Delhi District Court
Judgment/Wildlife vs . Mohd. Ishaq Baig / C.C.No ... on 11 January, 2010
1
IN THE COURT OF SH. DIG VINAY SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE(SPL. ACTS):CENTRAL:TIS HAZARI COURTS,
DELHI
In re:
WILDLIFE
(THROUGH R.S.TYAGI, WILD LIFE INSPECTOR, DELHI)
.....COMPLAINANT
VS.
MOHD. ISHAQ BAIG ........ACCUSED
CASE NO. 133/1
DATE OF RESERVATION OF JUDGMENT: 11.01.2010.
DATE OF PRONOUNCEMENT OF JUDGMENT: 11.01.2010
JUDGEMENT
(a) The serial no. of the case : 02401R0016822006
(b) The date of commission of offence : 03.03.99
(i) The name of complainant : Wildlife (Through R.S.Tyagi, Wild life
Inspector,Delhi)
(d) The name, parentage, residence Mohd. Ishaq Baig S/o Sh. Gulam Mohd. Baig,
of accused : R/o 5311, Kucha Rehman Chandani Chowk,
Delhi and permanent resident Mohalla, Hawal
Gasiyar near Firdous Cinema, Srinagar(J&K).
(e) The offence complained of/ proved : U/s 49, 49B(1) read with section 51 of the
Wildlife Protection Act, 1972.
(f) The plea of accused : Pleaded guilty.
(g) The final order : convicted.
(h) The date of such order : 11.01.2010
Brief statement of the reasons for the decision:
1. This is a complaint case against sole accused for offence under The Wild Life Protection Act 1972.
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2. Briefly, the case of complainant is that on 3rd March 1999, the wildlife officials conducted a raid in house No 5311, Kuchha Rehman, Chandni Chowk, Delhi, which was a rented accommodation of the accused. The accused was found in possession of 159 shawls which were suspected to be made from 'Shatoosh' derived from Tibetan Antelopes, in different ratio with other wool. It is a banned 'animal article' under The Wild Life (Protection) Act 1972. The accused failed to show any legal source for its procurement or any licence for possessing the said shawls. The shawls were, therefore, seized under section 50 (1) ( c ) of The Wildlife (Protection) Act 1972. The accused was arrested and the shawls were sent to the wildlife Institute of India, on 4th of April 99, for its scientific analysis. The said Institute, vide its report dated 23rd July 1999, confirmed that out of 159 shawls, 10 shawls contained the Guard Hairs/ fibres of the Sahtoosh variety of Tibetan Antelopes. Therefore, the present complaint was filed for the offence under section 51 of the Act read with section 49 and section 49B (1) of the said Act. Complaint is filed by the wildlife Inspector, under section 55 of the Act.
3. On 9th of August 1999 the accused was summoned for the said offences. Thereafter three recovery witnesses, i.e. the wildlife Inspectors, namely, Sh. R.S. Yadav, S.S.Negi and R. R. Meena were examined in the precharge evidence as PW 1, PW 3 and PW 4, respectively. Complainant also examined Dr. S.P.Goyal as PW2, who had scientifically examined the shawls.
4. On 24th of December 2003, charges were framed against the accused for the above mentioned offences to which the accused claimed trial.
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5. After framing of charges, the accused crossexamined PW 1 and 4 in terms of section 246 (4) of the Criminal Procedure Code, but the accused did not crossexamine PW 3, who was also a recovery witness. The three recovery witnesses, that is PW 1, 3 & 4 deposed, that on 3rd of March 1999, on receipt of a secret information against the accused, the premises of the accused was raided by them along with two wildlife guards. When the raiding team reached the premises, the accused was not physically present and other tenants were present at the premises. The accused arrived there later and, in presence of the accused, his premises was searched and from inside the three suitcases kept in his room, total 159 shawls, which were suspected to be made from Shahtoosh derived from Tibetan Antelopes, were recovered, which were taken into police possession vide seizure memo exhibit PW 1/A, after keeping them in the same three suitcases and sealing them with the seal of Chief wildlife warden. Thereafter, the case property and the accused were produced in the court and pursuant to the orders of the court the recovered material was sent to the wildlife Institute of India for its scientific analysis. During analysis, out of 159 recovered shawls, 10 shawls were found to be containing Guard Hairs/fiber of Sahtoosh Tibetan Antelope. The witnesses identified these 10 shawls in the court as exhibit PW C1 to C 10.
6. All the three recovery witnesses that is PW 1, 3 and 4 were subjected to cross examination by the learned counsel for the accused, in detail. PW1 was crossexamined, both at the precharge stage on 19th October 2000 and on 24th of November 2001, as well as after charge on 14 Feb 2005. Despite cross examination of this witness nothing Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 3 of 33 4 material could be brought out on record in order to impeach the trustworthiness or creditworthiness of the witness. In the cross examination of PW 1 not even a single suggestion was put by the accused to the witness that no such recovery was effected or that the accused was not present in the premises at the time of search and recovery. No suggestion was made by the accused to the witness that the room was not in exclusive possession of the accused or, to deny the very possession of the room by the accused. Merely because it has come in evidence of the witnesses that two persons were present in the premises does not mean that those two persons were also occupying the same room which was occupied by the accused. It may be a case that they were neighbours or occupants of adjacent rooms. The accused did not give any suggestion to this prosecution witnesses No 1 regarding false implication of the accused or any motive for the false implication of the accused.
