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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY 2015
BEFORE
THE HON’BLE MR. JUSTICE G. NARENDAR
CRIMINAL PETITION No.100536/2015
C/w. CRIMINAL PETITION No.100355/2015
IN CRL.P.NO.100536/2015:
BETWEEN
MR.MOHAMMAD SHARIF S/O HUSAINAM
AGE 42 YEARS, OCC. DRIVER
R/O: GURUKATTE, TQ. BELATANGDI
DIST. DAKSHINA KANNADA
... PETITIONER
(BY SRI.SRINAND A.PACHHAPURE, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH NIPPANI POLICE STATION
NOW REP. BY SPP
HIGH COURT OF KARNATAKA
DHARWAD
... RESPONDENT
(BY SRI.K.S.PATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. SEEKING TO GRANT BAIL TO THE
PETITIONER IN CRIME NO.7/2015 REGISTERED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 379, 411 OF IPC
& SECTIONS 86 & 87 OF KARNATAKA FOREST ACT, 1963 AND
R
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RULE 144 OF KARNATAKA FOREST RULES,
RESPONDENT NIPPANI TOWN POLICE STATION.
ACT
BY
IN CRL.P.NO.100355/2015:
BETWEEN
1.
V.P. IBRAHIM BADASHA
S/O MOYDU
AGE 51 YEARS
OCCUPATION TRADE
R/O MORESHWAR BUILDING
RAJESHKUMAR ANGAR
HOTAGI ROAD
SOLAPUR, MAHARASHTRA STATE
2.
YUSUF S/O MUSA
AGE 36 YEARS
OCCUPATION TRADE
R/O UPPAL, NAYA BAZAR,
TALUK UPPAL, DIST. KASARGOD,
KERALA STATE
... PETITIONERS
(BY SRI.SHRIKANT R.SATTIGERI, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH NIPPANI TOWN PS
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH
... RESPONDENT
(BY SRI.K.S.PATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. SEEKING TO ENLARGE THE PETITIONERS ON
BAIL IN CRIME NO.07/2015, REGISTERED BY NIPPANI TOWN
P.S., FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
379, 411 OF IPC & SECTION 86, 87 OF K.F. ACT.
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THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioners in both the petitions are before this
Court being aggrieved by the order passed by the Court of
Principal
Sessions
Judge,
Belagavi
in
Criminal
Miscellaneous Nos.116/2015 and 127/2015 rejecting their
prayer to enlarge them on bail in Crime No.07/2015
2. A gist of the prosecution case is as follows:
The complainant is the CPI, Nippani Circle. It is
stated that on 22.01.2015 at about 3:30 p.m. on receipt of
credible information, the complainant marshalled his staff
and co-panchas and thereafter proceeded in their Jeeps
and occupied a spot near Laxmi Petrol Bunk on AH-7 and
remained there in an inconspicuous manner and at about
4:15 p.m. they observed one red colored car and one truck,
behind the truck one silvered colored car was there. They
also observed a group consisting 5-6 people standing near
the vehicle and discussing amongst themselves and some
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of them were opening the boot/dicky of the car showing
something. Immediately, the complainant and his staff
surrounded them and apprehended them. In the melee
that followed, one of the accused made good his escape.
Upon
questioning,
Mohammed
they
Sharif
disclosed
S/o.Husainam
their
–
identity
as
petitioner
in
Crl.P.No.100536/2015, V.P.Ibrahim Badsha S/o.Moydu,
Yusuf S/o.Musa – petitioners in Crl.P.No.100355/2015
and Rashid, Gurumitsing S/o.Mahendrasing. They further
disclosed that they were transporting eucalyptus timber.
On further questioning they stated that they had loaded a
cargo from Bengaluru and it consisted of eucalyptus
timber and the said cargo was being moved to Rajasthan.
The complainant suspecting the truthfulness of their
statement
continued
his
sustained
interrogation,
whereupon the accused Nos.1 and 2 disclosed that they
were transporting red sanders wood for selling the same to
accused Nos.3 and 4 and the truck belonged to accused
No.5.
