Delhi District Court
Wccb vs Mudasir Gulam Ahmed Mugloo on 17 September, 2024
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IN THE COURT OF MAYANK MITTAL
ADDL. CHIEF JUDICIAL MAGISTRATE (Spl. Acts)
CENTRAL, TIS HAZARI COURTS, DELHI
WCCB VS. MUDASIR GULAM AHMED MUGLOO
CC No. : 525731/2016
CNR No. : DLCT02-005196-2014
Date of Institution : 03.11.2024
Name of the complainant : WILDLIFE CRIME CONTROL
its registered office BUREAU (NR)
Through Sh.Kishore Kumar Sarma
Trikoot -1, 2nd floor, Bikaji Cama
Place, New Delhi-110066.
Name of accused : Sh.Mudasir Gulam Ahmed Mugloo
his parentage and address etc. S/o Sh.Gulam Ahmed Mugloo
R/o Lal Bazar, Mughal Mohalla,
Srinagar-190011, J & K.
Offence complained of : U/s. 55 of the Wildlife Protection
Act, 1972 r/w section 200 Cr.P.C.
Date of Judgment : 17.09.2024
Plea of accused : Not guilty
Final Judgment : Acquitted
Brief facts and reasons for decision of the case:-
1 (i) The case of the complainant in brief is that on 13.09.2011,
Customs Preventive (Arrival) spotted accused Mudasir Gulam
Ahmed Mugloo, holding Indian Passport no.H3628254 issued at
Srinagar, who had arrived from Washington by flight no.VS300
dated 13.09.2011 and had exercised the option to walk through the
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Green Channel along with his baggage. The accused was stopped at
the exit gate of the Arrival Hall by Customs Officer and was asked
whether he was carrying any dutiable / contraband goods in the
baggage to which the accused replied in the negative. Not being
satisfied in his reply, the accused was diverted for scanning of his
baggage through X-ray machine kept at Green Channel. On
scanning, the images reflected cloth items besides some woolen
shawls. Thereafter, a written notice u/s 102 of Customs Act, 1962
was served upon the accused and asked, if he wished his baggage /
person could be examined/searched before a Magistrate or a
Gazetted officer of Customs. The accused gave his written consent
for the examination. On examination of baggage, the shawls etc.
appeared of superfine quality. Thereafter, the accused was then
diverted to the nearby Customs counter at Red Channel for a
detailed inspection/examination of his baggage because of Green
Channel violation.
(ii) After that, on detailed examination of three checked-in-
baggage, one black colour 'American Tourister' bearing Tag
no.0932VS443716, one green colour 'Samsonite' stroller bearing
Tag no.932VS443724 and one green colour 'Ling Shi Brand'
bearing tag no.0932VS443710 and two hand bags of accused, 114
shawls were recovered. On demand, the accused failed to produce
any documentary evidence for legal import of the said recovered
goods. The Customs Officer rang up the Wildlife Office situated at
Bikaner House, Shahjahan Road, New Delhi, in order to ascertain
the true identity of the shawls in question and to examine the
superfine quality shawls. On 13.09.2011, on being called by
Customs, Ms. Aarti Singh, Wildlife Inspector, Wildlife Crime
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Control Bureau (NR), Bikaner House, Shahjahan Road, New Delhi
examined the shawls in question at Customs Arrival Hall of the
Terminal -3, Indira Gandhi International Airport, New Delhi in the
presence of Panchas and the Pax. based on expertise in
identification of wildlife contraband items and she suspected 25
shawls to be of Shahtoosh shawls (containing Guard hairs of
Panthelops hodgsoni) and advised customs to send the sample to
Wildlife Institute of India, Dehradun for confirmation and an
Inspection report of Wildlife Inspector Ms. Aarti Singh was given
on the spot.
(iii) The said shawls were seized under Panchnama (seizure
memo) dt.13.09.2011 prepared by customs as the material was
seized in Customs in the presence of two Panchas, Wildlife
Inspector Custom Inspector and the Pax in the Arrival Hall of
Terminal -3 and the signature of all the concerned are appended and
sealed with customs seal no.06. Thereafter, those suspected 25
Shahtoosh Shawls were packed in a cardboard box and were
wrapped with the white cloth and sealed with the Customs seal and
other remaining shawls were sealed in black coloured American
Tourister checked-in-baggage. Both the category of shawls and
stoles were seized by the Customs u/s 110 of the Customs Act 1962,
on the reasonable belief that the same were smuggled into India and
were, therefore, liable to confiscation under the Customs Act 1962
r/w the Wildlife(P) Act 1972 and CITES.
(iv) The accused in his statement on 13.09.2011 recorded u/s
108 of the Customs Act given before the officials of Customs
Department stated that he deals in the woolen, silk, viscose and
Pashmina shawls, suits etc and used to export to Dubai and USA
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through the couriers. He had taken 140 shawls to Washington on
13.06.2011 which he purchased from different shops/market in
Kashmir, however, he could not sell these shawls in Washington
and were returned back. He further admitted in his statement that
those 25 superfine quality shawls were made by him from the wool
purchased by him in Srinagar about 3 years ago from a person of
Nepalese origin whose whereabouts are not known to him.
(v) Thereafter, the accused was arrested under Customs Act,
1962 and on the basis of report of Ms. Aarti Singh, Wildlife
Inspector, the sealed shawls were sent by Sh. Dipin Singla,
Assistant Commissioner (Preventive), IGI Airport, New Delhi to
Wildlife Institute of India, Dehradun, vide Customs letter C.
no.VIII(AP)10/P&I/50-A/2011 dated 13.02.2012 through special
messenger for examination for confirming whether the shawls are
Shahtoosh shawls or not. As per the report issued by Wildlife
Institute of India by their letter no.F#WII/WFC/F-2138/2012 dated
03.09.2012 confirmed that the 25 nos. of shawls contained the hair
of Tibetan Antelope (Panthelops hodgsoni). On 05.03.2012, Sh.
Vinod Kumar Goel, Commissioner of Customs (I & G) New
Customs House, had issued show cause notice to Mr. Mudasir
Gulam Ahmed Mugloo vide letter C. No.VVV(AP)/10(P&I)/50-A/
2011/1571 dated 05.03.2012. On 17.12.2012, the hon'ble court of
Sh. Gautam Manan, Ld. ACMM-01, Patiala House, Delhi
transferred the case to Wildlife Department for investigation and
filing complaint under section 55 of the Wildlife (Protection) Act,
1972, against the accused on the request of Customs department.
(vi) On 26.02.2013, office of the customs transferred the case
along with the attested copies of case records and case property to
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the office of complainant for taking further action under Wildlife
(Protection) Act, 1972. Thereafter, POR has been registered against
the offender vide POR no.WCCB/NR case no.07/2013 dated
26.02.2013 and the case property is entered in the case property
registered index no.13. Sh. S. R. V. Murthy, Regional Dy. Director,
Wildlife Crime Control Bureau(NR), New Delhi, issued summons
for the personal appearance for recording the statement of accused
vide summons WCCB O.R. No.07/2013/WCCB/NR/1063 dated
07.03.2013 and 07/2013/WCCB/NR/109 dated 02.04.2013. During
the investigation on 15.05.2014, statement of accused was recorded
u/s 50(8) of the Wildlife(P) Act 1972 by the Regional Dy Director,
WCCB(NR), in which he stated that had purchased the Shahtoosh
wool from one Nepali person and the shawls were woven in his
residence.
(vii) Several communications were made by complainant office
to Customs department for handing over the original case records
for filing the complaint and finally on 18.06.2014, the original case
file were handed over to Sh. K. K. Sarma, Wildlife Inspector,
WCCB/NR by Sh. Anis Alam, ACO, IGI Airport, New Delhi. On
19.09.2014 during the investigation, a team comprising Sh. K. K.
Sarma, Wildlife Inspector and Sh. Ganesh, Constable visited to
search / inspect the shops located at Lajpat Nagar and Saket based
on the invoices found during the personal search of the accused at
the time of arrest at IGI Airport, New Delhi on 13.09.2011 and
submitted the report that the said shops are shifted / closed and not
located.
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2 The present complaint was filed by Sh. Kishore Kumar Sarma, the
then Wildlife Inspector, Govt. of NCT of Delhi, on behalf of the
complainant. Since the complaint was filed by a public servant
while discharging his duties as a public servant and in his official
capacity, so his examination under Section 200 Cr.P.C was
dispensed with in terms of proviso (a) of Section 200 Cr.P.C.
Cognizance of offence was taken and the accused were summoned
vide order dated 03.11.2014. On appearance, copies of complaint
and supporting documents were supplied to the accused persons.
3 In pre-charge evidence, the complainant examined CW-1 Dr. S. P.
Goyal, CW-2 Achal Singh, CW-3 Baldev Singh, CW-4 Aarti Singh,
CW-5 K. K. Sharma & CW-6 S. R. V. Murthy only. Thereafter,
arguments on charge were heard and Charge was framed against
accused Mudasir Gulam Ahmed Mugloo on 02.01.2017 for offences
punishable u/s 51 of the Wildlife (Protection) Act, 1972 to which he
pleaded not guilty and claimed trial.