7. Similarly, nothing material could be brought out in the cross examination of PW 3 S. S. Negi, the wildlife Inspector, who was crossexamined on 7th July 2001, that is, at the stage of precharge evidence. This witness was not crossexamined by the accused in Post charge evidence.
8. Similarly, nothing material could be brought out on record from the cross examination of PW 4 R. R. Meena, the wildlife Inspector, from his cross examination conducted in the precharge evidence on 7th July 2001 as well as in the cross examination conducted after framing of charges on 14 Feb 2005.
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9. PW 2 Dr S. P. Goyal, conducted scientific analyses on the shawls and, he was initially examined in precharge evidence on 29th of November 2000, when he simply deposed that out of the 159 shawls examined by him 10 shawls were of Sahtoosh derived from Tibetan antelopes. In this regard he proved the report of the director of the wildlife Institute as exhibit PW 2/A dated 23rd July 1999. This witness was crossexamined by the accused in which he admitted that the report exhibit PW 2/A does not mention his name to show that he prepared the report or submitted his report to the director. However he submitted that he had prepared a separate report of inspection of the above shawls although the said report was not filed on judicial file. He admitted that the report exhibit PW 2/A does not mention about the percentage of fiber of Sahtoosh in the 10 shawls. He also admitted that those 10 shawls of Sahtoosh had fiber of other wool also which was not mentioned in the report exhibit PW 2/A. The report exhibit PW 2/A also does not mention about the details of the scientific test performed by him while examining those 10 shawls.
10. Thereafter, my learned predecessor court, vide its order dated 28 of April 2008, recalled PW 2 the expert, for his reexamination, for the reasons contained in the said order. PW 2 was thereafter again examined on 18th of April 2009 in which PW 2, in detail, deposed that he is working as a scientist for the last 22 years and is examining various wildlife offences cases. The witness deposed that he is M.Sc. and PhD in Zoology and he acquired experience in various laboratories in the United States of America. The witness deposed that in April 1999, when he was working as a scientist and nodal officer at the Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 5 of 33 6 wildlife forensic cell, the letter dated 4th April 1999 was marked to him by the director on 5th April 1999, along with three sealed suitcases. The case property was opened and found to be containing 159 shawls in total. All the 159 shawls were examined with the help of microscope and the Guard Hairs were picked up from all the 159 shawls. The Guard Hairs collected from all the 159 shawls, were examined and compared with the reference samples of the Tibetan Antelopes kept in the Institute. All the 159 shawls were given numbering as 149/159/1 to 149/159/159. The witness deposed that 10 shawls from the 159 shawls, which were sent for examination, contained Guard hairs/fibers which matched with the reference Guard Hairs of Tibetan antelopes. The witness had also brought the official file maintained in the office of the witness and he proved his report dated 23rd July 99 bearing his signatures and signatures of the lab technician Mr. C. P. Sharma as exhibit PW 2/B and, thereafter, the report was signed by the director as exhibit PW 2/C bearing his signatures.
11. The witness was again subjected to crossexamination by the accused in detail, in which the witness specified that the samples of wool texture of each shawl was taken separately, which were kept in separate paper bags. He deposed that Tibetan Antelopes has two types of hairs, called guard hairs and wool hairs. The guard hairs and wool hairs are distinguishable as the Guard Hair is coarse and thick whereas the wool hair are soft and thinner. The Guard Hair is uppermost 'fur' whereas, wool hair is under the Guard Hair and that it is softer. The witness deposed that Pashmeena Goat 'fur' is also soft but not as soft as that of 'Tibetan antelopes' and that the 'Pashmeena fur' and 'Tibetan Antelopes Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 6 of 33 7 fur' can be distinguished by DNA test also besides microscopic examination. It is deposed that both microscopic examination and DNA test are approved tests and techniques for species examination and identification. He deposed that Tibetan Antelopes Guard Hairs are entirely different from its wool hairs and also from the Pashmeena hairs. The witness deposed that it took about 10 minutes in microscopic examination of one sample and he prepared the notes with the slides of the 10 shawls in which Tibetan Antelopes hairs were found and on the basis of that notes he prepared the draft letter. The witness did not bring those notes and slides with him at the time of deposition in the court. The witness was also not sure whether those notes and slides were preserved or not. The witness specifically deposed that the shawls were examined with respect to the Guard Hairs only and not with respect to fiber because the identification was based on the Guard Hairs only in this case. The witness also admitted that the Guard Hairs and soft wool of Tibetan Antelopes is shed off by the animal in small proportions which falls away and it was possible that the Guard Hairs of Tibetan Antelopes got mixed with other wool or hairs during processing or weaving or maybe at the time of collection of wool and hairs from the ground or otherwise. The witness expressed his ignorance about the percentage of Guard Hairs in all the 10 shawls, because the shawls were examined only regarding the presence or absence of the wildlife hairs. The witness also deposed that it was quite possible that small fraction or percentage of Guard Hairs got mixed into the other wool in unguarded moments during processing or weaving. The witness stated that his report was basically confined to the Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 7 of 33 8 presence or absence of the Tibetan Antelopes hairs in the shawls and he did not examine the percentage of those hairs present in the shawls.
