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2012 DIGILAW 1100 (KER)

Podiyan v. State of Kerala

2012-12-19

N.K.BALAKRISHNAN

body2012
ORDER : N.K. Balakrishnan, J. 1. The revision petitioner was convicted by the learned Magistrate for offences punishable under Secs. 40(2) and 57 r/w 51 of Wildlife (Protection) Act (hereinafter referred to as "Act"). But the learned Magistrate released the petitioner on probation for one year under Sec. 4 of Probation of Offenders Act on his executing a bond for Rs. 5,000/-. Besides, the petitioner and other accused were directed to pay Rs. 3,000/- each as compensation to the aggrieved. That conviction and sentence passed against the petitioner herein was challenged before the appellate court. The learned Additional Sessions Judge concurred with the conviction, but noticed that the trial court did not award the proper sentence as mandated under the relevant provisions of the Wildlife (Protection) Act and so the case was remitted back to the trial court for fresh consideration of the sentence to be awarded against the petitioner. That order of remand passed by the appellate court is challenged by the accused in this revision. The learned counsel for the revision petitioner submits that in the appeal filed by the accused challenging the conviction, appellate court is not entitled to enhance the sentence and if that be so, the appellate court cannot, after confirming the conviction, remand the case to the trial court for awarding proper sentence which in the context of this case is to enhance the sentence. 2. Sri. P.S. Appu, the learned counsel appearing for the petitioner has relied upon the decision of Andhra Pradesh High Court in Maruthi College of Engineering and Technology, Hyderabad (M/s.) and Another v. State of Andhra Pradesh and Another, 2011 KHC 6059 in support of his submission that there is no power for the criminal appellate court to remand a case like a civil appellate court and that the option open to the appellate court is to order re-trial of the case. 3. Sri. M.P. Madhavankutty, Special Prosecutor for Forest has relied upon the decision of the Division Bench of this court in Ishaque Vs. Raveendran Thampan, to fortify his submission that it is permissible for the appellate court to remand a matter after upholding the conviction and setting aside the existing sentence for imposing an appropriate or just sentence. The decisions in Santa Singh v. State of Punjab, AIR 1976 SC 2386 and Nirpal Singh and Others Vs. Raveendran Thampan, to fortify his submission that it is permissible for the appellate court to remand a matter after upholding the conviction and setting aside the existing sentence for imposing an appropriate or just sentence. The decisions in Santa Singh v. State of Punjab, AIR 1976 SC 2386 and Nirpal Singh and Others Vs. State of Haryana, of the Supreme Court were relied upon by the Division Bench and held that the appellate court can after upholding the finding of guilt remand the matter to the trial court solely for the purpose of imposing an appropriate sentence. It was held by the Division Bench in Ishaque Vs. Raveendran Thampan,: It is perfectly possible to contemplate a penal provision in a statute which prescribes only a substantive sentence of imprisonment and no fine at all. In fact, S. 119(2) and 345 IPC are instances where the law prescribes only a substantive sentence of imprisonment but no fine. If in such a prosecution where only substantive sentence of imprisonment is permissible, the Trial Court imposes erroneously a sentence of fine alone and the accused challenges such conviction and sentence, the court is likely to find itself in a precarious situation. It may take the view that the conviction is justified. The challenge of the accused that the sentence is illegal and not justified by the penal provision would be correct. The Trial Court having chosen to impose a sentence of fine, the Appellate Court would not be able to enhance the sentence and impose any substantive sentence of imprisonment. In that situation, the only course open to the Appellate Court would be to uphold the conviction, set aside the sentence which is illegal and allow the accused to go scot-free. That cannot obviously be the law, according to us. To avoid such precarious and absurd situation also, it is essential and necessary that a purposive expanded meaning must be assigned to the expression "finding and sentence" in S. 386(b) (i) of the Code. 4. It was also noted by the Division Bench that the Supreme Court in K. Bhaskaran Vs. That cannot obviously be the law, according to us. To avoid such precarious and absurd situation also, it is essential and necessary that a purposive expanded meaning must be assigned to the expression "finding and sentence" in S. 386(b) (i) of the Code. 4. It was also noted by the Division Bench that the Supreme Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, and the Madhya Pradesh High Court in Nathuram Sharraa v. Rajendra Goyal, 2007 MPHT 4-114 took the view that it will be perfectly permissible to direct remand of the case to the court below (trial court) to continue the trial from the stage of conviction and impose an appropriate and just sentence. 