4 I have heard the rival contentions advanced by the Ld. Counsel for
the complainant and also by Ld. Defence counsel. Prior to delving
into the contentions advanced on behalf of the parties, let us briefly
discuss the testimonies of witnesses examined in complainant's
evidence:-
4.1 CW-1 Dr. S. P. Goyal deposed that he is with the Institute
for the last twenty eight years and examined case property in
more than thousand Wild Life Offences including the
examination of different wild life parts. That a letter No.VIII
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(АР)10/P&1/50-A/2011 dt.13.02.2012 of Assistant
Commissioner of Customs (Prev), Indira Gandhi International
Airport, T-3, New Delhi alongwith a cloth stitched packet duly
sealed was received for species identification of shawls. He
stated that the packet contains twenty five shawls marked as F-
2138/1-25 to F-2138/25-25 and out of which five shawls were
randomly taken for microscopic characteristics hair present in
the shawls and were marked F-2138/17-25, F-2138/18-25, F-
2138/20-25, F- 2138/21-25 & F-2138/22-25. That based on the
examinations all these five shawls contain hair of Tibetan
Antelope (Panthlops hodgsoani) and accordingly report was
prepared and sent to the Assistant Commissioner (Preventive),
vide letter no.VIII(AP)10/P&I/50-A/2011 dt. 13.02.2012 is
Ex.CW1/1 which bears his signature at point A. That a
covering letter with report dated 03.05.2012 is Ex.CW1/2
which bears his signature at Point A. The shawls were re-sealed
with the seal of WII D-DUN and the sample sealed placed on
paper ix Ex, CW1/3.
4.1.1 During his cross examination, he is M.Sc. and Ph.D in
Zoology and he joined as a Scientist in the Wildlife Institute of
India (WII) in the year 1986. He stated that for the said post,
the minimum qualification was M.Sc in Biological and life
sciences discipline subject. He stated that messenger from
customs office brought the letter as well as packet containing
the samples for species identification in the office, however, he
does not remember the date when he received the letter dated
13.02.2012 Ex. CW2/7 alongwith the packet of samples. He
stated that he does not remember the name of the messenger.
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He voluntarily stated that however, it is on the office file
record. He stated that the letter Ex.CW2/7 was not in my
name. He voluntarily stated that all the letters are to be issued
in the name of head of the office i.e. Director to WII and he
was the only nodal officer and scientist during the tenure of his
services with Wildlife Forensic Cell. He stated that as per the
norms, the letter Ex.CW2/7 was marked to him for further
necessary action. He stated that the letter marked by Director to
me for further necessary is not on court record. He voluntarily
stated that it is in the office file. He stated that the letter marked
by the Director was not shown to him during the chief
examination at pre-charge stage. He denied that wherein he
was assigned to do the forensic examination of the shawls. He
stated that Ex.CW1/1 does not contains the facts that he was
assigned to do the analysis by the Director by marking the
letter to him. He voluntarily stated that however, it contains the
Reference Case No. i.e. letter no. VIII (AP) 10/P&I/50-A/2011
dated 13.02.2012 of the customs department. That Ex. CW1/1
does not reflect the name of the persons who conducted the
examination of the shawls in question and when it was
conducted. He stated that Ex.CW1/1 was signed by him in
capacity of nodal officer and stamp of designation of scientist
does not required to be put upon the same.
CW1 has denied the suggestion that as per the rules/guidelines
of the institute, it is required to be mention in the report when
the case property was received, when it was opened who was
the custodian of the case property, time of the conducting the
forensic examination. CW1 has deposed that such minor details
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remains in the office file records of the Institute, although, the
aforesaid details are not mentioned in report Ex. CW1/1.
He stated that no details of impression of the customs seal has
been mentioned in his report Ex.CW1/1. He voluntarily stated
that only word sealed is mentioned on report. He stated that he
has not attached the specimen of custom seal with my report.
He voluntarily stated that it is in his office file records. He
stated that he can produce the same when asked by the hon'ble
court. That on an average wildlife forensic cell receives 350
cases in a year and each case is being assigned in separate file
number and all the subsequent records are kept in the file and
based on the nature of items, respective protocol is undertaken
for species identification. He volunteered that the present case
file number is WII/WFC/F-2138/2012. He stated that there is
no mention in Ex.CW1/1 about the colour texture and size of
the samples examined. He further stated that these are not
required for species identifications purposes. He stated that he
does not remember the size of the packet which was received
from the customs and opened for random taking of samples. He
stated that he has taken the photographs of the shawls at the
time of opening the packet and are on the office file records
and his assistant C.P. Sharma, technicians of the Wildlife
Forensic Cell was present at the time of taking photographs of
the shawls. That after opening the packet all the shawls were
numbered as F-2138/1-25 to F-2138/25-25 and thereafter,
randomly five shawls were taken for forensic examination.
That thereafter, all 25 shawls were examined and out of which
only five shawls marked as F2138/17-25, F2138/18-25,
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F2138/20-25, F2138/21-25 and F2138/22-25 were found
containing hair of Tibetan Antelope as mentioned in
Ex.CW1/1. That there were customs marking on the shawls at
the time of opening the packet by them at Wildlife Institute,
Dehradun and he does not remember what were those
markings. That the photographs taken by them are in their
office file not placed on the court file. That on an average, they
spent almost closed to 6-8 hours per shawl examinations.
To a specific question, he stated that the Ex. CW1/1 took
approximately seven months to be prepared as they are
required to undertake other cases simultaneously and,
therefore, the report was sent after seven months of receiving
the samples. He stated that the report in question was sent to
Assistant Commissioner (Preventive) vide letter Ex.CW1/2
having reference file NO. WII/WFC/F-2138/2012 dated
03.09.2012. He denied the suggestion that in pre charge
evidence, the letter number is mentioned as letter no. VIII (AP)
10/P&T/50- A/2011 dated 13.02.2012 and Ex.CW1/1 whereas
Ex.CW1/1 is the lab report signed by him. He stated that the
letter reference mentioned in pre-charge is of the letter of
Assistant Commissioner (Preventive). That the scientific name
of Indian elephant is Elephus Maximus. That the Asiatic Lion
name is Panthera Leo, the scientific name of Tibetan wolf is
Canis Lupus the scientific name of fox is vulpus vulpus. That
the scientific name of Tiger is Panthera tigris. That there is no
scientific name of hair/fur. He denied that hair/fur is
scientifically called pelage. That the colour of hair of the
Tibetan Antelope is range from brownish to whitish (creamish).
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That Tibetan Antelope can be coloured dyed. He denied that
the characteristics of the dyed hair which are examined under
the microscope do change and impossible to identify. That
there is no specific weaving patterns of Shatoosh shawls. He
denied that due to diamond shaped weaving pattern of
Pashmina shawls can be mistaken as Shatoosh shawls. He
stated that there are other methods to identify species from hair
but in the present case this has been identified based on
microscopic hair characteristics only. That among other method
used are keratin profile and DNA. He denied that examination
of hair by microscopic characteristics is not a reliable method.
He stated that he has used the leica comparison microscope for
the present examination having magnification capacity upto
1000x (10x in eye piece and 100x in stage). He stated that
make and model of microscope is not mentioned in Ex.CW1/1.
He denied that since the report does not mention the make of
microscope and hence, no microscope was used by him. He
stated that they used the hair cast (imprint) for the microscopic
examination purposes. That the shawls pieces was not cut for
examination and only samples was drawn from the hair present
in the shawl. That they does not consider the percentage of the
hair fibre we only examined presence or absence of Tibetan
Antelope hair for species identification. That hair has been
measured in the micron and not used in the present case
because it is not a species specific characteristics. That hair
characteristics namely cuticular and medullary patterns are
examined under the microscope. That there are 24 different
types of characteristics are under cuticular and medullary
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pattern and each species has different characteristics out of
these 24 characteristics. He stated that the types of
characteristics of hair are not mentioned in Ex.CW1/1 which
would differentiate it from other species such as sheep, goat,
lamb etc. That cuticular pattern is external characteristics of the
hair whereas medullary pattern is inner part of the hair. He
stated that the cuticular and medullary patterns are examined
under the transmittance light of the microscope. That the
refractive index of the examined material was not used as it is
not species specific characteristics. He denied that Ex. CW1/1
lacks detail analysis of the case property and the same was not
done by him. He denied that the report does not mention as to
how and in which manner the characteristics of the case
property were identified to ascertain that it contains fibre/guard
hair of Tibetan Antelope (Panthelopes Hodgsoni). He stated
that he does not remember how many accused have been
convicted on the basis of the microscopic examination done by
him during his career as enforcement agency has never
informed/communicate to him in this regard. He denied that he
only signed ExCW1/1 and no forensic examination was
conducted by him.
