IMPORTANT POINT
Possession of sandalwood exceeding 3 KGs without a license constitutes an offence under Section 87 of the Karnataka Forest Act, and the burden of proof lies on the accused to establish bona fide domestic use.

JUDGMENT :

Mr. Shivashankar Amarannavar, J. - This appeal is filed by appellants - accused Nos. 1 and 2 praying to set aside the judgment of conviction and order of sentence dated 17.11.2012 passed in S.C. No. 189/2012 by the Presiding Officer, FTC-IV, Mysuru. Appellants - accused Nos. 1 and 2 have been convicted for offence under Section 87 of the Karnataka Forest Act (hereinafter for the sake of brevity referred to as 'the Act') and sentenced to undergo simple imprisonment for 3 years and to pay fine of Rs. 5,000/-. In default, to undergo simple imprisonment for a period of 8 months. The appellants - accused Nos. 1 and 2 have been acquitted for offence under Section 86 of the Act.

2. Factual matrix of the prosecution is that on 01.11.2010 P.W.3 - Yashwanthakumar, Police Inspector, N.R. Police Station along with his staff was on patrolling duty. At about 11.00 am when they were going to Pushpashrama ring road, R.S. Naidu Nagar, they found the appellants - accused Nos. 1 and 2 going in TVS XL moped. On seeing the Police the appellants - accused Nos. 1 and 2 were frightened and took deviation towards Hale Kesare road. On suspicion N.R. Police staff surrounded the appellants - accused Nos. 1 and 2 at Varuna Channel over bridge and found that appellant - accused No. 1 who was riding the moped was possessing one air bag and appellant - accused No. 2 was the pillion rider. The appellants - accused Nos. 1 and 2 tried to escape by leaving the vehicle there itself. Ultimately the appellants - accused Nos. 1 and 2 were caught hold by N.R. Police staff and they were found in possession of sandalwood chiltas in the air bag. N.R. Police secured 2 panchas and seized the sandalwood chiltas under mahazar and arrested the accused persons. On enquiry, appellants - accused Nos. 1 and 2 told that they were carrying the said sandalwood chiltas for the purpose of sale to the tourists. Appellants - accused Nos. 1 and 2 were brought to the Police Station and P.W.3 gave report and case came to be registered. After getting the report of P.W.1 as to the kind of wood and its valuation, charge sheet came to be filed against appellants - accused Nos. 1 and 2 under Sections 86 and 87 of the Act. The trial Court framed charge against the appellants - accused Nos. 1 and 2 for offence under Sections 86 and 87 of the Act. In order to prove the charge the prosecution examined P.W.1 to P.W.4 and got marked Ex.P.1 to Ex.P.0 and M.O.1 and M.O.2. Statement of appellants - accused Nos. 1 and 2 came to be recorded under Section 313 of Cr.P.C. The trial Court after hearing arguments formulated point for consideration and after appreciating the evidence on record convicted the appellants - accused Nos. 1 and 2 for offence under Section 87 of the Act and acquitted them for offence under Section 86 of the Act by the impugned judgment which has been challenged in this appeal.

3. Heard learned counsel for appellants - accused Nos. 1 and 2 and learned HCGP for the respondent - State.

4. Learned counsel for appellants - accused Nos. 1 and 2 would contend that the appellants are two persons i.e., accused Nos.1 and 2 and they possessed about 05.00 KGs of sandalwood chiltas and as per proviso to Section 87 of the Act a person can possess up to 3 KGs for bonafide domestic use. He submits that considering the said aspect, that is, accused are two persons and the total quantity seized is 05 KGs, they can possess 3 KG each without license for bonafide domestic use. Therefore, the offence under Section 87 of the Act is not attracted. With this he prayed to allow the appeal and acquit appellant - accused Nos. 1 and 2.

5. Per contra, learned HCGP appearing for the respondent State would argue that the trial Court on appreciation of the evidence record has rightly convicted appellant - accused Nos. 1 and 2 for offence under Section 87 of the Act. She supported the reasons assigned by the trial Court. She further argued that the defence of the appellants - accused Nos. 1 and 2 is total denia