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Fazaul Rahiman and ors. Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 586 of 1981
Judge
ActsKarnataka Forest Act, 1963 - Sections 62 to 82, 86, 87, 87(1), 87(2) and 99; Code of Criminal Procedure (CrPC) , 1973 - Sections 2, 4, 4(2) and 190(1)
AppellantFazaul Rahiman and ors.
RespondentState of Karnataka
Appellant AdvocateG.B. Manjunath, Adv.
Respondent AdvocateK.H.N. Kuranga Govt. Pleader for the State P.P.
Cases ReferredBilebhavi v. State of Karnataka
Excerpt:
- karnataka value added tax act, 2003 [k.a. no. 30/2005] section 72 [as amended by act 6 of 2005, 4 of 2006, 6 of 2007, 5 0f 2008]: [d.v. shylendra kumar, j] penalties relating to returns and assessment - levy of held, power though ancillary and incidental to main power of levy on sale of goods cannot go beyond scope of accidental and ancillary powers. extent of penalty reaches 100 times or more of actual tax liability it is grossly disproportionate to act of failure in not complying with requirement of filing of return within stipulated time and paying tax within such stipulated time - extent of levy of penalty in facts goes much beyond the scope of power of ancillary and incidental power i.e. ensuring prompt tax remittance to state - it becomes a tax in nature of tax on income..........of imprisonment is 5 years and fine of not less than rs. 20,000/-. section 74 of the act empowers forest officers and police officers to arrest, without a warrant and without orders of the magistrate, any person reasonably suspected of having committed any forest offence ...... s. 62 empowers forest officers and police officers to seize any property if he has reason to believe that in relation to that property a forest offence has been committed. there are other similar provisions in the act and the rules enabling the forest officials and the police officials to take action where they suspect violation of the relevent provisions of the act and the rules. guidelines in the matter are provided for in the departmental instructions contained in the forest manual. 7. it is thus seen, a.....
Judgment:
ORDER

1. The petitioners herein were the accused in C.C. No. 18/1979 on the file of the Munisff and J.M.F.C., Somwarpet. They were tried by that Court for offences under Sections 86 and 87 of the Karnataka Forest Act, 1963 (the Act) read with Rr. 154 and 155 of the Karnataka Forest Rules 1967 (the Rules) on the allegation that they had been found transporting in a car bearing No. MYG 1518 on 28-11-1976 at about 5 a.m., on the public road at Seegehosur near Kakkehole bridge in Somwarpet Taluk of Kodagu District some sandalwood without a permit.

2. On the accused claiming to be tried the learned Magistrate received the evidence for the prosecution questioned the accused, and thereafter hearing the concerned, by his judgment dated 13-6-1979, found these persons guilty and sentenced each of them to undergo R.I., for 3 months and to a fine of Rs. 1,000/- and, in default to pay the said sum, to suffer further R.I., for 3 months. The Sandalwood seized was confiscated to the Government.

3. This judgment was challenged by the accused before the Sessions Judge, Kodagu, Madikeri. The Sessions Judge, by his judgment dated 29-6-1981 in Cr. A. No. 37 of 1979 dismissing the appeal, has confirmed the judgment of the trial Court. Challenging the concurrent findings of the Courts below this revision has been preferred.

4. Apart from urging that, on merits, no case at all had been made out against his clients, the learned Counsel for the petitioners also challenged the findings of the Court below on these legal grounds : (i) that the investigation conducted, as it is, by a person not competent to investigate into the alleged offence, the same was vitiated; (ii) that the initiation of the prosecution itself is bad for the reason that the alleged investigator having filed the complaint in the form of a challan or charge-sheet maintained by the police and to use which the complainant had no authority; (iii) that the Court below could not have taken cognizance of this offence under any of the clauses of sub-sec. (1) of S. 190 of the Code of Criminal Procedure, 1973 (the Code); and (iv) that the proceeding in the Court below was also vitiated as the accused have been greatly prejudiced by the Court below not following the correct procedure in holding the trial.

5. The learned Government Pleader, on the other hand, apart from denying the allegations made by the Counsel for the petitioners, supported the concurrent findings of the Courts below.

6. Amongst others one of the objects of the Act is the preservation of the forest wealth of State, and, in particular, the very precious forest produce like the Sandalwood, Rosewooed etc. Apart from providing regulations in the matter of cutting and removal of forest produce, the State has retained its sole rights over certain categories of forest produce like the Sandalwood. Any violation of the relevant provisions of the Act and the Rules is made punishable. There are hierarchy of officials to administer this law.

Chapter IX, which contains Sections 62 to 82, deals with penalties and procedure and chapter X deals with Sandalwood.