12. All the incriminating evidence existing against the accused was put to him, before the re examination of PW2 and also after his reexamination, in his examination under section 313 read with section 281 of the Criminal Procedure Code, on 30th of March 2005. When the accused was questioned that on 3rd March 1999, on receipt of information by the wildlife Department regarding the work of Sahtoosh shawls being carried on in the house and raid conducted by the PW 1, 3 & 4 along with the two wildlife guards, the accused replied that he has no knowledge about it. The accused, in reply to the next question, stated that neither he was not present at the time of the raid, nor the premises was in his exclusive possession, and that his signatures on the seizure memo was obtained in the office of the wildlife Department in the evening, when he went there and, he was arrested in the evening. During crossexamination of the recovery witnesses PW 1, 3 & 4 no such suggestion was made by the accused to any of the prosecution witnesses that he was not physically present at the time of search of his premises or that he was arrested, or that his signatures on the seizure memo were obtained at the office of the wildlife Department in the evening when he went there. Accordingly, in absence of any such suggestion to the recovery witnesses In their crossexamination, this stand taken by the accused that he was not present at the time of search or that his signatures were taken in the office of the wildlife Department or that he was arrested from the office of the wild life Department is nothing but an afterthought. Absence of any such suggestion during Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 8 of 33 9 crossexamination of the prosecution witnesses cannot be made up by a statement under section 313 Cr.P.C. At that stage the prosecution does not get an opportunity to question the accused about his stand in the statement under section 313 Cr. P. C.
13. Reliance in this regard is placed upon the case of Devender Kumar Singla vs. Baldev Krishan Singla 2004 II AD (Cr.) SC 217 wherein it was observed by Hon'ble SC, that the statement under section 313 Cr. P. C. is not evidence. It is only the accused's stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice. Absence of any suggestion during crossexamination cannot be made up by a statement under section 313 Cr.P.C. At that stage the prosecution does not get an opportunity to question the accused about his stand in the statement under section 313.
14. When the report exhibit PW 2/A was put to the accused in his examination, the accused stated that the report was inadmissible as it was wrong and no test was performed and none of the shawls contained any Sahtoosh derived from Tibetan Antelopes guard hairs/ fiber.
15. The accused did not opt to lead any evidence in his defence.
16. After reexamination of PW2, the accused was further examined under section 313 Cr. P. C. through his counsel in which he denied the evidence of the expert in Toto stating that no particular test or practical examination was spelled out in the report and that statement made by the witness after a long gap, on sheer memory, was unbelievable Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 9 of 33 10 particularly when PW 2 is an expert who undertakes such kind of examination in a large number of cases and also on the ground that the shawls were not tested with reference to the inner fibers and that the shawls were not opened and examined by the witness personally.
17. Before proceeding further let it be mentioned here that as held by the division bench of Hon Delhi High Court in the case of Cottage Industries Exposition Ltd and another vs. Union of India and another, 2007( 4) JCC 2797, it is no more res Integra that shawls made of Sahtoosh derived from Tibetan Antelopes would be 'animal article' under The Wildlife Protection Act .
18. Learned prosecutor for the State argued that the case against the accused has been proved beyond reasonable doubt and the accused needs to be convicted.
On the other hand learned counsel for the accused has argued that mere possession of shawls is not an offence under The Wildlife Protection Act and what is barred in section 49 of the Act is purchase, receipt or acquiring an animal article otherwise than from a dealer or authorized seller. It is also argued that, the bar is also on commencing or carrying on the business in the scheduled animal article, either as a manufacturer or as a dealer U/s 49B(1). It is argued that no such incriminating evidence was put to the accused in his examination under section 3 1 3 Cr.P.C. and, therefore, it cannot be used against the accused. The accused has placed reliance upon the case of Shaikh Maqsood vs. State 2009 (4) Supreme 429; Inspector of customs vs. Yashpal 2009 (2) supreme 511 and; the case of Rameshbhai vs. State 2009 Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 10 of 33 11 (3) Supreme 585, in which it was held that any incriminating evidence which is not put to an accused in his examination cannot be used against him.
19. In the present case when the accused was examined and the incriminating evidence was put to him in his examination under section 313 Cr.P.C., he was specifically questioned that he was found in possession of the said shawls. Although it was not specifically put to the accused that he acquired or received or purchased these articles from somebody other than a dealer or authorized seller, nor it was asked that he possessed those articles for business as a manufacturer or dealer, but there was no need to put those questions in that manner, since it is a matter of inference to be drawn. The mere fact that the accused was found in possession of these shawls, shifts the onus upon him under section 57 of The Wildlife Protection Act. The very fact that a large quantity of shawls (159 shawls) were recovered from the possession of the accused shows that the accused was involved in the trade or business of the banned 'animal article' product that is the Sahtoosh shawls, as a dealer.
20. Section 57 of The Wildlife Protection Act makes a provision that where it is established that the person is in possession, custody or control of trophy or uncured trophy etc., it shall be presumed, unless the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such trophy or uncured trophy etc. Reliance in this regard is placed upon the case of Babu Lal and another vs. State (Delhi administration) 20 (1981) DLT 354. In the said case also possession of the accused was proved and thereafter a presumption of unlawful Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 11 of 33 12 possession was drawn against the accused in terms of section 57 of The Wildlife Protection Act.