4.2 CW2 Sh. Achal Singh, deposed that on 13.09.2011, he was
posted as Preventive Officer in Shift-C at IGI Airport, New
Delhi and on that date at about 11.00 am, accused arrived by
flight no.VS300 coming from Washington DC through London.
He stated that he was carrying three check-in bags and two
hand carry bags and he was walking through green channel. On
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asking whether he was carrying any dutiable item, he replied
that he is carrying one Apple I-pad 64 GB declaring value of
the same Rs.30,000/- only and all others are personal
belongings only. That being not satisfied, he was diverted to
scanning of his baggages through X-ray machine which
reflected the violations of Green Channel and thereafter, for
detail examination, he was diverted to Red Channel after taking
permission from AC Preventive. Copy of the said permission is
mark A. That on scanning the image reflected of woolen shawls
apart from cloth items and thereafter, the accused has given his
written consent for examination of his baggage and on
examination of baggage the shawls appear to be of superfine
quality and he was diverted to Custom counter at red light
channel for detailed examination. That on detailed
examination, his three baggages were checked and 114 shawls
and 55 stoles were recovered from the baggages and on
demand accused failed to show any documentary proof for
import of the said shawls and the shawls were found of
superfine quality and in order to ascertain true identity of the
shawls, the Wildlife Office was informed with a request to send
an officer to examine the quality of the shawls. That on finding
goods in commercial quantity, the case was handed over to
Preventive. That a notice u/s 102 of Custom Act was served
upon the accused and on personal search of the accused, 1025
ponds, 5000 Indian rupees, 21.291 US $, two laptops (one used
and one new of Apple Macpro make) one 64GB Apple Ipad,
three wrist watches, Assorted perfumes, two saaris and some
new ready made garments were also recovered which were
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seized under metal container tied with white cloth and sealed
with the seal of Custom seal no.6. That apart from this, number
of other documents were also found including boarding card
Ex.CW2/1 and four baggage tags Ex.CW2/2 colly. That copy
of passport of the accused was also obtained which is now
marked as mark B. That accused was also permitted to inform
his relative and accordingly accused made a call from a PCO
situated in the Airport vide PCO slip Ex. CW2/3. Thereafter,
WLI Ms. Aarti Singh came there on the same day in evening at
about 5.00 pm. That entry pass was prepared for her and she
examined the recovered shawls at Custom Arrival Hall at
Terminal-3 IGI Airport, Preventive Section, in presence of
Panchas and on examination of shawls, she suspected 25
shawls to be of Shahtoosh containing guard hairs of Panthelops
hodgsoni (Cheeru) and she also advised us to send the
suspected shawls to Wildlife Institute of India, Dehradun for
confirmation. She also prepared inspection report.
(A sealed pullanda bearing the seal of WII, D. DUN was
produced by the Wildlife Inspector and the same was opened
with the permission of the court and after opening the same, a
cartoon was taken out and the same was also opened and from
the cartoon, 25 shawls are taken out and shown to the CW2 and
after seeing the same, witness has correctly identified the
shawls as those shawls which are recovered in his presence and
the same is ExCW2/4(colly), each shawl having the custom
seal no.6 and bearing his signature at point A, signature of WLI
Arti Singh at point B, signature of accused at point C and two
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independent witnesses namely Dilip at point D and Jitender at
point E.)
CW2 stated that WLI Arti Singh entered the Airport at about
5.15 PM and entry pass was made through DIAL and she was
allowed to enter. He stated that 89 shawls were examined
alongwith these 25 shawls which appeared to be shahtoosh and
were packed separately in wooden cardboard duly sealed with
the seal of custom bearing seal no. 6. 55 shawls which were
found extra were packed separately alongwith other smuggled
goods and the case property was deposited in the custom office
under DR no.069242. That Panchnama dated 13.09.2011 was
drawn by him in the presence of accused and two panch
witnesses Sh. Dilip and Sh. Jitender Gujar and the same is
Ex.CW-2/5(colly), which bears his signature at point A and
signature of accused at point B, signature of panch witness
Dilip at point C and signature of panch witness Jitender at
point D on each page. He stated that detention receipt was also
prepared by him in the presence of accused and two panch
witnesses Dilip and Jitender and the same is Ex.CW-2/6, which
bears my signatures at point A, signature of accused at point B,
signature of panch witness Dilip at point C and signature of
panch witness Jitender at point D. He stated that on the basis of
report by Ms. Arti Singh, WLI, 25 sealed shawls were sent by
Sh. Dipin Singhla, Assistant Commissioner, Preventive, IGI
Airport, New Delhi to Wildlife Institute of Dehradun, vide
custom letter dated 13.02.2012 through him and copy of letter
is now Ex.CW-2/7. That statement of accused Ex.CW-3/1
(colly) was recorded under Section 108 of the Custom Act by
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Sh. Baldev Singh, Superintendent and thereafter, accused was
arrested under Custom Act and produced before the Hon'ble
Court of Duty MM on 14.09.2014. That as per report received
from Wildlife Institute of Dehradun Ex.CW-1/1 confirmed that
25 shawls contained the hairs of Tibetan antelope (panthelops
hodgsoni). He stated that the accused was issued show cause
notice by Sh. V. K. Goel, Commissioner of Custom and on
17.12.2012. The Hon'ble Court of Sh. Gautam Manan, Ld.
ACMM, Patiala House, transferred the case to Wildlife
Department for investigation and for filing the complaint on
request of our department. That on 26.02.2013, office of the
custom transferred the case alongwith attested copies of case
records and case property to the WCCB.
4.2.1 During his cross examination, he stated that he has
not brought the original of the document Mark-A at the
stage of pre charge evidence on 10.03.2015 and Mr. Dipesh
Singhla was the AC Preventive at the time of his tenure as
Preventive Officer working as Air Customs Officer (ACO).
He further stated that the accused has arrived by virgin
airlines VS-300 which landed at 11.00 am on 13.09.2011
and the accused was carrying excess baggage and his body
language was suspicious. He voluntarily stated that as
accused was carrying two hand bags. He stated that there
was no prior intelligence information and a laptop was in a
check-in baggage. He further stated that the accused was
walking through the green channel and was intercepted at
the green channel. He denied the suggestion that accused
was in between red channel and green channel when he was
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intercepted. He stated that after getting the AC preventive
permission at around 11.30 am and thereafter around 12.30
pm, the accused was diverted alongwith his baggage to the
red channel for detail examination and after personal search
of the accused, the baggage were opened around 2.00 pm in
the presence of two panch witnesses. He stated that Mr.
Baldev Singh, Superintendent Customs Preventive was also
present. He stated that his educational qualification is B.Sc.
LLB and he does not possess any technical qualification to
ascertain the superfine quality of the shawls found in
possession of the accused. He stated that he does not
remember whether photography of the opening of bags was
done and no videography was also done at that time. He
stated that he informed Wildlife Department at about 2.00
pm to visit Airport and examine the shawls recovered from
the accused from wildlife angle and Insp. Aarti Singh from
Wildlife reached the airport after 5.00 pm. He stated that in
between 2.00 pm to 5.00 pm, they counted the shawls and
other items including laptops, I-pad Apple-64 GB, one
camera, two used mobile phones etc. alongwith excess
foreign currency. He stated that the panch witnesses were
the staff working at the airport and he does not remember
whether I-card of the panch witnesses were placed on
record. He stated that as an ACO his duty hours were from
09:00 am to 09:00 pm normally. He further stated that one
panch witness name was Dilip but he does not remember
the name of the other panch witness. He denied the
suggestion that he frequently meet the panch witnesses
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during his working hours. He stated that Inspector Arti
Singh from Wildlife was having one bag containing one
magnifying glass and microscope. That within 10 minutes
of arrival, the Wildlife Inspector started inspecting the
shawls presented to her for examination. He stated that he
cannot say time taken by Wildlife Inspector for examining
each shawls, however, she completed her examination at
about 7:00 pm. He stated that after examination Inspector
Arti Singh gave her preliminary report identifying 25
shawls as suspected shahtoosh shawls and the said report
was handed over to the AC Preventive. He stated that before
the Wildlife Inspector left at 07:15 pm, the baggage of the
accused was sealed with custom seal and after sealing
procedure was over, Inspector Arti Singh left their office.
He stated that the recording of the panchnama was started at
1.30 pm and it concluded at around 9.45 pm on the same day and accused was offered tea, coffee and dinner. It is correct that on statement of accused Ex. CW2/D1, the signature of accused at point 'A' bears the date 12.11.2011. The statement of the accused Ex. CW3/1 was not recorded in front of me. It is wrong to suggest that the statement of accused was recorded under duress and he was not offered tea or coffee. He stated that he cannot say whether the statement of accused was concluded on the next date during the odd hours as it was not recorded in front of him. He further stated that after the baggage of the accused were sealed with custom seal No. 6, it was shifted to custom bonded warehouse under the detention receipt Ex. CW2/6 CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 19 of 54 and the custom detention list was prepared by him on 13.09.2011. He stated that on the next day, an application was moved before the court seeking permission for further examination of case property from wildlife institute of India. He further stated that the permission from the court was received on 13.02.2012 and thereafter, it was sent to Wildlife Institute of India for further examination. He further stated that during that period the case property remained in the warehouse under the custom seal and he personally took the case property to Dehradun. He stated that he does not remember whether the present case was reported in media.
