Karnataka High Court

Subbaiah vs State By R F O on 11 June, 2021

Author: Sreenivas Harish Kumar

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JUNE 2021

                        BEFORE

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

          CRIMINAL APPEAL No.95 OF 2014

BETWEEN

1.    Subbaiah,
      S/o. Thimmaiah,
      Aged about 38 years,

2.    Chinnaiah,
      S/o Thimmaiah,
      Aged about 35 years,

      Both are R/at Tuppur,
      Heigadde Village,
      Melpal Post, Koppa Taluk,
      Chikmagalur District-577126.
                                         ...Appellants
(By Sri. K.S.Ganesha, Advocate)

AND

State by R.F.O.,
Chikka Agrahara Range,
N.R.Pura Taluk,
Chikmagalur District-577134.

                                        ...Respondent
(By Sri.Mahesh Shetty, HCGP)
                                  2


      This Criminal Appeal is filed under Section 374(2)
Cr.P.C   praying   to   set   aside   the   order  dated
28.12.2013/06.01.2014 passed by the I Additional District
and Sessions Judge, Chikmagalur, in S.C.No.56/2013
convicting the appellants/accused for the offence
punishable under Section 379 read with Section 34 of IPC
and Section 86 of Karnataka Forest Act and etc.

       This Criminal Appeal coming on for hearing though
video conferencing this day, the court delivered the
following:

                        JUDGMENT

The accused who have been convicted for the

offences punishable under section 379 IPC and section 86

of the Karnataka Forest Act read with section 34 IPC have

preferred this appeal challenging the judgment dated

28.12.2013 in S.C 56/2013 on the file of I Additional

Sessions Judge, Chikkamagaluru. Each of them has been

sentenced to undergo simple imprisonment for a period of

five years and fine of Rs.50,000/- with default

imprisonment period of three months in relation to offence

under section 86 of the Karnataka Forest Act, and simple

imprisonment for a period of two years with fine of

Rs.2,000/- with default sentence of ten days for the

offence under section 379 IPC.

2. The prosecution case in brief is that on

23.11.2012, the forest officials were on patrolling duty at

Gubburu near Karkeswara Reserve Forest Area. The

accused were found in possession of six sandalwood billets

weighing 28 kgs. They were transporting the same

without any valid pass or permit. The forest officials

seized the sandalwood billets and arrested the accused.

3. When the prosecution went into trial, it examined

five witnesses PWs 1 to 5 and relied upon 9 documents,

Exs. P1 to P9 and 6 material objects, MOs1 to 6, all being

sandalwood billets. The learned Sessions Judge, having

assessed the evidence, arrived at a conclusion that the

evidence of the witnesses and the documents produced by

them would establish the prosecution case beyond

reasonable doubt.

4. Though the appellants have raised many grounds

in the memorandum of appeal, the learned counsel for the

appellants, Sri Ganesha, submitted that he would confine

his arguments to grounds (e) and (f) of the memorandum

of appeal. He argued that the prosecution examined PW4,

the Range Forest Officer and got marked Ex.P5, the

certificate issued by him. His testimony does not establish

that he could issue a certificate after examining the seized

articles. There is no document to show that he had

undergone training, section 62-C of the Karnataka Forest

Act (for short referred to as 'the Act') has not been

followed.

4.1. The next point of argument is that the Forest

Officer who is said to have seized the sandalwood billets

did not comply with sections 62(3) and 71-A of the Act.

This is mandatory in view of the judgment of this court in

the case of BHANUPPRAKASH A AND ANOTHER vs

STATE BY THE ACF, CHIKMAGALORE [ILR 2006 KAR

3216]. Non-compliance of this statutory provision

vitiated the entire trial and therefore the accused would be

entitled to acquittal. In support of his contention he also

relied upon another judgment of the Supreme Court in the

case of STATE OF KARNATAKA vs PRAKASH AND

OTHERS [(2019) 14 SCC 229].

5. The learned High Court Government Pleader

submitted that the evidence given by PW4 discloses that

he had been trained to examine the seized articles. When

he himself gave evidence, production of a certificate for

having undergone training is not necessary. Moreover if

his cross-examination is perused, there is nothing to show

that he has been discredited in any manner. As regards

compliance of section 62(3) read with section 71A of the

Act, he argued that Ex.P9 shows the compliance. The

learned trial Judge has clearly discussed this aspect of the

matter. Therefore, the two grounds urged by the

appellants counsel are not very material and he submitted

that this appeal deserves to be dismissed.

6. If the judgment of the trial court is perused, it is

found that PW4, a Range Forest Officer underwent training

in the year 1983-84 and that he had the experience of

testing timber, sandalwood billets in number of cases.

