Karnataka High Court

Ekbal S/O Sathar Sab vs The State Of Karnataka on 19 November, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                         CRL.A No. 873 of 2013




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 19TH DAY OF NOVEMBER, 2024

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL No. 873 OF 2013
                      BETWEEN:

                      1.    EKBAL S/O SATHAR SAB
                            AGED ABOUT 35 YEARS
                            R/O GUDDENAHALLI KOPPALU
                            HASSAN TOWN - 573 201.

                      2.    SANNAPPA @ MEENAKSHIGOWDA
                            S/O RANGEGOWDA
                            AGED ABOUT 40 YEARS
                            OCC: CAR DRIVER
                            R/O GUDDENAHALLI KOPPALU
Digitally signed by         BELUR ROAD
LAKSHMINARAYANA
MURTHY RAJASHRI             HASSAN TOWN - 573 201.
Location: HIGH
COURT OF
                                                              ...APPELLANTS
KARNATAKA
                      (BY SRI P B UMESH, ADVOCATE)

                      AND:

                            THE STATE OF KARNATAKA
                            BY TIPTUR TOWN POLICE STATION - 572 201.
                                                                 ...RESPONDENT

                      (BY SRI K NAGESHWARAPPA, HCGP)

                            THIS CRL. A. IS FILED UNDER SECTION 374(2) CR.P.C
                      PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
                      DATED 28.08.2013 PASSED BY THE V ADDITIONAL DISTRICT &
                      S.J., TIPTUR IN S.C.No.345/2012 - CONVICTING THE
                      APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
                      SECTION 87 OF KARNATAKA FOREST ACT AND SECTION 379
                      R/W 34 OF IPC AND ETC.,
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                                           NC: 2024:KHC:46643
                                        CRL.A No. 873 of 2013




     THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR


                      ORAL JUDGMENT

1. This appeal is filed by the appellants - accused Nos.1

and 2 praying to set aside the judgment of conviction and

order on sentence dated 28.08.2013 passed in

S.C.No.345/2012 by the V Additional District and Sessions

Judge, Tiptur, whereunder, the appellants - accused Nos.1

and 2 have been convicted for offences under Section 87

of the Karnataka Forest Act, 1963 (for short hereinafter

referred to as `the K.F.Act') and Section 379 r/w Section

34 of the Indian Penal Code, 1860 (for short hereinafter

referred to as 'IPC') and sentenced to undergo rigorous

imprisonment for a period of five years and to pay fine of

Rs.50,000/- each, for offence under Section 87 of the

K.F.Act and rigorous imprisonment for a period of two

years and to pay fine of Rs.5,000/- for the offence under

Section 379 of IPC.

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2. The factual matrix of the prosecution case is that;

(i) on 10.06.2012 at about 06.30 - 07.00 am., the

appellants - accused Nos.1 and 2 were found transporting

the sandal wood billets and pieces measuring 30 Kgs,

worth about Rs.46,500/- in two plastic bags in Maruthi

Omni Car bearing registration No.KA-13-M-6749 in front of

Shakthi Comforts Factory at Tiptur-Huliyar road. Charge

sheet has been filed against the appellants - accused

Nos.1 and 2 for the offences under Sections 86 and 87 of

the K.F.Act and Section 379 r/w Section 34 of IPC. Charge

came to be framed against the appellants - accused Nos.1

and 2 for the offences under Section 379 r/w Section 34 of

IPC and Section 87 of the K.F.Act.

(ii) In order to prove the charge, the prosecution has

examined seven witnesses as PWs.1 to 7 and got marked

the documents as Exs.P1 to P7 and got identified the

material objects as MOs.1 and 2. The statement of the

appellants - accused Nos.1 and 2 has been recorded under

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Section 313 of Cr.P.C. The learned Sessions Judge, after

hearing the arguments of both sides, has formulated the

points for consideration and after appreciating the

evidence on record, has passed the impugned judgment of

conviction and order on sentence. The said judgment has

been challenged in this appeal.

3. Heard learned counsel for the appellants - accused

Nos.1 and 2 and learned High Court Government Pleader

for the respondent - State.

4. Learned counsel for the appellants - accused Nos.1

and 2 would contend that;

(i) the articles said to be of the sandal wood have

been seized under mahazar - Ex.P1 and three Panchas to

the said mahazar, namely PWs.1 to 3 have not supported

the case of the prosecution. Therefore, the said seizure

mahazar has not been proved. Case came to be registered

on the basis of the seizure mahazar - Ex.P1 and there is

no report of the officer who has prepared the said mahazar

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ie., PW7 and the case registered based on the said

mahazar is bad in law. On that point learned counsel has

placed reliance on the decision of the Co-ordinate Bench in

the case of Sri.Dayananda @ R.Babu Vs. The State of

Karnataka rendered in Crl.R.P.No.129/2021 on

04.04.2024.