A print out generated from the internet of news clipping dated 15.09.2011 of Times Of India is shown to the witness and same is marked 'D1'. He stated that it is correct that the news clipping pertains to the present case and the photograph shown in the clipping was not taken in his presence.
The case property duly sealed with the court seal is produced and seal got broken. Case property taken out and shown to the witnesses and to a question, he replied that all the shawls produced today in the court are superfine quality of shawls and these are the shawls seized by them. He further stated that apart from these shawls 89 other shawls and 55 stoles which turned out to be pashmina shawls are also superfine quality.
He stated that he remained the officer in-charge of the custom case of the accused for about 6 months and CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 20 of 54 thereafter he was transferred. He denied the suggestion that the shawls shown from the case property today in the court were not recovered from the possession of the accused and they are falsely implanted upon him. He denied the suggestion that the accused always send the shawls for exhibition by courier and valuation of the shawls seized was recorded in the panchnama on the basis of estimates suggest by the wildlife officer.
4.3 CW-3 Sh. Baldev Singh deposed that on 13.09.2011, he was posted as Superintendent of Custom, Shift-A, IGI Airport, New Delhi and on that date, accused was intercepted with contraband and he recorded his statement u/s 108 of Custom Act, 1964 wherein, he admitted at page no.6 of his statement that out of 114 shawls recovered from him, 25 shawls are of superfine quality and same were made by his company out of wool purchased from a person of Nepalese citizen about three years ago and the said statement is ExCW3/1 colly which bears signature of accused at point A and of mine at point B on each page.
4.3.1 During cross examination, he stated that the usual working hours are in two shifts of 12 hours each from 9.00 am to 9.00 pm and 9.00 pm to 9.00 am and he is supposed to join the duty at 9.00 am/pm sharp. He stated that at the relevant time, he was working in Shift A and time of Shift A was from 9.00 am to 9.00 pm and he does not remember the time when the accused was brought to him for recording of statement. He stated that he does not remember the name of CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 21 of 54 the person who intercepted the accused while he was exiting from the green channel and he was present at the time of interception. He stated that he does not remember at what time, the accused was intercepted, however, it was day time. He stated that he does not remember when he started recording of statement of accused. He denied that suggestion that the statement of accused was recorded in the night. He voluntarily stated that it was recorded towards evening hours. He stated that it took him about 1-1½ hours in recording the statement, no one else was present at the time of recording of the statement of the accused and the statement was recorded after making the accused comfortable and offered him tea and water. He denied the suggestion that the statement of accused was recorded on early hours of 14.09.2011 instead of 13.09.2011. He denied that the statement of the accused was recorded beyond his duty hours. He stated that no superiors permission is required for recording of statement of the accused as he himself has the authority for the same. He stated that he does not remember of putting any question to the accused regarding his knowledge of shahtoosh. He denied the suggestion that Ex. CW-3/1 was recorded under duress and he was forced to write such statement. He voluntarily stated that the statement was recorded voluntary and the statement was written by the accused voluntary. He stated that he remember that on 13.09.2011, proceedings of other department particularly Wild Life commenced in this case. He stated that he does not remember whether the statement CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 22 of 54 of the accused was recorded by him prior to the proceedings recorded by Wild Life Inspector or after that. He stated that he recorded the statement u/s 108 Customs Act and he is empowered to do the same u/s 5 of the Customs Act. He stated that he does not remember when he left the office on 13.09.2011.
4.4 CW4 Ms. Aarti Singh deposed that on 13.09.2011, she was informed by Deputy Director Sh. Ramesh Pandey that a passenger has arrived at Terminal 3 of IGI Airport, by flight Vergin Atlantic, VS300 whose baggage is required to be examined from wildlife angle. She stated that she went to the IGI Airport at about 5.15 pm and contracted the AIR Custom Officer Sh. Achal Singh, who took him inside the airport where the passenger had been detained by the customs. She stated that she was told that his baggage has some shawls which needs to be examined and from his baggage, there were a total of 114 shawls to be examined. She stated that she took 2 hours to examine all the said shawls and gave her inspection report to the Assistant Commissioner of custom Sh. Dipin Singla and her inspection report is now ExCw4/1 which bears her signature at point A. She stated that as per her report, she found 25 shawls which appeared to be made of shahtoosh wool which is obtained from Tibetan antelope an animal registered in Schedule 1 of the Wildlife Protection Act and all the 25 shawls were tagged with paper tagged with signature of custom officer, two panch witnesses as well as passenger (accused) and also signed by him bearing custom seal no.6.
CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 23 of 54 The witness has shown 25 shawls and after seeing the same, witness has correctly identified the shawls as those shawls which were checked by her and the same is already ExCw2/4(colly)(total 25 shawls). She stated that each shawl also having the custom seal no.6 and each shawl bearing his signature at point B, signature of Sh. Achal Singh at point A, signature of accused at point C and two independent witnesses namely Dilip at point D and Jitender at point E. 4.4.1 During his cross examination, she stated that she is M.Sc in Zoology and she does not remember what were the qualifications required to be Wild Life Inspector. She stated that on 13.09.2011, she got the information from Sh. Ramesh Pandey, Regional Deputy Director to go to the Terminal 3 and examine the baggage of the pax from Wild Life angle as desired by Customs. She further stated that she does not remember whether she was informed in writing/person or through telephone. She stated that she was informed about 13.30 hours and she was posted at Delhi and after completing the daily, sealed samples inspection work, she left for the IGI Airport. She stated that her office does not maintain the records to show the in/out daily movement. She stated that Ex. CW-4/1 is an evidence that his Deputy Director was informed by Customs to send official to examine the baggage of the pax. She stated that at 5.15 pm, when she was taken to the arrival area of Terminal 3 of IGI Airport to examine the baggage of the pax, the Custom Officer did not show any detaining receipt of the pax. She stated that she also did not ask for any detaining receipt for CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 24 of 54 detaining the pax, but she was shown the baggages of the pax for examining and there were total 5 baggages of the pax, out of the five baggages, one was black colour American Tourister suitcase, the other was Green colour Samsonite suitcase. She stated that she does not remember the make or colour of the other three baggages. She stated that there was a total of 114 shawls out of the total 5 baggages and he personally counted the shawls while segregating to be in 114 numbers. She stated that on all the five baggages, there were airline tags to identify that the baggages belonged to the pax only. She stated that she did not sign the Panchnama dated 13.09.2011 before the Custom Officials or otherwise and she was carrying with her the magnifying glass and a microscope which was used by her to give the preliminary report after examination of the shawls of the bags and out of the 114 shawls which were examined by her, 25 numbers of shawls contained hair which appeared to be of Chiru (Tibetan Antelope). She stated that Shahtoosh is the underfleece of Tibetan Antelope which is covered further by guard hair. She stated that she is competent to do the abovesaid examination as she has undergone a week training programme at Wild Life Institute of India, Dehradoon to identify wild life items. She denied the suggestion that the number of shawls were 114 and they were infact, only 25 in numbers which appeared to be of Chiru (Tibetan Antelope/Panthlopes hodgsoni). She stated that she does not remember the colours of the 25 shawls examined by her. She voluntarily stated that they were of CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 25 of 54 various colours. She stated that she started examining the baggage containing shawls of bags from 5.15 PM onwards and the custom officials had been taking out of the shawls from belongings of the pax and same were handed over to her for examination. Apart from pax and custom officials, some witnesses were also present there who were present before hand in the room. She stated that when she reached Airport two witnesses were already there and Mr. Achal Singh, Customer Officer introduced them to her and she know their names but she does not know whether witnesses were passengers or staff of the airport authority. She denied the suggestion that shawls were present in the check-in bags only. She stated that there were other items in the baggages of the bags and the other items includes 55 stoles, perfume, readymade garments, laptops etc. She stated that the inspection of the shawls was concluded at 7.00 PM. She stated that the weight of the equipments i.e. microscope (40 X zooming capacity) and magnifying glass was about 2 Kg and they were of standard size and the preliminary report after examination of the shawls prepared by her is Ex. CW- 4/1. She stated that after the said preliminary examination conducted by the help of microscope and magnifying glass, she was certain that guard hair, Tibetan Antelope had been used in the shawls. She stated that she has not used other techniques which may be used for identifying the hair and she cannot quantify the accuracy of preliminary test. She stated that she had suggested that further test be also conducted on the suspected shawls. She stated that as per CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 26 of 54 Ex. CW-1/1 i.e. report of the expert is based on microscopic characteristic of hair (Cutticular and Medullary patterns) of the samples sent and compared with reference samples. She stated that the examination facility at Wild Life Institute of India are advanced with higher resolution/microscope and facility of comparison with reference sample on the same screen of their computer which was not available with her at the time of inspection. She stated that she cannot say that during preliminary examination of shawls under microscope what was the diameter of the guard hair observed by her. She further stated that the Ex. CW-1/1 also does not say anything about the diameter of the guard hair despite having the advanced examination facility. She stated that she has read about the average diameter of the guard hair of Tibetan antelope but she does not remember the same. She stated that she does not remember the unit of diameter of guard hair. She stated that she cannot confirm or deny that the diameter of guard hair of Tibetan antelope is 10-12 microns, also she cannot confirm or deny that the diameter of guard hair of pasmina is between 12-16 microns. She denied the suggestion that the unit above mentioned of guard hair between 10-12 and 12-16 microns can be of other animals/mammals based on age and breed. She denied the suggestion that the alleged shawls were not examined by her.
