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2014 DIGILAW 227 (CHH)

Somnath v. State of Chhattisgarh

2014-06-20

SANJAY K.AGRAWAL

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ORDER (1) Questioning the legality and propriety of impugned judgment affirming the order of the trial Magistrate convicting sole applicant Somnath for offence punishable under Section 51(1) of the Wild Life (Protection) Act, 1972 (henceforth 'the Act, 1972), this revision, invoking the revisional jurisdiction of this Court under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (henceforth 'CrPC'), has been filed. (2) The core facts required for determination of this revision are as under: (2.1) The prosecution case starts with that on information received from an informant on 1-2-1996 that the applicant in his plastic bag carrying trophy of leopard and proceeding towards Jagdalpur. A search was conducted by Station House Officer, Police Station Bodhghat and pursuant thereto the trophy of leopard was seized and the offence under Section 49B(1)(iii) which is punishable under Section 51(1) of the Act, 1972 was registered against the applicant and he was charge-sheeted by the State police before the jurisdictional criminal Court. (2.2) The applicant abjured the guilt and entered into defence by stating that the prosecution case is out and out false and he has been falsely implicated as he is innocent. (2.3) In order to establish the charge levelled as aforestated, during the course of trial, the prosecution examined 4 witnesses, namely, Anil Pandey (PW-1), Sub-Inspector S.D. Deosthaley (PW-2), Forest Deputy Ranger Nasaruddin Khan (PW-3) and Lakshminath alias Naggu (PW-4). Apart from this, the prosecution exhibited six documents Ex.P-1 to P 6, namely, seizure memo, notice to produce licence, arrest memo, First Information Report, letter to forest range officer and report of Deputy Ranger, respectively. (2.4) The defence neither examined any witness nor produced any document. (3) The trial Court, after appreciation of the evidence brought on record, accepted the prosecution case relying upon the testimony of the prosecution witnesses and convicted and sentenced the applicant to undergo rigorous imprisonment for 6 months and to pay fine of Rs.500, in default of payment of fine to undergo rigorous imprisonment for 1 month. (4) On appeal being preferred, the appellate Court maintained the conviction and also maintained the sentence awarded to the applicant by the trial Court. (5) This revision has been filed challenging the judgment of conviction and sentence passed by the trial Court and affirmed by the appellate Court. (4) On appeal being preferred, the appellate Court maintained the conviction and also maintained the sentence awarded to the applicant by the trial Court. (5) This revision has been filed challenging the judgment of conviction and sentence passed by the trial Court and affirmed by the appellate Court. (6) Shri Prafull Bharat and Shri Akash Pandey, learned counsel appearing for the applicant would submit that the charge-sheet was filed by the State through the Station House Officer, Bodhghat, for which he was not authorised in view of Section 55(b) of the Act of Wild Life (Protection) Act, 1972 and would further submit that the trophy of the leopard was not sent for expert examination consequently it could not have been held that the trophy recovered was of the leopard which is scheduled animal under Section 1 of the Act, 1972 and, therefore, the judgment of conviction and sentence by two Courts below are liable to be set aside. (7) Shri Raj Kumar Gupta, learned Deputy Advocate General appearing for the State/non-applicant would submit that both the Courts below are absolutely justified in convicting the applicant for committing the offence against the Act, 1972 and would further submit that by notification dated 21-10-1976 the State Government in exercise of power conferred under Section 55 of the Act, 1972 declared all the Station House Officers of the State as authorised officer to exercise powers under Section 55 of the Act, 1972 and would further submit that the Forest Range Officers dealing with the trophies are having expertise in the field, therefore, finding of the two Courts that seized article was trophy of leopard cannot be liable to be interfered with. (8) I have heard learned counsel appearing for the parties and considered the rival submissions made therein and have also gone through the record with utmost circumspection. (9) Upon hearing learned counsel appearing for the parties and perusal of the record, the following two questions that arise for consideration are as under: 1 Whether the Station House Officer of the Police Station Bodhghat was competent to file the charge-sheet for the offences committed against the Act, 1972 under Section 55(b) of the Act, 1972? 2 Whether the prosecution has proved the commission of offence under Section 49B of the Act, 1972 which is punishable under Section 51(1) of the Act, 1972? 2 Whether the prosecution has proved the commission of offence under Section 49B of the Act, 1972 which is punishable under Section 51(1) of the Act, 1972? (10) In order to have comprehension of the attack made to the judgment of conviction, it would be proper to notice Section 55(b) of the Act, 1972, which reads thus: “55. Cognizance of offences.—No court shall take cognizance of any offence against this Act except on the complaint of any person other than— xxxxx xxxxx xxxxx (b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government subject to such conditions as may be specified by that Government; or” (11) From a close perusal of the aforesaid provision, it would appear that no Court shall take cognizance of an offence under the Act, 1972 except of a complaint of Chief Wild Life Warden or any other officer authorised in this behalf by the State Government. (12) The State Government has issued the notification dated 21-10-1976 in exercise of power conferred under Section 55 of the Act, 1972 authorising the Station House Officer of the State to exercise the power under Section 55 of the Act, 1972. The notification dated 21-10-1976 reads thus: “Notification No.14-28-76-X-2, dated the 21st October 1976.