21. In the present case before us, it is not denied by the accused that he was in possession of the premises in question from where 159 shawls were recovered. Rather in the statement of accused, the accused admitted that even those 10 shawls were not Shatoosh shawls but they were ordinary shawls. In the entire crossexamination of PW 1, 3 and, 4 no suggestion, whatsoever, has been made by the accused that no such recovery of shawls was effected from the accused. In the crossexamination of PW 1 and PW 4, even it was not suggested that the accused was falsely implicated in this case and that no recovery of shawls was effected from the accused on the said date, time and, place as claimed by the complainant. The accused rather admits that he is a resident of Jammu and Kashmir State and he is a smalltime trader who comes to sell shawls to Delhi in winter season. It is also admitted position that 149 shawls out of 159 shawls were released to the accused after those 149 shawls were not found containing any banned 'animal article'. No reason whatsoever has been suggested by the accused for his false implication, either in his statement or in the crossexamination of the prosecution witnesses. There is no reason for the wildlife officials to have falsely implicated the accused or falsely depose against him.
22. In my considered view none of the contradictions as appearing in the statement of the witnesses and as pointed out by the defence, are material enough to create doubt about the truthfulness of the case of the prosecution. It may be mentioned here that the accused Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 12 of 33 13 took up a defence that he has been falsely implicated in the present case but no reason whatsoever much less cogent reason for false implication has been shown. Whenever an accused takes up a plea that he has been falsely implicated, the first question which arises is, as to what was the ground for false implication? This question in the present case has not been answered. It may be mentioned that for any false implication there has to be some or the other motive which is in the best knowledge of the accused and the onus to tell the motive of false implication is on the accused, which is not discharged in the present case. Simply by alleging that accused has been falsely implicated would not be sufficient to create doubt about the case of the prosecution. The accused does not have any kind of enmity with any of the prosecution witnesses therefore there is no question of his false implication.
23. The natures of contradictions pointed out in the present case are minor and are in fact simple errors of observation which occurs in human nature. The testimonies of the witnesses are otherwise corroborating each other in all necessary material particulars. Simply because there occurs some minor variations in their powers of observation and retention would not make the case of the prosecution unbelievable.
24. In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence.
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Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence.
Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC it was also observed that when an eye witness is examined at length it is quite possible for 649 him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 14 of 33 15 impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
25. In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, where it was held that it is the quality of evidence that matters and not the number of witnesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. That contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should go scotfree.
26. It is next argued that section 100 of the Criminal Procedure Code was not complied with and no neighbours or respectable local inhabitants were joined in the recovery proceedings. No doubt that two respectable local inhabitants have not been joined in the present recovery proceedings by the complainant at the time of effecting recovery and, it would have been better had it been done in compliance of section 100(4) of the Criminal Procedure Code but, non compliance of section 100(4) of Criminal Procedure Code, by itself does not entitle the accused to claim acquittal particularly in view of the fact that the recovery from the accused is proved beyond reasonable doubt. It is not a case where the recovery of the animal articles from the accused is doubtful. In such circumstances Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 15 of 33 16 noncompliance of section 100(4) of the Criminal Procedure Code is also of no help to the accused.
27. Hon'ble Supreme court in the case Ambika Prasad & anr vs. State 2002 (2) CRIMES 63 (SC) held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence or to discard the evidence of eye witnesses. Similarly in tate of U.P. the case of S vs. Anil Singh AIR 1988 Sc 1998 it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. In the case of Dr Krishna Pal and another vs. State of U. P.1996 (7) SCC 194 non examination of eyewitnesses was held to be not a ground to discard the convincing and reliable evidence produced in the case. In the case of Appabhai Vs. State Of Gujarat AIR 1988 SC 696 it was held that These days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 16 of 33 17 presence and they withdraw both from the victim and vigilante.
28. In AIR 2003 SUPREME COURT 3609= 2003 AIR SCW 4065 State of Punjab, vs. Karnail Singh in para 12 it is observed thus, by the Hon'ble SC " Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See : Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State Delhi Admn. AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution 1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 17 of 33 18 other than truth. (See : Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1974 (1) SCR 489)) , State of U.P. v. Krishna Gopal and another, (AIR 1988 SC 2154) and Gangadhar Behera and others v. State of Orissa, (2002 (7) Supreme 276).
29. In such circumstances, this fact is established beyond reasonable doubt that the premises of the accused was raided on the date, time and place in question and that 159 shawls were recovered from his possession, out of which 10 shawls were found to be containing banned animal article. Although the accused claims that the premises in question was not in his exclusive possession, and was also possessed by others, but in view of the admission of the accused that those 159 shawls belonged to the accused, the said fact is not of much importance. Even otherwise no suggestion was made by the accused in the crossexamination of the prosecution witnesses that the premises from where recovery was effected was owned by others also or, occupied by others also, besides the accused. In such circumstances this court has no reason to doubt that the recovery was effected from the premises of the accused and those 159 shawls belonged to the accused. Once the recovery is proved against the accused, the onus shifts upon the accused in terms of section 57 of The Wildlife Protection Act, which the accused has failed to rebut in the present case.