(ii) He further contends that the prosecution has not

produced authorization and training certificate of PW5 who

has issued certificate - Ex.P5 for having examined articles

opining that they are of sandal wood in compliance of

Section 62C of the K.F.Act. On that point, he placed

reliance on the decision of the Hon'ble Apex Court in the

case of State of Karnataka Vs. Prakash and Others

reported in (2019) 14 SCC 229 and the decision of the

Co-ordinate Bench of this Court in the case of

T.R.Shanmukha Vs. The State of Karnataka rendered

in Crl.A.No.840/2008 decided on 21.08.2013 and the

decision of this Court in the case of Sri.Shankarachari

Vs. State of Karnataka rendered in Crl.A.No.469/2013

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decided on 16.02.2024. There is discrepancy in the

evidence of PWs.4 and 7 with regard to sitting position of

the appellants - accused Nos.1 and 2 in the car. On these

grounds, he prayed for allowing the appeal and acquitting

the appellants - accused Nos.1 and 2.

5. Per contra, learned High Court Government Pleader

for the respondent - State would support the reasons

assigned by the Trial Court. He submits that the seizure

mahazar - Ex.P1 has been proved by the evidence of

PWs.4 and 7 even though PWs.1 to 3 - Panchas have

turned hostile. Ex.P5 has been issued by the Range Forest

Officer ie., PW5 who has examined the seized articles and

opined that they are of sandal wood. He submits that

there is nothing to disbelieve the evidence of official

witnesses namely PWs.4, 6 and 7. On these grounds, he

prayed to dismiss the appeal.

6. Having heard the learned counsels, this Court has

perused the impugned judgment and the Trial Court

records.

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7. Having heard the learned counsels and on perusal of

the records, the following point arises for my

consideration;

"Whether the Trial Court has erred in convicting the appellants - accused Nos.1 and 2 for the offences under Section 87 of the K.F.Act and Section 397 r/w Section 34 of IPC?"

8. My answer to the above point is in the affirmative

for the following reasons;

Two plastic bags containing the sandal wood billets /

pieces have been seized under mahazar - Ex.P1 by PW7.

PWs.1 to 3 are the Panchas to the said mahazar - Ex.P1.

PW7, after seizure of articles and preparing Ex.P1 -

mahazar has registered the case against the appellants -

accused Nos.1 and 2 on the basis of the said mahazar -

Ex.P1. Ex.P1 being the mahazar, cannot be termed as a

complaint. F.I.R cannot be registered on the basis of the

mahazar. PW7 has registered the F.I.R on the basis of the

mahazar. The Co-ordinate Bench of this Court in the case

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of Sri.Dayananda @ R.Babu's case supra, has observed

thus;

"On careful perusal of the above said provisions, it appears that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both the cases, the information should be reduced into writing and thereafter, the investigation must be carried out.

16. Ex.P1 being a panchanama, it cannot be termed as a complaint. FIR cannot be registered on the basis of panchanama, however, in the present case, the respondent has registered the FIR on the basis of panchanama which is erroneous and not proper. The Trial Court ought not to have acted upon such FIR and congizance should not have been taken on the strength of the said FIR. However, the Trial Court and the Appellate Court have committed error by considering the said FIR as appropriate and proper and recorded the conviction. Such conviction would be rendered as ineffective and the same can be termed as non est in law."

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9. The Trial Court has committed an error by

considering the mahazar as F.I.R and recorded conviction

based on it. Such conviction would be rendered as

ineffective and the same can be termed as non est in law.

10. The said alleged sandal wood billets have been seized

by PWs.4 and 7 from the Maruthi Omni Car bearing

registration No.KA-13-M-6749 under the mahazar - Ex.P1

in the presence of PWs.1 to 3. PWs.1 to 3 are the Panchas

to the said mahazar - Ex.P1. Pws.1 to 3 have not

supported the case of the prosecution and they have been

treated as hostile. As the Panchas have not supported the

case of the prosecution, the prosecution has failed to

prove the mahazar - Ex.P1.

11. The said alleged sandal wood pieces have been

examined by PW5 - Range Forest Officer who has issued

the certificate as per Ex.P5, stating that the said pieces

are of sandal wood. The prosecution has not produced the

document to show that the Government has authorized

PW5 to issue certificate and he has undergone training as

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required under Section 62C of the K.F.Act. The Hon'ble

Apex Court in the case of State of Karnataka Vs. Prakash

and Others, supra has held as under;

9. On perusal of the facts of cases presented above, we find that the prosecution could not produce any evidence to show that the Range Forest Officer concerned who issued the certificate in the present cases was qualified to do the same as prescribed under the provisions of Section 62-C of the Act which makes it mandatory that the officer concerned should have been authorized by the Government and should have received training for examining the forest produce. The forest officers concerned have nowhere stated in their evidence that they were duly authorized by the State Government and competent to issue the certificates in question. Going by the material on record, it can be said that the prosecution has failed to prove that the requirements as contemplated under Section 62-C of the Act were met by the officers concerned before issuing the impugned certificates."

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12. This Court in the case of Sri.Shankarachari, supra

placing reliance on the decision of the Hon'ble Apex Court

in the case of the State of Karnataka and Prakash Vs.

Others, supra opined that unless authorization or

notification is produced as required under Section 62C of

the K.F.Act, it cannot be said that Range Forest Officer is

authorized by the State Government to issue certificate

under Section 62C of the K.F.Act. The prosecution has

also not produced any document to show that PW5 -

Range Forest Officer has undergone training as required