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3. Thereafter, the complainant realizing that accused
were illegally transporting the red sanders wood, which is a
prohibited item, proceeded to seize the same along with the
truck and two cars, several cell phones and cash were also
seized.
On these facts, the complainant proceeded to
register the case under the provisions of Section 2(7) of the
Karnataka Forest Act.
4. It is contended by the petitioners that the red
sanders wood is not a notified forest produce under the
Karnataka
Forest Act
and
hence,
the
complaint
is
unsustainable and consequently, the petitioners are liable
to be enlarged on bail. It is further contended that they are
innocent and that they are merely drivers transporting the
goods on behalf of the consignor to the consignee. It is
further argued that it is not the case of the prosecution
that the petitioners have cut and removed the red sanders
wood from any of the forest areas in the State of Karnataka
and it is asserted that the red sanders wood is not found in
the State of Karnataka and admittedly the said trees are
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found only in the forest of Andhra Pradesh particularly in
Chittoor.
5. Per contra, it is argued on behalf of the State that
the assertion that the red sanders wood is not found in the
State of Karnataka is denied by the prosecution. It is
submitted that the trees are also found in the forest areas
bordering Chittoor district of Andhra Pradesh and that the
petitioners are not cooperating with the investigation to
ascertain as to whether the same have been removed from
the forest areas of Karnataka or Andra Pradesh. It is
further contended by the prosecution that even assuming
that the seized cargo has originated from the forest areas
of Andhra Pradesh, it being a endangered species as per
the declaration of the Hon’ble Apex Court, the respondents
have jurisdiction to prosecute for the illegal transportation
of the endangered species under the Wild Life Protection
Act.
6. It is submitted that the Hon’ble Apex Court in its
judgment dated 13.02.2012 reported in (2012) 4 Supreme
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Court Cases 362 has classified and declared that the said
red sanders wood is endemic and a endangered species
and that, he would submit, in the absence of any statute
declaring it to the contrary, the law propagated by the
Hon’ble Apex Court is the law of the land and binds all and
sundry including the parties before this Court. It is to be
construed in accordance with the spirit of the declaration
and the intendment of the Hon’ble Apex Court and in this
regard, the learned Government Pleader would rely upon
the judgment of the Hon’ble Apex Court as stated supra
and in particular he would draw the attention of this Court
to the observations in paragraphs 41, 42, 43, 44 and 45
which are as follows:
“41
Indian sandalwood (Santalum album
Linn) is not seen included in the species listed in
Appendix-II of CITES, however red sandalwood
(Pterocarpus
Santalinus)
is
seen
included
in
Appendix-II. At the same time International Union
for Conservation of Nature (IUCN) which is an
international
pragmatic
environment
organization
solutions
and
of
dedicated
our
development
most
to
finding
pressing
challenges
has
included Santalum album Linn in its Red List of
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threatened
species
as
"vulnerable"
and
red
sandalwood (Pterocarpus Santalinus) in the Red
List as "endangered". Therefore both in CITES and
in 37 the IUCN Red List of threatened species red
sandalwood is described as "threatened with
extinction", "endangered".
42.
A taxon is critically endangered when
the available evidence indicates that it meets with
the criteria of extremely high risk of extinction. It is
Endangered when it meets with the criteria of facing
a very high risk of extinction. A taxon is vulnerable
when it is considered to be facing a high risk of
extinction. Near threatened, means a taxon is likely
to qualify for a threatened category in the near
future.
43.
Red
sandalwood
is
a
species
of
Pterocarpus native of India seen no where in the
world. It is reported that the same is found only in
South India, especially in Cuddapah and Chittoor in
the States of Tamil Nadu and Andhra Pradesh
border which is also known as Lal Chandan /Rakta
Chandan in Hindi which is an endemic and
endangered species. Red sandalwood possesses
medicinal
properties
viz.,
an
anticoagulant,
improves local circulation and used on traumatic
wounds, aberrations and bruises. Since the trading
is mostly in South India, especially in Andhra
Pradesh (AP) it is stated that A.P. Forest Corporation
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has been appointed as an agent to Govt. of A.P. for
disposal of red sandalwood available with Forest
Department.
