Delhi District Court
Azam Amin Dar vs Central Bureau Of Investigation on 17 December, 2018
:1:
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
SPECIAL JUDGE03: CBI (PC ACT): DELHI.
Criminal Appeal No.: 145/2018
M/s Shaw Brothers
Through Abdul Qayoom Shaw
s/o Late Badruddin Shaw,
Authorized Representative
Shop no. 20, Hotel Le Meridian, Janpath,
New Delhi.
Criminal Appeal No.: 144/2018
Quraish Ahmed s/o Shri Jameel Ahmed
r/o 8/2, Masjid Lane, Bhogal, New Delhi.
Permanent r/o Jamalpur Distt. Darbhanga, Bihar.
Criminal Appeal No.: 146/2018
Azam Amin Dar
s/o Sh. Abdul Aziz
r/o 8/2, Masjid Lane, Bhogal, New Delhi.
Permanent r/o Munawar Abad, Khayam Road, Srinagar.
.... Appellants
Versus
Central Bureau of Investigation ..... Respondent
JUDGMENT
Vide this common order, I shall dispose of three different appeals filed against the judgment dated 14.03.2018 (hereinafter called the impugned judgment) and order on sentence dated 15.03.2018 (hereinafter called the impugned order on sentence) passed by the court of Ld. ACMM (Special CA No.'s 145/18; 144/18 & 146/18 :2: Acts), Central District, Tis Hazari Courts, Delhi whereby the appellants namely M/s Shaw Brothers represented through Abdul Qayoom Shaw (in appeal no. 145/2018 hereinafter called 'Appellant no. 1'), Quraish Ahmed (in appeal no. 144/2018 hereinafter called 'Appellant no. 2'), and Azam Amin Dar (in appeal no. 146/2018hereinafter called 'Appellant no. 3) were held guilty and were convicted for the offence punishable u/s 51 of the Wild Life (Protection) Act, 1972 for the contravention of Section 49/49(B) r/w Section 58 of the Wild Life (Protection) Act, 1972 (hereinafter called the Act). All the appellants were sentenced to undergo SI for three years with fine of Rs. 10,000/ each for the offence u/s 51 of the Act for the contravention of Section 49 and 49B(1) of the Act and in default of payment of fine to under simple imprisonment for one month.
2. Briefly stated the facts relevant for the just decision of the present appeals are that a complaint was filed by the CBI through its Additional Superintendent of Police Sh. H.S. Chopra against the appellants alleging therein that on 10.02.2003 a secret information was received that Sh. Munib Shaw along with one Quraish Ahmed has been indulging in illegal trading of Shahtoosh shawls which are banned items under Schedule 1 of the Wild Life (Protection) Act, 1972 from their business premises situated at Shop No. 20, Hotel Le Meridian.
CA No.'s 145/18; 144/18 & 146/18 :3: Accordingly, on the same day a CBI team headed by the then DSP Sh.M.C. Sahni besides other officers of CBI with two independent witnesses Sh. P.Lal and Sh. C.M. Sharma of NBCC Ltd. conducted search at Shop No. 20, Hotel Le Meridian running in the name and style of M/s Shaw Brothers; that the services of Sh. Ajay Punj, Dy. Manager, Hotel Le Meridian and A.R. DattaSecurity Officer Hotel Le Meridian were also secured who also joined the CBI team to observe the proceedings in Shop No. 20, Hotel Le Meridian, New Delhi.
3. At the time of search conducted by the raiding party, the Shop no. 20, Hotel Le Meridian was found occupied by one Quraish Ahmedappellant no. 2 and one Azam Amin Dar appellant no. 3 and a large number of shawls were found lying scattered on the carpet of shop. Good number of shawls and carpets were also found stacked in the wooden rack fitted on the walls of the shop. Upon examination and checking of the scattered shawls on the carpet of the floor of the shop, a total number of 26 Shahtoosh shawls which were banned items under Schedule I of Wildlife Protection act, 1972 were found. The other shawls and carpets lying in the shop were not found to be made up of shahtoosh. The appellant no. 2 namely Quraish Ahmed and appellant no. 3 Azam Amin Dar were asked to produce documents to prove the bonafide possession of 26 contraband shahtoosh shawls but they could not produce any CA No.'s 145/18; 144/18 & 146/18 :4: such document. The said shahtoosh shawls were taken into police possession. Both the appellants namely Quraish Ahmed and Azam Amin Dar were arrested for illegal possession and trading of banned shahtoosh shawls.