Ex.P5 is the certificate issued by him. His evidence cannot

be doubted.

6.1. With regard to compliance of sections 62(3)

and 71A of the Act, the learned trial Judge has held that

PW5 after completion of investigation prepared a report as

per Ex.P9 and sent it to the DCF at Koppa. In fact PW5

Rangaswamy obtained permission from DCF, Koppa, for

filing charge sheet. These events indicate that DCF had

the knowledge of all the proceedings and therefore

compliance of section 71-A of the Act does not arise. He

has also held that probably PW5 might not have produced

the sandalwood billets before DCF due to lack of

knowledge.

7. Since the appellants counsel confined his

arguments to two points referred to above, it is enough if

the correctness of the findings of the trial court is

examined.

8. Section 62-C of the Act states that a document

purporting to be a certificate issued by a forest officer not

below the rank of Range Forest Officer who has undergone

training in the examination of forest produce and

authorized by State Government to issue certificate may

be used as evidence of facts stated in the certificate in any

proceeding, and if the court thinks fit to examine such

officer, it may summon him on the application of the

prosecution or the accused. The language is very plain to

understand. Mere production of the certificate issued by

the authorized officer during trial is enough. It is not

necessary always that such officer must be summoned to

the court, only when the court thinks fit, that too when an

application is made by the prosecution or the accused, the

officer may be summoned. In this case, PW4 was the

Range Forest Officer who examined the seized sandalwood

billets and issued the certificate as per Ex.P5. It is quite

clear that not only the certificate is produced but the

officer has been examined. Therefore, there is compliance

of section 62-C of the Act. The argument of learned

counsel for the appellants is that PW4 has not produced

certificate that he has undergone trial. Except a

suggestion to him in the cross-examination that he has not

undergone training, his competency to issue certificate has

not been assailed in any manner. His evidence cannot be

discarded. The judgment of the Supreme Court in the case

of Prakash and Others (supra) is not applicable because

in the said case there was no evidence to show that the

Range Forest Officer who issued the certificate had

undergone training for examining the forest produce. The

same is not the case here. Therefore, there is no merit in

the argument of appellants counsel so far as this point is

concerned.

9. But, it appears there is no compliance of section

62(3) read with section 71-A of the Act. Section 62(3) of

the Act envisages that the officer seizing the property

shall, as soon as possible, make a report of such seizure to

the concerned authorized officer under section 71-A of the

Act. Section 71-A of the Act begins with a non-obstante

clause and states that if the forest offence is believed to

have taken place in respect of certain items or property as

mentioned therein, the officer who seizes the property in

accordance with section 62(1) of the Act, shall without

unreasonable delay produce them before an officer

authorized by the State Government in this behalf by a

notification in the official gazette. The officer so

authorized should not be an officer below the rank of

Assistant Conservator of Forests. The coordinate bench of

this court in the case of Bhanuprakash A(supra) has

held compliance of this provision is mandatory and its non-

compliance vitiates the prosecution. If the entire evidence

is perused, nowhere it is forthcoming that the officer who

seized the sandalwood billets produced them before the

authorized officer without any delay. The trial court has

held that Ex.P9 is the compliance of section 71-A of the Act

and that it was within the knowledge of the Deputy

Conservator of Forests that sandalwood had been seized.

Ex.P9 is an order passed by the Deputy Conservator of

Forests according permission to file charge sheet and to

produce the seized sandalwood billets to the court. This

order cannot be construed as compliance of section 71-A

of the Act, there must be separate document evidencing

the production of the seized property before the authorized

officer. This requirement is mandatory because the

authorized officer has to take further action in accordance

with section 71-A (2) and (3) of the Act. The findings of

the trial court Judge is based on his assumption which is

not permitted. When an action is to be taken strictly in

accordance with law, a proof to that effect must be

produced before the court. Therefore, it may be stated

that there is no proof of production of seized sandalwood

billets before the authorized officer. As held by the

coordinate bench of this court in Bhanuprakash A

(supra), the seizure would get vitiated and consequently

the trial also gets vitiated and the accused are entitled to

be acquitted.

10. From the above discussion, I arrive at the

conclusion that this appeal deserves to be allowed.

Accordingly, the following : -

ORDER

(a) Appeal is allowed.

(b) The judgment dated 28.12.2013 in

S.C.56/2013 on the file of I Additional

Sessions Judge, Chikkamagaluru, is set

aside.

(c) The appellants/accused are acquitted of

the offences punishable under section 86

of the Karnataka Forest Act and section

379 read with section 34 of Indian Penal

Code.