Karnataka High Court
Mohammad S/O Rafiq Abdul Patel vs The State Of Karnataka on 29 November, 2022
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CRL.RP No. 100036 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRL.R.P. NO.100036/2016
BETWEEN:
MOHAMMAD
S/O. RAFIQ ABDUL PATEL,
AGE-45 YEARS, OCC: AGRICULTURE,
R/O. KIRAVATTI,
TQ: YALLAPUR,
DIST: UTTAR KANNADA
...PETITIONER
(BY SRI. R.H.ANGADI, ADV.)
AND:
THE STATE OF KARNATAKA
(THROUGH KALAGHATAGI RFO)
R/BY ITS S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
IMPUGNED JUDGMENT PASSED IN CRIMINAL APPEAL NO.16/2011
Digitally signed
ROHAN by ROHAN
HADIMANI T DATED 28.01.2015 PASSED BY THE II ADDL. DISTRICT AND
HADIMANI Date:
T 2022.12.16
11:36:46 +0530
SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD, CONFIRMING
THE ORDER PASSED BY THE AUTHORIZED OFFICER AND DEPUTY
CONSERVATOR OF FORESTS, DHARWAD DIVISION, DHARWAD IN
NO.C1/FORP/FOC/KA-31-5579/2009-10/2517 DATED 25.01.2011
AND TO CALL FOR RECORDS.
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CRL.RP No. 100036 of 2016
ORDER
1. The revision petitioner has filed this revision petition under Section 397 r/w 401 of Cr.P.C. to set aside the impugned judgment dated 28.01.2015 passed by the II Addl. District and Sessions & Special Judge, Dharwad, confirming the order dated 25.01.2011 passed by the Authorised Officer and District Conservator of Forests, Dharwad Division, Dharwad, in C1/FOP/FOC/KA-31-5579/2009-10.
2. Summarized facts of the prosecution case are:
2.1 Petitioner is the owner of a Tempo Trax with registration No.KA-31/5579. On 24.05.2009, around 06.00 a.m., Forest Officials received a credible information that a Trax vehicle belonging to the petitioner was carrying teakwood and cedar wood on Karwar-Hubballi National Highway No.63. It is further alleged that on 24.05.2009, at 08.30 a.m., when the Forest Officials were watching the vehicle, at -3- CRL.RP No. 100036 of 2016 that time, the vehicle came from Kirawatti and was stopped by the Forest Officials at the Forest Check Post, at that time, a person from the vehicle ran away from the vehicle and it was found that the vehicle was transporting some wood, for which there was no pass or permit from the concerned forest officials. It is further alleged that, the driver of the vehicle has made a voluntary statement that, they were illegally transporting the teakwood and cesium wood.
The vehicle was seized by the forest officials and the present petitioner has made an application for the release of his vehicle before the authorised Officer and Deputy Conservator of Forests, Dharwad Division, Dharwad. 2.2 To prove its case, the prosecution has examined five witnesses as P.W.1 to P.W.5 and have also got marked 13 documents as Exs.P-1 to P-13 on their behalf. The petitioner herein was -4- CRL.RP No. 100036 of 2016 examined as D.W.1. The Authorised Officer after hearing the parties has passed an order to confiscate the vehicle of petitioner and wood to the State of Karnataka.
3. Feeling aggrieved by the order passed by the Authorised Officer and District Conservator of Forests, Dharwad, the petitioner has preferred Criminal Appeal No.16/2011 before the II Addl. District and Sessions Judge and Special Judge, Dharwad. The learned II Addl. District and Sessions Judge and Special Judge, Dharwad, has dismissed the said appeal and confirmed the order passed by the Authorised Officer and District Conservator of Forests, Dharwad Division, Dharwad in No.C1/FOP/FOC/KA-31-5579/2009-10. Being aggrieved by the said judgment, revision petitioner has filed this present petition.