4. A case RC SIB 2003 E0002 SIUXI was registered against the appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar and others u/s 120B IPC r/w Section 49B(a) and Section 51 of the Act.
5. During investigation, it was revealed that appellant no. 1 M/s Shaw Brothers was a firm jointly owned by four brothers with its head office at Srinagar. The firm had different branches including one at Hotel Le Meridian and it was dealing in the trading of Kashmiri handicraft items including woolen and pashmina shawls. Investigation further revealed that the said Shop no. 20 Hotel Le Meridian was taken by appellant no. 1 M/s Shaw Brothers a partnership firm through its partner Mohd. Hussain Shaw vide agreement dt. 02.06.1986. The said agreement was signed by Mohd. Hussain Shaw a partner on behalf of M/s Shaw Brothers. The said firm was dissolved on 31.03.2001 after a family settlement and it was decided that the goodwill of the firm/appellant no. 1 M/s Shaw Brothers shall be jointly used by all the four partners. The office/shop no. 20, Hotel Le Meridian came to the share of Abdul Qayum (who CA No.'s 145/18; 144/18 & 146/18 :5: represented appellant no. 1) after dissolution of the said firm. Investigation further revealed that Abdul Qayum along with his wife and two sons opened a new firm under the name and style of M/s Shaw Brothers (Abdul Qayum) with all four partners having different shares. It was also decided amongst different partners that the Abdul Qyum shall be working as Managing Partner of the firm and other partners will work under his supervision.
6. It has also come to light during investigation that at Shop no. 20 Sh. Gulam Jeelani was managing the affairs of the shop and was being assisted by appellant no. 2 Quraish Ahmed and one Nepali boy Hari and that the appellant no. 3 Azam Amin Dar was an employee of appellant no. 1 M/s Shaw Brothers; none of the members of CBI raiding team or any other independent witness saw any person entering or leaving the shop no. 20, Hotel Le Meridian during the period from 5:00 PM to 7:30 PM and as such appellant no. 3 Azam Amin Dar was sitting in the shop at the time of search conducted by CBI; no stock register was found maintained either at Shop no. 20 or at C28, Nizamuddin.
7. All the recovered 26 shahtoosh shawls were sent to the Director, Wildlife Institute, Dehradun and it was opined by the said institute that all the shawls were shahtoosh shawls and CA No.'s 145/18; 144/18 & 146/18 :6: were made up of Tibetan Antelope. A complaint was filed accordingly by the CBI through Sh. H.S. ChopraAdditional Superintendent of Police.
8. Prima facie case u/s 49/49(B) r/w Section 52 of Wild Life Protection Act, 1972 punishable u/s 51 of the said Act was made out against all the appellants to which they all pleaded not guilty before the trial court and claimed trial.
9. The prosecution examined various witnesses before precharge evidence as well as post charge evidence. For certain witnesses, the examination in chief already recorded during pre charge evidence was adopted by the CBI for post charge evidence and the appellants were given opportunity to cross examine the witness.
