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2013 DIGILAW 944 (CAL)

Abdul Aziz v. Assistant Wildlife Warden

2013-12-20

DIPANKAR DATTA

body2013
Judgment : Dipankar Datta, J. 1. The petitioner was tried by the Chief Judicial Magistrate, Port Blair for violation of the provision of Sections 9 and 39(1)(d) of the Wild Life (Protection) Act 1972 (hereafter the 1972 Act). By judgement and order dated 27th March 2009, the said Magistrate found the petitioner guilty of the offence under Section 51 of 1972 Act and sentenced him to suffer simple imprisonment for one year. The period of detention already undergone was directed to be set off under Section 428 of the Code of Criminal Procedure (hereafter the Code). 2. The judgement and order dated 27 March, 2009 formed the subject matter of challenge in Criminal Appeal No. 28 of 2010 at the instance of the petitioner. The Additional Sessions Judge, Andaman & Nicobar Islands upheld the conviction and sentence under challenge and dismissed the appeal by judgement dated 19th February, 2013. 3. Feeling aggrieved thereby, the petitioner has presented this revisional application under Section 401 read with Section 482 of the Code. 4. It appears from the judgement and order passed by the courts below that the petitioner, while driving a Maruti Van, was intercepted with 15 kg of venison (deer meat) in a plastic bag, which was found concealed under a seat of the vehicle. The petitioner was alone and had failed to produce any document authorising carriage of such deer meat. He was immediately arrested and the deer meat was seized. It was produced before Dr V. Subramanian, Assistant Veterinary Surgeon (P.W. 4) who upon examination concluded that the seized meat was indeed the meat of deer. The petitioner was thereafter prosecuted under Section 51 of the 1972 Act for violation of Sections 9 and 39 thereof, as noticed above. 5. Mr. Md. Tabraiz, learned advocate for the petitioner, raised two points. First, he contended that no chemical examination of the seized meat was conducted, which is a serious flaw. According to him, physical examination of the seized meat by the P.W.4 could not have been a substitute for chemical examination. 5. Mr. Md. Tabraiz, learned advocate for the petitioner, raised two points. First, he contended that no chemical examination of the seized meat was conducted, which is a serious flaw. According to him, physical examination of the seized meat by the P.W.4 could not have been a substitute for chemical examination. Secondly, it was contended that the petitioner being a young lad of 23 years at the date of commission of offence without any criminal antecedents, the trial having lingered for more than seven years without the petitioner being at fault, and on consideration of the subsequent event of the petitioner having married and becoming the father of a child, who is presently three years old, as well as the fact that the petitioner is a daily rated labour and feeds his family by his daily earning, he is entitled to be released on probation under the Probation of Offenders Act, 1958 (hereafter the 1958 Act). Reference in this connection was made by him to sub-section (5) of Section 51 of the 1972 Act and it was submitted that the 1958 Act was not excluded in its operation insofar as the nature of offence found to have been committed by the petitioner is concerned. Submission that has been advanced is that the courts below committed gross error of jurisdiction in denying the petitioner release on probation, resulting in miscarriage of justice. He also invited my attention to the fact that although the Additional Sessions Judge noted the submission made on behalf of the petitioner that the learned Magistrate failed to consider his age for releasing him on probation, no discussion in the appellate judgement is found regarding the same. Reliance was placed by Mr. Tabraiz on several decisions of the Supreme Court as well as this Court on the issue of release of probation, reading as under: “1. (1999) 5 SCC 732 : State of Karnataka – vs- Muddappa; 2. (2009) 9 SCC 366 : Halappa –vs- State of Karnataka; 3. (2007) 1 SCC 619 : Gulzar –vs- State of M.P; 4. (1977) 3 SCC 575 : Hansa –vs- State of Punjab; and 5. 1980 CR L J 1393: Radha Raman Sarkar –vs- State of West Bengal.” 6. He, accordingly, prayed that even if the conviction of the petitioner were not interfered with, he ought to be released on probation in terms of the 1958 Act. 7. (1977) 3 SCC 575 : Hansa –vs- State of Punjab; and 5. 1980 CR L J 1393: Radha Raman Sarkar –vs- State of West Bengal.” 6. He, accordingly, prayed that even if the conviction of the petitioner were not interfered with, he ought to be released on probation in terms of the 1958 Act. 7. I have not considered it necessary to call upon the respondents to answer the first point raised by Mr. Tabraiz. 8. Mr. Mandal, learned Public Prosecutor, in his usual fairness did not contest the submission that the learned Additional Sessions Judge failed to consider the submission advanced on behalf of the petitioner relating to his age for being released on probation. He, however, invited my attention to the order passed by the learned Magistrate and submitted that reasons were assigned as to why he did not consider it proper to release the petitioner on probation. According to him, the reasons are not utterly unreasonable so as to deserve interference. There being no miscarriage of justice, dismissal of the revisional application was prayed for. 9. The first point urged before me by Mr. Md. Tabraiz was also raised before the Additional Sessions Judge. The contention was repelled by the Additional Sessions Judge by observing as follows: “I find from the report of the veterinary surgeon in the Ext.2 that he physically examined the meat and found the following characters:- colour of the flesh-dark red in colour, odour of the flesh - putrefied odour felt, consistency of the flesh – firm and dense fibre, muscle contained like fat distributed over the muscle fibre, hair follicle – slight hair follicle were attached with the flesh which resembled with hair follicle of deer. Therefore, the findings of the veterinary surgeon was not at all without basis. But the veterinary surgeon after examining the colour, odour, consistency of the flesh and also considering the presence of hair follicle of a deer came to the conclusion that it was the meat of a deer. Therefore, the findings of the veterinary surgeon was not at all without basis. But the veterinary surgeon after examining the colour, odour, consistency of the flesh and also considering the presence of hair follicle of a deer came to the conclusion that it was the meat of a deer. I think the chemical examination could not have brought any more information and the physical observation of the veterinary surgeon regarding the colour, odour, consistency of the flesh and presence of hair follicle of a deer were enough to come to the conclusion that it was the meat of deer and the experience of the veterinary surgeon regarding the examination of the colour, odour, consistency should be respected as observed by the Ld. Magistrate.” 