4. Learned counsel appearing for the revision petitioner has submitted his arguments that judgment and -5- CRL.RP No. 100036 of 2016 order passed by the Courts below are erroneous, perverse, capricious and calls for interference by this Court. The Courts below have not at all considered the oral as well as documentary evidence on record in proper perspective manner. The Authorised Officer has passed the order in a mechanical way, which is only to confiscate the vehicle in question. The impugned order suffers from infirmities, conjectures, surmises and there are no good grounds urged by the Courts below to arrive at such conclusion.
4.1 The petitioner is a handicapped person and he was unable to move from place to place and driver of the vehicle was driving the vehicle only to carry the passengers from Hubballi to Kirawatti and vice-versa. The MOs alleged to have been seized from the vehicle cannot be transported in the vehicle owned by the present petitioner as the length of logs is more than the length of vehicle in question.
-6-CRL.RP No. 100036 of 2016 4.2 Further it is submitted that accused is already acquitted in C.C.No.22/2010 on the file of Civil Judge and JMFC Court, Kalagatagi, by the judgment dated 29.11.2016. The panchanama is conducted prior to the registration of FIR and no independent witnesses have been examined to substantiate the case of prosecution. Crime number is not shown in Ex.P-2 - panchanama. The owner of vehicle has no knowledge as to the carrying of teakwood in his vehicle and same is not considered by the Authorised Officer.
4.3 The petitioner is examined as D.W.1 and he has deposed in his evidence that he is suffering from paralysis and he was not in a position to run from that place since the petitioner was not present at the relevant point of time. He has not ran away as he had no knowledge as to the carrying of these goods in his vehicle. -7- CRL.RP No. 100036 of 2016 4.4 During the course of cross examination of D.W.1, it is not disputed that applicant is suffering from paralysis. Trial court in its judgment has observed that applicant is suffering from paralysis. On all these grounds, sought for allowing this revision petition.
5. As against this, Sri.V.M.Banakar, learned Addl. SPP has submitted his arguments that Courts below have passed the judgments in accordance with law. The burden lies upon the applicant, who is claiming the vehicle that he has no knowledge of carrying Sagwani logs in his vehicle and acquittal of accused in criminal case is not a ground to release the vehicle in favour of the owner. To substantiate his arguments, he has relied upon the decisions in the case of COMMISSIONER, PROHIBITION AND EXCISE, A.P. AND ANOTHER vs. SHARANA GOUDA reported in (2007) 6 SCC 42 and in the case of -8- CRL.RP No. 100036 of 2016 RAMESH N.DIXIT vs. STATE OF KARNATAKA reported in 1987 2 KLJ SHORT NOTES 278.
6. I have carefully gone through the prosecution papers, evidence, impugned judgments and also submissions on both sides. The only point that arises for my consideration is:
(1) Whether the impugned orders suffers from legal infirmity, patent factual defects, error of jurisdiction or perversity and thus call for interference ?
(2) What order?
7. A perusal of impugned order passed by the Authorized Officer and Deputy Conservator of Forest, Dharwad Division, Dharwad, vide No.C1/FOP/FOC/KA-31-5579/2009-10 dated 25.01.2011 reveals that Authorised Officer has passed an order to confiscate the seized vehicle bearing registration No.KA-31/5579. In the impugned judgment it is stated that prosecution has -9- CRL.RP No. 100036 of 2016 placed 13 documents, which are marked as Exs.P-1 to P-13. Ex.P-1 - FIR reveals that at the relevant point of time the driver of alleged vehicle was carrying Sagwani logs illegally without having any permit or licence. The crime number is given as FIR No.1/2009-10. The name and address of the accused are also shown at Sl.Nos.1 to 5, but in the FIR there is no reference as to the endorsement made by the jurisdictional Magistrate.