At this stage, case property produced with seal of court seal. Seal is broken.
CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 27 of 54 She denied the suggestion that case property produced today was not seized from the accused. She denied the suggestion that she had not examined the case property. It is correct that the crime was widely reported in Newspaper on 15.09.2011.
4.5 CW-5 K.K. Sharma deposed that at the time of filing of the present complaint, he was working as WLI in the office of Regional Deputy Director (NR) WCCB, New Delhi and he was authorized vide office order No.1/248/WCCB/NR/13/666 dt. 27.10.2014 and the same is Ex. CW5/1. Copy of Gazette notification is Ex. CW5/2. On 26.02.2013 office of the customs transferred the case alongwith the attested copy of the case record and case property to the office of the complainant. Original of handing ever and taking over memo is Ex. CW5/3 bearing his signature at point A. he deposed that thereafter a POR has been registered against the accused vide POR No. WCCB/NR Case No. 07/2013 dt.26.02.2013 and the case property was entered in the case property register Index No. 13 and the offence report dt. 26.02.2013 is Ex. CW5/4 bearing his signature at point A. The copy of Index Register is Mark as A in which case no. WCCB/NR 07/2013 dt. 26.02.2013 is mentioned at Serial No.13 and the same is shown at Point A. He stated that on 18.06.2014 the original case file / reports were handed over to him by Sh. Anis Aalam, ACG, IGI Airport, New Delhi. He stated that the handing over and taking over memo dated 18.06.2014 is Ex. CW5/5 bearing his signature at point A. He stated that on 19.09.2014, he CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 28 of 54 alongwith Ct. Ganesh visited to search / inspect the shops located at Lajpat Nagar and Saket based on the invoices found during the personal search of the accused at the time of arrest at IGI Airport, New Delhi on 13.09.2011 and when he reached at the shop I.e. Emma Ajch & Sons, I-82, 2nd Floor, Lajpat Nagar, New Delhi. the same was found locked and thereafter, he visited alongwith Ct. Ganesh at shop M/s Mirson Handicrafts, F-126, Ground Floor, Lajpat Nagar I, New Delhi. He stated that the address was found to be correct but the owner of the property stated that the proprietor of the M/s Mirson Handicrafts, F-126. Ground Floor, Lajpat Nagar I, New Delhi had left the shop one year back and shifted for new location and thereafter, he alongwith Ct. Ganesh visited to the shop M/s Kashmir Store, DLM Mall, Saket. New Delhi but on inquiry it was found that the proprietor of the said shop / store had left the same two years back. He stated that he prepared the inspection report and the same is Ex. CW5/6 bearing his signature at point A. and thereafter, after scrutiny of the documents and investigation report, he filed the present complaint in discharge of his official duty and the same is not Ex. CW5/7 bearing his signature at point A. 4.5.1 During his cross examination, CW5 stated that he is M. Sc (Zoology), and also Ph.D. From 2009 till date, he was posted as Wildlife Inspector (WLI). Presently he is Assistant Director, Incharge at Eastern Region (ER). He stated that vide Ex. CW5/3 the attested copy of the original case file and reports and case property was handed over and vide Ex.CW5/5 the original of the case documents was handed CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 29 of 54 over to him and the case property was bearing custom seal and in due process it was produced before the Ld. ACMM, THC, Delhi. He stated that he did not count the number of shawls of case property as it was sealed with custom seal. He voluntarily stated that the wildlife institute, Dehradun, seal was also there. He again said, initially, the case property was sealed with the custom seal when it was sent to Wildlife Institute, however, after examination Wildlife Institute of India put their seal on the pulanda of case property. He stated that the intimation to Chief Wildlife warden is not on record and he does not remember the name of the Chief Wildlife warden. He stated that in Ex. CW5/1 25 Shatoosh shawls are mentioned. He further stated that in the index Mark A at page 65, 25 shawls out of which only 5 shawls are mentioned as of Shatoosh. He stated that both the documents are correct and the copy of Mark A is now Ex. CW5/D1. He stated that after receiving the case property, the same was kept in the office of Regional Dy. Director of WCCB and the case property shall be identified through the identification mark i.e. Preliminary Offence Report (POR) number of the case. He stated that he has not filed copy of letter no.F248/WCCB/NR/12/438 dated 18.06.2014. He denied that inspection report Ex. CW5/6 is false and fabricated and he had not visited any of the shop mentioned in the report. He stated that there is no Mall in Saket by the name of DLM. He voluntarily stated that the name of the Mall was DLF. He denied the suggestion that Ct. Ganesh has not accompanied him during the inspection.
CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 30 of 54 He stated that he does not remember the batch number of Ct. Ganesh. He denied that he has filed the false and fabricated inspection report and that he is deposing falsely.
4.6 CW-6 S.R.V. Murthy deposed that in the year 2013, he was working as Regional Deputy Director, WCCB, (NR), New Delhi and after obtaining the report issued by Wild Life Institute of India vide their letter no. F#WII/WFC/F- 2138/2012 dated 03.09.2012 and after taking over the reports from Custom Office and after registration of POR dt. 26.02.2013, he had issued summons for the personal appearance for recording the statement of the accused vide summons WCCB O.R. No.07/2013/WCCB/NR/1063 dated 07.03.2013 and 07/2013 WCCB/NR/109 dt.02.04.2013 and the same are Ex. CW6/1 bearing his signature at point A and Ex. CW6/2 bearing his signature at point A respectively. He stated that during the investigation, he recorded the statement of accused on 15.05.2014 u/s 50(8) of the Wild Life (Protection) Act, 1972 in which accused stated that he had purchased the Shahtoosh wool from one Nepali person and the shawls were woven in his residence. That the statement of accused is Ex. CW6/3 bearing his signature at point A & B and signature of accused is at Point C & D. 4.6.1 During his cross examination CW6 stated that he is M.Sc. (Forestry) and he joined WCCB in the year 2012 as Regional Dy. Director (NR) and as RDD (NR) his duty and responsibilities was to collect intelligence and assisting investigation enforcement agency and coordination with CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 31 of 54 enforcement agency. He stated that he does not remember the date but he had recorded the statement of accused pursuant to summons Ex. CW6/1 and Ex. CW6/2. He stated that as per Ex.CW6/1, accused was summoned for 01.04.13. He stated that as per Ex. CW6/2, accused was summoned for 20.05.2013. He further stated that no statement dated 01.04.2013 and 20.05.2013 is on record as the same was not recorded on those dates. He stated that the statement of accused dated 13.05.2013 is on record and the same is recorded in my handwriting and not that of the accused. He stated that the summons for 13.05.2013 are not on record. He denied the suggestion that statement dated 13.05.2013 recorded under coercion or threat to the accused. He stated that there is no statement dated 15.05.14 on record or any correlated documents which shows that he was the part of the investigation. He denied that volunteered portion of his statement during pre charge evidence is wrong in the absence of relevant summons and statements of the accused. Thereafter complainant's evidence was closed on 24.08.2022. Recording of statement of accused under Section 313 Cr.P.C. concluded on 29.10.2022.
5 Accused in his defence evidence examined himself as DW-1 as under:-
5.1 DW-1 Mudasir Gulam Ahmed deposed that on 11.09.2011, he was returning from USA to India via Virgin Atlantic Airlines. At Terminal-3, IGIA, he was intercepted by the then Air Custom Officer Sh. Achal Singh when he was approaching CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 32 of 54 the green channel since he was not carrying any prohibited or dutiable goods, however, Sh. Achal Singh on opening his baggage found 114 shawls which he had taken from India for sale to USA. He stated that Sh. Achal Singh demanded Rs.2,00,000/- towards bribe for letting him go smoothly without any hassle. He further stated that he even out of tension and fear called at his residence twice asking them for arranging the money demanded by Sh. Achal Singh but his family members convinced him that he was not carrying any illegal goods and he shall not give up to the illegal demands of Sh.