The PW1 P. Lal stated that on 10.02.2003 he was called at CBI office along with one C.M. Sharma who was also working in NBCC Ltd. Both of them arrived at 3 PM at CBI office and at about 4:30 PM they left the CBI office. They reached at 5'o clock at Le Meridian Hotel and PW1 was made sure that no CBI officials or vehicle was carrying anything objectionable. The PW 1 correctly identified the appellant no. 2 namely Quraish Ahmed and appellant no. 3 Azam Amin Dar as the persons who were found in the shop at the time of raid. When the PW1 P.Lal entered the shop, he found that some of the shawls were found CA No.'s 145/18; 144/18 & 146/18 :7: lying scattered on the floor and number of shawls and carpets were found stacked in the shelves. It was deposed that some of the shawls lying on the floor were identified as shahtoosh shawls. They were around 26 in number. The said shahtoosh shawls were seized by CBI and were sealed with the seal of CBI. He proved the personal search cum arrest memos of the appellant no. 2 namely Quraish Ahmed as Ex.PW1/C and that of appellant no. 3 Azam Amin Dar as Ex.PW1/D. He proved the recovery memo as Ex.PW1/B, facsimile of seal as Ex.PW1/E, rough site plan as Ex.PW1/F respectively. He also identified the case property i.e. shawls as Ex.PW1 to PW26.
During crossexamination he admitted that earlier also he was associated in CBI raid but termed it to be incorrect that DSP Sh. M.C. Sahni was earlier known to him. He elaborated the manner in which the raiding party landed at the place of raid and also stated that the officials of Hotel were also joined during the raid; no officials from Wildlife Department was involved in the raid and that apart from two appellants in appeal no. were present in the shop.
The PW2 M.C. Sahni explained the details of the raid as well as the secret information and stated that after getting secret information about the sale of banned shahtoosh shawls, he sent requisition Ex.PW2/A for securing the presence of two independent witnesses. A raid was conducted at M/s Shaw Brothers at Shop no. 20, Le Meridian Hotel where both the CA No.'s 145/18; 144/18 & 146/18 :8: appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar were found present. He also stated that both the appellants no. 2 & 3 namely Quraish Ahmed and Azam Amin Dar were offered with personal search and two officials from hotel were joined during raid; search was conducted and 26 shahtoosh shawls were found scattered on the carpet. Next day special report Ex.PW2/C was prepared and investigation was handed over to Sh. H.S. Chopra.
The PW3 Aditya Raj Dutta was security officer and stated that he along with one Ajay Punj accompanied CBI team and entered Shop No. 20, Hotel Le Meridian where appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar were present and CBI seized 26 shahtoosh shawls which were sealed.
The PW4 G.P. Sahi proved the notarized copy of the agreement entered between hotel and M/s Shaw Brothers as Ex.PW4/A. The PW5 Chander Prakash Sharma was an expert witness who proved his report as Ex.PW5/A. He categorically stated that he found all 26 shawls containing guard hair of Tibetan antelope. The said report was put up before Dr. S.P. Goel who after verifying the same forwarded to Director for signatures and also sending to CBI. He also identified the signatures of Dr. S.P. Goel.
The PW6 Vijay Kumar Shukla deposed on the lines of the other witnesses who were members of the raiding party CA No.'s 145/18; 144/18 & 146/18 :9: and also detailed down the proceeding conducted at the spot.
The PW7 H.S. Chopra was the complainant who reiterated the contents of his complaint Ex.PW7/A filed by him and also deposed about the factum of recovery of shahtoosh shawls from Shop no. 20, Le Meridian Hotel.
The PW8 Sh. C.M Sharma was independent witness from NBCC who was arranged by the CBI prior to the raid. He proved search memos Ex.PW8/A and Ex.PW8/B. He also proved the factum of recovery of shawls from the Shop no. 20, Hotel Le Meridian.
The CW9 Narender Mehto was also a member of the raiding party who also deposed on the lines of other witnesses.
The CW10 Sh. Hari Om Uppal was working as Accountant with the appellants who stated that M/s Shaw Brothers came in existence on 01.04.2001 after dissolution of firm. He deposed about the handing over of documents Ex.PW7/C to CBI. During crossexamination he admitted that appellant Azam Amin Dar was one of the drivers and had never seen him working as Sales Executive.
The CW11 Sh. Ajay Punj was working as Duty Manager in Hotel Le Meridian and was a witness to the recovery memo, arrest cum personal search memo, specimen of the seal memo, preparation of site plan. Upon being crossexamined by Ld. APP, he admitted that Shahtoosh shawls were seized in his presence and his statement was recorded by the CBI.