5. It is argued on behalf of the respondent that this court can also invoke the power under Sec. 401 Cr.P.C. since it is brought to the notice of this court that the sentence awarded by the trial court is not in conformity with the mandatory penal provision contained in the Act. It was observed in Ishaque cited supra that the jurisdiction in revision does not end with the mere correction of technical errors by subordinate courts. The commitment of the revisional court must also be to the ends of justice. 6. Over ruling the decision in Vijayakumar v. State of Kerala, 2009 (2) KLT 499 it was held by the Division Bench in Ishaque that where impropriety/injustice has resulted, the revisional court cannot consider itself to be powerless. It must intervene to reverse the injustice. 7. Therefore, the first objection raised by the learned counsel for the petitioner that the appellate court has no jurisdiction to confirm the conviction and remand the matter to the trial court only for passing appropriate sentence is unjustifiable, is bereft of any merit. 8. Coming to the facts of this case, the allegation is that on 05.11.1992, the Forest Officers seized a piece of tusk from the house of the petitioner herein. The evidence would show that on 05.11.1992, PW1 and other forest officials went to the house of A1 on the basis of certain directions issued by the Divisional Forest Officer. When PW1 and others went to the house of A1 they saw A1 carving an ivory. They could confirm that it was of a tusk of an elephant. The evidence would show that on 05.11.1992, PW1 and other forest officials went to the house of A1 on the basis of certain directions issued by the Divisional Forest Officer. When PW1 and others went to the house of A1 they saw A1 carving an ivory. They could confirm that it was of a tusk of an elephant. When A1 was questioned, he was stated to have told that it was sold to him by the second accused (the petitioner herein) for carving pictures in it. Accordingly, the forest officials went to the house of A2 along with A1, A2 was present there. From the house of A2, the forest officials seized another piece of tusk. It could be confirmed that the piece of tusk seized from the house of A1 and the other piece seized from the house of A2 were of the same tusk. The petitioner was not having any licence, permit or any other document to keep possession of the tusk. The evidence given by PW1 was corroborated by PW2 and PW3. The fact that the independent witnesses did not support the prosecution is no reason to reject the prosecution version. Seizure mahazar which is the contemporaneous record would also corroborate the evidence given by PW1 to PW3. These aspects were considered by the courts below to hold that the ivory which was part of the same tusk was seized from the house of this petitioner. 9. The next question that falls for consideration is whether the seizure of ivory would attract the penal provision contained in Sec. 51 of the Act. Sec. 49A(b) defines: (b) "scheduled animal article" means an article made from any scheduled animal and includes an article or object in which the whole or any part of such animal [has been used but does not include tail feather of peacock, an article or trophy made therefrom and snake venom or its derivative;] Sec. 49B reads: 49B. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals.- (1) Subject to the other provisions of this section, on and after the specified date, no person shall,-] (a) and (i) omitted. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals.- (1) Subject to the other provisions of this section, on and after the specified date, no person shall,-] (a) and (i) omitted. (ia) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or] (ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or (iii) a dealer in trophy or uncured trophy derived from any scheduled animal; (The other sub clauses are omitted as unnecessary.) Sub sec. 2 of Sec. 49B reads: (2) Subject to the other provisions of this section, no licence granted or renewed u/s 44 before the specified date shall entitle the holder thereof or any other person to commence or carry on the business referred to in clause (a) of sub-section (1) of this section or the occupation referred to in clause (b) of that sub-section after such date. 10. Wild Life (Protection) Amendment Act, 1991 came into force with effect from 02.10.1991. In view of Sub Sec. 2 of Sec. 49B quoted above even if any licence was granted or renewed under Sec. 44 before the specified date that shall be invalid and so based on such a licence, a person is not entitled to commence or carry on business referred to in Clause (a) of Sub Sec. 1 of Sec. 49B. Therefore, the contention that the petitioner was an artisan and so the seizure of the ivory from his house cannot attract the penal provision contained in Sec. 51 of the Act is devoid of any merit. 