Allowed

Mr. Muzammil Pasha v. State of Karnataka

Karnataka HC30 Oct 2024CRL.A/807/2012

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the sole surviving appellant of charges under Section 379 IPC and Section 87 of the Karnataka Forest Act, 1963. The conviction was set aside because the prosecution failed to prove that the forest officer who issued the certificate under Section 62-C had undergone mandatory training or that the seized items were indeed sandal wood, despite p

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellant acquitted; fine amount ordered for refund.

Mr. Muzammil Pasha Vs State of Karnataka — Narcotics (NDPS) | Karnataka HC (2024)

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1 - NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No. 807 OF 2012

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BETWEEN:

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MR. MUZAMMIL PASHA AGED ABOUT 41 YEARS, INDIAN S/O MOHAMMED KHASIM RESIDING AT NAGAMANGALA TOWN MANDYA DISTRICT, KARNATAKA.

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MR AKRAM ALIAS AKRAM PASHA AGED ABOUT 38 YEARS, INDIAN S/O AHMED RESIDING AT MUSLIM MOHALLA MYSORE ROAD, NAGAMANGALA TOWN MANDYA DISTRICT, KARNATAKA.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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MR AMMAVASIAH AGED ABOUT 38 YEARS INDIAN S/O DASAIAH RESIDING AT A .K. COLONY NAGAMANGALA TOWN MANDYA DISTRICT, KARNATAKA

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…APPELLANTS

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(BY SMT. GOWHAR UNNISA, ADVOCATE FOR A1 A/W SRI RAJANNA B C, ADVOCATE V/C/O DTD. 25.06.2024 A2 & A3 IS ABATED)

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AND:

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STATE OF KARNATAKA BY NAGAMANGALA POLICE

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…RESPONDENT

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(BY SRI B LAKSHMAN, HCGP)

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THIS CRL.A IS FILED UNDER SECTION 374(2) OF Cr.P.C TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE IMPOSED IN S.C.No.73/2007 DATED 30/6/2012 PASSED BY THE FTC-III, MANDYA - CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCE PUNISHALBE UNDER SECTION 379 IPC R/W. SECTION 87 OF THE KARNATAKA FOREST ACT, 1963 AND ETC.,

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

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL ORDER

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This appeal is filed by accused Nos.1 to 3 praying to set-aside the judgment of conviction and order on sentence dated 30.06.2012 passed in S.C.No.73/2007 by the Fast Track Court – III, Mandya, whereunder, the appellants – accused Nos.1 to 3 have been convicted for the offences under Sections 379 of the Indian Penal Code, 1860 (for short hereinafter referred to as “IPC”) and Section 87 of the Karnataka Forest Act, 1963 (for short hereinafter referred to as “K.F.Act”) and sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs.50,000/- and in default, to undergo simple imprisonment for a period of two years.

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NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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The factual matrix of the prosecution case are as under;

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(i) that on 21.02.2004, at about 2.00 a.m, near the house of one Sri.Yalakki Gowda of Juttanahalli, the appellants – accused Nos.1 to 3 were found in possession of the sandal wood billets weighing 5 Kgs, sandal wood chips weighing 20 Kgs, worth Rs.2,500/- and committed the offences under Section 379 of IPC and Section 87 of the K.F.Act. The Trial Court framed the charge for the said offences.

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(ii) In order to prove the charge, the prosecution has examined twelve witnesses as PWs.1 to 12 and got marked the documents as Exs.P1 to P11 and material objects as MOs.1 and 9. The statement of the accused persons came to be recorded under Section 313 of Cr.P.C. The Trial Court after hearing the arguments has formulated the points for consideration and passed the impugned judgment convicting the appellants – accused

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NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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Nos.1 to 3. The said judgment of conviction and order on sentence has been challenged in this appeal.

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During the pendency of this appeal, appellant Nos.2 and 3 - accused Nos.2 and 3 expired and the appeal by them came to be abated.

