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2023 DIGILAW 661 (CAL)

Rajani Kanto Burman v. State

2023-04-28

KRISHNA RAO

body2023
JUDGMENT : Krishna Rao, J. 1. The petitioner had preferred the present revisional application against the judgment passed by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder in Criminal Appeal No.1 of 2021 (Rajani Kanto Burman vs. Range Officer –cum-Assistant Wildlife Warden, Diglipur) dated 28th February, 2022 wherein the learned Judge has dismissed the Criminal Appeal No.1 of 2021 by upholding the order of conviction dated 25th January, 2021 passed by the learned Judicial Magistrate First Class, North and Middle Andaman, Mayabunder in connection with complaint case No.5 of 2011 for the offence punishable under sections 9/39/40/50 of the Wild Life (Protection) Act, 1972. 2. The facts of the case are that on 14th December, 2010 at around 1930 hours, Shri Pankaj Sius, Forest Guard received information regarding illegal selling of meat of Andaman Wild Pig at Sitanagar, Diglipur and on receipt of said information, the said Forest Guard immediately along with Assistant Beat Officer, Shri Abdul Saleem, Forest Guard reached at Sitanagar and on reaching, they found that the Mobile Squad staff, Shri Arun Sarkar, Forester and Shri Kashmir Kerketta, Forest Guard carrying out patrolling duty at Sitanagar. 3. During the course of patrolling at about 2130 hours, Shri Pankaj Sius and Shri Abdul Saleem, identified three persons coming from Bairagi Kona and on suspicion the Beat Officer, Shri Pankaj Sius approached them and on seeing forest official, two out of three persons ran away into the forest area and the Beat Officer caught the petitioner and immediately Shri Pankaj Sius had called Mobile Squad Staff for his assistance and on checking, two plastic bags containing 4 kg of meat of Wild Pig was recovered from the possession of the petitioner. 4. Shri Pankaj Sius, Forest Guard, Beat Officer, Sitanagar seized 4 (four) kgs of meat of Andaman Wild Pig along with plastic bag at the spot under section 50 of the Wild Life (Protection) Act, 1972 under the cover of seizure memo in presence of the witnesses and the petitioner was taken into custody. 5. The Forest Guard, Beat Officer had brought the petitioner to the Range Officer at Dilglipur at about 2245 hours and handed over the petitioner to the Assistant Wild Life Wardern and thereafter the petitioner was arrested at about 2330 hours. 5. The Forest Guard, Beat Officer had brought the petitioner to the Range Officer at Dilglipur at about 2245 hours and handed over the petitioner to the Assistant Wild Life Wardern and thereafter the petitioner was arrested at about 2330 hours. The seized wildlife was produced before the Assistant Veterinary Surgeon for examination and on examination, the complaint had obtained necessary certificate wherein the Assistant Veterinary Surgeon reported that the meat is of a pig but he it cannot be distinguish from domestic pig or wild pig due to non-availability of laboratory facilities. 6. The petitioner was produced before the learned Judicial Magistrate and the seizure intimation was given to the learned Magistrate with the prayer that the complainant may be allowed to preserve the sample of 200 grams of the seized Andaman Wild Pig meat for further investigation and to destroy the rest of the seized which are perishable by burying deep beneath in the soil. 7. As per the direction of the learned Magistrate, a sample approximately 200 grams was preserved and sealed in presence of the Divisional Forest Officer, Diglipur and three independent witnesses and rest of the seized materials were buried. The part of preserve sample was sent to the Zoology Survey of India, Port Blair on 03.01.2011, for identification of the seized meats and the complainant had received the report which identified the said meat was wild animal, namely Andaman Wild Pig listed animal in Schedule-I of Wild Life (Protection) Act, 1972. 8. On completion of enquiry a regular complaint was made before the learned Magistrate at Mayabunder against the petitioner and two other persons for the offence punishable under sections 9/39 of the Wild Life (Protection) Act, 1972. 9. On completion of trial, the learned Magistrate has passed the judgment on 25.01.2021 wherein the petitioner was guilty for the offence under sections 9/39/40/50 of the Wild Life (Protection) Act, 1972 and was convicted and sentenced to undergo simple imprisonment for three years and to pay a fine of Rs. 10,000/-, in case of default of payment of fine, the petitioner will suffer simple imprisonment for three months more. The learned Magistrate has acquitted the other two accused persons. 10. 10,000/-, in case of default of payment of fine, the petitioner will suffer simple imprisonment for three months more. The learned Magistrate has acquitted the other two accused persons. 10. Being aggrieved and dissatisfied with the judgment and conviction dated 25.01.02021, the petitioner had preferred an appeal before the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder, being Criminal Appeal No. 01 of 2021 and on 28.02.2022, the learned Judge had upheld the order of conviction passed by the learned Magistrate. 11. Mr. Deep Chaim Kabir, learned advocate representing the petitioner submits that the petitioner was convicted for the alleged offence without any evidence. He submits that, as per the case of prosecution, the accused was arrested along with seized articles at Sitanagar, Diglipur but no independent witnesses were examined either during the enquiry or during the trial. 12. Mr. Kabir submits that only believing the evidence of forest officials, without examining independent witness and the expert, the learned Magistrate had convicted the petitioner and the learned Additional Sessions Judge has upheld the order of conviction ignoring the submission made by the counsel for the petitioner. 