1. Both the Courts below have held these Petitioners, who were accused 1 to 3 respectively in C. C. No. 21 of 1980 on the file of theJMFC., Narasimharajapura, guilty of offences punishable under Sections. 86 and 87 of the Karnataka Forest Act, 1963 (the Act) and have sentenced each of them to undergo rigorous imprisonment for one year on each count directing that, the sentences should run consecutively.
2. Heard both sides.
3. The occurrence is said to have taken place on 27-10-1979 on the road Kudregundi - Muthinakoppa and within the limits of Narasimharajapura Police Station.
4. It is said that, on information that a sandal-wood tree had been up-rooted and sandal wood is about to be removed, P.W. 5 - a forester working in that circle,accompanied by his sub-ordinates, had proceeded to the spot, kept a watch over the surroundings, and at about 3 a.m. (early hours of the morning) having found the accused moving the sandal-wood pieces from a certain place to some other place had caught hold of them and seized the same. According to the prosecution, 41 pieces had been seized under Ex. P-3, the mahazar.
5. To sustain the charges the prosecution has no doubt adduced some oral evidence on record. But unfortunately it has to fail not because the oral evidence it has adduced is untrustworthy but for the fact that it has failed to get the subject matter of offence identified in the case. In a case like this that requirement is a must (may also see Mahabir Sao v. the State of Bihar, : 1972CriLJ458 and Naba Kumar Das -v.-State of West Bengal, : 1974CriLJ512
6. The offence alleged relates to sandal wood, a forest produce, Dealing with that produce in any manner as referred to inSection 86 or 87 of the Act would be an offence.
7. To succeed the prosecution has to establish that the property involved was sandal wood and that the accused were the persons who had committed the offences alleged inrespect of the said property. If the allegation is that the accused were in unauthorised possession and weretransporting the same, that fact should satisfactorily established.
8. How does the prosecution establish that fact? Primarily by producing the articles said to have been seized from the accused as a piece of evidence in Court during the Trial. The Investigator and the Prosecutor, during the investigation into these offences and the trial of the alleged offenders in the Court, have committed two grave errors which have been overlooked by both the Courts below. All the sandal wood said to have been seized were not produced in Court and what were produced were only two or three sandal wood billets. Further even these two or three articles do not appear to have been seized in strict compliance of the mandatory requirements ofSub-section 3 of section 62 of the Act. Sub-sec, 3 of section 62 is on the statute book as a great safeguard against false accusations. Forest offences are made severelypunishable. It is, in the circumstances, absolutely incumbent on the authorities enforcing this law to strictly comply with these requirements.
9. Section. 62 as it stood prior to the amendment to sub-section, 3 thereof reads thus :
'62.Seizure of property liable to confiscation : (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce,together with all tools, boats, vehicle or cattle used in committing any such offence may be seized by any Forest Officer or Police Officer.
(2)Any Forest Officer or Police Officer may, if he has reason to believe that a vehicle has been or is being used for the transport of forest produce in respect of which there is reason to believe a forest offence has been or is being committed require the driver or other person in charge of such vehicle to stop the vehicle and cause it to remain stationary as long as may reasonably benecessary to examine the contents in the vehicle and inspect all records relating to the goods carried which are in the possession of such driver or other person in charge of the vehicle.
(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 to themagistrate 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 circum-stances to his official superior.'
10. Sub-Section 3 after its amendment by Karnataka Act No. 1 of 1981 (the amendment has come into force with effect from 20-2-1981) reads thus :
(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 sandal wood 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;'
11. Since this occurrence is said to have taken place prior to 20-2-1981, Section 62 as it stood earlier to the amendment applied to this case in so for as the first part ofsub-sec. 3 of Sec. 62 is concerned, there has been no change. That part mandates that 'Every Officer' seizing any property....... 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'.
12. The question is whether the sandlwood billets (may be only two or three)produced have been marked as provided under Sub-Sec. 3 We have in the evidence of the Forester, that, after seizure, they had given serial numbers to the pieces in yellow colour. According to Sub-Section 3, the mark put on the property seized, should indicate that it had been so seized, which means, seized in that case. Marking may be in yellow or red colour. By merely giving serial numbers or some letters may not satisfy the requirements of law. The articles were seized since the authorities seizing the articles suspected that, in relation to the said Articles, an offence had taken place. The authority seizing the properties suspecting that the same were involved in an offence, will register a case and proceeds with the investigation in accordance with law. There may be cases wherein, in a far-flung forest area, the forest officials will detect a crime taking place. Acting swiftly they may detain the culprits with the properties, if any. The authorities may not have all the necessary material to draw up a mahazar. In such a case, they keep a watch over the properties, return to the office or station, collect the panchas, go to the spot and draw up a mahazar. By that time, they will have given a crime number after registering a case. To comply with the requirements of the first part of theSub-section 3 of Section 62 if the investigating authority, in addition to giving serial numbers, also puts a mark, say with the 1st alphabet of the office or station to which the officials are attached to along with the Crime No. of the case, in some material or ink not easily erasable that may indicate that the article is seized in that case.
13. In the instant case, the property seized cannot, in the circumstances, be said to have been marked indicating that they had been seized in this case or crime number.
14. Further, as stated above in a case like this the prosecution should get the properties seized properly identified in the course of the trial of the accused. It is said that I.O. had attached 41 pieces of Sandal wood. As referred to above only 3 or 4 pieces were produced and not the rest. And even these sample items have not been prosperity marked when being seized. This alone is sufficient to exonerate the accused.
15. However, since the question involved is of considerable importance I would like to deal with it in some detail.
16. In the matter of disposal of properties which are forest produce in law has undergone a sea change by the Karnataka Forest (Amendment) Act 1980 (Karnataka Act No. 1 of 1981). The power of Courts regarding disposal is taken away and vested in a statutory authority called the Authorised Officer. Though the Courts do not have powers to passorders re : the properties, it is absolutely essential to get the property seized identified at the trial of the accused. This is one of the basic requirements to prove the case. The prosecution has to ensure this if at all it has to succeed. Firstly the seizure, if any, will have to be in accordance with the available guidelines. Any orders that may be passed by the Authorised Officer confiscating or otherwise disposing of the property may be made conditional saying that order will become effective after the finaltermination of the prosecution, if any, launched or pending. Even if the property is required to be disposed of under Section 68 of the Act, it may be necessary, if it is possible, to keep some sample and to bring that fact to the notice of the Court also in addition to informing his (Forest Officer's) official superior.
16.[a] In some cases it may not be possible, in view of the quantity or bulk involved to produce the same in Court at the time of trial. In such cases the prosecution may make arrangements to take the Presiding Officer of the Court, the concerned witness and the accused to the spot where the property is kept and get it identified.
17. For reasons stated this revision is allowed. The orders of both the Courts below are hereby set aside, and the accused are acquitted. However, the order as to disposal of property stands confirmed.