Karnataka High Court
Subhash vs The State Through on 7 September, 2023
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NC: 2023:KHC-K:7092
CRL.P No. 201345 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T.
CRIMINAL PETITION NO.201345/2023
BETWEEN:
SUBHASH
S/O. BABURAO AADE
AGED: 39 YEARS,
OCC: DHABA BUSINESS AND AGRICULTURE
R/O. DHARJWADI THANDA
TQ. BHALKI
DIST: BIDAR-585328
...PETITIONER
(BY SRI ANILKUMAR NAVADAGI, ADVOCATE)
Digitally signed AND:
by SHILPA R
TENIHALLI
Location: HIGH THE STATE THROUGH
COURT OF
KARNATAKA BHALKI RURAL POLICE STATION,
TQ. BHALKI
DIST. BIDAR
BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585103.
...RESPONDENT
(BY SRI J. SHAHABUDDIN, HCGP)
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NC: 2023:KHC-K:7092
CRL.P No. 201345 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C., PRYING TO ALLOW THE PETITION AND
ENLARGE THE PETITIONER ON BAIL IN CRIME NO.
82/2023 OF BHALKI RURAL P.S. OF DIST. BIDAR,
REGISTERED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 86 AND 87 OF KARNATAKA FOREST ACT AND
SECTION 379 OF IPC, NOW PENDING ON THE FILE OF
ADDL. CIVIL JUDGE AND JMFC BHALKI.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel for petitioner and learned High Court Government Pleader for respondent-State.
2. This petition is filed by accused No.3 under Section 439 of Cr.P.C., praying to grant him bail in Crime No.82/2023 registered by the respondent - Police for the offences punishable under Sections 86 and 87 of Karnataka Forest Act, 1963 (for short 'the said Act') and Section 379 of IPC.
3. Brief facts of the prosecution case are as under: -3-
NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 On the intervening night between 26.06.2023 and 27.06.2023 eight sandalwood trees were cut in the land of complainant and stolen; thus, on 28.06.2023 owner of land lodged a complaint; on 29.07.2023 on receipt of credible information, the complainant intercepted a car bearing registration No.KA-40/M-9888 on road towards Hyderabad near Annehalla, at that time petitioner and 2 others were in car and on being search 3 plastic bags were found, where 60 Kgs., of sandalwood billets were found;
thus petitioner and two others were transporting sandalwood billets without permission and they have cut and stolen sandalwood from the land of complainant. Therefore, the PSI conducted seizure panchanama in the presence of panchas and seized sandalwood billets, in turn, petitioner was remanded to judicial custody.
4. Learned counsel for petitioner contended that the petitioner is innocent, he has not committed any offence and he is a law abiding citizen; the PSI has not complied Sections 62(3) and 71-A of the said Act Act; The -4- NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 petitioner is the sole bread earner of his family; petitioner is the only bread earner in the family and he is ready to abide by conditions that may be imposed by this Court. Thus he prays to grant bail.
5. Per contra, learned High Court Government Pleader for respondent - State would contend that the petitioner is a habitual offender; he has been also involved in Crime No.30/2023 of the same Police Station; if he is released on bail, he would commit similar offences and he may flee away from justice. Thus, he prays to reject the bail petition.
6. On perusal of the material available on record, it appears that on 29.07.2023 the PSI of Bhalki Rural Police Station seized 60 Kgs. of sandalwood billets from the Car of petitioner, as he was transporting the same without any license.
