ORDER
1. This criminal revision petition is preferred by the petitioners against the order dated 11-7-1988 passed by the learned Principal Sessions Judge, Shimoga, in Criminal Appeals Nos. 27 and 29 of 82 confirming the Judgment of conviction and sentence passed by the learned II Additional Munsiff and Judicial Magistrate, First Class, II Court, Shimoga, in C.C. No. 394/81.
2. I have heard the learned Counsel for the petitioners and the learned High Court Government Pleader fully and perused the records of the case.
3. The four revision petitions were the accused in C.C. No. 394/81 on the file of the II Additional Munsiff and Judicial Magistrate, First Class, Shimoga.
4. The case of the prosecution in brief is as follows :
That on 30-9-1978 the Range Forest Officer Syed Inayuthulla received credible information that at Hirebylu Forest in Mandagadde Hobli, Thirthahalli Taluk some persons were removing sandalwood. He collected the staff and panchas and proceeded to the said area and waited for some time. When they were waiting so they saw petitioners 1 to 4 coming from the forest carrying a sandalwood log each. The petitioners on seeing the forest officials threw away the sandalwood logs and tried to run away from the spot. However at that time the forest officials were able to catch hold of the petitioners 1 and 2 though other two accused ran away from the spot. During the course of interrogation, the Forest authorities learnt that the petitioners had stored the sandalwood billets in the nearby area. They went to the spot and saw as many as 61 sandalwood billets and also the stumps. The Forest Authorities drew up mahazar at the spot. The petitioners were not able to produce any permit required under the Act either for removing the sandalwood billets or for carrying the same. After seizing them under a panchanama the Forest Officials came back to the office and they reported the matter to the police of Malur and the Malur Police registered a case and after completing the investigation submitted the charge-sheet.
5. The learned Magistrate after trial, held the petitioners guilty of the offence punishable under Section 379 of the Indian Penal Code read with Sections 84 and 86 of the Karnataka Forest Act and sentenced them to undergo rigorous imprisonment for a period of two years in respect of the offence punishable under Section 379, Indian Penal Code and one and half years in respect of Section 86 of the Karnataka Forest Act. The petitioners have preferred two appeals viz., Criminal Appeals Nos. 27 and 29 of 1982 in the Court of the Principal Sessions Judge, Shimoga, against the said Judgment of conviction and sentence passed by the learned II Additional Munsiff and Judicial Magistrate, First Class (II Court), Shimoga, in C.C. No. 394/81. The learned Principal Sessions Judge, Shimoga, after hearing the appeals, dismissed the same. Hence, this criminal revision petition.
6. The petitioners have been convicted for an offence punishable under Section 379, India Penal Code and Section 86 of the Karnataka Forest Act. Both the Courts below have not applied their mind to see whether the prosecution has been able to prove the ingredients of Section 62(3) of the Karnataka Forest Act, 1963, in respect of the property which is alleged to have been seized from the scene of offence. Section 62(3) of the Karnataka Forest Act, 1963 reads as follows :-
Seizure of property liable to confiscation;
(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, mark 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.
7. In number of cases, it has been held by this court that the expression “shall” in the provision is mandatory and the failure to follow it is fatal. In G. K. Ganesh v. State of Karnataka, 1974 Kar LJ 445; ILR 1975 Kar 584) this Court has held as follows :
“The expression ‘shall’ in the provision is mandatory and the failure to follow it is fatal.”
In another ruling Ayaz Ahamed v. State, , it has been held by this Court as under :-
“The section provides that an officer seizing any property under Section 62(1) is bound to place on such property or receptacle or vehicle in which it contained a marking indicating that the same has been seized. The intention of the legislature is to enable a person to look at such property that is seized in connection with such offence.”
In the case of Hasanabba v. State, , it has been held by this Court as follows at page 536 :-
“The strict compliance of the mandatory provisions of Section 62(3) of the Act is necessary in case of seizure, marking and production of the articles involved. By merely giving serial number or some letters may not satisfy the requirement of law. To comply with the requirement of the first part of sub-section (3) of Section 62 if the investigating officer, in addition to giving serial numbers, also puts a mark, say with the first alphabet of the officer or station to which the official is attached to along with the crime number of the case, in some material or ink not easily erasable that may indicate that the article is seized in that case.”
In the case of Ningappa Bhimappa Daminannavar v. State, ILR 1973 Mys 897, it has been held by this Court as under :-
“Where the mandatory provisions of Section 62(3) are not complied with the conviction of the accused for an offence under Section 87(2) cannot be sustained.”
8. Both the Courts below have not applied their mind to see whether there has been the strict compliance of the mandatory provisions of Section 62(3) of the Act.
9. The learned High Court Government Pleader contended that the defence has not raised this point in both the Courts below and therefore the defence is not entitled to raise this point for the first time in this revision petition. But, I am unable to accept this contention of the learned Government Pleader for the reason that this is a mandatory provision of law and the failure to follow it is fatal to the prosecution case. Even if the defence has not raised such objection, it was the duty of the Court to examine the matter to satisfy itself that there was strict compliance of the mandatory provisions of Section 62(3) of the Act. Now the Court will have to see whether there has been compliance of the mandatory provisions of Section 62(3) of the Act in this case. The relevant material to be seen on this point is Ext. P-1 the mahazar of the seizure of the sandalwood billets and the evidence of P.W. 1 the complainant, P.W. 4 and P.W. 5 the mahazardars. Ext. P-1 mentions that the sandalwood billets were marked as “M.F.D.”.
P.W. 1 – Inayuthulla in his evidence has stated as follows;
P.W. 4 – Sadashivaiah, one of the mahazardar in his evidence has stated as follows;
Vernacular matter is omitted
P.W. 5 – T. C. Thimmappa Shetty, another mahazardar in his evidence has stated as follows;
10. The evidence of the witnesses referred to above on this point and Ext. P-1 go to show that some marking was done to the sandalwood billets that were seized from the scene of offence by P.W. 1 in the presence of P.Ws. 4 and 5. But the damaging blow to the prosecution case from the evidence of P.W. 5 who has stated as under :
11. So, from the evidence of P.W. 5, it can be seen that the sandalwood billets that were produced in the Courts below were not having any marks. Otherwise there was no reason for this witness to say that no number visible on the said billets.
12. From the evidence of P.W. 5 to the effect that the sandalwood did not bear any marks, only two inferences are possible viz., (1) Either the evidence of the witnesses to the effect that the sandalwood billets were marked is false, (2) Or that the sandalwood billets that are produced in the Court are not the billets that were seized from the scene of offence. In either of the cases, it will have to be held that the prosecution has failed to prove that the sandalwood billets were seized after complying with the mandatory provisions of Section 62(3) of the Karnataka Forest Act. In view of the non-proof of the compliance with the mandatory requirement of Section 62(3) of the Act, conviction of the petitioners cannot be sustained. On this ground alone, this revision petition is required to be allowed. In the result, I make the following :-
ORDER
13. The Criminal Revision Petition is allowed. The order dated 11-7-1988 of the learned Principal Sessions Judge, Shimoga, in Cr.A. Nos. 27 and 29/82 convicting the petitioners for offences punishable under Section 379 of the Penal Code and Section 86 of the Karnataka Forest Act confirming the order dated 18-2-1982 passed by the II Additional Munsiff and J.M.F.C., Shimoga, in C.C. No. 394/81 is set aside and the petitioners are acquitted of the offence with which they have been charged in the case.
14. Revision allowed.