–In exercise of the powers conferred under Section 55 of the Wild Life (Protection) Act, 1972, State Government are pleased to declare to all Police Station Officers of State as authorised officers to exercise powers under section 55 of the Act. [Published in M.P. Rajpatra Part I dated 12- 11-76 page 1540].” (13) Thus, the Station House Officer of police station, by virtue of notification dated 21-10-1976, was authorised to file the charge-sheet against the applicant and pursuant to which in the instant case the Station House Officer, Bodhghat has filed the charge-sheet for which he was duly authorised by the notification dated 21-10-1976 in exercise of power under Section 55(b) of the Act, 1972. Thus, the charge-sheet filed by the Station House Officer is having the authority of law and the prosecution case cannot be interdicted on the said ground. Thus, the charge-sheet filed by the Station House Officer is having the authority of law and the prosecution case cannot be interdicted on the said ground. Thus, it is held that the Station House Officer of the concerned police station was duly authorised to file the charge-sheet on behalf of the State Government in the instant case under Section 55(b) of the Act, 1972 and, therefore, this plea raised by the applicant deserves to be and is hereby rejected. (14) The determination of the first point brings me to the next submission raised by Shri Prafull Bharat, learned counsel appearing for the applicant as to whether the prosecution has proved the offence punishable under the Act, 1972 beyond reasonable doubt and the sentence awarded is just and proper. (15) Before proceeding further, it would be proper to notice a few provisions of Section 39 of the Act, 1972. It provides that wild animal found dead or killed animal article or trophy and meat derived from any animal for committing offence under the Act, 1972 and shall be the property of the government and no person without the previous permission of the Chief Wild Officer shall keep in possession or transport such government property under Section 40(2a) no person other than a person having a certificate ownership shall acquire or possess trophy, uncured trophy specified in Schedule 1 or Schedule 2 except by way of inheritance. Under Section 57 of the Act, 1972 there is presumption of guilty in respect of persons found in possession custody or control of any captive animal, animal-article, trophy or uncured trophy. Thus, Section 57 of the Act, 1972 is an explanation to the general rule. Section 57 of the Act, 1972 provides as under: “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.” (16) Section 49B(1)(a)(iii) of the Act, 1972 runs as under: “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) Commence or carry on the business as— xxxxx xxxxx xxxxx (iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or” (17) Section 51 of the Act, 1972 runs as under: “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 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 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: Provided further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term of imprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less than twenty-five thousand rupees. (1A) Any person who contravenes any provisions of Chapter VA, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and also with fine which shall not be less than ten thousand rupees. (1A) Any person who contravenes any provisions of Chapter VA, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and also with fine which shall not be less than ten thousand rupees. (1B) Any person who contravenes the provisions of section 38J shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that in the case of a second or subsequent offence the term of imprisonment may extend to one year, or with fine which may extend to five thousand rupees. (1C) Any person, who commits an offence in relation to the core area of a tiger reserve or where the offence relate to hunting in the tiger reserve or altering the boundaries of the tiger reserve, such offence shall be punishable on first conviction 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 fifty thousand rupees but may extend to two lakh rupees; and in the event of a second or subsequent conviction with imprisonment for a term of not less than seven years and also with fine which shall not be less than five lakh rupees but may extend to fifty lakh rupees. (1D) Whoever abets any offence punishable under sub-section (1C) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for that offence. (2) When any person is convicted or an offence against this Act, the court trying the offence may order that any captive animal, wild animal, animal article, trophy, uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled. (3) Such cancellation of licence or permit or such forfeiture shall be in addition to any other punishment that may be awarded for such offence. (3) Such cancellation of licence or permit or such forfeiture shall be in addition to any other punishment that may be awarded for such offence. (4) Where any person is convicted of an offence against this Act, the court may direct that the licence, if any, granted to such person under the Arms Act, 1959 (54 of 1954), for possession of any arm with which an offence against this Act has been committed, shall be cancelled and that such person shall not be eligible for a licence under the Arms Act, 1959 (54 of 1959), for a period of five years from the date of conviction. (5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a National Park or of an offence against any provision of Chapter VA unless such person is under eighteen years of age.” (18) The leopard or panther is a scheduled animal enacted under Schedule I, Part I, Sr.No.16-B (Panthera pardus) of the Act, 1972. Having broadly noticed, the statutory legal provisions in order to appreciate the facts of the case may be examined briefly. (19) The prosecution case starts with FIR lodged by Sub-Inspector S.D.Deosthaley (PW-2) who states that on information received that the applicant having the trophy of leopard approaching towards Jagdalpur for sale of the same, a search of the police party was done and search was conducted leading to seizure of leopard trophy vide Ex.P-1 dated 1-2-1996 at Village Sargipal in presence of two witnesses Anil Pandey (PW-1) and Lakshminath alias Naggu (PW-4) and thereafter, he was arrested and the notice Ex.P-2 was served to him for production of licence for possession of the trophy of leopard which he replied that he was not having any licence and the same was sent for identification/examination vide Ex.P-5 to the Forest Range Officer and Forest Range Officer has informed vide Ex.P-6 that it is a trophy of leopard and it is 7 months old. During the course of trial, Forest Deputy Ranger Nasaruddin Khan (PW 3) has been examined in support of the report (Ex.P- 6) submitted by him