Karnataka High Court
Bhanuprakash A S/O Ananda Rao And B. ... vs State By The A.C.F., Represented By The ... on 14 July, 2006
Equivalent citations: 2006CRILJ4292, ILR2006KAR3216, 2006(5)KARLJ64, 2006 (5) AIR KAR R 408
Author: B.S. Patil
Bench: B.S. Patil
ORDER B.S. Patil, J.
Page 0792
1. The revision petitioners are convicted for the offence punishable Under Section 87 of the Karnataka Forest Act (for short The Act'). Challenging the judgment of conviction and the order sentencing the accused for rigorous imprisonment for a period of three years and also imposing fine of Rs. 5,000/-, both the accused are before this Court in this revision petition.
Page 0793
2. It was alleged against the accused that on 15.06.1993. accused Nos. l and 2 cut and uprooted sandal wood tree in the Government land and made 71 sandal wood billets worth about Rs. 14,000/- thus committing an offence Under Section 86 of the Forest Act. It was further alleged that they were found transporting the said 71 sandal wood billets in a Maruthi Van near Saragodu without valid license and committed an offence Under Section 87 of the Karnataka Forest Act. Both the Courts have held that the offence alleged against the accused Under Section 86 was not proved whereas the offence alleged Under Section 87 of the Act stood proved.
3. Among several points urged by the learned Counsel for the petitioner, the important legal point raised is regarding violation of the mandatory requirement contained Under Section 62(3) of the Act which allegedly vitiates the conviction recorded against the accused. It is his submission that as required Under Section 62(3) of the Act, the Officer seizing the sandal wood is required to report the seizure and forward the seized material to the designated authorised authority under the provisions contained Under Section 71A of the Act. Neither in the evidence nor in the materials produced before the Court, there is anything to suggest that this procedure is complied with, is the submission. In this regard, learned Counsel has placed reliance on a decision rendered by this Court in the case of Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore (ILR 1973 (VOL.XXIII) KAR 897). It is further contended by the learned Counsel that the seizure is also not proved in accordance with law as none of the panch witnesses to the seizure are examined. He submits that seizure is also not attested by independent panchas but has been attested by the officials of the Forest Department His next contention is that there is delay in submitting the FIR before the Magistrate. He has lastly contended that admittedly, the investigation is conducted by two officials out of whom only PW-2 who conducted the major part of the investigation is examined but the higher Officer to whom the investigation was later on entrusted has not been examined.
4. Sri. Maqbool Ahmed, learned Government Pleader supports the findings recorded and the judgments passed.
5. Having heard the learned Counsel appearing for the parties and on careful perusal of the judgments under challenge, the only point that arises for consideration in this revision petition is:
Whether the judgments under challenge recording conviction of the accused-revision petitioners for the offence punishable Under Section 87 of the Act suffer from any manifest illegality warranting interference in the revisional jurisdiction?
6. As major emphasis is laid by the learned Counsel for the petitioner on the violation of the requirements spelt out under Sub section (3) of Section 62 of the Act, it is necessary to refer to the relevant provisions. Section 62(1) Page 0794 deals with seizure of properly liable to confiscation. It provides that if there is reason to believe that a forest offence has been committed in respect of any forest produce, the said forest produce along with all tools, boats, vehicles etc., used in committal of the said offence, may be seized by any Forest Officer or Police Officer. Sub-section (3) of Section 62, which is relevant to the present case, states as under:
(3) Every officer seizing any property under this section shall place on such property or the receptacle or vehicle (if any) in which it is contained a mark indicating that the same has been so seized, and shall, as soon as may be, (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, 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:
Provided that when the forest produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.
7. A reading of the above provision makes it clear that every officer seizing any property under the provisions of the Section is required to make a report of such seizure either to the concerned Forest Officer Under Section 71A or to the jurisdictional Magistrate, depending on the nature of the produce, Sub-clause (a) to Sub-section (3) of Section 62 mandates that where the seizure is in respect of an offence pertaining to timber, ivory, firewood or charcoal which is the property of the State Government or in respect of sandalwood, the report of seizure is required to be made to the Authorised Officer as per Section 71A. Perusal of Section 71A makes it clear that in respect of any forest offence committed involving sandalwood, the Officer seizing the property shall without any unreasonable delay produce the seized material together with tools, ropes, chains, boats etc., before the Officer authorised by the State Government not being below the rank of an Assistant Conservator of Forests.
8. The question in this revision petition is whether this requirement in the present case is complied with or not and if not what is its effect There is nothing on record to show that the Officer who seized these sandalwood billets submitted the seizure report to the Authorised Officer and forwarded the seized articles without any unreasonable delay as provided under the provisions of the Act namely Sub-section (3) of Section 62 read with Section 71A. In fact, the evidence of PWs-1 and 2 does not make any reference to the compliance of the aforesaid requirement Ex. P.1 is the seizure panchanama and Ex.P.6 is the enquiry report prepared in a format. A perusal of Ex.P.6 does not disclose that the report was forwarded to the Authorised Officer in compliance with the mandatory requirement of Page 0795 Section 63. There is no endorsement of any superior officers on this report endorsing the receipt of the same from the Officer who seized the articles. Therefore, in view of the absence of any material whatsoever either in the form of evidence of PWs-1 and 2 or in the form of documentary evidence placed before the Court below showing that the seizure was reported to the Authorised Officer or that the seized articles were forwarded to the Forest Officer as mandated under the provisions of the Act, it has to be held that there is violation of the requirements contained in Section 62(3) and Section 71A of the Act.
9. The next question is what is the effect of this violation and whether the conviction recorded against the accused gets vitiated. In the case of Ningappa Bhimappa Gundammanavar and Anr. v. State of Mysore ILR 1973 (VOL.XXIII) Kar 897 which is apposite to the case on hand, this Court placing reliance on two unreported judgments rendered earlier in Cr.R.P. No. 435/71 and Cr.R.P. 180/72 has held that the requirement spelt under Sub-section (3) of Section 62 is mandatory and violation of the same would vitiate the trial and the resultant conviction. It has to be noticed here that the provisions contained in Section 62(3) and Section 71A are designed to serve twin purposes of imposing safeguards, firstly, with a view to ensure that the seizure is resorted to in a responsible and accountable manner and secondly, the higher officials in the department are immediately apprised forwarding the seized produce. This requirement is mandatory. Failure to follow this mandatory requirement vitiates the seizure and consequently, the trial based on the said seizure also gets vitiated.
10. In view of the above, I have no hesitation to hold that the conviction recorded against the accused cannot be sustained. Hence, I pass the following:
ORDER This revision petition is allowed. The judgments under challenge are set aside. The accused/Revision Petitioners are acquitted of the offence. The bait bonds executed by the accused shall stand cancelled. The accused are entitled for refund of the fine amount if any deposited by them.