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Heard learned counsel for appellant No.1 – accused No.1 and learned High Court Government Pleader for the respondent – State.

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Learned counsel for the appellant No.1 – accused

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No.1 would contend that there was enmity between the accused persons and the villagers of Juttanahalli as the accused persons used to come to that village for cutting the sheep / goats and it was objected by the villagers and therefore, a false case has been foisted stating that the accused persons got red handed when they were transporting the sandal wood in the Autorickshaw. The seizure of machete, gunny bag and crowbar are used by the farmers in the village and by

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using the same, one cannot cut the trees. The witnesses to the seizure mahazar are all villagers of the same village ie., Juttanahalli village and as the said villagers are having enmity with the appellants, their evidence is not believable one. The seizure of the sandal wood billets, chips etc., had not been proved. The fact that the appellants did not ran away when PWs.1 to 3 and 7 tried to catch them, itself would indicate that they were not involved in transporting any sandal wood. The Investigating Officer has not investigated regarding the ownership of the autorickshaw which is seized. Nobody has claimed release of the said autorickshaw. PW9 is not competent to issue Ex.P7 – certificate as he has not undergone any training. The prosecution has not produced any document to indicate that PW9 has undergone training and even PW7 has not stated in his evidence that he has undergone training. There is no compliance of Section 62-C of the K.F.Act and therefore, the conviction for the offence under Section 87 of the K.F.Act cannot be sustained. On that point, learned

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counsel for the appellant – accused No.1 has placed reliance on the following judgments;

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(i) Raghavendrachari Vs. State of Karnataka reported in 2010 (2) KCCR 1411

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(ii) Sri.Shankarachari Vs. State of Karnataka, Crl.A.No.469/2013

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On these grounds, learned counsel for appellant No.1 – accused No.1 has prayed for allowing the appeal and acquitting the appellant No.1 – accused No.1.

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Per contra , learned High Court Government Pleader appearing for the respondent – State argued that the Trial Court on appreciation of the evidence on record has rightly convicted the appellants – accused Nos.1 to 3. He supported the reasoning assigned by the Trial Court. He further argued that the evidence of PWs.1 to 3 and 7 is sufficient to convict the appellants for the offences under Section 379 of IPC and Section 87 of the K.F.Act. He further argued that PW9 being the Range Forest Officer is competent to issue certificate as required under Section

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62-C of the K.F.Act as per Ex.P7. He contends that at the

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time of marking Ex.P7 – certificate, the accused persons have not raised any objection challenging the authority of PW9 to issue the said certificate. Therefore, now at this appellate stage, they cannot raise objection with regard to the authority of PW9 to issue Ex.P7 – certificate. On that point, he placed reliance on the following judgments;

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1. Nagaraja @ Chirumuri Naga Vs. State of Karnataka - reported in Crl.A.No.67/2015 C/w Crl.A.No.583/2015.

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2. Subbaiah and another Vs. State of R.F.O. – reported in Crl.A.No.95/2014.

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3. Shekhappa Lakamappa Lamani and another Vs. State of Karnataka – reported in Crl.A. No.486/20007.

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On these grounds, he sought for dismissal of the appeal.

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Considering the grounds made out and the arguments advanced, the following point would arise for my consideration;

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“Whether the Trial Court has erred in convicting appellant No.1 – accused No.1 for the offences under Section 379 of IPC and Section 87 of the K.F.Act?”