30. Reliance in this regard is also placed upon the case of Sansar vs. State 1994 I AD Delhi 13, in which case also it was held that when the possession, custody and control of the accused over the animal articles, Cured and uncured trophies has been established by the Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 18 of 33 19 prosecution, the presumption is that the accused is guilty unless and until the accused disproves the same.
31. The evidence in the present case clearly proves the possession of the accused regarding the shawls in question and therefore presumption against the accused arises that the accused is guilty unless and until the accused disproves the same. The accused has not lead any evidence in his favour to disprove this or rebut the presumption.
32. The contention of the accused that in the charge framed against him, all that was put to the accused was that he was found in possession of the shawls and, it was not put to the accused that he was manufacturer or dealer of the shawls or that he acquired, purchased or received the shawls in contravention of section 49 or 49 B (1) of the Act, therefore, conviction cannot be based upon the said charge, is without any force. It is very specifically mentioned in the charge that the accused was found in possession of such shawls in contravention of the provisions of section 49 and section 49 B (1) of The Wildlife Protection Act 1972. This fact read with section 57 of the said Act raises a presumption in favour of the prosecution and against the accused.
33. The accused next argued that the present complaint has not been properly instituted in terms of section 55 of The Wildlife Protection Act 1972, therefore, the complaint deserves to be dismissed. There is no force in this contention, as the present complaint has been filed by a wildlife inspector. As per rule 49 of the Delhi wildlife protection rules 1973, a wildlife inspector is empowered to make complaint in terms of section 55 of The Wildlife Protection Act 1972. Similarly, wildlife inspectors have been Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 19 of 33 20 empowered to search and seize the articles which are in contravention of the provisions of the said Act Even otherwise also this contention was also raised by the accused before Hon Delhi High Court in his petition bearing number criminal M. C. No 1955 of 2008, which contention was dismissed by Hon Delhi High Court vide its order dated 25th of February 2009, wherein in the paragraph No 7 this contention of the accused was rejected vide observations made in paragraph No 8, observing as follows:
" The learned counsel for the petitioner has been heard at great length. It is first submitted that the complaint itself was without the authority of the law. Under Section 55(b) of the Act, the complaint was to be filed only by "the officer authorized in this behalf by the State Government"
whereas the present complaint has been filed by the State."
"The court finds this submission to be misconceived. The cause title of the complaint itself indicates that it has been filed through the Wildlife Inspector, Delhi. Para 1 of the complaint reads as under:
"1. That the complainant is working as Wildlife Inspector in the office of the Chief Wildlife Warden, Delhi and as such can file the complaint in the court of law under Rule 49 of the Delhi Wildlife (Protection) Act, 1973. Which further authorized to affect search and seizure under section 5(2) of the Wildlife (Protection) Act 1972 vide order of the Chief Wildlife Warden, Delhi dated 11.01.74 (enclosed)."
There is accordingly absolutely no merit in the first contention of the counsel for the petitioner."
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34. It is next argued on behalf of the accused that the search and seizure was made merely on the basis of suspicion and not strictly in compliance of section 50 of The Wildlife Protection Act. It is argued that there was no reasonable ground for the raiding team for believing that the articles contained Sahtoosh derived from Tibetan antelopes. It is argued that the search and seizure was, therefore, not proper and it cannot be believed or acted upon. The accused placed reliance upon the cases of Maneka Gandhi's case AIR 1978 Supreme Court 597; Kasturi Lal' case AIR 1980 Supreme Court 1982; Dr Pratap Singh's case AIR 1984 Supreme Court 989; Bhikubhai Patel vs. State 2008 (2) Supreme 548; State of U. P. vs. Lalloo Singh 2007 (5) Supreme 475; R. S. Garg vs. State 2006 (6) SCC 430. None of these judgments are of any help to the accused. In this case we are not deciding the competence and expertise or concerned with the competence and the expertise of the raiding party members to identify and seize the animal article. What is important is that those shawls which were suspected to be containing animal articles were ultimately found to be containing such animal articles. It was not necessary that all those articles, which were suspected to be containing animal articles during the raid, must necessarily be found to be containing animal articles. Even if some of them are found to be containing animal articles, it would be sufficient to say that the raiding party had reasonable grounds to believe that those articles recovered contained animal articles. In the present case the three recovery witnesses deposed that they suspected the shawls to be of animal article that is Sahtoosh derived from Tibetan antelopes and, therefore, it is sufficient for this court to say that the recovery officials had reasonable grounds to believe so. The recovery witnesses have specifically deposed that by their experience they can examine such Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 21 of 33 22 shawls visually and by the feel of touch and also from the weight of such shawls, they can identify Sahtoosh shawls derived from Tibetan antelopes. In the present case, when before recovery of shawls they examined the shawls, it was found to be very soft and very light in weight and, therefore, the recovery witnesses had every reasonable ground to suspect them to be containing animal articles and therefore they were right in seizing the same. Merely because a large number of those shawls were not found to be containing Shahtoosh cannot go to say that the recovery witnesses had no reasonable grounds.