44.
Red
Sanders
is
an
endemic
and
endangered species as already mentioned, found
only in the State of A.P. A.P. Government has
banned the sale of Red Sanders even by private
parties, the wood is of huge demand in Japan,
China and Western world and is very costly and it
is included in the 38 negative list of plant species
for export purposes, implemented by the Directorate
General of Foreign Trade, Ministry of Commerce,
placing restrictions on international trade of Red
Sanders. Large scale smuggling of Red Sanders is
however reported from various quarters. In order to
protect the species, a proposal was made by the
State of A.P. to Government of India for its inclusion
in Schedule VI of the Act which, in our view, is
justified.
45.
CITES
acknowledged
that
as
well
Red
as
IUCN
Sandalwood
is
has
an
endangered species. It is settled law that the
provisions of the Treaties/Conventions which are
not contrary to Municipal laws, be deemed to have
been incorporated in the domestic law. Ref. Vellore
Citizens (Supra), Jolly George vs. Bank of Cochin
(1980) 2 SCC 360, Gramaphone Company of India
vs. Birendra Baldev Pandey (1984) 2 SCC 534.
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Under
the
above
mentioned
circumstances,
following the ecocentric principle, we are inclined to
give a direction to the Central Government to take
appropriate steps under Section 61 of the Act to
include Red Sanders in Schedule-VI of the Act as
requested by the State of A.P., within a period of six
months from the date of this judgment. We are
giving this direction, since, it is reported that
nowhere in the world, this species is seen, except in
India and we owe an obligation to world, to
safeguard this endangered species, for posterity.
Power is also vested with the Central Government to
delete from the Schedule if the situation improves,
and a species is later found to be not endangered.”
7. He would further submit that as per the Cites
convention
the
red
sanders
wood
is
a
species
of
Pterocarpus and wholly a native of the Indian subcontinent
and more particularly it is found only in the district of
Cuddapah and Chittoor of Andhra Pradesh and sparsely in
the areas bordering Chittoor. He would further submit that
the Director General of Foreign Trade (DGFT), Ministry of
Commerce has placed severe restrictions on international
trade of red sanders. He would also state that the State of
Andhra Pradesh has made a proposal for its inclusion in
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Schedule VI of the Act in Wild Life Protection Act and in
the estimation of the Hon’ble Apex Court, the proposal is
found to be valid and justified. He would further submit
that
the
red
sanders
wood
has
been
declared
as
endangered species by international conventions and such
conventions + treaties + pacts, which are not contrary to
the local/municipal laws are deemed to have been
incorporated in the domestic law and he would submit that
in the light of the international conventions and treaties
and the law laid down by the Hon’ble Apex Court, it has to
be read as having been incorporated into the Karnataka
Forest Act and hence, the action of the respondents is
wholly legal and the arguments on the contrary that the
action is without jurisdiction does not hold water.
8. He would also point out to the observations and
the reason behind the declaration by the Hon’ble Apex
Court, wherein it has been observed that
“We are giving this direction, since, it is
reported that nowhere in the world, this species is
seen, except in India and we owe an obligation to
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the world, to safeguard this endangered species,
for posterity.”
9. He would submit that the above observation, in
the light of Article 141 is to be construed as the law of
land.
10.
The learned Government Pleader would also
submit that the Andhra Pradesh Government has also
framed Red Sanders wood Transport Rules, 1969. Though,
he was unable to furnish a copy of the same. Neither has
the counsel for the petitioners been able to furnish a copy
to this Court. In view of the above, the learned Government
Pleader would submit that the petitions deserve to be
rejected and prays accordingly.
11.
In the light of the above submissions, the
preliminary question that falls for consideration to this
Court is as to “whether the action of the respondent is
without jurisdiction and unsustainable?”
12.