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

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for the following reasons;

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PWs.1 to 3 and 7 have caught accused Nos.1 to 3 when they were boarding the autorickshaw, stating that they were transporting the sandal wood billets, chips etc., In that regard, at the instance of PWs.1 to 3, PW6 made a phone call to the police. The police came to the spot and PW1 filed a complaint as per Ex.P1. PW12 – Circle Inspector has received the complaint on the spot and arrested accused Nos.1 to 3. PW12 has prepared Ex.P2 – seizure mahazar in the presence of PWs.4 and 11 and seized MOs.1 and 2 – sandal wood, MO.5 – machete, MOs.6 – crowbar, MO.8 – gunny bag. PW4 – one of the Pancha to Ex.P2 has not fully supported the case of the prosecution and he has been treated as hostile and has

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been cross examined by the Public Prosecutor. PW11 has deposed regarding preparing seizure mahazar as per Ex.P2 in the presence of accused Nos.1 to 3 and at the time of seizure of sandal wood, found crowbar, machete and gunny bag. PW12 has deposed regarding receiving the complaint on the spot and taking accused Nos.1 to 3 to his custody, preparing seizure mahazar – Ex.P2 and seizing MOs.1, 2, 5, 6 and 8.

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PWs.1 to 3 have observed the autorickshaw initially at about 11.30 pm., and they have admitted in the cross examination that, at that time they have not inspected the said autorickshaw and subsequently, in the mid-night at about 2.00 am., they caught hold of accused Nos.1 to 3 when they were boarding the autorickshaw with MOs.1 and 2 - sandal wood. PWs.1 to 3 brought accused Nos.1 to 3 and the autorickshaw to the village and thereafter, made a phone call to the police. PWs.1 to 3 have admitted that the said autorickshaw was not in running condition and they pulled the autorickshaw from the spot

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to the village. Who is the owner of the said autorickshaw has not been investigated and the said autorickshaw has not been claimed by anybody.

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PW12 – Investigating Officer has prepared mahazar of the place where the autorickshaw was parked as per Ex.P3 in the presence of PW8 and also prepared mahazar of the spot where the tree has been cut as per Ex.P5 in the presence of PWs.5 and 8. At the time of preparing the mahazar - Ex.P5, chips (MOs.3 and 4) and root portion (MO.9) have been seized.

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The prosecution has to prove that MOs.1 to 4 and 9 are sandal wood. PW10 – P.S.I has deposed that he has received the certificate as per Ex.P7 from the concerned Forest Officer. Ex.P7 has been issued by PW9. Ex.P7 reads as under;

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“ PÀæ.¸ÀA.ªÀC:£ÁªÀÄ:²æÃUÀAzsÀ:zÀÈrüÃPÀgÀt ªÀ®AiÀÄ CgÀuÁå¢üPÁjUÀ¼À PÀbÉÃj £ÁUÀªÀÄAUÀ® ªÀ®AiÀÄ, £ÁUÀªÀÄAUÀ®, ¢£ÁAPÀ:12.5.2006 UÉ, ¥ÉÆ°Ã¸ï G¥À¤jÃPÀëPÀgÀÄ

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11 - NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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£ÁUÀªÀÄAUÀ® oÁuÉ, £ÁUÀªÀÄAUÀ®. ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ: UÀAzsÀzÀ §ÄqÀªÀ£ÀÄß ºÁUÀÆ ¨ÉÃgÀ£ÀÄß ¥Àj²Ã°¹ MAzÉÃ ªÀÄgÀPÉÌ ¸ÉÃjzÉÝAzÀÄ ªÀÄvÀÄÛ CzÀgÀ ¨É¯É zÀÈrüÃPÀgÀt PÉÆÃj §UÉÎ. G¯ÉèÃR: vÀªÀÄä PÀbÉÃj ¥ÀvÀæ ªÉÆ.£ÀA.28/04 ¢£ÁAPÀ 22.2.2004 ªÉÄÃ®ÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ G¯ÉèÃRzÀ ªÉÆPÀzÀÝªÉÄAiÀÄ ²æÃUÀAzsÀzÀ ¨ÉÃgÀÄ ºÁUÀÆ §ÄqÀªÀ£ÀÄß ¥Àj²Ã°¸À¯ÁV CªÀÅUÀ¼ÀÄ MAzÉÃ ªÀÄgÀzÀªÀÅUÀ¼ÉAzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ. ¸ÀzÀj §ÄqÀ ºÁUÀÆ 2 ¨ÉÃgÀÄUÀ¼À vÀÆPÀ ªÀiÁqÀ¯ÁV CªÀÅUÀ¼À C¼ÀvÉ F PÉ¼ÀPÀAqÀAvÉ EgÀÄvÀÛzÉ.