35.Learned counsel for the accused argued that suspicion however strong cannot take place of proof and he placed reliance upon the case of State vs. Bhajan Lal 1992 SCC (criminal) 426. In the present case we are not having a case where the trial has been conducted against the accused merely on the suspicion of PW 1, 3 and 4. Rather there is a report of the scientific expert who has scientifically examined the shawls in the laboratory and found them to be containing animal articles, that is, Sahtoosh derived from Tibetan antelopes. Therefore to say that the present case is based upon suspicion only is not correct.
36. The accused claims that the seizure and the arrest of the accused was illegal and therefore all the subsequent proceedings are bad and in this regard the accused placed reliance upon the case of Hamid Khan vs. Aisha Bee 2008 (8) Supreme 730. I have already mentioned above that the recovery officials had reasonable grounds to believe that the shawls recovered from the accused contained animal articles and, therefore, I don't find the search or the arrest of the accused, in any manner, illegal. Merely because Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 22 of 33 23 out of 159 recovered shawls, only 10 shawls could be found to be containing animal articles does not mean that the entire search and seizure was illegal or the arrest of the accused was illegal or bad in law.
37. The accused also challenged the scientific evidence against him, by alleging that the report of the expert did not mention about the tests undertaken and the procedure adopted and the samples chosen for comparative study and, therefore, the report is unbelievable. It is claimed that the report was prepared after several months from the conduction of test. It is also argued that in absence of the notes and the slides, the report of the expert cannot be believed, which he deposed on the basis of his memory only. It is also argued that the report fails to specify whether the Sahtoosh found in any of the shawls were Guard Hairs or Inner fiber. This argument is without force. The expert has specifically deposed that the test undertaken were regarding Guard Hairs of the Tibetan Antelopes only which were found to be present. He specifically deposed that the test conducted were not for inner fibers. Similarly the fact that the report was prepared in the end of July whereas, the samples were received in the laboratory in the month of April 99 does not show that there was any unreasonable delay. The witness has stated that it took them around three weeks to collect the samples and thereafter it took another one week in the microscopic examination. If the accused wants this court to believe that these tests were conducted in the month of April itself but then the report was prepared in the month of July, then the accused ought to have put this specific question to this witness as to on which date the test were commenced and on which date the examination concluded and Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 23 of 33 24 as to on which date the samples were drawn? It was necessary so that the witness could reply whether there was any such delay. In absence of any such specific suggestion inviting the answers from the witness, the argument is without any force.
38. Learned counsel for the accused has relied upon the case of State vs. Paliram AIR 1979 Supreme Court 14, UmaKant Bajpayee vs. State of U. P. Crimes IV 1993(1) 1150; Palani Swami AIR 1968 Bombay 67 and; the case of Murari lal vs. State of Madhya Pradesh AIR 1980 Supreme Court 531. All these cases are distinguishable of the facts of the case. In the present case the expert PW 2 is an expert on the subject having experience of 22 years and having requisite qualifications, and he microscopically examined the shawls and found them to be containing Sahtoosh derived from Tibetan Antelopes that is its Guard Hairs. In such circumstances there is no reason for this court to disbelieve the testimony of PW 2. The accused has not examined any defence witness in his favour to show that the 10 shawls recovered from the possession of accused were not containing any such Guard Hairs of Tibetan antelopes. The accused could have very well requested the court to either get reexamined the shawls from some other government agency or the accused could have requested the same to be examined by some other expert at some other institute also, if the accused wants this court to believe that the expert PW 2 was not competent to give this report or that the test conducted were not proper. In absence of any such rebuttal evidence by the accused I don't find anything to disbelieve the testimony of PW 2.
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39. Accordingly it is established beyond reasonable doubt that the 10 shawls out of 159 shawls recovered from the accused contained Guard Hairs derived from Tibetan antelopes and which are banned animal articles under The Wildlife Protection Act 1972.
40. Lastly it is argued by the accused that the percentage of the Guard Hairs could not be established by the scientific analysts and, therefore, it may well be a case where some small proportions of the shed hairs, which fell on the ground after they were shed by the animal, got mixed up with the other wool or hairs or they got mixed up during processing or weaving and such small amount forming negligible part of wool in other wool should not be made the ground to convict the accused. It is argued that bona fide presence of a negligible portion of such articles in the shawls primarily made of other wool cannot visit criminal liability. It is also argued that in order to call an article made from a prohibited material it should be the major input in the said article and a substantial percentage of the input, at least so much as maybe noticeable as may affect its quality about its marketability and its price, should be the criteria to call it an animal article. It is argued that in case the prohibited material is so negligible or small in quantity as it does not constitute the main input or the substantial input, the article that is the end product cannot be said to be made from the prohibited material. In this regard it is argued that PW 2 specifically admitted that they did not try to even ascertain the percentage of animal article that is Guard Hairs in the article as their examination was confined to the presence or absence of wildlife hairs in a particular article.