The facts do not require repetition and are
undisputed. The primary issue of sustainability of the
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respondent’s action is to be construed “a priori”. The
contention of the petitioners’ counsel merits consideration
as it is apparent that the red sanders wood is obviously not
notified under the Karnataka Forest Act and is not
included under the schedule to the act and rules. But in
the considered opinion of this Court, the said contention
must fade away and cede to the principles espoused by the
Hon’ble Apex Court.
13.
The judgment reported in (2012) 4 SCC 362 is
the law of land, as laid down by the Hon’ble Apex Court. It
is binding and applicable across the length and breadth of
the country without exception. As per the scheme of the
Constitution of India, this Court is entitled to exercise its
authority within the defined territory. Admittedly, the
contraband has been seized within the jurisdiction of this
Court and hence, this Court has jurisdiction to try and
adjudicate the above case under the provisions of the
Constitution of India. The law declared by the Hon’ble
Supreme Court is binding on all Courts within the territory
of India and consequently the law declared by the Hon’ble
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Apex Court stated supra is binding on this Court also and
this Court has a bounden duty to uphold and implement
the law as enunciated and declared by the Hon’ble Apex
Court.
14.
endeavor
The Hon’ble Apex Court in the course of its
has
been
pleased
to
observe
that,
the
contraband/red sanders wood has been declared as an
endangered species and it has been directed to be included
in the schedule to the Wild Life Protection Act, 1972 and
by its detailed order has been pleased to direct the Union
Government to enact law to include red sandalwood as a
specified plant within the meaning of Section 2(27) of the
Act and to incorporate it under the schedule (6) of the Act,
1972. It is also stated that the rational for the said
direction, reckoning its inclusion, is found in the latest
environmental ethical philosophy of recognizing intrinsic
value as distinguished from instrumental value and there
being a shift from anthropocentric to ecocentric approach.
It is also stated that the evidence for the said inclusion is
found
in
the
pleadings
presented
by
the
State
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Governments
and
findings
by
various
international
organizations and conventions like CITES and CBD to
which this great Nation is a member signatory. It is
international conventions, like convention on International
Trade in Endangered Species of Wile Fauna and Flora,
1973 (Cites) and the Convention on Biological Diversity,
1992, which have taken note of the dire necessity to
preserve this endangered species [which otherwise could
become extinct] and the Hon’ble Apex Court
has also
acknowledged the shift from environmental rights to
ecological
rights and it has further been pleased to
observe that as our Nation is signatory to the CITES and
CBD, and hence, the Country is bound to respect various
terms and conditions that have been incorporated into
them essentially for the protection of certain species which
are
classified
as
endangered
and
also
to
enact
a
mechanism against over exploitation and International
Trade. It is further held that as per the international
conventions (CITES and CBD), the duty is cast on the
State to identify threatened species to initiate measures to
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conserve and protect such threatened species. The State is
also
required
to
formulate
policies,
legislation
and
appropriate laws to curb those practices including trade
that result in extinction of species and are also obliged to
undertake in situ conservation of biological diversity as it
is not sufficient that a species is cultivated elsewhere, and
it ought to be protected in its natural habitat.
15.
In view of the above findings and if the same
are read in conjunction with the law settled by the Hon’ble
Apex Court that “it is settled law that the provisions of the
treaties/conventions which are not contrary to municipal
law, be deemed to have been incorporated in the domestic
law”, this Court unhesitatingly concludes that the action of
the respondent in seizing the contra band is legal and is in
consonance with the directions of the Hon’ble Apex Court.
16.
Reference to Chapter – IIIA of the Wild Life
(Protection) Act, 1972 would be useful to consolidate the
findings
on
respondent.
the
vexed
issue
of
jurisdiction
of
the
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17.