CA No.'s 145/18; 144/18 & 146/18 :10: The CW11 Sanjay Dubey (CW11A)DSP CBI was the member of the raiding team and stated about the investigation conducted at the spot.
The CW12 Sh. S. Singhsit is a witness from Wildlife Institute Dehradun.
The CW13 Sh. Madan Verma was the Chartered Accountant of M/s Shaw Brothers who deposed about the dissolution of the firm and proved the balance sheet of the firm.
The CW14 Sh. Suresh Jaisinghani was looking after the export material by the firm.
The CW15 DSP Neelam Singh was a member of the raiding team and stated the manner in which raid was conducted.
10. After completion of the post charge evidence, statement of appellants in different cases was recorded and they denied all the allegations and stated that they have been falsely implicated in their respective cases.
11. I have heard the ld. Counsel for the appellants as well as Ld. PP for CBI.
12. Ld. Counsel for the appellants vehemently argued that in the present matter the investigation has been carried on by a person who was also a member of the raiding party and CA No.'s 145/18; 144/18 & 146/18 :11: such practice should not be resorted in order to ensure that there should not be any occasion to suspect fair and impartial investigation. He relied upon the judgment of Hon'ble Supreme Court of India in Megha Singh vs State of Haryana AIR 1995 SC 2339. Ld. Counsel made this court go through the testimonies of various witnesses. He drew the attention of this court towards the crossexamination of CW9 Sh. Narendra Mahto carried on 02.02.2016 wherein he stated that Mr. H.S. Chopra, a tall Sardarji was Additional SP and he was also in the team on 10.02.2003. Thereafter, Ld. Counsel made this court turn to the testimony of PW6 Vijay Kumar Shukla carried on 21.09.2015 where in his crossexamination it was termed it to be correct by PW6 Vijay Kumar Shukla that Sh. Harshamsher Singh Chopra was DSP/Addl. DSP of the branch at that time and he did not remember whether H.S. Chopra had accompanied the raiding party. On another suggestion being put to him by ld. Counsel that H.S. Chopra was leading the team and he entered the shop first and introduced himself by showing his Icard, the PW6 Vijay Kumar Shukla stated that he did not recall any such things. On another question being put to PW6 Vijay Kumar Shukla by Ld. Counsel that did he see any Sikh gentleman with wheatish complexion also in the shop at that time, the PW6 Vijay Kumar Shukla replied that he did not notice any such person.
CA No.'s 145/18; 144/18 & 146/18 :12:
13. After hearing the parties as well as after perusing the impugned judgment, this court is of the opinion that simply because one of the witness had stated that a tall Sikh man H.S. Chopra was present given the circumstances when none of the other witnesses confirmed the version, it cannot be taken to mean that H.S. Chopra was present at the time of raid, more particularly when PW6 Vijay Kumar Shukla has deposed that he had not noticed any such presence of Sh. H.S. Chopra. Ld. Trial court has rightly opined that the defence has not been able to establish that Sh. H.S. Chopra was present at the time of raid. There is no dispute over the legal aspect that a person who was member of raiding party should not investigate the matter in order to have a fair and impartial investigation, but as the defence has not been able to establish this factum that the raiding party member had investigated the matter, the judgment relied upon by the ld. Counsel is not applicable. This defence of the appellants appears to be superfluous.
14. Now coming to the issue as to whether in fact the recovery was effected from the possession of the appellants, the ld. Counsel vehemently argued that the search has not been conducted as per the procedure laid down in Section 100 CrPC. It was argued that the non examination of Gulam Jeelani Manager of the shop and Hari Thapahelper in the shop who were also present there caste a serious doubt. The Ld. Counsel CA No.'s 145/18; 144/18 & 146/18 :13: has drawn the attention of this court towards the testimony of CW3 Aditya Raj Dutta dated 20.08.2015 wherein he stated that three persons i.e. appellant no. 2 Quraish Ahmed, one helper and one Manager were present at the shop and apart from three occupants of the shop one customer was present at the shop at the time of raid. Attention of this court was also drawn by Ld. Counsel for the appellants to the testimony of CW8 Sh. C.M. Sharma wherein he termed it to be correct that three other persons were also present at the shop no. 20 at that time and were purchasing the shawls. Likewise he drew the attention of this court towards the testimony of CW15 Neelam Singh etc. It was highlighted that aspect with respect to the presence of two others apart from the appellants in the shop have not been investigated and that there is no evidence at all that anybody had purchased said type of shawls from the said shop. It was also argued that CBI has not investigated the source from where the said 26 shawls were brought from. It was also urged that the provisions of Section 100 CrPC have not been complied with.