Achal Singh. He stated that the superiors of Sh. Achal Singh called the Wildlife Inspector for examining the shawls suspecting it to contain shahtoosh. Ms. Aarti Singh, Wildlife Inspector arrived at T-3 Terminal and examined all 114 shawls and out of which, she suspected 25 shawls to contain shahtoosh which is derived from the endangered species called tibetian antelope / chiru. He further stated that he was arrested on the spot and kept in jail for 27 days without any fault of him. He stated that the said 25 shawls were later sent to Wildlife Institute, out of which 5 shawls randomly picked by Dr. S.P. Goel and examined the same and as per his report all five shawls contained hairs of tibetian antelope / chiru but he examined the shawls through microscopic test which is not appropriate to ascertain the presence of hairs of tibetian antelope / chiru, however, only micron test is appropriate to ascertain the presence of hairs of tibetian antelope / chiru. He stated that he is innocent as he was only carrying pashmina shawls and he has been falsely implicated in the present matter CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 33 of 54 as he did not adhere to the demand of Sh. Achal Singh. He stated that he has downloaded the literature for micron test of shahtoosh shawls from internet, which says that the diameter of shahtoosh should be between 10 and 12 microns. He stated that he is submitting certificate under Section 65B of Indian Evidence Act, to the effect of internet literature and the literature and certificate under Section 65 B of The Indian Evidence Act are collectively exhibited as Ex. DW1/1 (colly.). He stated that when he was apprehended on 13.09.2011, he has given his statement that he was carrying pashmina shawls and the corresponding invoices for the purchase of same from domestic market were also given to the Custom Officers, however, the Custom Officers made him write that he was carrying shahtoosh shawls which were manufactured by purchasing wool from a person of Nepali origin, which is false statement. He stated that the addresses of the dealer / shop owners were also investigated by the Investigating Officers and the addresses were found to be correct. He stated that on 13.05.2013 (already exhibited in the testimony of CW 6 as Ex. CW 6/3) one statement on his behalf was recorded which was not in his hand writing and the contents of which were copied from his previous statement on 13.09.2011. Even the panch witnesses which were called upon for their cross examination were never produced before the court for the same, as the department says that whereabouts are not known. 5.1.1 During his cross examination, to a specific question, DW1 replied that he has proof in respect of demanding Rs.2 lakhs as bribe by Sh. Achal Singh as he made a call twice to CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 34 of 54 his relative in respect of demand of Rs.2 lakhs during the investigation by Sh. Achal Singh and same is endorsed in the file that he had made a call in this respect, however, his relatives denied to give Rs.2 lakhs on the pretext that when he had not carrying illegal goods so there is no need to give Rs.2 lakhs.
He denied the suggestion that Sh. Achal Singh never demanded any money from him nor he made any such call to his relatives to fulfill his demand. He denied the suggestion that telephone was made to intimate about his arrest. He stated that he was carrying 114 shawls with him at the time of arrival at T-3 Termina and out of 114 shawls Ms. Aarti Singh, Wild Life Inspector suspected 25 shawls to contain shahtoosh. He stated that the above 25 shawls were sent to the laboratory of Wild Life Institute, Dehradun for examination and there Dr. S.P. Goel randomly selected 5 shawls and get tested the same, which were also found shahtoosh shawls containing species of tibetian antelope/chiru. He voluntarily stated that later on Dr. S.P. Goel get tested the remaining 20 shawls and all those 20 shawls were not carrying any shahtoosh which is derived from the species called tibetian antelope/chiru. He stated that in Ex.DW1/1 it is no where mentioned that microscopic test is not appropriate to ascertain the presence of hairs of tibetian antelope/chiru. He voluntarily stated that however, in Ex. DW1/1 at point A it has been mentioned that some pashmina appears similar to shahtoosh. He denied the suggestion that neither he was carrying the bills in respect CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 35 of 54 of shawls which he was carrying nor the same were provided to the Investigating Officer. He stated that no seizure memo was given to him in respect of bills taken by them. He stated that he has downloaded the literature mentioned in certificate under Section 65B IEA in the year 2013. He denied the suggestion that statement given by him before the Investigating Officers on 13.09.2011 at page No.6, in which he stated that he was carrying super fine quality shahtoosh shawls was correct and true. He stated that the panch witnesses were called on the addresses available with the Investigating Agency for their examination in chief but they were not found at their addresses as they left without address. He denied the suggestion that he is guilty of trading and carrying contraband items.
Defence evidence stands closed on 28.11.2023.
6 I have heard the final arguments and perused the record.
7 During final arguments, Ld. Counsel for complainant has submitted that during pre charge evidence and post charge evidence, the complainant has examined its witnesses from CW1 to CW6 to prove the case of complainant that on 13.09.2011 at about 11.05 am, the accused was found in possession of 25 shawls which prima facie appeared to be Shahtoosh shawls(out of which 5 were found to be Shahtoosh shawls on examination by Wild Life Institute). It is submitted that all witnesses examined on behalf of complainant has been consistant in their versions during their detailed and extensive CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 36 of 54 cross examination. It is submitted that accused could not even challenged properly, the report of examination of the Shahtoosh shawls which has been proved by the officer of Wild Life Institute of India as ExCW1/1. It is submitted that in its statement recorded u/s 108 of Customs Act, 1962, accused had himself admitted that the 25 super fine quality Shahtoosh shawls were prepared by him out of wool purchased by him in Sri Nagar 3 years ago from a person of Nepalize origin. It is submitted that in the statement given to CW6 by the accused on oath ExCW6/3 also, the accused has admitted that he had purchased the Shahtoosh wool from a Nepali person. It is submitted that on the basis of the material available on record, the complainant has proved its case beyond reasonable doubt. It is prayed that accused be convicted and punished accordingly.
Ld. Counsel for accused has vehemently oppose the case of complainant and has submitted that the case of complainant i.e. the complaint is liable to be dismissed as accused has been framed in the present case for not acceding to the demands of CW2 Achal Singh who had asked a bribe of Rs.2 Lacs from the accused on 13.09.2011 for going out hazel free when accused was returning from USA. Ld. Counsel for accused has submitted that statements of accused recorded by CW6 cannot be believed as same was recorded by CW6 in his own handwriting, even when same was not given by the accused, and accused has been just asked to sign the same. It is submitted that statement recorded by CW3 cannot be believed as same was recorded under duress and coercion as accused was kept without water/tea etc. for a longer time. It is further submitted that the case property examined at Wild Life CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 37 of 54 Institute of India regarding which a report ExCW1/1 is filed by CW1 was not the actual property seized from accused and same can be inferred from the facts that CW2 could not identify the same during post charge evidence, that as per microscopic examination conducted by CW4 Arti Singh, all 25 shawls were having guard hairs of chiru / tibetan Antelope, however, on the basis of microscopic examination only, it was concluded in Ex.CW1/1 that only five shawls contain guard hairs of chiru, that detention number is mentioned as 09242 on letter dt.13.02.2012 ExCW2/7, however, the original DR no. was 069242 and that CW2 who had demanded a bribe of Rs.2 Lacs from the accused had taken the case property to Wild Life Institute of India. It is further submitted that complainant has hopelessly failed to prove its case as no panch witnesses was examined by the complainant and in the absence of examination of panch witnesses, the search and seizure could not be proved by the complainant. It is further submitted that the case property allegedly examined at Wild Life Institute of India has not been properly examined as the same does not mentions the distinguishing features of the case property on the basis of which it has been concluded that the five shawls contained guard hairs of chiru. Ld. Counsel has submitted the process of seizure and search has also not been videograph /photograph and in the absence of such videography and photography and non examination of panch witnesses, the complainant could not prove the impartial search and seizure as per requirement of law.
8 Before proceeding ahead dealing with rival contentions of both the sides, it is advisable to refer to section 51 of Wild Life Protection CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 38 of 54 Act, 1972 for which accused is sought to be prosecuted in the present matter by the complainant.
Section 51 of the Wild Life (Protection) Act 1972 :
Penalties. -
(1) Any person who contravenes any provision of this Act (except Chapter V-A and section 38-J) 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 [one lakh rupees] or with both:Provided that where the offence committed is in relation to any animal specified in Schedule I [****] 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 [or where the offence relates to a specimen of a species listed on Appendix I of Schedule IV], 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 [twenty-five 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 the imprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less than [one lakh rupees]. (1-A) Any person who contravenes any provisions of Chapter V-A, 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 [twenty-five thousand rupees].(1- B) Any person who contravenes the provisions of section 38-J 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.(1-C) 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 CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 39 of 54 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.(1-D) Whoever, abets any offence punishable under sub-section (1-C) 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 of 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.
(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 1959), 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 V-A unless such person is under eighteen years of age.
9 From the perusal of record and consideration of submissions including written submissions and case law, it can be noted that in the case at hand there is no doubt or dispute with regard to fact that CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 40 of 54 accused was coming on 13.09.2011 from Washington DC by flight no.VS300. The identity of accused is not disputed by the accused. The main defence of accused in the present case is based upon the malafide intention of CW2 who was posted as preventive officer at IGI Airport, the delay in sending the case property to Wild Life Institute of India, lack of knowledge of the accused regarding the presence of guard hair of chiru / tibetan Antelope in the fine quality shawls, the dispute regarding identity of case property, improper examination of case property, non examination of panch witnesses, statement of accused recorded under duress u/s 108 of Customs Act, 1962. The court shall proceed now to discuss the material contention/ counter contentions of the parties advanced during final arguments / rebuttal arguments.