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PÀæ.¸ÀA. «ªÀgÀ vÀÆPÀ 1. MAzÀÄ ²æÃUÀAzsÀzÀ §ÄqÀ 4.00 PÉ.f. 2. MAzÀÄ ²æÃUÀAzsÀzÀ ¨ÉÃgÀÄUÀ¼ÀÄ 1.20 P.f.É MlÄÖ vÀÆPÀ 5.20 PÀ.f.

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ªÉÄÃ¯É PÁtÂ¹gÀÄªÀ ²æÃUÀAzsÀzÀ ¨ÉÃgÀÄ ºÁUÀÆ §ÄqÀzÀ vÀÆPÀ MlÄÖ 5.20 PÉ.f. EzÀÄÝ EªÀÅUÀ¼À CAzÁdÄ ¨É¯É 1,500.00 (MAzÀÄ ¸Á«gÀzÀ L£ÀÆgÀÄ gÀÆ¥Á¬ÄUÀ¼ÀÄ) DUÀ§ºÀÄzÉAzÀÄ F ªÀÄÆ®PÀ zÀærüÃPÀj¹zÉ.

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vÀªÀÄä £ÀA§ÄUÉAiÀÄ ¸À»/ªÀ®AiÀÄ CgÀuÁå¢üPÁj £ÁUÀªÀÄAUÀ® ªÀ®AiÀÄ £ÁUÀªÀÄAUÀ®.”

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In Ex.P7, there is no mention that PW9 – the author

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has examined the wood to ascertain as to whether it is sandal wood or not and thereafter, issued the said certificate. It is also not forthcoming from Ex.P7 that PW9

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has undergone any training to examine the forest produce. What is the mode and method adopted to examine the wood has not been stated in Ex.P7. PW9 in his evidence has also not stated that he has undergone any training to examine the forest produce. PW9 has deposed that he went to Police Station on 12.05.2004 and examined stem and two roots and based on their smell and formation, he found that they are sandal wood. PW9, as per the contents of Ex.P7 has only examined stem and root from five material objects which are MOs.1 to 4 and 9. Out of them, only two have been examined by PW9. There is no evidence with regard to examination of the other three articles / alleged sandal wood by PW9. PW9 has admitted in his cross examination that he has not written the description of articles examined by him and mentioning of description in the certificate is mandatory. He has also admitted suggestion that the mode and method of examination has also to be stated in his report and he has not mentioned the same.

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13 -

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NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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13. This Court in Sri.Shankarachari’s case (supra), has

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observed thus;

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“11. Learned counsel for the appellant-accused has relied upon the decision of this Court in the case of Veerakyatharaya Vs State of Karnataka¹ , wherein this Court has held as under:

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“7. The learned counsel for accused has relied on a decision of this court reported in ILR 2010 KAR 3382 (in the case of RAGHAVENDRACHARI vs. THE STATE OF KARNATAKA, BY RANGE FOREST OFFICER), wherein this court has held that issuance of notification under Section 62-C of the Act and examination of forest produce by the Authorised Officer as per notification under Section 62-C of the Act is mandatory. Therefore, non-compliance of provisions of Section 62-C of the Act, would vitiate prosecution.

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8. The learned State Public Prosecutor has relied on Notification issued by Government of Karnataka on 21.5.2010, reading as hereunder:

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1 Crl.A.No.143/2009 C/w Crl.No.20/2009 decided on 18.02.2014.

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NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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“The Government of Karnataka hereby notifies as per Rule 62(c) of Karnataka Forest Act, 1963 authorizing the following trained forest officers to issue of certificates for offence cases irrespective of forest produce.