15. The Ld. PP for CBI refuted the arguments of the ld. Counsel for the appellants on this point and stated that the ld. Counsel is trying to mislead the court and is reading only that portion of statement of witnesses which is suitable to him and leaving the remaining aspect. He submitted that in case the testimony of witnesses is read in its totality, the actual picture in CA No.'s 145/18; 144/18 & 146/18 :14: favour of CBI is automatically reflected. Ld. PP for the CBI then read out the portion of testimonies of different witnesses in order to rebut the claim of appellants as contained in last para.
16. After hearing the parties on the point of search and recovery, I find force in the arguments advanced by ld. PP for CBI and is well aware of the dictums of different judgments of the superior courts wherein it is categorically and repeatedly being directed that while appreciating the evidence of a witness, testimony has to be read as organic whole and text should not be read after tearing down the statements in favour of one party or other. Though the witness, as pointed out by ld. Counsel for appellants, has categorically mentioned that one customer was present in the shop, it cannot be presumed that the shawls recovered belonged to the said customer given the circumstances when in the testimonies of different prosecution witnesses it has already come on record that 26 shawls besides other items were lying on the floor and remaining items were found stacked. Both the appellants namely Quraish Ahmed and Azam Amin Dar have already been duly identified by different witnesses and the ld. Trial court is right in holding in the impugned judgment that the presence of both the appellants has not been denied by themselves which automatically leads to the fact that even search has not been denied by both the appellants. It has also been rightly pointed out by the ld. Trial CA No.'s 145/18; 144/18 & 146/18 :15: court that there is no suggestion given to the effect that it was Hari Thapa who had brought the shawls in question in the shop. Even a suggestion was put up to the prosecution witnesses by the appellants that shahtoosh shawls were lying in a single bundle at the shop and the same was kept by one foreigner just before the raid, and hence the ld. Trial court has rightly held that the appellants were not denying the recovery of shawls from the shop.
17. Further, Section 57 of the Act states that 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 of 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 of derivative thereof]. Since the appellants had not lead any defence evidence and has failed to bring on record anything to rebut the said presumption, the ld. trial court has rightly opined that the appellants were in unlawful possession/ custody of the 26 shahtoosh shawls recovered from their possession.
18. Now coming to the arguments of the ld. Counsel for CA No.'s 145/18; 144/18 & 146/18 :16: the appellants that the shawls recovered were not "shahtoosh shawls" as most of the witnesses have stated that it is not possible to tell that a particular shawl is a shahtoosh shawl merely by inspection. He drew the attention of this court towards the testimony of CW9 Narender Mehto wherein he stated that it is not possible to tell that a particular shawl is shahtoosh shawl merely by inspection; the PW10 Hari Om Uppal is also claimed to have stated on 02.02.2016 that he cannot identify by merely seeing a shawl that the same is made up of shahtoosh or not. On similar lines, the attention of this court has been drawn to the statement of PW5 Chander Prakash Sharma who in his crossexamination stated that it cannot be said by visual examination that the shawls are of Tibetan Antelope.