11. As per item 12B of Part I of Schedule I of the Act Indian elephant comes under the category of scheduled animal as defined in Sec. 49A(b). As pointed out earlier, scheduled animal includes an article or object in which the whole or any part of such animal has been used. Sri. Madhavankutty, the learned Special Government Pleader (Forest) would also refer to Sec. 57 of the Act which deals with the presumption. Sec. 57 reads: 57. As pointed out earlier, scheduled animal includes an article or object in which the whole or any part of such animal has been used. Sri. Madhavankutty, the learned Special Government Pleader (Forest) would also refer to Sec. 57 of the Act which deals with the presumption. Sec. 57 reads: 57. Presumption to be made in certain cases.- Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, [trophy, uncured trophy, specified plant, or part or derivative thereof] it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat trophy, uncured trophy, specified plant, or part or derivative thereof]. 12. Therefore, if a person was found in possession, custody or control of trophy or uncured trophy it shall be presumed unless the contrary is proved that such a person is in unlawful possession or custody or control of such trophy or uncured trophy. The burden is on the accused to prove the contrary. Here, the evidence would clearly show that the petitioner (A2) was in possession of one piece of tusk. Sec. 2(31) of the Act defines Trophy: (31) "trophy" means the whole or any part of any captive animal or wild animal, other than vermin, which has been kept or preserved by any means, whether artificial or natural, and includes- (a) rugs, skins and specimens and such animal mounted in whole or in part through a process of taxidermy, and (b) antler, bone, carapace, shell, horn, rhinoceros horn, hair, feather, nail, tooth, tusk, musk, eggs, nests and honeycomb;] As such, the presumption under Sec. 57 is also available to the prosecution. The petitioner could not account for possession of the same. 13. The learned counsel for the petitioner submits that the complaint was not filed by an officer authorized by the State Government and so the cognizance taken is bad in law in view of Sec. 55 of the Act. Sec. 55(a) says that no court shall take cognizance of any offence against the Wildlife Protection Act on the complaint of any person other than the Director of Wild Life Preservation or any other officer authorized in that behalf by the State Government. Sri. Sec. 55(a) says that no court shall take cognizance of any offence against the Wildlife Protection Act on the complaint of any person other than the Director of Wild Life Preservation or any other officer authorized in that behalf by the State Government. Sri. Madhavankutty has referred to the notification dated 11.03.1975 published in Kerala Gazette No. 10 as SRO. No. 227/1975, as per which, in exercise of the powers conferred by Section 55 of the Wildlife (Protection) Act 1972, the Government of Kerala, authorized the Officers of the Forest Department of this State, not below the rank of Range Officer and Assistant Wildlife Preservation Officers to file complaints before the various courts in the State for the offences committed against the said Act. Here the report (complaint) was filed by the Forest Range Officer having jurisdiction over the area. Hence, the complaint is perfectly maintainable. The cognizance taken does not suffer from any infirmity. 14. Now the crucial question comes; whether the learned Magistrate was justified in invoking Sec. 3 or 4 of the Probation of Offenders Act. Sec. 51 of Wildlife (Protection) Act which deals with penalties reads: 51. Penalties.-(1) Any person who [contravenes any provision of this Act [(except Chapter VA and Section 38J)]] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to [three years] or with fine which may extend to [twenty-five thousand rupees] or with both; [Provided that where the offence committed is in relation to any animal specified in Schedule I or Part II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to. hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be less than ten thousand rupees. (Other parts are omitted as unnecessary.) 15. (Other parts are omitted as unnecessary.) 