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41. Reliance in this regard is also placed upon the definition of 'animal article' as provided in section 2 (2) of The Wildlife Protection Act which provides that an 'animal article' means an article made from any captive animal or wild animal and includes an article or object in which the whole or any part of such animal has been used. It is argued that in order to call an article within the definition of section 2 (2) of the Act, the main input or the substantial percentage of the article should be such which is derived from any captive animal or wild animal. Reliance in this regard is placed upon the case of CCE vs. Indian aluminium company 2006 (8) SCC 314 and; in the case of SoneBhadra fuels vs. Commissioner Trade tax 2006 (7) SCC 322. It is argued that in absence of any evidence to point out that the Guard Hairs were forming main input or, it was a substantial contribution towards the input in the making of the subject shawls, it cannot be said, by any stretch of imagination, that the shawls were made from Sahtoosh. It is also argued that the word 'from' used in the said section clearly stipulates that the prohibited article is the source of the end product which is conceivable only in case such productive article is the main input or substantial percentage of it.
42. Perusal of the testimony of PW2 Dr Goyal, when he was examined on the second occasion, clearly shows that for microscopic examination certain Guard Hairs were only picked from all the 159 shawls. It is not a case where the entire shawls were examined by the expert to find out as to what percentage of the shawls are made up of the banned animal article. In the present case when the shawls were put to microscopic examination, the entire shawls were not put to the examination but, only Guard Hairs were picked up Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 26 of 33 27 from the shawls and then only those Guard Hairs were examined and, out of 159 shawls, from which Guard Hairs were picked up, on the 10 shawls Guard Hairs matched as that of Sahtoosh derived from Tibetan antelopes. PW 2 specifically deposed that only Guard Hairs were picked up from the shawls for its microscopic examination and the Sample of wool texture of each shawl was taken separately. The witness specifically deposed that the shawls were examined with respect to Guard Hairs only and not for soft wool. The percentage of Guard Hairs present in the shawl were not examined. If the accused wants this court to believe that only a small portion of the shawl was containing Guard Hairs of the banned Sahtoosh derived from Tibetan antelopes, or that it contained only accidental mixture of it, the accused could have specifically asked this witness that the entire shawl was not made up of Sahtoosh derived from Tibetan antelope or only a very negligible part of it was made thereof. It was not done. The accused also did not examine any other expert in his defence to rebut the presumption in favour of the complainant and therefore even the last mentioned argument does not hold water for the accused.
8. It is relevant to note observations made by the Hon'ble Delhi High Court in the case of Cottage Industries Exposition Ltd (supra) wherein it is observed as follows:
Para 5. " In our view, the main issue involved in this writ petition arises from a plea of the petitioner that the 'hair' of the animal Chiru does not form or part of an animal article as defined in Section 2(2) of the Act and hence the user of such 'hair' in producing the Shahtoosh Shawls was not hit by the bar prescribed under section 49(B) of the Act. The Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 27 of 33 28 principal plea of the learned counsel for the petitioner that 'hair' is not part of the definition of animal article, is postulated on the premise that the fact that 'hair' has been included within the definition of 'trophy' clearly shows that it was not intended by the legislature to be included in the definition of animal article.".......................................
Para 7. " A perusal of the above statement of objects and reasons clearly demonstrates that the legislature has been conscious of the acute need to curb trading, poaching of animal articles and products and each of the amendments noted above clearly reiterates the legislative concern for preserving wild life to all extend possible under the Act. Particularly instructive is the legislative intent which prohibits trading in wild animals specified in Schedule I Part I of the Act, and any derivative derived therefrom. Thus when the legislative intent is clearly discernible and indicates that trading in wild animals specified in aforesaid schedule or any derivative from such animals were to be forbidden from being traded, it cannot be contended logically that 'hair' is not a derivative from such animal. It is also not in dispute that wild animals 'Chiru' falls in Part I Schedule I of the Act and thus it is clear that legislature clearly intended that trading in wild animals and derivatives therefrom is clearly prohibited.........................."
Para 8. "...........................We find nothing in the Statement of Objects and Reasons and the list of the Act to indicate that 'animal article' should not be given its plain grammatical meaning. In fact, the acceptance of the plea of the petitioner to the effect that the definition of 'animal article' would exclude 'hair' merely because of the definition of 'trophy' including 'hair' within its sweep would lead to an absurd result proscribed by the above judgments of the Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 28 of 33 29 Hon'ble Supreme Court............................................"
".................... It is aptly clear from the above judgments of the Supreme Court that statutory provision must be so construed, so that not only absurdity and mischief is avoided but the words used by the legislature are given their plain and grammatical meaning. A rule of construction should be preferred which advances the purpose and object of legislation. Though a construction, according to plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or absurdities."
Para 9. " A bare perusal of Section 2 (1) and Section 2(2) read with Section 49 A
(a), Section 49A(b) of the Act clearly defines 'hair' as a part of the animal 'Chiru'. Merely by mentioning 'hair' in the definition of trophy does not and cannot lead to the conclusion that there was any intention of the legislature to include it specifically in the definition of 'animal trophy' only, and exclude it from the definition of animal articles. Such a contention is opposed to the dictionary meaning of the word 'article' and would run counter to the explicit legislative intent."