19. The Ld. PP for CBI on the other hand submitted that the charge sheet has been filed before the Ld. Trial court not simply on the basis of the opinion or observation of the raiding party to the effect that the 26 shawls were made of Shahtoosh. It was elaborated by Ld. PP for CBI that the shawls were in fact sent to the Wild Life Forensic Cell for examination. The Ld. PP has made this court go through the testimony of PW5 Chander Prakash Sharma, technician in the Wildlife Forensic Cell who stated that the Wildlife laboratory has opined that 26 shawls contained guard hair of Tibetan Antelope and the report is CA No.'s 145/18; 144/18 & 146/18 :17: proved as Ex.PW5/A. He argued that even if the witnesses relied upon by the defence have stated that guard hair cannot be examined visually, but it has already come on record in the cross examination of PW5 Chander Prakash Sharma that the examination of the shawls was done under light microscope with the magnification ranging from 100 to 400 times.
20. After hearing the rival parties at length on this point regarding identification of shawls as Shahtoosh shawls, this court is of the opinion that since the microscopic examination in the technical laboratory i.e. Wildlife Forensic Cell has already been carried on, there remains no substance in the arguments of ld. Counsel for the appellants that simply because different witnesses have stated that the guard hair of the shawls cannot be examined visually, the shawls were not shahtoosh shawls. It has already come in the testimony of PW5 Chander Prakash Sharma that guard hair were taken out randomly from all the shawls and microscopic characteristics were noted and compared with different ranges. Even the report prepared by PW5 Chander Prakash Sharma was verified by Dr. S.P. Goel who was a senior official in the laboratory and whose signatures were verified by PW5 Chander Prakash Sharma. Accordingly, there is no substance in the arguments advanced by the ld. Counsel for the appellants that the shawls recovered were not shahtoosh shawls given the circumstances when expert opinion CA No.'s 145/18; 144/18 & 146/18 :18: has already come on record.
21. Now coming to the other aspect raised by ld. Counsel for the appellants that there is no compliance of the provision of Section 50 of the Act and hence is fatal to the case of prosecution. After hearing the parties at length it appears to this court that the Ld. Trial court has dealt with the issue in its right legal prospective. The prosecution has already admitted that the said provisions were not complied with and the Ld. Trial court has already held that procedural law is to be followed in order to ensure that substantive law is implemented by upholding and following the principles of natural justice. Ld. Trial court has elaborated that the case property was seized on 10.02.2003 from Shop no. 20, Hotel Le Meridian. The animals from the dead contents of which shahtoosh shawls have been made have already been dead and hence non compliance of Section 53(4) of the Act being a procedural aspect is not going to effect the defence of accused. It has been elaborated in the impugned judgment that here in this case the case property is not Wild Life live animals but property made by killing wild life animals. It has rightly been opined by the Ld. Trial court that the items i.e. shahtoosh shawls were sent for expert opinion in a packet with the seal of CBI to the Director Wildlife Institute for opinion and that the PW5 Chander Prakash Sharma have already categorically stated that he received the case property in CA No.'s 145/18; 144/18 & 146/18 :19: sealed condition and after matching the seal. He further mentioned that he prepared the report and sent the report along with case property to the Director, Wildlife Institute. It has also been observed by Ld. Trial court that when the case property was produced before PW1 P.Lal for the first time, it was produced with the seal of Wildlife Institute which reveals that the case property was not tampered with.
22. Accordingly, this court substantiate the view of ld. Trial Court that non compliance of Section 50(4) of the Act is not fatal to the case as the case property was not a live animal and that the case property recovered was sent by CBI to the Wildlife Institute for expert opinion in a sealed cover which in turn was produced during trial under the seal of Wildlife Institute. Therefore, the arguments of ld. Counsel for the appellants on this point is rejected.
23. Now coming to the other aspect raised by ld. Counsel that there are contradictions in the testimonies of witnesses and he has relied upon the judgment of Hon'ble Supreme Court of India in State of Uttar Pradesh vs Gambhir Singh, Case No. 1320 of 1999, Date of Decision 20.04.2005 wherein it was held that if on the same evidence two views are possible, one in favour of accused must be preferred. Here in this case, no two views are available as the Ld. trial court has CA No.'s 145/18; 144/18 & 146/18 :20: rightly discussed the evidence in its correct prospective. Simultaneously, this court would like to bring to light recent judgment of Hon'ble Supreme Court of India in 'Smt. Shamim Vs State (GNCT of Delhi) Criminal Appeal No. 56 of 2018, Date of Decision 19.09.2018' in which it was held as under:
"12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is CA No.'s 145/18; 144/18 & 146/18 :21: whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."