8. Learned counsel for the petitioner has produced the copy of judgment passed in C.C.No.22/2010 on the file of Civil Judge & JMFC Court, Kalagatgi, which reveals that case against accused No.1 is abated. Accused Nos.1 to 5 are acquitted for the commission of punishable under Sections 24(e), 71-A, 80, 50(2)(b), 104-A to 104-D of Karnataka Forest Act, 1963 and Sections 144, 145, 165 of Karnataka Forest Rules, 1969. Prosecution has not placed any
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CRL.RP No. 100036 of 2016 materials to show that they have preferred the appeal against this judgment of acquittal.
9. In the evidence of D.W.1, he has clearly stated that he is the owner of vehicle bearing registration No.KA- 31/5579 and that he is suffering from paralysis and cannot walk properly due to paralysis and at the relevant time, he has not run away and as alleged by the prosecution, he was not present at the relevant time. During the course of cross-examination, the learned Addl. SPP disputed the fact that accused No.5 was paralysed at the relevant time. The Authorized Officer has observed in the impugned order that D.W.1 has not produced any medical documents to show that at the relevant point of time he was suffering from paralysis.
10. P.W.5 - Basavannayya Rudrayya Chikkamatha has not deposed anything against the owner of this vehicle, but he has stated that he has submitted the charge sheet against the accused, in which he has
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CRL.RP No. 100036 of 2016 shown the present petitioner as absconding. During his cross examination, he has clearly admitted that he did not know about the health condition of accused No.5 at the time of the incident. He has not investigated anything in this regard. Only on the basis of the statement given by the other accused, the Investigating Officer has submitted the charge sheet against this petitioner, which is not sufficient to come to the conclusion that petitioner's vehicle had been used to commit the alleged offence and was within the knowledge of the petitioner. A copy of the judgment passed in C.C.No.22/2010 dated 29.11.2016 on the file of the Civil Judge and JMFC Court, Kalagatagi, reveals that all the accused including this petitioner, have been acquitted of the offences punishable under Section 24(e), 71-A, 80, 50(2)(b), 104(A) to 104(D) of the Karnataka Forest Act, 1963, and Sections 144, 145, and 165 of the Karnataka Forest Rules, 1969. The prosecution has not placed any materials to show that they have
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CRL.RP No. 100036 of 2016 challenged this judgment of acquittal passed by the JMFC, Kalagatagi.
11. I have gone through the judgment cited by the learned counsel for the petitioner in the case of ABDUL VAHAB vs. STATE OF MADHYA PRADESH rendered in Crl.A.No.340/2022 (DD-04.03.2022), in which the Hon'ble Apex Court has observed in para 17 of the judgment as under:
"17. By reason of an order of confiscation, a person is deprived of the enjoyment of his property. Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. Therefore, to deprive any person of their property, it is necessary for the State, inter-alia, to establish that the property was illegally obtained or is part of the proceeds of crime or the deprivation is warranted for public purpose or public interest."
12. In the instant case also the prosecution has failed to prove the guilt of the revision petitioner in C.C.No.22/2010 and also the State has failed to prove beyond all reasonable doubt that petitioner's vehicle had been used to commit the alleged offence was within his knowledge.
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CRL.RP No. 100036 of 2016
13. For the aforesaid reasons and discussions, I am of the considered view that impugned orders are required to be set aside. Accordingly, I proceed to pass the following:
ORDER (1) Revision petition is allowed. (2) The judgment passed by the II Addl.
District and Sessions & Special Judge, Dharwad, dated 28.01.2015 in Crl.A.No.16/2011, confirming the order dated 25.01.2011 passed by the Authorised Officer and District Conservator of Forests, Dharwad Division, Dharwad, in C1/FOP/FOC/KA- 31-5579/2009-10, are set aside.
(3) The interim custody of Tempo Trax vehicle bearing registration No.KA- 31/5579, is made absolute.
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CRL.RP No. 100036 of 2016 (4) Registry is directed to transmit the records to the trial court along with the copy of this order.
Sd/-
JUDGE DR List No.: 1 Sl No.: 16