10. The P.W. 4 had deposed and proved the report submitted by him, marked Ext.2. It would have been better if the seized meat were chemically examined. But merely because there had been no chemical examination is no ground to reject the report of the P.W.4. As has rightly been observed by the Additional Sessions Judge, the finding of the P.W.4 was based on several factors, which could and did lead to the conclusion that what was seized is deer meat. 11. That apart, there is one other aspect which has not been noticed by the courts below. Question of chemical examination of the seized meat would have arisen, if there were facilities available in these islands for such examination. The Range Officer, Tugapur Range under Mayabunder Division was examined as P.W. 6. He deposed that at the material date he was posted at South Andaman as Range Officer–cum-Assistant Wild Life Warden. In course of cross examination, he deposed as follows: “The venison was not sent for chemical examination. I have knowledge that there is no facility available in the A&N Islands regarding the chemical examination of the venison.” The onus thus shifted to the petitioner to establish that facility for chemical examination of the deer meat was available in these islands. He miserably failed to prove to the contrary. Despite not noticing this aspect but on consideration of the other materials on record, the Additional Sessions Judge has duly drawn presumption in accordance with Section 57 of the 1972 Act. 12. The first point does not, therefore, appear to be sound and is thus overruled. He miserably failed to prove to the contrary. Despite not noticing this aspect but on consideration of the other materials on record, the Additional Sessions Judge has duly drawn presumption in accordance with Section 57 of the 1972 Act. 12. The first point does not, therefore, appear to be sound and is thus overruled. The order convicting the petitioner and the sentence imposed on him do not call for interference. 13. Insofar as the second point is concerned, Mr. Tabraiz is right in his submission that there is no discussion in the appellate judgement although it was raised before the Additional Sessions Judge. However, Mr. Mandal is also right that the point was addressed by the learned Magistrate while sentencing the petitioner. To release a convict on probation is a discretionary power of the court. There cannot be any doubt that discretion has to be judiciously exercised and not on whims and caprices. Section 51 of the 1972 Act specifies the penalties that could be imposed for contravention of the provisions of the 1972 Act. The learned Magistrate, however, appears to have disallowed release of the petitioner on probation by taking a lenient view and imposing the sentence of simple imprisonment for one year on the ground that the offence committed by the petitioner was contrary to the avowed object of ensuring the “ecological balance of the society”. Interference in the exercise of discretionary power could be made if the revisional court is satisfied that discretion has been exercised without any rational basis. This is not a case of palpable irrational exercise of discretion. But at the same time, it cannot also be overlooked that the petitioner has no history of commission of offence prior to the offence committed by him on July 20, 2002. There is also no material on record that during the period of release on bail, the petitioner violated the conditions thereof. More than eleven years have passed since commission of offence by the petitioner. He was only 23 years old then. The trial could be completed in seven years and it has been another four years since then. It has been held by the Supreme Court in several decisions that the beneficial provisions of the 1958 Act should receive wide interpretation and should not be read in a restricted sense. He was only 23 years old then. The trial could be completed in seven years and it has been another four years since then. It has been held by the Supreme Court in several decisions that the beneficial provisions of the 1958 Act should receive wide interpretation and should not be read in a restricted sense. Bearing in mind that the 1958 Act is a beneficial legislation applicable to first offenders and that the petitioner is not excluded from deriving the benefits of such legislation having regard to the nature of offence committed by him, I am of the view that ends of justice demands a remand to the learned Magistrate for ascertaining whether the petitioner has been maintaining good conduct or not since being released on bail and further as to whether he is in his family life or not, and considering the totality of the matter, whether circumstances merit consideration of his claim for release on probation. It is ordered accordingly. In the process, the Court must also form its opinion as to whether releasing the petitioner on probation would be suitable and appropriate for accomplishing the object for which the 1958 Act was brought into force. 14. I therefore, dispose of this revisional application by directing that the petitioner shall continue to remain on bail till such time as indicated hereafter. The learned Magistrate shall de-novo consider whether the petitioner is entitled to be released on probation under the 1958 Act. In the event the issue is answered in the negative, the bail shall stand cancelled and the law enforcement authority shall be at liberty to rear-rest the petitioner; if in the affirmative, appropriate directions may be passed by the learned Magistrate in accordance with law.