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1) Range Forest Officer

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2)Assistant Conservator of Forests

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3) Deputy Conservator of Forests

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4) Conservator of Forests

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5) Chief Conservator of Forest”

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9. In the case on hand, offences are alleged to have been committed on 29.12.2002. The Investigating Officer has not produced Notification issued by Government of Karnataka to prove that PW8 had been authorized to give his opinion on examination of forest produce under Section 62-C of the Act and certificate issued by PW3 was valid in the eye of law. Therefore, the learned Trial Judge should not have placed reliance on information produced by PW8. Therefore, I hold that prosecution has failed to prove that seized billets/wood pieces seized from

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possession of accused were sandalwood billets/pieces. Therefore, accused cannot be held guilty of offences punishable under Sections 86 and 87 of Karnataka Forest Act.”

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12. Learned counsel for the appellant-accused has also relied upon the decision of the Hon’ble Apex Court in the case of State of Karnataka Vs. Prakash and Others² , wherein it is held as under:

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“8. Having heard the learned counsel from both the sides, the common contention involved in all the aforesaid appeals is that although the seized goods of forest produce is showed and proved by the prosecution as sandalwood by the examining expert, the course adopted for the same was not in consonance with the provision of Section 62-C of the Act.

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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

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2 (2019) 14 SCC 229

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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. There is also no other admissible evidence on record in support of the prosecution case that the confiscated items were sandalwood billets. Under the circumstances, the High Court was right in setting aside the order of conviction and sentence passed by the trial court by reaching to the conclusion that the offence under Section 87 of the Act cannot be said to have been established against the accused in accordance with law.”

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NC: 2024:KHC:43736 CRL.A No. 807 of 2012

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Section 62-C of the Karnataka Forest Act, 1963 reads thus;

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62-C. Certificate of Forest Officer to be an

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evidence .- Any document purporting to be a certificate under the hand of a Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce and who is so authorized by the State Government in this behalf in respect of forest produce submitted to him for examination and report may be used as evidence of the facts stated in such certificate in any proceedings under this Act, but the Court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Forest Officer as to the subject-matter of his certificate.”

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PW9 – Range Forest Officer is authorized to examine the forest produce and to issue certificate, as per the notification issued by Government of Karnataka on 21.05.2010. The evidence on record is silent regarding whether PW9 has undergone training as mandated under

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Section 62-C of the K.F.Act. PW9 in his evidence has not stated that he has undergone any training. Even in Ex.P7 – certificate issued by PW9, there is no mentioning of PW9 underwent any training. Considering the said aspect, the evidence on record is not sufficient to hold that MOs.1 to 4 and 9 are sandal wood.

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This Court has secured MOs.1 to 4 and 9 from the Trail Court. Learned High Court Government Pleader for the respondent – State has examined the said MOs.1 to 4 and 9 and informed the Court that no smell of sandal wood is found on his examination of MOs.1 to 4 and 9. Even the Court has examined MOs.1 to 4 and 9 and did not find any sandal wood smell from them. There is no admissible evidence on record in support of the prosecution case that the confiscated items are sandal wood stem, stick chips and roots. Under these circumstances, the Trial Court has erred in convicting appellant No.1 – accused No.1 for the offences under Section 379 of IPC and Section 87 of the K.F.Act. In the result, the following;

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ORDER

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The appeal is allowed . The impugned judgment of conviction and order on sentence passed by the Presiding Officer, Fast Track Court-III, Mandya in S.C.No.73/2007 dated 30.06.2012 is set-aside. Appellant No.1 – accused No.1 is acquitted of the offences punishable under Section 379 of IPC and Section 87 of the K.F.Act.

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Registry is directed to send back the Trial Court records along with the material objects.

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Appellant No.1 – accused No.1 is entitled for refund of the fine amount deposited by him.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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List No.: 1 Sl No.: 6

Mr. Muzammil Pasha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Muzammil Pasha v. State of Karnataka

Case brief

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