Madhya Pradesh High Court
Bholaram vs The State Of M.P. on 19 August, 2014
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HIGH COURT OF MADHYA PRADESH: PRINCIPLE SEAT
AT JABALPUR
S.B. Hon'ble Shri Sushil Kumar Gupta, J.
Criminal Revision No.1019/2002
BHOLARAM S/o YADORAM
Versus
THE STATE OF MADHYA PRADESH
Shri Pranay Gupta, learned counsel for the applicant.
Shri V.K. Pandey, learned Panel Lawyer for the respondent/State.
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ORDER
(Passed on this 3rd day of September, 2014)
1. This Criminal Revision is directed against the judgment dated 19/08/2002 passed in Criminal Appeal No.28/2002 whereby Ist Additional Sessions Judge, Seoni (M.P.) has upheld the judgment dated 20/02/2002 passed in Criminal Case No.780/2001 whereby the applicant/accused has been convicted under Section 51 of the Wild Life (Protection) Act, 1972 (for short 'The Act' 1972) and sentenced to undergo RI for 1 year with fine of Rs.500/-, in default of payment of fine to undergo RI for 1 month.
2. The prosecution case, in short, is that on 19/09/1992, in West Khawasa Range, the applicant/accused-Bholaram was coming on his bicycle having a bag with him. A Forest Guard, on suspicion, stopped the applicant/accused-Bholaram and on search he was found in his possession 85 (14.900 kg.) pieces of Sambhar/Chital horns in the bag. The Forest Guard seized entire pieces of horns and prepared seizure panchnama on the spot.
2Thereafter he informed to the Deputy Ranger who, on his turn, verified the papers of seizure, prepared the complaint and the same has filed in the Court.
3. The applicant/accused was charged under Section 51/52 of the Act 1972 in contravention of Section 44 of the Act 1972. The charges were read over and explained to the applicant/accused. He abjured the guilt.
4. The prosecution examined as many as 4 witnesses. The applicant/accused denied all the allegations leveled against him in his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short the code 1973) and pleaded innocent and falsely implicated. The applicant/accused did not examine any witnesses in his defence. After appreciating the evidence, produced by the prosecution, trial Court found guilty to applicant/accused under Section 51 of the Act 1972 and sentenced thereto. Being aggrieved by the judgment of conviction and sentence he preferred Criminal Appeal No.28/2002 before the Ist Additional Sessions Judge, Seoni which was also dismissed. Being aggrieved by the impugned judgment, finding and sentence this revision has been preferred mainly on the grounds that neither PW-4 Rafeeque (Forest Guard) had authority to make search of the applicant/accused, nor he had any authority to seized the animal article and prosecution has failed to prove that the seized articles were really pieces of the horns of Sambhar/Chital.
5. Learned counsel for the applicant/accused submitted that the alleged offence has not been proved, beyond reasonable doubt, against the applicant. The independent witnesses have not supported the prosecution case. The prosecution has failed to 3 prove that the seized article were really the pieces of horns of Wild Animals. PW-4 Rafeeque (Forest Guard) does not come within the definition of Forest Officer under Section 50 of the Act 1972 and had no authority to make search and seizure of the articles. In such circumstances learned counsel for the applicant submitted that the finding of guilt is erroneous which deserves to be set aside and applicant/accused is entitle for acquittal.
6. Per contra learned Panel Lawyer appearing on behalf of the respondent/State supported the impugned judgment and contended that the applicant/accused has rightly been convicted and sentenced, hence does not call for any interference.
7. Having heard learned counsel for the parties, perused the impugned judgment and the material available on the record, I will consider the points which is raised by the learned counsel for the applicant/accused.
8. The main grounds for considerations of this revision are that whether the Forest Guard had authority to made search and seizure under Section 50 of the Act 1972 and another whether the prosecution has failed to prove that the seized articles were really pieces of the horns of Sambhar/Chital ?
9. The first ground on which the impugned judgment has been challenged by learned counsel for the applicant/accused is that as per the document and evidence for the prosecution the search was conducted and the animal articles were seized by "Forest Guard" who is not a "Forest Officer" and thus he is not authorised to search and seize the same under Section 50 of the Act 1972. But the argument advanced by the learned counsel for the applicant/accused has no force.
10. A reference to under Section 50 of the Act 1972 will be 4 apposite. The said Section reads as under:-
"50.Power of entry, search, arrest and detention--
(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other, officer authorised by him in this behalf or the Chief Wild Life Warden or the authorized officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,--
(a) required any such person to produce for inspection any captive animal, wild animal, animal article, meat, [trophy, uncured trophy, specified plant or part or derivative thereof] in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act.
(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;
[(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him:
Provided that where a fishermen residing within ten kilometers of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized.
(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or 5 other proceedings which may be taken against him. (3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or [an Assistant Conservator of Forest], who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.] (4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law [under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard.] (5) Any person who, without reasonable cause, fails to produce anything, which hi is required to produce under this section, shall be guilty of an offence against this Act.