holding the seized article is a trophy of a leopard in which he has clearly stated that upon inspecting the same he has identified the trophy of the leopard and the age of the trophy has also been estimated by him on the basis of nature and the size of the trophy. The applicant has challenged that merely on the basis of testimony of Forest Range Officer, it cannot be concluded that the seized article was a trophy of a leopard as he is not the expert person to conclude that the seized article was a trophy of a leopard. The submission cannot be accepted. The Forest Range Officer is usually do have experience by remaining in forest by virtue of their service and having experience to identify the trophy brought before them for identification and, therefore, their testimony cannot be brushed aside merely on the ground that no expert has concluded the seized article to be a trophy of leopard. Accordingly, it is held that the finding recorded by two Courts below holding that it is the trophy of a leopard is finding based on evidence and it is held that the seized article was a trophy of a leopard which the prosecution has proved beyond doubt. (20) The next question to be considered is whether the seizure of a trophy of a leopard has duly been established by the prosecution. The seizure of trophy was made in presence of two witnesses Anil Pandey (PW-1) and Lakshminath alias Naggu (PW-4). Anil Pandey (PW-1) has clearly supported the prosecution version that in his presence the trophy of leopard was seized from applicant Somnath though Lakshminath alias Naggu (PW-4) has not fully supported on the basis of testimony of Anil Pandey (PW-1) duly supported by the statement of Sub-Inspector S.D.Deosthaley (PW-2). Both the Courts below have concluded that the seizure from the application is duly established and the offence is established that the applicant was found in possession of a trophy of a leopard is duly established. Both the Courts below have concluded that the seizure from the application is duly established and the offence is established that the applicant was found in possession of a trophy of a leopard is duly established. (21) In Pyarelal v. The State (Delhi Admn.), AIR 1995 SC 1159 , the Supreme Court has held that where having established that accused was found in possession of trophy of leopard conviction for offence punishable under Section 51 of the Act, 1972 is justified. (22) In State of Bihar v. Murad Ali Khan and others, AIR 1989 SC 1 , the Supreme Court has held under Section 55 of the Act, 1972 the cognizance of offence against the Act, 1972 can be taken by the Court only on the complaint of an officer under Section 55 of the Act, 1972. (23) At this stage, it would be pertinent to notice that the policy and object of the wild loss highlighted by the Supreme Court in Murad Ali Khan case (supra), highlighting the object of wild life laws, the Supreme Court has said that the policy and object of the Wild Life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on nature by man. The state to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible and held after noticing the International Wildlife Law by Simon Lyster held as under [Para 4 of Murad Ali Khan case (supra)]: “4. On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High Court is unsupportable. In regard to the first ground, presumably, certain provisions of the “Act” in regard to cognizability and investigation of offences against the Act, relevant to the matter, had not been placed before the High Court. The policy and object of the Wild Life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on nature by man. The policy and object of the Wild Life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on nature by man. The state to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last-ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment. The tragedy of the predicament of the civilized man is that “Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee.” In his foreword to ‘International Wild Life Law’, H.R.H. Prince Philip. The Duck of Edinburgh said: “……… Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that ……….” …………………………… “………… As usual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented Regretfully progress in this direction is proving disastrously slow …………” [See International Wildlife Law by Simon Lyster, Cambridge – Grotuis Publications Limited, 1985 Edn.] There have been a series of international conventions for the preservation and protection of the environment. The United Nations General Assembly adopted on 29-10-1982. “The world charter for nature.” The charter declares the “Awareness” that: (a) Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. (b) Civilization is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation. (b) Civilization is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation. In the third century B.C. King Asoka issued a decree that “has a particularly contemporary ring” in the matter of preservation of wild life and environment. Towards the end of his reign, he wrote: “Twenty six years after my coronation, I declared that the following animals were not to be killed; parrots, mynas, the aruna, ruddy geese, wild geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses ……… and all quadrupeds which are not useful or edible ………… forests must not be burned.” Environmentalists’ conception of the ecological balance in nature is based on the fundamental concept that nature is “a series of complex biotic communities of which a man is an inter-dependant part” and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the “civilized man” operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats.” (24) Shri Prafull Bharat, learned counsel appearing for the applicant would lastly submit that the sentence awarded is excessive and deserves to be reduced. Whereas, Shri Raj Kumar Gupta, learned Deputy Advocate General appearing for the State/non- applicant would submit that the conviction for the offence under Section 51(1) of the Act, 1972 only 6 months' rigorous imprisonment has been awarded. (25) Considering the nature of offence and the seized article was the trophy of the leopard and considering the policy and object of wild life laws that is to restore ecological imbalance and for preservation of flora and fauna, I do not consider it a fit case for reduction of sentence awarded by the trial Court and affirmed by the appellate Court. (26) As a fall out and consequence of the aforesaid discussion, the revision is held to be devoid of merit and is, therefore, dismissed.