Result: Reference answered accordingly.

K. Sreedhar Rao, J.

This Court in Bhanuprakash and Another Vs. State by A.C.F. reported in ILR 2006 Kar 3216 has laid down that in a prosecution of an offence under Section 86 of the Karnataka forest Act (hereinafter called ‘Act’) to prove the guilt of the accused, it is mandatory for the prosecution to prove that the seizing officer under Section 63(2) of the Act has reported the seizure to the confiscating authority under Section 71-A if the forest produce seized is of the nature stated in Section 63(2)(a). The failure to prove the said compliance under Section 62(3) would vitiate the trial. The Court while laying down the ratio relied on the ruling of this Court in Ningappa Bhimappa Gundammanavar and Another Vs. State of Mysore reported in ILR 1973 Kar 897.

2. The revision petitioners were prosecuted for illegal possession of sandal wood billets. The trial Court convicted the petitioners. The appellate Court dismissed the appeal of the petitioners confirmed the conviction and sentence imposed. The convicted accused persons have filed the revisions.

3. The Hon’ble Justice R.B. Naik while dealing with the revision petitions was in disagreement with the view taken in the case of Bhanuprakash reported in 2006 Crl.L.J. 4292 and has formulated the following points for reference to the larger Bench.

i) Whether in a related criminal trial, the proof of compliance of 62(3) i.e., the reporting of seizure to the confiscating authority under Section 71-A by the seizing authority is not relevant and has no material bearing upon the connected criminal prosecution.

ii) Whether the non-compliance of Section 62(3) and Section 71-A of the Act would adversely affect the prosecution in the criminal proceedings?

4. The learned Judge Sri RBNJ has made reference to the decisions of this Court reported in ILR 2002 Kar 1375 and ILR 2006 Kar 3216.

5. This Court in D.S. Vijay Kumar Vs. Deputy Conservator of Forest, Hassan reported in ILR 2002 Kar 1375 has held that non-prosecution of the accused or his acquittal in the criminal case will have no bearing upon the confiscation proceedings under Section 71-A of the Act. The jurisdiction of the confiscating authority under Section 71-A is independent of the criminal prosecution and its consequences.

6. The Counsel for the petitioners relied on the ruling of this Court in Siraj and Others Vs. State of Karnataka reported in 1991 (1) Kar.L.J. 387 to contend that the compliance of the provisions of Section 62(3) of the Act is mandatory and non-compliance vitiates the trial and should result in acquittal of the accused. The Court while laying down the ratio, has referred to and followed the ratio of this Court in G.K. Ganesh Vs. State of Karnataka reported in 1974 Kar.L.J, 445; Ayaz Ahmed Vs. State of Karnataka reported in ILR 1989 (1) Kar 687; Hasanabba Vs. State of Karnataka reported in ILR 1984 (2) Kar 530 and Ningappa Bhimappa Daminnavar Vs. State reported in ILR 1973 Mysore 897.

7. The provisions of Sec. 62(3) of the Act prior to 11.5.1998 mandated that in the case of seizure, the seizing authority should put distinct mark and seal on each of the item seized. The object of the insistence is to obviate tampering and implanting of articles subsequent to the seizure. The decision in Siraj and Others case pertains to an issue regarding marking and sealing of articles at the time of seizure. The non-compliance of the said requirement is held to vitiate and render the seizure proceeding invalid in law. However, by amending Act 12 of 1998, w.e.f. 11.5.1998 the provision relating to marking and sealing is omitted.

8. In the instant case, the question under reference is altogether on a different point. Justice R.B. Naik is of the view that the proceedings under Section 71-a of the Act is altogether an independent proceeding. There is no need or obligation for the prosecution in a criminal trial to prove that the seizure made under Section 62(3)(a) of the Act has been reported to the Authorised Officer und