13. Mr. Kabir, submits that in the alleged seizure memo prepared by the forest officials, there is no mentioning of place and time of seizure. Mr. Kabir submits that the forest officials have used to a format of seizure memo i.e. with respect of the forest produce and not with regard to the wildlife. In the seizure memo, it is mentioned that the forest official has seized the forest produce from the possession of the petitioner and have placed hammer mark sealed in the said seized property on the spot in presence of the witnesses but it is impossible for putting the hammer mark seal on the alleged meat. It was also not the case of the prosecution that after the seizure was made the same was sealed and packed. 14. Mr. Kabir submits that the alleged Wild Pig meat was produced before the Veterinary Assistant Surgeon for examination and the Veterinary Assistant Surgeon, by his certificate dated 15.12.2010, had categorically mentioned that on physical examination the sample of pig meat, however it cannot be distinguish from domestic pork and wild pork due to non availability of laboratory facilities. 15. Mr. Mr. Kabir submits that the alleged Wild Pig meat was produced before the Veterinary Assistant Surgeon for examination and the Veterinary Assistant Surgeon, by his certificate dated 15.12.2010, had categorically mentioned that on physical examination the sample of pig meat, however it cannot be distinguish from domestic pork and wild pork due to non availability of laboratory facilities. 15. Mr. Kabir submits that learned Magistrate as well as the learned Additional Session Judge have relied upon the report of the Zoological Survey of India and have convicted the petitioner for the alleged offence but failed to appreciate that in the forwarding report dated 05.01.2011, it is mentioned that in response to a letter cited above, it is to state that “the tissue sample with hairs sent by your office, packed in a plastic bottle wrapped with cotton cloth fixing seal along with the details of officials and independent witnesses received by the office on 04.01.2010 for identification”. Mr. Kabir, by referring the said forwarding letter, submits that it is mentioned that the said sample was seized in presence of independent witnesses but no independent witnesses were examined. He further submitted that neither the seizure of sample nor the sample which was sent to the Zoological Survey of India were produced during the trial nor the same were made as part of original compliant. 16. Mr. Kabir submits that, as per the said report, the sample was only 20 gram and that was also partially dried. If it is the 20 gram and partially dried, how the expert has come to know the sample belongs to Andaman Wildlife pig. 17. Mr. Kabir submits that though both the learned courts belws have relied upon the report but the petitioner was not given an opportunity to cross-examine the expert, who had submitted the report and the prosecution has neither made the said expert as witness nor was produced before the Court for proving the said report. 18. Mr. Kabir submits that there is no seizure with regard to 200 gram of sample how the said sample has reached to the expert and the expert has examined the same and forwarded the report to the forest officials. 19. Mr. 18. Mr. Kabir submits that there is no seizure with regard to 200 gram of sample how the said sample has reached to the expert and the expert has examined the same and forwarded the report to the forest officials. 19. Mr. Kabir submits that neither the learned Magistrate nor the learned Additional Sessions Judge have considered the materials on record and the evidence but have wrongly convicted the petitioner and thus the petitioner is liable to be acquitted from the case. 20. Per contra Mr. Salim Mohammed, learned Public Prosecutor submits that the judgement and conviction passed by the learned Magistrate based on the evidence brought on record and the same was duly accepted by the learned Appellate Court and as such the prosecution is relied upon and supporting the judgment of both the learned Courts below. 21. Mr. Mohammed submits that, as there is a concurrent finding of both the learned courts below and by sitting in the revisional jurisdiction, this Hon’ble Court cannot re-appreciate the evidence of the witnesses, which was already considered by both the courts below. 22. Mr. Mohammed submits that mere not mentioning the place and time in the seizure memo will not vitiate the trial though the prosecution had proved the said seizure by adducing evidence before the learned Magistrate. 23. Mr. Mohammed submits that, the during the evidence before the learned Magistrate, the witnesses have categorically mentioned that after obtaining report from the Veterinary Assistant Surgeon and as per the order passed by the learned Magistrate, the forest officials have preserved 200 grams of meat and have sent the same to the Zoological Survey of India for obtaining expert report and as per the expert report, the seized meat was of the Andaman Wild Pig and as such the courts below have rightly relied upon the report of the Zoological Survey of India and convicted the petitioner accordingly. 24. Mr. Mohammed submits that the expert report was exhibited at the time of examination of the witnesses before the learned Magistrate and the petitioner has not objected for exhibiting the said report and as such at this stage, in the revisional appplication, the petitioner cannot challenge the said report. 25. Mr. 24. Mr. Mohammed submits that the expert report was exhibited at the time of examination of the witnesses before the learned Magistrate and the petitioner has not objected for exhibiting the said report and as such at this stage, in the revisional appplication, the petitioner cannot challenge the said report. 25. Mr. Mohammed submits that the judgment and conviction passed by the learned Magistrate which was duly affirmed by the learned Additional Sessions Judge are in accordance with law and does not require any interference. 26. Heard learned counsel for the respective parties. Perused the materials on record. 