[(6) Where any meat, uncured trophy, specified plant or part of derivative thereof is seized under the provisions of this section, the Assistant Director of Wild Life Preservation or any other office of a gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer may arrange for the disposal of the same in such manner as may be prescribed.] (7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance in the prevention or detection of an offence against the Act, or in apprehending persons charged with the violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of such person or persons to render such assistance. [(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or [an officer not below the rank of Assistant Conservator or Forests authorised by the State Government in this behalf] shall have the powers, for purpose of making investigation into any offence against any provision of this Act,-
(a) to issue a search warrant;
(b) to enforce the attendance of witnesses;
(c) to compel the discovery and production of
documents and material objects; and
(d) to receive and record evident.]
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[(9) Any evidence recorded under clause (d) of sub- section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.]"
11. And the definitions of Forest Officer given under Section 2 (12-A) of the Act 1972, Section 2 (2) of the Forest Act, 1927 (for short 'The Act, 1927) and also Rule 75 (1) of forest guard manual which is clear that forest guard is a Forest Officer as provided in aforementioned provisions. Section 2 (12-A) of the Act 1972 provides that "Forest Officer" means the Forest Officer appointed under clause (2) of Section 2 of Act 1927 or under any other Act for the time being in force in a State. Section 2 (2) of the Forest Act 1927 provides that the "Forest Officer" means any person whom the State Government or any officer empowered by the State Government to carry out all or any of the purposes of this Act 1927 or to do anything required by this Act or any Rule made thereunder to be done by a Forest Officer. The Rule 75 (1) of the forest manual as under:-
"75. (1) The Conservator of Powers of Forest Officers, Forests, all Collectors, Assistant Notification Nos.130-130- commissioners, Deputy Conservators, 848XV, dated 31-1-28 and Assistant Conservators, Extra-Assistant Nos.624-625-341-XV, dated Conservators (whether probationers or 12-6-28, and No.718-XV, otherwise), Tehsildars, Forest Rangers, dated 12-8-29. Deputy Rangers, Foresters and Forest Guards, whether in permanent or temporary employment, are appointed to do all acts and exercise all powers that the provided by the Act, to be done or exercised by any Forest Officer."
(Emphasis supplied)
12. Thus , it appears that a Forest Guard, whether permanent or temporary is appointed to do all acts and exercised all powers that are provided by the Act to be done or exercised by any Forest Officer. As provided by Section 50 (1) (C) of the Act 7 1972, a Forest Officer may seize any animal article in respect of which an offence against this Act appears to have been committed. On perusal of this provisions contention of learned counsel for the applicant/accused that animal article was not seized by an Authorized Officer cannot be sustained.
13. The second ground as raised by learned counsel for the applicant/accused is that the prosecution has failed to prove that the seized articles were really pieces of horns of Sambhar/Chital. Learned counsel submits that prosecution did not examine and produced any report of any Expert to prove the horns of Wild Animal (Sambhar/Chital). He further argued that the seized articles were not sent for chemical examination to Wild Life Institute of India, Dehradun. In such circumstances the applicant cannot be convicted. In support of his contention he relied on Bhimraj Mahar Vs. State of M.P., 2010 (1) MPLJ (Cri.) 590, but in this judgment it was not held that chemical examination of the articles of wild animals are necessary.
14. Though, the seized articles were not sent for chemical examination to Wild Life Institute of India, Dehradun, but PW/3 CP. Pandey & PW/4 Rafique (Both are Forest Officers) have categorically stated in their statement that the horns of Sambhar/Chital were seized from the possession of applicant/accused and nothing has been brought in their cross- examination to discredit their statement. Even no question was asked by the defence on this aspect that the seized articles were not horns of Sambhar/Chital.
15. This Court did not find any material or substantial contradiction in the statement of prosecution witnesses, which may cause any serious dent to the prosecution's case in making 8 the applicant liable for acquittal. Therefore, it is established that the articles which were seized from the unlawful possession of the applicant were of wild animal i.e. Sambhar/Chital. In such circumstances the Courts below have not committed any illegality in finding the applicant/accused guilty under Section 51 of the Act of 1972. There is no scope of reappreciation of evidence at the revisional stage. The findings recorded by the Courts below are not perverse or contrary to the evidence available on record, therefore, does not call for interference. The findings of guilt under Section 44 read with Section 51 of the Act of 1972 is hereby affirmed.
16. So far as question of sentence is concerned, learned counsel submitted that the applicant/accused has suffered 30 days of jail sentence, therefore he be released on the period already undergone. From the record, it appears that the applicant/accused has already undergone about one month of imprisonment. The applicant/accused is a poor villager. Applicant/accused is aged about 60 years. There is nothing on record to suggest that the applicant/accused are habitual offender. The incident is of the year 1992 and he is facing the agony of trial since last 22 years. Taking into consideration the totality of circumstances and the period of time that has been elapsed. I am of the opinion that no useful purpose would be served in sending the applicant/accused back to jail now and that the interest of justice would be met by awarding a sentence for the period already undergone by him for offence U/s 44 R/w Section 51 of the Act, 1972. The sentence of fine of Rs.500 is however enhanced to a sentence of Rs.3000/- or in default of payment of fine to undergo six months SI. Here it is made clear that if the applicant/accused has already deposited the fine amount as 9 directed by the Courts below, he shall deposit the remaining amount only. The applicant/accused shall deposit the fine amount within a period of two months from today.
17. Consequently, the Criminal Revision is partly allowed.
(Sushil Kumar Gupta) Judge Ajay