(1) Delay in sending case property to Wild Life Institute of India and Issue of identity of case property :
The Ld. Counsel for accused has pointed out that there is inordinate delay in sending the case property to the Wild Life Institute for examination and it is also on record that case property was taken to the Wild Life Institute of India by Sh. Achal Singh CW2 who had demanded the bribe of Rs.2 Lacs from the accused. It is submitted that case property was seized with DR no.069242, however, in letter dt.13.02.2012 ExCW2/7, the DR number was wrongly mentioned as 09242. It is submitted that as per the testimony of CW2, the permission to send the case properties for examination at Wild Life Institute of India was received vide order dt.13.02.2012, which shows till 13.02.2012, the case property was with custom department and there was a very high probability for tempering of case property. It is vehemently submitted that tempering of case CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo
41 of 54 property can be inferred from the fact that CW2 during his examination at post charge stage, could not identify the case property.
The Ld. Counsel for the complainant has submitted that all the above allegations are vague and bald in nature and same does not affect the case of complainant. It is submitted that the custom department had timely applied to the court for permission to send the case property to Wild Life Institute of India for further examination and on getting the permission from the Ld. Court, the custom department had immediately sent the case property to Wild Life Institute of India through its officer as at that time the investigation was under custom department only. It is submitted that the accused is alleging or disputing the identity of case property, without any basis.
From the consideration of the submissions and from the perusal of record, it is noted that the custom department had kept case property with it and taken a considerable time in sending the case property to Wild Life Institute of India, however, that in itself is not sufficient to dispute the identity of case property and to allege the tempering with the case property. The facts that the case property had remained in the ware house of custom department and officer of custom department i.e. CW2 had taken the case property to Wild Life Institute of India are also not grounds in itself to allege tempering in the case property without any specific averment or proof regarding the tempering in case property. (2) Malafide intention of CW2 Achal Singh :
It is submitted by Ld. Counsel for accused that the only reason of the proceedings initiated against the accused in the present case is CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo
42 of 54 that Sh. Achal Singh CW2, who was posted as preventive officer at IGI Airport on 13.09.2011, had demanded a bribe of Rs.2 Lacs from the accused and its refusal by the accused as he was not carrying anything with him prohibited by law. It is submitted that accused has put relevant questions / suggestions to CW2 during his cross examination and had also mentioned about the same fact during recording of statement u/s 313 Cr.P.C. It is submitted that as the bribe was demanded at the time when no one except accused and CW2 Achal Singh was present, there cannot be any proof regarding the demand of bribe from CW2 Achal Singh from the accused. It is submitted that examination of case property by CW4 Arti Singh was influenced by CW2 Achal Singh, who had also tempered with the case property as he himself has taken the case property to Wild Life Institute of India, Dehradun.
Ld. Counsel for complainant has vehemently submitted that all the allegations by the accused against CW2 Achal Singh are false and frivolous. It is submitted that for an accused, it is very convenient to allege such demand of bribe by the investigating / preventive officer, when he is caught by such IO or PO. It is submitted that CW4 Arti Singh or the Wild Life Institute of India could not have been influenced by CW2 Achal Singh, who have opined categorically that five shawls out of the shawls put to examination contained the guard hair of chiru / tibetan antelope.
The court finds some merits in the submissions of Ld. Counsel for accused that the stand of accused has been categorical that he had been demanded bribe by CW2 Achal Singh. However, the fact that the defence of accused has been the same at all the stages of the trial is not sufficient to prove that the defence of CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 43 of 54 accused is true as well. The fact that defence is same throughout the trial may be one of the factors in reaching the conclusion that accused is telling the truth, however, the same in itself is not sufficient. It is noted that though, accused has stated at every opportunity before the court during trial that case against him was prepared falsely by CW2 Achal Singh as accused has refused the payment of Rs.2 Lacs as bribe to him, however, it is surprising to note that neither accused has placed on record any complaint made by accused to the Vigilance officer of custom department against Mr. Achal Singh about the fact of his asking bribe from the accused nor any such submissions have been made during final arguments. Even no reasons have been stated for not making any such complaint against him. In the absence of any independent complaint made by accused to the department where CW2 Achal Singh is posted as preventive officer, the allegations of the accused about the asking of bribe by CW2 Achal Singh seem to be mere bald allegations bereft of any substance or merits. (3) Non examination of Panch witnesses by the complainant :
It is submitted by Ld. Counsel for accused vehemently that the custom department has not followed the procedure for search and seizure in searching an seizing the case property. It is submitted that two persons were allegedly joined as panch witnesses, however, for reasons best known to the complainant and without any explanation, only one of them was cited as complainant's witness and the other person has not even been cited as panch witness. Further, it is submitted that even one of two panch witnesses, cited as complainant's witness has not been examined by the complainant. It is submitted that the reasons given by CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo
44 of 54 complainant's witnesses for non examination of one panch witness cited as complainant's witness is vague. It is submitted that in the absence of proving of panchnama by any of the panch witness, same cannot be read in evidence and the complainant cannot prove the search and seizure of anything from the accused. Ld. Counsel for accused has relied on judgment Rajesh and Another vs State of Madhya Pradesh, 2023 SCC Online SC 1202, wherein it is observed by Hon'ble Apex Court that :
29. That apart, the manner in which the Investigating Officer (PW-16) went about drawing up the proceedings forms an important issue in itself and it is equally debilitative to the prosecution's case. In Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay, this court noted that the primary intention behind the 'panchnama' is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama ca be used as corroborative evidence in the court when the respectable person who is a witness thereto gives evidence in the court of law under Section 157 of the Evidence Act. This court noted that Section 100(4) to Section 100(8) Cr.P.C stipulated the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Cr.P.C for the purposes of a valid panchnama:
(a) All the necessary steps for personal search of officer(Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real, CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo
45 of 54
(b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.
(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaced which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.
(d) The I. O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I. O.
(e) Place, name of the police station, Officer rank(I.O), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.
(f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.
(g) Any overwriting, corrections and errors in the Panchnama should be attested by the witnesses.
(h) If a search is conducted without warrant of court Under Section 165 of the Code, the I. O. Must record reasons and a search memo should be issued.
30. It was held that a panchnama would be inadmissible in a Court of law, if it is recorded by the Investigating Officer in a manner violative of Section 162 Cr.P.C as the procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses themselves and it should not be recorded in the form of examining witnesses, as laid down in Section 161 Cr.P.C. This court concluded, by stating that the entire panchnama would not be liable to be discarded in the event of deviation from the procedure and if the deviation occurred due to a practical impossibility, then the same should be recorded by the Investigating Officer so as to enable him to answer during the time of his examination as a witness in the Court of law.
Ld. Counsel for complainant has submitted that panch witnesses could not be examined by complainant as panch witnesses who were joined during investigation, were not traceable at their given addresses. It is submitted that the submissions made CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 46 of 54 on behalf of complainant that in the absence of panch witnesses, the complainant cannot prove the search and seizure is without any authority of law. It is submitted that CW2 and CW4 have identified their signatures on panchnama at point B & C respectively. It is submitted that complainant has proved the panchnama and search as well seizure as per the procedure established by law.
It is noted that two witnesses were cited as panch witnesses namely Sh. Dilip Kumar and Sh. Jitender Gujar, in the panchnama ExCW2/5. The search has allegedly been conducted in the presence of these two panch witnesses. The perusal of cross examination of CW2 shows that he has deposed that panch witnesses were staff working at the airport. Though it is alleged that these panch witnesses were not examined as these witnesses were not traceable at the addresses of these witnesses, however, complainant has not placed on record any fact from which it could be inferred that complainant had made some serious efforts to trace these witnesses apart from placing on record the service report of court notice regarding non service to one of the panch witness. If CW2 has correctly testified during cross examination that Sh. Jitender Gujar and Sh. Dilip Kumar were the staff working at airport, it is hard to believe that they were non traceable at the relevant point of time as the employer of panch witnesses must be having in its record the permanent address and phone number. No efforts has been made to serve to the panch witnesses through the airport authority and at the same time, addresses of these panch witnesses were not sought to be obtained from the said authority. The proof of Panchnama by CW4 is doubtful as during her examination-in-chief, CW4 did not testify that she had witness the process of search and seizure and CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 47 of 54 just deposed that all the 25 shawls were tagged with paper tagged with signature of custom officer, two panch witnesses, passenger (accused) and her signature. However, during her cross in post charge stage, she has refused signing Panchnama. The court does not appreciate the submissions advanced on behalf of complainant that the panchnama ExCW2/5 has been properly proved by CW2 Achal Singh as per procedure of law as ExCW2/5 is not just any other document which is written by CW2, but the proof and evidentiary value of the same is to be determined on the basis of proof of impartiality of the search and seizure, which could have been proved by the independent witness. The submissions of Ld. Counsel for complainant seems to suggest that there is no sanctity of signing of Panchnama by panch witnesses. In the absence of proof of Panchnama ExCW2/5 by any of the Panch witnesses, the search and seizure can not be said to proved beyond doubt, as per the rules.