7. Section 104-D of the Karnataka Forest Act is special provision regulating bail matters in respect of -5- NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 offences under Karnataka Forest Act. As per said Section the accused seeking bail for the offences committed under Sections 86 and 87 of Karnataka Forest Act, the accused has to satisfy the Court that there are reasonable grounds for believing that he is not guilty of the said offences. Whereas, in the instant case, the petitioner was transporting sandalwood billets weighing 60 Kgs in his Car with having knowledge and conscious of possession of sandalwood billets in his Car. Therefore, there was prima facie case against accused of the offence punishable under Section 87 of Karnataka Forest Act. A perusal of the complaint and seizure mahazar conducted by the PSI, reveals that the PSI of Bhalkit Rulral Police Station seized the sandalwood billets. Herein it is appropriate to extract Section 62(3) of Karnataka Forest Act, 1963, which reads as under:
"62(3) Every officer seizing any property under this section 1 [x x x]1 shall, as soon as may be, 2 [make a report of such seizure,-- (a) where the offence on account of which the seizure has been made is in respect of timber, ivory, 3 [gulmavu -6- NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 (machilus macrantha) bark, dalchini bark, halmaddi (exudation of ailanthus malabaricum), canes]3 , firewood or charcoal which is the property of the State Government or in respect of sandalwood, to the concerned authorised Officer under section 71A; and (b) in other cases, to the magistrate having jurisdiction to try the offence on account of which the seizure has been made;]"
8. Further, Section 71A of Karnataka Forest Act, 1963 reads as under:
"71A. Confiscation by Forest Officers in certain cases.--
(1) Notwithstanding anything contained in the foregoing provisions of this Chapter 2 [or in any other law]2 , where a forest offence is believed to have been committed in respect of timber, 3 [ivory, 4 [gulmavu (machilus marantha) bark, dalchini bark, Halmaddi (exudation of ailantus malabricum), canes]4 , firewood and charcoal which is the property of the State Government or in respect of sandalwood]3 , the officer seizing the property under sub-section (1) of section 62 shall, without any unreasonable delay produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer -7- NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 authorised by the State Government in this behalf by notification in the official Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer).
(2) Where an authorised officer seizes under sub-section (1) of section 62 any timber, 1 [ivory, firewood 2 [gulmavu (machilus marantha) bark, dalchini bark, halmaddi (exudation of ailantus malabricum), canes]2 and charcoal which is the property of the State Government or any sandalwood]1 , or where any such property is produced before an authorised officer under sub- section (1) and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence. (3) (a) Where the authorised officer, after passing an order of confiscation under sub-section (2), is of the opinion that it is expedient in the 386 Forest [1964: KAR. ACT 5 public interest so to do, he may, order the confiscated property or any part thereof to be sold by public auction. -8-
NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023
(b) Where any confiscated property is sold, as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses relating thereto, shall where the order of confiscation made under section 71A is set aside or annulled by an order under sections 71C or 71D, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order."
9. Sections 62(3) and 71-A of Karnataka Forest Act mandates that every officer seizing any property under these Sections shall make a report of such seizure to the concerned officer under Section 71-A of the Karnataka Forest Act. For the purpose of Section 71-A, the Officer would not be below the rank of Assistant Conservative Officer of Forest. In the instant case the PSI has not submitted his report to Assistant Conservative of Forest and therefore the Investigating Officer has not complied the mandatory requirement as stated under Section 62(3) and 71-A of the Act.
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NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023
10. It is the contention of the learned High Court Government Pleader that the petitioner is a habitual offender. On perusal of the FIR, Complaint, Seizure Mahazar and other materials available on record, it appears that the learned Principal District and Sessions Judge, Bidar has granted bail in Crime No.30/2023 in favour of petitioner in respect of similar offence in Crl.Misc. No.454/2023 dated 22.08.2023. The petitioner is involved in the case in Crime No.82/2023 of Bhalki Rural Police Station. Except these two cases, the petitioner is not involved in any other cases. Therefore, there is no force in the submission made by learned High Court Government Pleader in this regard.
11. Admittedly, the alleged offences are not punishable with death or imprisonment for life. It is well established principle of law that while considering the bail application, the Court has to consider the nature of offence, circumstances in which the offence is committed, position and the status of the petitioner, likelihood of
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NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 accused fleeing away from justice, tampering of witnesses, character and antecedent of the accused. Further, the law is well settled that, while disposing off the bail petitions, the Court need not scan the prosecution papers and hold a mini trial. Keeping these factors in mind and the fact that the petitioner is already enlarged on bail in similar matter in Crime No.30/2023, in the present case also petitioner is entitled for bail. Accordingly, the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed.
The petitioner is ordered to be enlarged on bail in Crime No.82/2023 registered by Bhalki Rural Police Station, now pending on the file of Additional Civil Judge and JMFC, on his executing a personal bond in a sum of Rs.1,00,000/- with a surety for the likesum to the satisfaction of
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NC: 2023:KHC-K:7092 CRL.P No. 201345 of 2023 jurisdictional Court, subject to the following conditions:
1. Petitioner shall mark his attendance on first Sunday every month till 6 [six]months or till filing of charge-sheet, whichever is earlier.
2. He shall appear before the Court regularly.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 7