Karnataka High Court

State By Range Forest Officer vs Aslam on 16 January, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                             NC: 2024:KHC:1932
                                                         CRL.A No. 521 of 2014




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 16TH DAY OF JANUARY, 2024

                                              BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL NO. 521 OF 2014
                      BETWEEN:

                      STATE BY RANGE FOREST OFFICER
                      CHANNAGIRI RANGE
                      CHANNAGIRI-577213
                                                                  ...APPELLANT
                      (BY SMT.N.ANITHA GIRISH, HCGP.,)

                      AND:

                      1.    ASLAM
                            S/O ABDUL GAFOORSAB
                            31 YEARS

                      2.    SADIQ
                            S/O ABDUL GAFOORSAB
                            36 YEARS

Digitally signed by
                            BOTH ARE RESIDING AT
LAKSHMINARAYANA
MURTHY RAJASHRI
                            LASHKAR MOHALLA
Location: HIGH
COURT OF
                            CHANNAGIRI-577213
KARNATAKA
                                                             ...RESPONDENTS
                      (BY SRI R.D.RENUKARADHYA, AMICUS CURIAE)
                           THIS CRL.A IS FILED UNDER SECTION 377 CR.P.C
                      PRAYING TO MODIFY THE ORDER OF SENTENCE DATED:8.4.14
                      PASSED BY THE II ADDL. DIST. AND S.J., DAVANAGERE IN
                      S.C.NO.38/2013 AND IMPOSE APPROPRIATE AND ADEQUATE
                      SENTENCE AGAINST THE RESPONDENT/ACCUSED FOR THE
                      OFFENCE P/U/S 86 AND 87 OF THE KARNATAKA FOREST ACT
                      R/W SEC. 34 OF IPC.
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                                         NC: 2024:KHC:1932
                                    CRL.A No. 521 of 2014




    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

The State has filed this appeal praying to modify the

order of sentence dated 08.04.2014 passed by the

II Additional District and Sessions Judge, Davanagere in

S.C.No.38/2013 and impose an appropriate and adequate

sentence on respondent Nos.1 and 2 / accused Nos.1 and

2 for the offences punishable under Sections 86 and 87 of

the Karnataka Forest Act, 1963 (hereinafter referred to as

'the Act' for short) r/w Section 34 of the Indian Penal

Code, 1860 (hereinafter referred to as 'IPC' for short).

Respondent Nos.1 and 2 / accused Nos.1 and 2 were

convicted for the offences under Sections 86 and 87 of the

Act r/w Section 34 of IPC, and sentenced to undergo

simple imprisonment for a period of one year six months

each and to pay fine of Rs.1,500/- each and in default of

payment of fine, to undergo simple imprisonment for a

period of five months.

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2. Heard learned High Court Government Pleader for

the appellant and learned Amicus Curiae for respondent

Nos.1 and 2 / accused Nos.1 and 2.

3. The factual matrix of the prosecution case is that; on

19.05.2012, on receiving a credible information about

cutting of the sandalwood tree, the Range Forest Officer,

Channagiri range, along with his staff rushed to the spot

near the mango garden and they found that the accused

persons were engaged in cutting the sandalwood logs into

pieces with the help of an Axe and the accused had

brought the said sandalwood logs illegally by cutting the

sandalwood tree, by entering into the compound of Forest

Depot, Channagiri without any permit or licence and

committed the offences under Sections 86 and 87 of the

Act.

4. The charge has been framed against respondent

Nos.1 and 2 / accused Nos.1 and 2 for the offences under

Sections 86 and 87 of the Act. In order to prove the said

charge, the prosecution has examined six witnesses as

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PWs.1 to 6 and got marked Exs.P1 to P7 and MOs.1 to 3.

