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2010 DIGILAW 947 (HP)

State Of H. P. v. Mohammod Aslam Wani

2010-07-13

V.K.AHUJA

body2010
JUDGMENT : V.K. Ahuja, J.(Oral) This is an appeal filed by the appellant under Section 378 of the Cr.P.C. against the judgment of the court of learned Judicial Magistrate, Manali, District Kullu, H.P., dated 13.6.2003, vide which the respondent was acquitted of the notice of accusation put to him for the offence punishable under Section 51, proviso of the Wild Life (Protection) Act, 1972. 2. Briefly stated the facts of the case are that a secret information was received by the Wild Life Wing that the respondent was involved in the sale of Shahtoosh shawls. A raiding party was formed by Shri N.K. Thakur, Deputy Director, Wild Life Preservation, New Delhi, consisting of several Forest Officials. He went to the shop of the respondent, introduced himself as a customer and asked for Shahtoosh shawls. The respondent showed him three Shahtoosh shawls and thereafter, the Incharge of the raiding party signaled other members, who entered the shop and apprehended the respondent who was trying to sell 3 Shahtoosh shawls. These were taken in possession from the respondent after completion of formalities in the presence of the raiding party members. The Shahtoosh shawl is highly protected as the same is made of Chiru and hunting of Chiru is an offence under Section 9 of the Wild Life Protection Act, 1972. A complaint was filed under the provisions of Wild Life Protection Act, 1972 and the respondent was tried, as detailed above, leading to his acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The first point taken by the learned Assistant Advocate General appearing for the appellant was that the learned trial Court has considered minor contradictions as major and accordingly not relied upon the evidence of the prosecution witnesses, which approach of the learned trial Court cannot be said to be correct. It has been pointed out during the course of arguments that minor contradictions are that the shawls were having the sticker of Kashmir Craft Corporation, which is another shop situated nearby but the raid was conducted in the shop of the respondent namely, Kashmir Art Emporium. Thus, it was observed that since the shawls were having stickers of different shop, these were not recovered from the possession of the respondent. Thus, it was observed that since the shawls were having stickers of different shop, these were not recovered from the possession of the respondent. The learned trial Court has discussed in detail this contradiction in the stickers on the shawls and has not believed the prosecution story, which approach cannot be said to be correct. The possibility of the respondent keeping the shawls with the stickers of other shop cannot be ruled out and the fact remains that the shawls were recovered from his shop and, therefore, the respondent cannot get any benefit out of this. 5. Another contradiction pointed out by the learned trial Court was that it was not mentioned in the complaint that the respondent had shown other shawls of Pashmina to the Incharge of the raiding party, but when he persisted to show other good variety of shawls, then three Shahtoosh shawls were shown to him. It was not necessary to mention this fact in the complaint by the Incharge of the raiding party that the Shahtoosh shawls were shown by the respondent on his persistence and the fact remains that he was shown Shahtoosh shawls, which were taken in possession according to the procedure. Such contradictions were minor and had to be ignored and they do not affect the case of the prosecution. 6. The main infirmity pointed out by the learned counsel for the respondent during the course of arguments was that there has been non-compliance of the provisions of Section 100 (4) of the Cr.P.C. in joining two or more respectable witnesses of the locality in which place the search is to be conducted. These provisions were reproduced by the learned trial Court and it was clearly admitted by all the three witnesses, namely, PW-1 B.D. Syal, PW-2 Rajeev Sharma and PW-3 K.N. Thakur that the secret information was received and their office is at a distance of 1/2 km. and on way, there were shops and persons were available, including the office of the SDM and the Naggar Panchayat. However, none was associated before conducting the raid in the shop of the respondent. and on way, there were shops and persons were available, including the office of the SDM and the Naggar Panchayat. However, none was associated before conducting the raid in the shop of the respondent. The provisions of Section 100 (4) of the Cr.P.C. are mandatory and in case an Investigating Officer is unable to comply with these provisions, he has to offer a satisfactory explanation and if the explanation so furnished by him is found satisfactory, it can be said that there has been compliance of the provisions of Section 100 (4) of the Cr.P.C. Neither any effort was made by the Investigating Officer, the Incharge of the raiding party, or the other members of the raiding party, to associate independent witnesses, though available, nor any explanation was given in regard to the non-compliance of the provisions of Section 100 (4) of the Cr.P.C. It proves to be fatal since these provisions were mandatory in nature and the non-compliance of these provisions results in the acquittal of the respondent. 7. Another plea raised by the learned counsel for the respondent during the course of arguments was that the report of the expert in this case Ext. PW-2/D, which is of the Director of Wildlife Institute of India, cannot be said to be per se admissible under the provisions of Section 293 of the Cr.P.C. According to Section 293 of the Cr.P.C., the reports of certain Government Scientific Experts are per se admissible, which have been specified therein. The office of the Director, Wildlife Institute of India, is not specified therein, but it can be specified by way of a notification by the Central government under Section 293 (4)(g) of the Cr.P.C. No such notification has been placed on record to show that the said Scientific Expert was specified by a notification as an Expert within the provisions of Section 293 of the Cr.P.C. Thus, the report in question Ext. PW-2/D was not per se admissible, which cannot be relied upon to base conviction of the respondent. No such copy of the notification was placed on the record or shown during the course of arguments and as such the said report cannot be relied upon to prove the guilt of the respondent. 8. PW-2/D was not per se admissible, which cannot be relied upon to base conviction of the respondent. No such copy of the notification was placed on the record or shown during the course of arguments and as such the said report cannot be relied upon to prove the guilt of the respondent. 8. The net result of the above discussion is that the final findings recorded by the learned trial Court leading to the acquittal of the respondent cannot be said to be perverse calling for an interference by this Court. 9. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondent shall stand discharged.