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2022 DIGILAW 14 (GAU)

Abdul Majid @ Md. Majid v. State Of Assam

2022-01-05

HITESH KUMAR SARMA

body2022
JUDGMENT : 1. Heard Mr. MU Mahmud, learned counsel for the petitioners. Also heard Mr. PN Goswami, learned standing counsel, Forest Department. 2. This is an application, filed under Section 438 of the Cr.PC. seeking pre- arrest bail of the petitioners, namely, 1. Abdul Majid @ Md. Majid, 2. Abu Shama and 3. Faizul Islam @ Suban Ali, in connection with Dhania Range Offence No. BR/03 of 2020, dated 27.07.2020 under Section 9 read with Sections 27/29/52 punishable under Section 51 of the Wildlife (Protection) Act, 1972 and the Wildlife (Protection) (Assam Amendment) Act, 2009 of Burachapori Wildlife Sanctuary Dhania Range, Dhania. 3. The fact of the case is that on the basis of intelligence inputs to the effect that a Hog Deer (Schedule I) under Wildlife (Protection) Act, 1972 was poached near Batuli Chor. A search operation was conducted by the Dhania Range Head Quarter staff along with the LPS staff on 27.07.2020 at Batuli Chapori, Burachapori Wildlife Sanctuary. During the search operation, the investigating team recovered 800 grams of Hog Deer meat at the house of one Ahadul Islam. The said Ahadul Islam was interrogated and he has admitted his guilt to have committed the offence along with seven other persons. 4. On the basis of the above facts, preliminary offence report was filed against the following accused persons:- 1. Ahadul Islam, 2. Habibur Rahman, 3. Md. Majid, 4. Md. Majid, 5. Md. Suban, 6. Nur Mohammad, 7. Md. Abu Sama, 8. Md. Habi and others The present petitioners are named in the preliminary offence report at Sl. Nos. 3, 5 and 7 respectively. 5. Mr. Mahmud, learned counsel for the petitioners has categorically submitted referring to the seizure list and the contents of the preliminary offence report itself that 400 grams of fresh Hog Deer meat and 400 grams of boiled Hog Deer meat were recovered from Ahadul Islam, the arrested person and not from the present petitioners and other co-accused. He has further submitted that the petitioners went to cut grass and there they found the Hog Deer. Although they found the Hog Deer yet they did not commit any mischief to it. According to the learned counsel for the petitioners, the petitioners being not involved with the offence alleged they are entitled to the grant of pre-arrest bail. 6. Mr. Although they found the Hog Deer yet they did not commit any mischief to it. According to the learned counsel for the petitioners, the petitioners being not involved with the offence alleged they are entitled to the grant of pre-arrest bail. 6. Mr. Goswami, learned counsel for the Forest Department has produced the case diary and referred to the various statements therein. As per the materials in the case diary, the accused-petitioners are absconding. He further submits that in view of the amended provisions of Section 51B(1) of the Wildlife (Protection) (Assam Amendment) Act, 2009, the offence alleged in the instant case under Section 51 of the said Act is not only non-bailable but grant of bail is subject to certain rigors. For proper appreciation, Section 51B of the Wildlife (Protection) (Assam Amendment) Act, 2009 is quoted herein below:- '51B(1) Every offence punishable under this Act shall be cognizable and non-bailable within the meaning of the Code of Criminal Procedure, (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence punishable under this Act, shall be released on bail unless- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that the accused is not likely to commit any offence while on bail. (3) The offences under this Act shall be triable by the Court of Sessions of the respective jurisdiction.' 7. Learned counsel for the respondent has also produced before this Court an order dated 16.12.2021 passed by a co-ordinate Bench of this Court in Bail Application No. 3226/2021 rejecting the prayer for bail with the observations made in the said order with reference to the rigors of the above provision of Section 51B of the Wildlife (Protection) (Assam Amendment) Act, 2009. 8. I have visited the provisions of Section 51B of the Wildlife (Protection) (Assam Amendment) Act, 2009 as well as the aforesaid order passed by a co-ordinate Bench of this Court. The materials in the record, including the case diary, indicates that although the seizure was made from co-accused yet, the petitioners are also involved collectively in the offence alleged. 9. That being so, the rigors of Section 51B(2)(b) of the Wildlife (Protection) (Assam Amendment) Act, 2009 is applicable in the instant case. 10. The materials in the record, including the case diary, indicates that although the seizure was made from co-accused yet, the petitioners are also involved collectively in the offence alleged. 9. That being so, the rigors of Section 51B(2)(b) of the Wildlife (Protection) (Assam Amendment) Act, 2009 is applicable in the instant case. 10. On the basis of the materials in the case diary, this Court is unable to record its satisfaction that there are no reasonable grounds for believing that the petitioners are not likely to commit any offence if on bail. 11. That being so, in the considered view of this Court, this is not found to be a fit case to grant the privilege of pre-arrest bail to the petitioners. Therefore, the prayer stands rejected. 12. The interim protection granted to the petitioners vide order dated 27.09.2021 stands vacated. 13. Return the case diary. 14. The petition stands disposed of accordingly.