15. It has already been found that the offence in this case was committed in relation to an animal (elephant) specified in Schedule I. After the amendment which came into force on 01.04.2003, the accused shall be punished with imprisonment for a term which shall not be less than three years, but which may extent to seven years and also with fine which shall not be less than Rs. 10,000/-. But here, since the offence was committed on 05.11.1992. The law as it stood then has to be applied. As the law then stood the proviso to Sec. 51 reads: Provided that where the offence committed is in relation to any animal specified in Schedule I Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence [relates to hunting in, or altering the boundaries of] a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than [one year] but may extend to six years and also with fine which shall not be less than [five thousand rupees]. 16. It is important to note that the Parliament in its wisdom has prescribed the minimum punishment to be awarded to an offender who is found guilty of the offence under Sec. 51 of the Act. The legislative mandate cannot be simply lost sight of by the court while awarding the sentence. The offence committed in respect of the Forest laws, especially Wildlife (Protection) Act, has to be considered with that much seriousness bearing in mind the object of the enactment especially the mandatory minimum punishment prescribed. That itself should alert the court of the social necessities so as to curb acts of trespass into the Forest causing denudation of forest wealth and affecting the natural Flora and Fauna. In the decisions in Ishar Das Vs. The State of Punjab, and Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others, it was held by the Apex Court that benefit of Probation of Offenders Act should not be extended to the accused in those cases. In Precious Oil Corporation and Others Vs. State of Assam, also, the benefit of P.O. Act was not given to the accused therein. Mahadeo Ramchandra Dange and Others, it was held by the Apex Court that benefit of Probation of Offenders Act should not be extended to the accused in those cases. In Precious Oil Corporation and Others Vs. State of Assam, also, the benefit of P.O. Act was not given to the accused therein. In the former two cases, the Supreme Court dealt with the offence under the PFA Act. But in Precious Oil Corporation's case, the Supreme Court was dealing with the application of P.O. Act in a case filed under Sec. 7 of the Essential Commodities Act. In Pyarali K. Tejani's case, (Supra) it was held by the Supreme Court: The kindly application of the probation principle is negatived by the imperatives of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade, imperil numerous innocents. He is a security risk. 17. It is submitted that though the said decision was rendered under the PFA Act, the ratio enunciated by the Supreme Court applies to all such offences which affects the society at large. The offence under the Wild Life Protection Act and the provisions of the Forest Act are to be treated as provisions which are enacted with the object of protecting the natural forest wealth and so the persons who plunders that natural wealth should be dealt with properly awarding deterrent punishment provided under the statute, as otherwise it would affect the society and the nation as a whole, the learned Public Prosecutor submits. The aforesaid decisions were followed by the apex court in Sunil Kumar Vs. State of Haryana,. When the object of the enactment is to protect the wild life and to award deterrent punishment to such offenders with a view to ensuring the ecological and environmental safety and security of the country, the court cannot turn Nelson's eye to such legislative mandates and invoke the provisions of the P.O. Act. A clandestine act abetted by illegal practices of poaching which takes away or ruins the wild life of this country should be curbed by awarding proper sentence. It should give a proper message to such potential wrong doers. Therefore, the learned special prosecutor for Forest Sri. A clandestine act abetted by illegal practices of poaching which takes away or ruins the wild life of this country should be curbed by awarding proper sentence. It should give a proper message to such potential wrong doers. Therefore, the learned special prosecutor for Forest Sri. Madhavankutty would submit that when a mandatory minimum punishment is prescribed under Sec. 51 of the Act, the learned Magistrate was not justified in invoking the provision of Probation of Offenders Act. The learned appellate judge has rightly remanded the case to the trial court for awarding proper sentence after confirming the conviction. In view of what is stated above, I hold that the learned appellate judge was perfectly justified in confirming the conviction. The conviction is confirmed. The learned Additional Sessions Judge is also justified in remanding the case to the trial court for awarding proper sentence as mandated under the provisions of Sec. 51 of the Wildlife (Protection) Act. That order is confirmed. This criminal revision petition is hence, dismissed. The learned Magistrate will take up the case, hear both sides and dispose of the case at the earliest.