose of any such tree or timber to any person other than the State Government or the aforesaid officers.

(3) Notwithstanding anything contained in sub-section (1) any such tree or timber purchased from the State Government or the aforesaid officers by any person for bona fide personal use may be transported by such person in accordance with the terms and conditions of a permit issued by such authority and in such manner as may be prescribed.

(4) The price of any such tree or timber shall be such as the State Government may by order specify from time to time, having regard to.-

      (a)    prevalent market price;

      (b)    quality of the timber in the locality;

      (c)    transport facilities available in the
             locality;

      (d)    the cost of transport;

      (e)    general level of wages for labour
             prevalent in the locality; and

      (f)    such other       matters   as   may      be
             prescribed.

(5) The State Government or the aforesaid officers may establish such number of depots as may be necessary where any such tree or timber may be sold to the State Government or the aforesaid officers.

(6) The State Government or the aforesaid officers subject to the general supervision and control of the State Government shall be bound to purchase at the price fixed under sub-section (4) any such tree or timber offered for sale during the hours of business.

(7) Any tree or timber purchased under sub- section (1) shall be sold or otherwise disposed of in

such manner as the State Government may from time to time direct.

(8) Any person contravening the provisions of this section or any rule made thereunder shall, on conviction, be punishable with imprisonment for a term which may extend to 1[five years] and with fine which may extend to 2[ten thousand rupees]."

13. On bare reading of Section 104A of the Forest

Act, it is crystal clear that the imprisonment may extend to

five years and fine may extend to Rs.10,000/-. Therefore,

there is no minimum sentence under the provision of

Section 104A of the Forest Act in contravention of Section

87 of the Forest Act. Therefore, the timber has been seized

on the spot and conviction came to be passed as there was

no proper explanation offered by the accused persons.

14. Under such circumstances, since the accused

persons are the first time offenders, the Trial Court ought

to have considered the grant of probation as is held in the

Substituted for the words "two years" by Act No.1 of 1981, w.e.f. 3-2-1981

Substituted for the words "five thousand rupees" by Act No.1 of 1981, w.e.f.3-2-1981

cases of Chandreshwar Sharma v. State of Bihar

reported in (2000) 9 SCC 245 at paragraph No.3, it is

held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had

considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

and in the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, it has been held as under:

"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from

the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".

15. As such, this Court is of the considered opinion

that if the accused persons are granted the benefit of

probation and directed to pay fine of Rs.15,000/- each and

execute a bond in a sum of Rs.50,000/- each with one

surety for the like sum to the satisfaction of the Trial Court

for their good behavior, which shall be in force for a period

of two years, ends of justice would be met. Accordingly,

point No.2 is answered partly in the affirmative and pass

the following:

ORDER

i. Criminal Revision Petition is allowed-in-part.

ii. While maintaining the conviction of the accused for the offences punishable under Sections 50(k) and 62 of the Karnataka Forest Act and Section 22 of the Karnataka Preservation of Trees Act, accused

persons/Revision Petitioners are directed to execute a bond in a sum of Rs.50,000/- each with one surety for the like sum to the satisfaction of the Trial Court for their good behavior, which shall be in force for a period of two years and to pay fine of Rs.15,000/- each inclusive of the fine already imposed by the Trial Magistrate.