- 1 - R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE17H DAY OF JULY2015BEFORE 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 AGE42YEARS, OCC. DRIVER R/O: GURUKATTE, TQ. BELATANGDI DIST. DAKSHINA KANNADA (BY SRI.SRINAND A.PACHHAPURE, ADVOCATE) ... PETITIONER AND THE STATE OF KARNATAKA THROUGH NIPPANI POLICE STATION NOW REP. BY SPP HIGH COURT OF KARNATAKA DHARWAD (BY SRI.K.S.PATIL, HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION439OF CR.P.C. SEEKING TO GRANT BAIL TO THE PETITIONER IN CRIME NO.7/2015 REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS379 411 OF IPC & SECTIONS86& 87 OF KARNATAKA FOREST ACT, 1963 AND - 2 - RULE144OF KARNATAKA FOREST RULES, ACT BY RESPONDENT NIPPANI TOWN POLICE STATION. IN CRL.P.NO.100355/2015: BETWEEN1 V.P. IBRAHIM BADASHA S/O MOYDU AGE51YEARS OCCUPATION TRADE R/O MORESHWAR BUILDING RAJESHKUMAR ANGAR HOTAGI ROAD SOLAPUR, MAHARASHTRA STATE2 YUSUF S/O MUSA AGE36YEARS OCCUPATION TRADE R/O UPPAL, NAYA BAZAR, TALUK UPPAL, DIST. KASARGOD, KERALA STATE (BY SRI.SHRIKANT R.SATTIGERI, ADVOCATE) ... PETITIONERS AND THE STATE OF KARNATAKA THROUGH NIPPANI TOWN PS REPRESENTED BY SPP HIGH COURT OF KARNATAKA DHARWAD BENCH (BY SRI.K.S.PATIL, HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION439OF 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 SECTIONS379 411 OF IPC & SECTION86 87 OF K.F. ACT.-. 3 - THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDER
S AND COMING ON FOR PRONOUNCEMENT OF ORDER
S 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 - 4 - 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, they disclosed their identity as Mohammed Sharif S/o.Husainam – 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.-. 5 - 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 - 6 - 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 - 7 - 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 organization dedicated to finding pragmatic solutions of our most pressing environment and development challenges has included Santalum album Linn in its Red List of - 8 - 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 - 9 - 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 as well as IUCN has acknowledged that Red Sandalwood is 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 SCC360 Gramaphone Company of India vs. Birendra Baldev Pandey (1984) 2 SCC534 - 10 - 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 - 11 - 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 - 12 - 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 - 13 - 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 SCC362is 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 - 14 - 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. The Hon’ble Apex Court in the course of its endeavor 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 - 15 - 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 - 16 - 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 the vexed issue of jurisdiction of the respondent.-. 17 - 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 - 18 - 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.-. 19 - 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 - 20 - 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 - 21 - 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. Vnp* Sd/- JUDGE