24. Accordingly, even if there are minor inconsistencies or even if certain witnesses have not been examined by the prosecution, as pointed out by ld. Counsel, it appears to this court that Ld. Trial court has rightly opined that the prosecution has been able to prove its case. This court is of the opinion that what matter is not the number of witnesses examined matters in a criminal trial but it is basically the quality and the evidentiary value of each witness matters even though the number of witnesses may be less.
25. Accordingly, after the aforementioned discussion it is categorically clear that the impugned judgment vide which the appellants were convicted for the offences u/s 51 of the Act for the contravention of Section 49/49(B) r/w Section 58 of the Act does not deserve any interference of this court as the same has been rightly passed by the trial court. There is no infirmity, illegality or incorrectness which could be found by this court after appreciating the facts and law. Therefore, the impugned judgment is upheld.
CA No.'s 145/18; 144/18 & 146/18 :22: Now coming to the aspect of sentencing.
26. I have heard the ld. Counsel for the appellants on the sentence aspect of the appellant no. 1 M/s Shaw Brothers, appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar.
27. Ld. Counsel for the appellant no. 2 Quraish Ahmed & appellant no. 3 Azam Amin Dar argued that the sentence awarded by ld. Trial court is very harsh and that the Ld. trial court has not taken into consideration the mitigating circumstances while considering the point of sentence.
28. I have taken note of the submissions of the appellants no. 2 & 3 namely Quraish Ahmed and Azam Amin Dar. The offence herein relates to the animal article and the minimum sentence prescribed u/s 51 of the Act is not less than three years and also fine which shall not be less than Rs.10,000/ and may extend to seven years as the proviso to Section 51 of the Act is attracted in this case. Accordingly, I hold that the impugned order on sentence vis a vis the appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar does not require any interference given the position of law.
29. The Ld. Counsel for the appellant no. 1 M/s Shaw Brothers represented through Abdul Qayoom Shaw vehemently CA No.'s 145/18; 144/18 & 146/18 :23: argued that in the present case the appellant no. 1 is convicted in the capacity of a firm as entity and that charges were also framed for the offences allegedly committed by the firm. It was also highlighted that no charges against Abdul Qayoom Shaw in an individual capacity i.e. in the capacity of Managing Partner were framed by Ld. Trial Court. He clarified that when a firm or a company is convicted by a court as an entity, it can only be fined and that the managing partner or managing director of the company cannot be sentenced to imprisonment in his capacity as Managing Partner/Managing Director. He further stated that had it been the case where the Managing Partner/Managing Director could have been prosecuted and charged separately besides a company or a firm, the situation would have been entirely different, but here in this case given the facts, the appellant no. 1 being a firm can only be sentenced to fine and not imprisonment.
30. Ld. PP for CBI on the other hand refuted the arguments of the Ld. Counsel for appellant no. 1 and stated that the partner who is managing the affairs of the firm is also liable to be punished and that the partnership firm itself is not a legal entity and it is different from a company incorporated and the Ld. Trial Court has rightly sentenced the appellant no. 1 for imprisonment and fine.
CA No.'s 145/18; 144/18 & 146/18 :24:
31. I have heard the ld. Counsel for appellant no. 1 as well as Ld. PP for CBI on the issue of sentencing vis a vis appellant no. 1.