Section 84 of the Act treats the sandal trees as the inclusive properties of the Government. Sub-section (1) of S. 87 prohibits possession etc., of Sandalwood without a licence and sub-section (2) thereof provides punishment for contravening sub-section (1). Cutting, up-rooting, or damaging Sandalwood trees is made punishable under S. 86. Transportation of Sandalwood without a licence is prohibited under Rule 154, and Rule 165 provides punishment for thus transporting. Here itself it may be noted that sub-section (2) of S. 87 has since been amended. Though at the time of this offence the punishment provided was imprisonment for two years or with fine extending up to Rs. 2,000/- or with both, since its amendment by Karnataka Act No. 1/81 the maximum punishment is seven years' R.I., and with a fine which may extend up to Rs. 25,000/- and it further provides that in the case of the first offence, the term of imprisonment shall not be less than 3 years and the amount of fine shall not be less than Rs. 10,000/-, and for the subsequent offence the minimum term of imprisonment is 5 years and fine of not less than Rs. 20,000/-.

Section 74 of the Act empowers Forest Officers and Police Officers to arrest, without a warrant and without orders of the Magistrate, any person reasonably suspected of having committed any forest offence ...... S. 62 empowers Forest Officers and Police Officers to seize any property if he has reason to believe that in relation to that property a forest offence has been committed. There are other similar provisions in the Act and the Rules enabling the forest officials and the police officials to take action where they suspect violation of the relevent provisions of the Act and the Rules. Guidelines in the matter are provided for in the Departmental Instructions contained in the Forest Manual.

7. It is thus seen, a Forest Officer, as defined in the Act, is empowered with powers of detection, seizure, and investigation into apprehended violations of the relevant provisions of the Act. In the instant case it was the Range Forest Officer of Somwarpet who has arrested the accused, seized the Sandalwood, investigated into the case, and lodged his complaint.

8. In the matter of investigation into an offence under the Act by the forest officials, so far as the procedure is concerned, wherever the Act is silent, the Code shall have to be taken recourse to. As provided in sub-section (2) of S. 4 of the Code 'all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences'. As observed by this Court in Bilebhavi v. State of Karnataka (D.D. 15-6-1983) (Reported in 1984 Cri LJ NOC 60) that 'in case of offences arising under any other law, if the special law does not provide for, in the matter of investigating, inquiring into, trying or dealing with such offences, the provisions of the Code (General law) apply'. But the Counsel for the petitioners, drawing my attention to Clause (h) of S. 2 of the Code, which defines the term 'investigation' argues that since the investigation, if any, made by the Forest Officer does not fall within the definition of that term in the Code he cannot be treated as an Investigating Officer under the Code. The definition of the term 'investigation' under Clause (h) of S. 2 of the Code is an inclusive one. It does not exclude, from within its scope, the investigation made by any other officer authorised under a special enactment. S. 99 of the Act empowers the State Government, by notifications, to invest any forest officer with any of the power enumerated in Cls. (a) to (1) of sub-section (1) of that Section and they include the power to issue a search warrant, power to hold enquiry into forest offences, and, in the course of such investigation, to receive and record the evidence, power to take possession of the property, and power to check any vehicle suspected to carry forest produce. That many such powers have been conferred on the Forest Officers, by issue of notifications, cannot be challenged. And, apart from this, as already stated, Sub-section (2) of S. 4 of the Code also enables the official empowered under special enactments, to investigate into offences and to take recourse to the provisions of the Code while so investigating. The Range Forest Officer is a Forest Officer as defined in the Act. In the circumstances, there is no substance in the argument of the Counsel for the petitioners that the Forest Officer had no powers to investigate into his offence.

9. It is true, to lodge his complaint, the Forest Officer in this case has used the form of a police Challan. Under Clause (a) of sub-section (1) of S. 190 of the Code a Magistrate can take cognizance of an offence 'upon receiving a complaint of facts which constitute such offence'. Form used by the Range Forest Officer is filled in with all the relevant informations, and, if the Magistrate has treated that as a complaint of facts constituting an offence and has taken cognizance of the same, that cannot be found fault with. There is no substance in the second ground of attack to the effect that the very initiation of the prosecution, in the circumstances, was bad, and so also in the third ground that the learned Magistrate could not have taken cognizance of the offence.

10. Also, in the other submission made by the Counsel for the petitioners that the Court below had not followed the procedure in holding the trial, there is no merit. He has followed the procedure as provided in Chapter XX of the Code, and that, in the circumstances, cannot be found fault with for the reason that the offences, in view of punishments provided then, were triable as summons cases. The Investigating Officer has recorded the statements of some of the witnesses and also the accused during the course of the investigation. The Court below had not permitted to bring on record those statements as substantive piece of evidence. Strangely enough, it was argued by the Counsel for the petitioners, that this has prejudiced his clients. I am unable to understand how it has prejudiced. The accused could have made use' of those previous statements, if they wanted to, to elicit contradictions from these witnesses giving evidence in the Court.

11. In my opinion there is no merit in any of the aforesaid submissions of the learned Counsel for the petitioners.

12. On merits, both the Courts below have placed reliance on the evidence on record. The learned Counsel for the petitioners argues that the evidence of first three witnesses, who were forest officials, was not entitled to much merit. I am unable to agree with him. Those witnesses were thoroughly cross-examined and the Courts below, on a careful consideration of their evidence, have thought it fit to place reliance on what they had said. I find no good grounds to interfere with those findings.

13. Accordingly and for the reasons stated above, this revision is dismissed.

14. Revision dismissed.


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