A conjoint reading of the direction of the
Hon’ble Apex Court along with the provisions of Chapter –
IIIA of the Act would clearly demonstrate that the act
provides not only for the preservation and conservation of
fauna but also for the rare species of flora. A bare perusal
of Section 17A of the Act would demonstrate that the mere
act of willfully pick, uproot, damage, destroying, acquiring
or collecting any specified plant from “any forest land” or
any specified area is prohibited even mere possession has
been classified as an offence. It is relevant to state that the
provision of Chapter-IIIA i.e., from Section 17A to 17H
came to be inserted by Act 44 of 1991 with effect from
20.04.1995. In the light of the findings by the Hon’ble Apex
Court and more particularly with respect to contraband
(red sanders), it is but imperative that this Court must
take cognizance of contraband as a specified plant. More
particularly in the absence of any statute exempting it or
to the contrary as observed by the Hon’ble Apex Court, this
is a rare species even in this County. The fact remains that
this specified plant is not available anywhere else on the
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globe. That being an undisputed fact, an onerous task is
cast upon not only on the executive, but also on this
institution and the general public to preserve it for
posterity. It is now a settled fact that this specified plaint is
a
rare
endemic
species.
In
this
background,
the
degradation and rampant destruction of the forest areas
more especially with regard to red sanders is to be
construed as an offence against the nation and it borders
on treason
18.
The contention on behalf of the petitioners that
the State enactment has no law prohibiting trade or
transportation of contraband is well taken, but the said
argument must cede the ground in the light of the
principles of law enunciated by the Hon’ble Apex Court.
The Hon’ble Apex Court has categorically held that once
the nation binds itself to any international convention, the
terms and conditions of the said convention and treaties
have to be read into local laws as long as they do not
militate against any express provision of the local statute.
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19.
In the instant case, though, it is rightly
contended that there is no express prohibition under the
said enactment in dealing with the contraband red sanders
wood, it cannot become a ground for these petitions for the
simple reason that in the light of principles of law
enunciated by the Hon’ble Apex Court that the convention
and clauses of international trade and pacts have to be
incorporated into the local laws. The action of the
petitioners/accused gets tainted with criminality and
hence, the action of the respondents is to be construed
within the frame work of law and accordingly, the question
is answered in favour of the State and it is held that the
respondent – State is entitled to initiate action even in
respect of red sanders. Though, it may not have been cut
and remove from the Forest Areas of Karnataka.
20.
The
next
question
is
as
to
whether
the
petitioners are entitled to be enlarged on bail.
21.
As stated earlier, the Hon’ble Apex Court has
indulged itself in a strenuous exercise and the ratio
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decidendi of the judgment is the observation thus “We are
giving this direction, since, it is reported that nowhere in
the world, this species is seen, except in India and we owe
an obligation to the world, to safeguard this endangered
species, for posterity.” It is seen that the Hon’ble Apex
Court has taken upon itself the unenviable task of
protecting and preserving this endangered species, which
is endemic to a particular part of this country and is
wholly native of this Country. In the light of the above
observations, it is but necessary that the Courts of law
must
adopt
a
stringent
approach
as
deterrent
to
indiscriminate cutting and smuggling of red sanders wood.
It is not irrelevant to take note of a recent incident of death
of 20 persons in the Forest of Chittoor, Andhra Pradesh,
which absolutely mandates a stringent and conservative
approach to the cases involving red sanders wood. The
Hon’ble Apex Court has vehemently declared that it as a
national wealth, the properties and nature of wood has
been considered in extenso and it is the bounden duty of
this Court to complement the approach of the Hon’ble
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Apex Court by implementing the law laid down by it in
letter and spirit. It is obvious that the petitioners are
indulging in the illegal trade and that too indiscriminately.
The
petitioners
and
others
like
the
petitioners
are
indulging in the illegal trade and that too indiscriminately
and this Court deems it to be it’s duty and to act as a
deterrent to such people, who entertain such similar
thoughts and actions.
22.
It is seen that the petitioners are indulging in
destruction of invaluable natural wealth, and hence, no
sympathy can be shown to such persons and in the
considered opinion of this Court, the criminal petitions are
liable to be rejected. Accordingly, the criminal petitions are
dismissed.
Sd/JUDGE
Vnp*