32. Section 58 of the Wildlife (Protection) Act, 1972 deals with the issued regarding the offences by companies. It would be appropriate to reproduce the same in order to have better appreciation of the issue. It runs as under:
"58. Offences by companies(1) Where an offence against this Act has been committed by a company, every person who, at the time of offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained CA No.'s 145/18; 144/18 & 146/18 :25: in subsection (1), where an offence against this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation For the purposes of this section,
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
33. As far as the appellant no. 1 is concerned, the trial court record reveals that the charges were framed against the appellant no. 1 firm M/s Shaw Brothers through its managing partner Sh. Abdul Qayoom for the offences u/s 49/49B r/w Section 58 of the Act punishable u/s 51 of the said Act. The impugned judgment also categorically goes to suggest that it was the firm M/s Shaw Brothers represented through Abdul CA No.'s 145/18; 144/18 & 146/18 :26: Qayoom Shaw which was convicted for the aforementioned offences for which it was charged. The conviction was not passed for the individual Abdul Qayoom Shaw whereas the individual Abdul Qayoom Shaw has been sentenced in individual capacity as representative of M/s Shaw Brothers and he has been sentenced to undergo SI for three years with fine of Rs.10,000/ each for the aforementioned offences.
34. A Constitutional Bench of the Hon'ble Apex Court in Standard Chartered Bank. Balkrishnan Vs Directorate of Enforcement etc. Case no. 1748/99 Date of Decision 05/05/2005 had dealt with the issue regarding the sentencing of the companies. It was held by Hon'ble Apex Court as under:
"35. As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the Section so far as the juristic person is concerned. Of course, the court cannot exercise the same discretion as regards a natural person.
Then the court would not be passing the sentence in accordance with law. As regards company, the court can always impose a sentence of fine and the sentence of imprisonment can be ignored as it is impossible to be CA No.'s 145/18; 144/18 & 146/18 :27: carried out in respect of a company. This appears to be the intention of the legislature and we find no difficulty in construing the statute in such a way. We do not think that there is a blanket immunity for any company from any prosecution for serious offences merely because the prosecution would ultimately entail a sentence of mandatory imprisonment. The corporate bodies, such as a firm or company undertake series of activities that affect the life, liberty and property of the citizens. Large scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to a criminal law is essential to have a peaceful society with stable economy."
35. This judgment was later relied upon by Hon'ble Apex Court again in Iridium India Telecom Ltd. Vs Motorola Incorporated & Others Criminal Appeal No. 688/05, Date of Decision 20.10.2010.
36. The grudge of the ld. Counsel is that the law laid down by Hon'ble Apex court has not been considered by the trial court while sentencing the appellant no. 1 and that the appellant no. 1 being a firm could have been sentenced to fine only whereas Abdul Qayoom Shaw being a managing partner CA No.'s 145/18; 144/18 & 146/18 :28: has been sentenced to imprisonment even without charges being framed against him in individual capacity.
37. Having noted the position of law as laid down by Hon'ble Supreme Court and having gone through the provisions of Wildlife (Protection) Act, 1972, this court finds that the aforementioned arguments for the ld. Counsel for appellant no.1 needs to be appreciated by the Ld. trial court as the trial court has not considered the same in the impugned order on sentence.
38. Accordingly, this court orders that as far as impugned order on sentence visavis appellant no. 1 is concerned, this matter be remanded back to the Ld. trial court with directions that the Ld. trial court shall hear arguments on sentence again on behalf of the appellant no. 1 and would pass fresh orders on sentence visavis appellant no. 1 after considering the aforenoted position of law.
39. The appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar be taken to custody and be sent to jail to undergo the sentence awarded by the Ld. ACMM. Benefit of Section 428 CrPC be awarded to both of them. Copy of this judgment be given dasti to appellant no. 2 Quraish Ahmed and appellant no. 3 Azam Amin Dar The appellant no. 1 M/s Shaw Brothers represented CA No.'s 145/18; 144/18 & 146/18 :29: through Abdul Qayoom Shaw is directed to appear before the Ld. trial court on 20.12.2018.
Bonds u/s 437A CrPC already furnished by the appellants.
TCR along with copy of this order be sent to the Ld. trial court. Appeal file be consigned to record room.
Digitally signed by Announced in the open court SANJAY SANJAY KUMAR on this 17th day of December, 2018. KUMAR AGGARWAL Date: 2018.12.18 AGGARWAL 10:49:28 +0530 (SANJAY KUMAR AGGARWAL) Special Judge03, (P.C. Act)CBI Tis Hazari Courts, Delhi. CA No.'s 145/18; 144/18 & 146/18