Four photographs have been marked as Exs.D1 to D4 on

behalf of the defence. The statement of respondent Nos.1

and 2 / accused Nos.1 and 2 came to be recorded under

Section 313 of Cr.P.C. The learned Sessions Judge has

formulated the points for consideration and after

appreciating the evidence on record, found the appellants

guilty of the offences under Sections 86 and 87 of the Act

and convicted them for the said offences. The learned

Sessions Judge has sentenced respondent Nos.1 and 2 /

accused Nos.1 and 2 to undergo simple imprisonment for a

period of one year six months each and to pay fine of

Rs.1,500/- each and in default of payment of fine, to

undergo simple imprisonment for a period of five months

for the offences under Sections 86 and 87 of the Act.

5. The State has preferred the present appeal

challenging the order of sentence, contending that the

sentence imposed is lesser than the minimum sentence.

Respondent Nos.1 and 2 / accused Nos.1 and 2 have not

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preferred any appeal challenging the judgment of

conviction and order of sentence. Therefore, the judgment

of conviction for the offences under Sections 86 and 87 of

the Act has become final.

6. Learned High Court Government Pleader would

contend that the minimum sentence for the offences under

Sections 86 and 87 of the Act is imprisonment for a term

which shall not be less than five years and the amount of

fine shall not be less than Rs.50,000/- in case of the first

offence. She contends that the sentence imposed by the

learned Sessions Judge is less than the minimum sentence

and the fine imposed is less than the minimum fine. With

this, she prayed for allowing the appeal and to impose the

adequate sentence.

7. As respondent Nos.1 and 2 / accused Nos.1 and 2

inspite of issuance of notice to them and inspite of service

of notice have remained absent and unrepresented,

therefore, this Court has appointed Sri.R.D.Renukaradhya,

NC: 2024:KHC:1932

as the Amicus Curiae to represent respondent Nos.1 and 2

/ accused Nos.1 and 2.

8. Learned Amicus Curiae would contend that the

incident had taken place in the year 2012 and the learned

Sessions Judge taking the liberal view, has imposed the

sentence. He admits that the sentence imposed on

respondent Nos.1 and 2 / accused Nos.1 and 2 is lesser

than the minimum sentence which is provided for the

offences under Sections 86 and 87 of the Act.

9. Having heard the learned counsel for the parties, the

following point arises for my consideration;

"Whether the sentence imposed by the learned Sessions Judge for the offences under Sections 86 and 87 of the Act, is lesser than the minimum sentence? If so, what is the sentence required to be imposed on respondent Nos.1 and 2 / accused Nos.1 and 2 for the said offences?"

10. Respondent Nos.1 and 2 / accused Nos.1 and 2 have

been convicted for the offences under Sections 86 and 87

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of the Act. Respondent Nos.1 and 2 / accused Nos.1 and

2 have not challenged the said judgment of conviction. In

view of the contention of learned High Court Government

Pleader, it is relevant to go through the provisions of

Sections 86 and 87 of the Act, which reads thus;

"86. Penalty for offence in regard to sandalwood.--In any case of a forest offence having reference to the cutting, uprooting, or removal or damage to, a sandal tree or any part of a sandal tree belonging to Government, or to an occupant or holder of land or other person referred to in section 83, the offender shall, on conviction, be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to one Lakh rupees.

Provided that,--

(i) in the case of first offence the term of imprisonment shall not be less than five years and the amount of fine shall not be less than 2 fifty thousand rupees; and

(ii) in the case of a second or subsequent offence the term of imprisonment shall not be less than seven years and the amount of fine shall

NC: 2024:KHC:1932

not be less than seventy five thousand rupees.