27. The case of the prosecution starts from the seizure of the meat which was alleged to have been seized from the possession of the petitioner on 14.12.2010. The alleged meat was seized by way of seizure memo. In the seizure memo, it was mentioned that two articles were seized i.e. (i) meat of Andaman Wild Pig of 4 kg and; (ii) plastic bag of 2 nos. The said seizure memo was prepared in presence of two witnesses i.e out of which one is the Forest Guard and another is Forester. Admittedly, in the seizure memo, there is no mentioning about the time when the seizure was prepared or about which place the alleged meat was seized. 28. In the criminal jurisprudence, if the prosecution is relied upon the articles, which were seized, and on the basis of which the proceeding has been started, the first burden of the prosecution is to prove the seizure memo. In the instant case, it is found that the first step taken by the forest officials is of seizure of the meat of wild pig, but the said seizure memo does not reflect the place of seizure and time of the seizure and as such the evidence led by the prosecution with regard to the seizure of the wild pig is doubtful whether it was seized as per the time mentioned by the witness during their evidence before the Court or some other place or it in a created story. 29. 29. It is the specific case of the prosecution that the said seizure was made at Bairagi Kona, Sitanagar at 1930 hours but the same is not reflecting in the seizure memo and as such, there is a doubt with regard to the seizure of Andaman wild pig as per the case made out by the prosecution. 30. After the seizure, the said wild pig was produced before the Veterinary Assistant Surgeon for identification and confirmation whether the said meat is of the wild pig. After examination, the Veterinary Assistant Surgeon, in his certificate, categorically held that he could not distinguish from domestic pork and wild pork due to non-availability of the laboratory facilities and thus, from the certificate, the prosecution will not get any benefit to say that the seizure is of Andaman wild pig. The prosecution has tried to prove the case by way of the expert report. As per the order passed by the learned Magistrate, 200 gram of meat was preserved for examination by the Zoological Survey of India, though the prosecution had relied upon the order passed by the learned Magistrate wherein the complainant was allowed to take sample for expert report, but the prosecution failed to prove that whether the sample was taken or not. As per the report of the expert, the forest official has produce the tissue sample with hairs packed in a plastic bottle wrapped with cotton cloth fixing seal along with the details of the officials and independent witness, the prosecution has not produced any seizure memo of any document with regard to the pack of plastic bottle wrapped with cotton cloth fixing seal or any evidence to prove that the said sample was taken from the alleged seized meat of wild pig. 31. The report of the expert also reveals and in the said seizure details that the forest official and the independent witnesses were available but none of the official witnesses, who were examined at the time of trial, have stated anything about the seizure of the sample. With regard to the independent witness, it is the case of the prosecution that no independent witnesses were available at the spot, but as per the report of the expert, the sample produced before the expert containing the signature of two independent witnesses but the said two independent witnesses were also not examined before the trial Court. With regard to the independent witness, it is the case of the prosecution that no independent witnesses were available at the spot, but as per the report of the expert, the sample produced before the expert containing the signature of two independent witnesses but the said two independent witnesses were also not examined before the trial Court. It also reveals from the report that only 20 gram of sample was produced before the expert for examination of the meat, but as per the evidence of the PW5, 200 gram of sample was taken i.e. also not corroborated with the expert report. 32. It also reveals from the record that the learned Magistrate as well as Appellate Court have relied upon the expert report, but the expert who has submitted report was not produced by the prosecution to prove the said report and the petitioner could not get an opportunity to cross-examine the expert. As per the order passed by the learned Magistrate, after receipt of the seizure intimation, the forest officials have buried the said meat but no buried report was produced on record and both the Courts below have relied upon the expert report but failed to consider that the expert report has not duly proved during the trial and the petitioner could not get an opportunity to cross-examined the expert. 33. This Court finds that neither the seizure memo nor the expert report was proved by the prosecution. But, the learned Magistrate as well as the Appellate Court have wrongly relied upon the seizure memo and the expert report and thus, this Court is of the view that the findings of both the courts below are perverse. 34. In view of the above, this Court finds that the judgment and conviction passed by the learned Judicial Magistrate First Class, North and Middle Andaman, Mayabunder in CR Case No.5 of 2011 dated 25.01.2021 and the judgment passed by the learned Additional Sessions Judge, North and Middle Andaman, Mayabunder in Criminal Appeal No.1 of 2021 dated 28.02.2022 cannot be sustained and accordingly both the judgments are set aside and quashed. 35. The petitioner is acquitted of the charges levelled against him. The petitioner is discharged from bail bond. 36. The Criminal Revisional Application, being CRR/9/2022 is allowed. 37. Let the lower court records be sent down to the learned Court below immediately. 38. 35. The petitioner is acquitted of the charges levelled against him. The petitioner is discharged from bail bond. 36. The Criminal Revisional Application, being CRR/9/2022 is allowed. 37. Let the lower court records be sent down to the learned Court below immediately. 38. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. 39. Urgent certified copy of this order, if applied for, be supplied to the learned advocates for the respective parties upon compliance of usual formalities.