Allowed

Ekbal S/O Sathar Sab v. the State of Karnataka

Karnataka HC19 Nov 2024CRL.A/873/2013

Case brief

AI extract

What is this about?

Appeal against conviction for transporting sandalwood billets under Section 87 of the Karnataka Forest Act and Section 379 r/w 34 IPC. Panch witnesses turned hostile, FIR was improperly based on a mahazar, and no proof of PW5's authorization or training under Section 62C existed. Conviction set aside; appellants acquitted.

What did the court decide?

Conviction and sentence dated 28.08.2013 in S.C.No.345/2012 set aside; appellants acquitted under Section 87 K.F. Act and Section 379 r/w 34 IPC.

Ekbal S/O Sathar Sab Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2024)

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1 - NC: 2024:KHC:46643 CRL.A No. 873 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL No. 873 OF 2013

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BETWEEN:

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

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

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SANNAPPA @ MEENAKSHIGOWDA S/O RANGEGOWDA AGED ABOUT 40 YEARS OCC: CAR DRIVER R/O GUDDENAHALLI KOPPALU BELUR ROAD HASSAN TOWN - 573 201.

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…APPELLANTS

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(BY SRI P B UMESH, ADVOCATE)

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AND:

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

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…RESPONDENT

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(BY SRI K NAGESHWARAPPA, HCGP)

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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

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

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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

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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

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years and to pay fine of Rs.5,000/- for the offence under Section 379 of IPC.

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The factual matrix of the prosecution case is that;

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(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.

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(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.

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Heard learned counsel for the appellants – accused Nos.1 and 2 and learned High Court Government Pleader for the respondent – State.

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Learned counsel for the appellants – accused Nos.1 and 2 would contend that;

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(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

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04.04.2024.

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(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.

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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.

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Having heard the learned counsels, this Court has perused the impugned judgment and the Trial Court records.

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Having heard the learned counsels and on perusal of the records, the following point arises for my

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consideration;

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“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?”

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My answer to the above point is in the affirmative for the following reasons;

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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;

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“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.

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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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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.

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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.

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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;

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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 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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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 under Section 62C of the K.F.Act for examining the forest produce. Going by the material on record, it can be said that the prosecution has failed to prove that the requirements as contemplated under Section 62C of the K.F.Act. There is no other admissible evidence on record in support of the prosecution case that the confiscated items were sandal wood billets. Under the circumstances, the Trial Court has erred in convicting the appellants – accused Nos.1 and 2 for the offences under section 87 of

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the K.F.Act and Section 379 r/w Section 34 of IPC. 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 dated 28.08.2013 passed in S.C.No.345/2012 by the V Additional District and Sessions Judge, Tiptur is set-aside. The appellants – accused Nos.1 and 2 are acquitted of the offences punishable under Section 87 of the K.F.Act and Section 379 r/w Section 34 of IPC.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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List No.: 1 Sl No.: 9

Ekbal S/O Sathar Sab v. the State of Karnataka

Case brief

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Ekbal S/O Sathar Sab v. the State of Karnataka

Case brief

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