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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH

DATED THIS THE 17TH DAY OF JULY 2015

BEFORE

THE HON’BLE MR. JUSTICE G. NARENDAR

CRIMINAL PETITION No.100536/2015C/w. CRIMINAL PETITION No.100355/2015

IN CRL.P.NO.100536/2015:

BETWEEN

MR.MOHAMMAD SHARIF S/O HUSAINAMAGE 42 YEARS, OCC. DRIVERR/O: GURUKATTE, TQ. BELATANGDIDIST. DAKSHINA KANNADA

... PETITIONER

(BY SRI.SRINAND A.PACHHAPURE, ADVOCATE)

AND

THE STATE OF KARNATAKATHROUGH NIPPANI POLICE STATIONNOW REP. BY SPPHIGH COURT OF KARNATAKADHARWAD

... 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, ACT BY

RESPONDENT NIPPANI TOWN POLICE STATION.

IN CRL.P.NO.100355/2015:

BETWEEN

1. V.P. IBRAHIM BADASHAS/O MOYDUAGE 51 YEARSOCCUPATION TRADER/O MORESHWAR BUILDINGRAJESHKUMAR ANGARHOTAGI ROADSOLAPUR, MAHARASHTRA STATE

2. YUSUF S/O MUSAAGE 36 YEARSOCCUPATION TRADER/O UPPAL, NAYA BAZAR,TALUK UPPAL, DIST. KASARGOD,KERALA STATE

... PETITIONERS

(BY SRI.SHRIKANT R.SATTIGERI, ADVOCATE)

AND

THE STATE OF KARNATAKATHROUGH NIPPANI TOWN PSREPRESENTED BY SPPHIGH COURT OF KARNATAKADHARWAD 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 ANDRESERVED FOR ORDERS AND COMING ON FORPRONOUNCEMENT OF ORDERS THIS DAY, THE COURTMADE THE FOLLOWING:

O R D E R

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, 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.

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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 organization dedicated to finding

pragmatic solutions of our most pressing

environment and development 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 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 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. 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

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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 the vexed issue of jurisdiction of the

respondent.

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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*