In view of the above discussion, it can be concluded that the process of search and seizure was doubtful and the complainant has not been able to prove the impartial search and seizure as per provisions of law so as to prove the seizure of case property from the accused.
4. Scientific Examination of case property :
It is submitted by Ld. Counsel for complainant that from the scientific examination of case property at Wild Life Institute of India and its report ExCW1/1, it has been proved beyond reasonable doubt that five shawls out of 25 shawls sent to scientific examination at Wild Life Institute of India, contained guard hair of chiru / tibetan antelope. It is submitted that Wild Life Institure of CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 48 of 54 India is very reputed institute and is acknowledged internationally.
It is submitted that its examination and report is beyond any doubt. It is submitted that CW1 Dr. S. P. Goel during his examination has proved the report ExCW1/1 and ExCW1/2. It is submitted that once it is established that case property contained guard hair of chiru / tibetan antelope, even the knowledge of accused about the same is relevant, though, knowledge has also been proved by the complainant.
Ld. Counsel for accused has vehemently submitted that the examination of case property was not done properly at the Wild Life Institute of India at Dehradun. It is submitted that both preliminary and the final analysis done by CW4 and CW1 respectively has been done by microscopic examination. It is submitted that there was no point in examining the property by way of microscopic examination during final analysis when the properties were examined through microscopic examination during preliminary examination, specially when there exist better way of examination of case property as admitted by CW4 during his cross examination. It is further submitted that report of examination ExCW1/1 is vague and does not assist the court in arriving at its decision as to whether the case property contained the guard hair of chiru / tibetan antelope, as it does not mention the distinguishing features of guard hair of chiru / tibetan antelope found during the examination of CW1. Ld. Counsel for accused has relied upon the following judgment of Hon'ble Apex Court in support of his case :
Chennadi Jelapathi Reddy vs Baddam Pratapa Reddy, (2019) 14 Supreme Court Cases 2020, wherein it is stated that :
10. By now it is well settled that the court must be cautious while evaluating expert evidence, which is a CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 49 of 54 weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the court may seek independent and reliable corroboration in the facts of a given case.
Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it.
2. Prem Sagar Manocha vs State (NCT of Delhi), (2016) 4 Supreme Court Cases 571, in which a judgment Ramesh Chandra Agrawal vs Regency Hospital Ltd., is referred and wherein it is stated that :
18. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case.
The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
3. Pattu Rajan vs State of Tamilnadu, (2019) 4 Supreme Court Cases 771, wherein it is stated that :
51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise alongwith his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature and the court is not bound by the evidence of the experts.
As far as the examination of case property and examination of expert witness CW1 is concerned, the court is convinced with the submissions advanced on behalf of accused that expert is to give its opinion to assist the court and it is for the court to arrive at its decision on the basis of material placed before it including the expert evidence. There is no doubt that out of the examination of CW4 and exmination of CW1, one is not proper as both the CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 50 of 54 examinations are microscopic examination, however, result is different regarding number of shawls to contain the guard hair of chiru / tibetan antelope. The examination report ExCW1/1 does not mention any feature, which makes it different from any other material and on the basis of which, it was concluded that case property contained the guard hair of chiru in five shawls. It is further important to point out that sample taken from the shawls for the examination of the same, has not been placed on record by the complainant or by CW1.
The examination report Ex.CW1/1 cannot be considered to be a true and fair examination of case property as same does not mention any distinguishing feature which might have been observed by CW1 in the case property during examination of case property, on the basis of which it was concluded to have the guard hair of chiru / tibetan antelope and also as no other technique was adopted for conclusive examination, when the property was already examined by way of microscopic examination. Further, the non placing on record the sample examined by CW1, the result of examination ExCW1/1 seems to be doubtful.
(5) Statement of accused u/s 108 of Customs Act and statement of accused u/s 50(8) of Wild Life Protection Act 1972 as basis of conviction:
It is submitted by Ld. Counsel for complainant that in statement on oath recorded u/s 108 of Customs Act and statement of accused u/s 50(8) of Wild Life Protection Act 1972, the accused has categorically admitted that he had purchased the shahtoosh wool from a person of Nepali origin and had got woven the shahtoosh shawl from the local weavers in Sri Nagar. It is CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo
51 of 54 submitted that above two statements on oath are admissible before the court. It is submitted that when accused has himself admitted that he purchased the shahtoosh wool from a person of Nepali origin, from which it can be inferred that accused had knowledge about the fact that the shawls contained the guard hair of chiru / tibetan antelope. It is submitted that said admission is sufficient to convict the accused.
It is submitted by Ld. Counsel for accused that statement recorded under Wild Life Act is not in the handwriting of accused and he had been made to sign this statement recorded itself by the department without the dictation of accused. It is further submitted that statement under custom Act was recorded under duress keeping the accused hungry and thirsty for a long time. It is submitted that accused was asked to write the statement under Customs Act on the dictation of concerned officer. It is submitted that statement on oath under Customs Act and the Wild Life Act are not sufficient to convict the accused as same is required to be corroborated independently.
It is noted that statement recorded under Wild Life Act is not in the handwriting of accused and it was admitted by CW6 S. R. V Murthy that the statement of accused Ex.CW6/3 is not in the handwriting of accused. As far as statement recorded under the Custom's Act ExCW3/1, it is important to point out that for the purposes of conviction of accused on the basis of statement recorded under Customs Act, it is necessary that it should be corroborated by independent evidence. It is worth noting that even if it is believed that accused has made confession regarding his knowledge of the fact that the case property contain guard hair of CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 52 of 54 chiru / tibetan antelope, the same is very weak type of evidence against the accused and is not supported by any independent corroboration. In this regard, it is important to refer to the observation of Hon'ble Apex Court in Vinod Solanki vs Union of India & Anr., Civil Appeal no.7407 of 2008 wherein it is stated that:
26. Yet again in Romesh Chandra Mehta vs. State of West Bengal [(1969) 2 SCR 461] although this Court held that any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence, but as indicated hereinbefore, he being an officer concerned or the person in authority, Section 24 of the Indian Evidence Act would be attracted.
27. Reliance has been placed by the Tribunal on the decision of this Court in State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600], commonly known as the 'Parliament Attack case.' Therein also this Court held:
"We start with the confessions. Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. 'Confessions'-which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Indian Evidence Act. An admission is a statement-oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While Sections 17 to 23 deals with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo
53 of 54 the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression 'appears' connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer."
(emphasis supplied)
31. In K.I. Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin [(1997) 3 SCC 721}, a finding of fact was arrived at that the confession was voluntary in nature. Reliance therein for the purpose of arriving at the guilt of the accused was not only placed on the statement given under Section 108 of the Customs Act, 1962 but also on the deposition of evidence of P.Ws. 2, 3 and 5.
32. In Assistant Collector of Central Excise, Rajamundry vs. Duncan Agro Industries Ltd. & Ors. [(2000) 7 SCC 53], this Court opined that an authority under the Act while recording a statement need not follow the safeguards provided in Section 164 of the Code of Criminal Procedure, 1973. Therein also, it was held:
"The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinized by the court in the same manner as confession made by an accused person to any non- police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings."
(emphasis supplied) Yet again it was observed:
CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo 54 of 54 "We hold that a statement recorded by Customs Officers under Section 108 of the Customs Act is admissible in evidence. The court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act."
10 In the case at hand, the alleged confession ExCW3/1 & ExCW6/3 is not corroborated by any independent evidence. No such corroboration has been cited by the complainant so as to base the conviction of accused on the basis of confession of accused ExCW3/1. Even the case property has not been properly examined as discussed above and the examination report does not inspire the confidence of the court, from which it could have been believed that some of the shawls actually contained the guard hair of chiru / Tibetan Antelope.
In view of the above said discussion, the conviction of accused cannot be based on his statement u/s 108 Customs Act ExCW3/1.
11 On the basis of above discussion, the complainant could not prove the fact the guilt of the accused Mudasir Gulam Ahmed Mugloo beyond reasonable doubt. Accused is accordingly acquitted for the offence u/s 51 of the Wild Life (Protection) Act 1972, subject to his furnishing bail bond u/s 437A of Cr.P.C.
Digitally signed by MAYANKAnnounced in the open court MAYANK MITTAL
Date:
MITTAL
on 17th September, 2024 2024.09.18
17:31:47
+0530
MAYANK MITTAL
ACJM (Spl. Acts), CENTRAL
TIS HAZARI COURTS, DELHI
CC No. 525731/20 WCCB vs Mudasir Gulam Ahmad Mugloo