87. Regulation of sale and manufacture of sandalwood and sandalwood oil.--(1) No person shall possess, store or sell or attempt to store or sell sandalwood or disintegrate or attempt to disintegrate sandalwood in mills or by other contrivance, manufacture or distil, or attempt to manufacture or distil oil from sandalwood, or re- distil, refine, possess, store or sell or attempt to refine, store or sell oil extracted from sandalwood, except under a licence obtained from such Forest Officer on payment of such fees, and subject to such restrictions and conditions as may be prescribed:

Provided that no such licence shall be refused in respect of distillation of oil from sandalwood and possession and storage of sandalwood for purposes of distillation, and the sale of sandalwood oil so distilled, by persons bona fide carrying on the business of distillation immediately prior to the commencement of this Act, in any area of the State:

Provided further that no such licence shall be necessary for possession of sandalwood up to three

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kilograms and sandalwood oil upto one hundred grams for bona fide domestic use.

Provided also that nothing in this sub-section so far as it relates to obtaining a licence to possess, store or sell or attempt to store or sell sandal wood shall apply to any person or occupant or holder of land referred to in section 83 in respect of sandal wood obtained from sandal tree grown by such person or occupant or holder in his land.

(2) Whoever contravenes the provisions of sub-

section (1) shall, on conviction, be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees:

Provided that,--

(i) in the case of first offence, the term of imprisonment shall not be less than five years and the amount of fine shall not be less than fifty thousand rupees;

(ii) in the case of a second or subsequent offence, the term of imprisonment shall not be less than seven years and the amount of fine shall not be less than seventy five thousand rupees."

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NC: 2024:KHC:1932

11. The maximum punishment provided for the offence

under Section 86 of the Act, is imprisonment for a term

which may extend to ten years and with fine, which may

extend to Rs.1,00,000/- (Rupees one lakh only). Incase of

the first offence, the term of imprisonment shall not be

less than five years and the amount of fine shall not be

less than Rs.50,000/- (Rupees fifty thousand only). Even

for the offence under Section 87 of the Act, the

punishment provided is imprisonment for a term, which

may extend to ten years and with fine which may extend

to Rs.1,00,000/- (Rupees one lakh only). Incase of first

offence, the term of imprisonment shall not be less than

five years and the amount of fine shall not be less than

Rs.50,000/- (Rupees fifty thousand only). The sentence

provided under Sections 86 and 87 of the Act has been

amended by Act No.20/2001 with effect from 05.09.2002.

The date of commission of the offence is 19.05.2012.

Therefore, the amended provisions contained in the

provisions of Sections 86 and 87 of the Act will apply to

the case on hand. Considering the said provisions, the

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NC: 2024:KHC:1932

sentence imposed by the learned Sessions Judge is less

than the minimum sentence. Therefore, the sentence as

imposed by the learned Sessions Judge requires to be

modified as prayed in the appeal. As the offence has been

committed in the year 2012, which is more than eleven

years from this day, this Court deem it appropriate to

impose only the minimum sentence. Hence, the above

point is answered accordingly. In the result, the following;

ORDER

The appeal is allowed. The order of sentence dated

08.04.2014 passed in S.C.No.38/2013 by the II Additional

District and Sessions Judge, Davanagere is modified as

under;

(i) Respondent Nos.1 and 2 / accused Nos.1 and 2 shall undergo imprisonment for a period of five years and to pay fine of Rs.50,000/- (Rupees fifty thousand only) each, for the offence under Section 86 of the Act.

(ii) Respondent Nos.1 and 2 / accused Nos.1 and 2 shall undergo imprisonment for a

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NC: 2024:KHC:1932

period of five years and to pay fine of Rs.50,000/- (Rupees fifty thousand only) each, for the offence under Section 87 of the Act.

(iii) In default of payment of fine, respondent Nos.1 and 2 / accused Nos.1 and 2 shall undergo imprisonment for a period of six months.

(iv) Both the substantive sentences are ordered to run concurrently.

(v) Respondent Nos.1 and 2 / accused Nos.1 and 2 are entitled to benefit of Section 428 of Cr.P.C.

The Trial Court is directed to secure accused Nos.1

and 2 to serve the remaining part of sentence.

Fee of Amicus Curiae is fixed as Rs.3,000/-. Registry

to pay the fees to Amicus Curiae.

Sd/-