Para11. " The writ petition is based on the premise that 'Shahtoosh' derived from the fallen hair of Chiru once woven into a shawl ceased to be preserved or kept in its natural from and also does not find a specific mention in the definition of "animal article". Therefore such a shawl does not fall within the ambit of the prohibition under the Act extended to "animal articles." "
Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 29 of 33 30
Para 15 ".............A perusal of the above provisions demonstrates without doubt that the Act prohibits trade or commerce in trophies, animal articles derived from certain animals which leads to the following inevitable conclusion:
Prohibition on Trade and Commerce of
(ii) Articles made from any scheduled animal:
(iii) Includes an article or object in which the whole or any part of such animal has been used. (Emphasis supplied)
(iv) What has been specifically excluded from the ambit of this Section includes:
(a) a tail feather of peacock or an article, trophy made therefrom and :
(b) snake venom or its derivatives.
Thus, there is no intention of the legislature to exclude animal hair from the definition and scope of 'animal article' as only certain articles specified in subsection(a) and
(b) above have been specifically excluded from the definition of "animal articles" and not animal hair."
Para16 " ........................ Thus, any intention to exclude the products derived from the said animal or any part of the said animal from the definition of 'animal article' would not only defeat the purpose and intent of the legislature but would run contrary to the international concern expressed through the international legislation on the aforesaid subject."
Para 17 "The product derived from "scheduled animal" has only been defined under 'scheduled animal article' under section 49A (b) as to be made from any captive or wild Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 30 of 33 31 animal and includes an article or object in which the whole or any part of such animal has been used and specifically excludes tail feather of peacock and snake venom or its derivatives. Since no other exclusion has been specified by the legislature except the tail feather of peacock and its derivatives and the derivatives of snake venom, it is not open to this Court to add 'animal hair' to such excluded categories in Section 49A(b) merely on the basis of what is termed by the petitioner to by the inclusive definition of Trophy. "
Para 18 " 'Hair' has thus not been excluded from the definition of 'animal articles' and scheduled animal animal articles' and was intended to be included by the legislature in the definition of 'animal articles' as per section 2(2) and of 'Scheduled animal articles' as per Section 49 A(b) of the Act."
Para 19 " The purpose of mentioning 'hair' in the definition of 'trophy' is totally different and it cannot be construed by any means that 'hair' has been specifically left out of the definition of 'animal articles' merely because it is mentioned in the definition of "trophy". Over emphasis on inclusion of the word 'hair' in the definition of the trophy would defeat the very object of the Act. The raw wool of Chiru after treating and processing would in fact fall within the meaning of the trophy. In our view, the definitions of 'uncured trophy','trophy' and 'Scheduled animal articles' are not separate, distinct and exclusive compartments but are complementary to one another. Any other construction would defeat the object of the Act and the intention of the legislature.
Secondly, the raw 'hair' under the wool of Chiru after treatment and processing would admittedly fall within the meaning of 'trophy'. The thread made from such processed wool Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 31 of 33 32 including the shawl woven from such thread would be covered by the definition of 'animal article' as defined in Section 49A(b) in as much as both the thread and the shawl are articles which have been made by use of hair(wool) of a scheduled wild animal.
We hold that if the legislative intent was to exclude naturally shed animal parts including 'hair', it would have specifically excluded such animal parts from the definition of 'uncured trophy' or 'trophy' or 'scheduled animal articles' under the Act, The Parliament having chosen not to exclude 'hair' from the definition of animal article unlike the exclusion of tail feathers of peacock or an article trophy made therefrom the snake venom or its derivatives, implies that an article made from the hair of a scheduled animal falls within the meaning of scheduled animal article" as defined in Section 49A(b) of the said Act and the manufacture/trade of such an article is completely prohibited under Section 49B."
Para 21 "In our view, any person who is found to be carrying on trade or dealing in Shahtoosh is liable to be proceeded under the Act as Shahtoosh is made from 'hair' which is a derivative of animal Chiru, which falls under he definition of "scheduled animal article". The wild animal 'Chiru' falls in Part I Schedule I of the Act, trading in which is strictly prohibited under Section 49 B of the Act. "
Para 23 " The Hon'ble Supreme Court in SLP (Civil) NO. 12434/2003 in Ashok Kumar Vs State of J & K & ors., by its Order dated 22nd November ,2005, directed as under:
"There is a complete prohibition on dealing in trophies, animal articles derived from the scheduled animals (Chiru) under Section 49 B of the Act. It was directed that action be taken against those persons who are found to be carrying on trade in Shahtoosh. The Supreme Court Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 32 of 33 33 is monitoring implementation of its directions. The sum and substance of the judgment of the Supreme Court is that no trade in Scheduled Animal Article of Chiru, commonly known as "Shahtoosh" is permissible. Carrying on trade in Shahtoosh is an offence......................."
43. Thus it is proved that the shawls recovered from the accused was made up of banned animal article. The very fact that a large quantity of shawls (159 shawls)were recovered from the possession of the accused shows that the accused was involved in the trade or business of the banned 'animal article' product that is the Sahtoosh shawls as a dealer.
44. The net result is that the accused is found guilty and is convicted for the offence under section 49/49B (1) of The Wildlife Protection Act punishable under Sec 51 of the said Act, since the very fact that a large quantity of such shawls were recovered from the possession of the accused shows that the accused was involved in the trade or business of the banned animal article product that is the Sahtoosh shawls as a dealer and he received them from other than authorised dealer. The accused is accordingly found guilty and is convicted for the said offence.
ANNOUNCED IN OPEN COURT ON 11.01.2010 (DIGVINAY SINGH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SPECIAL ACTS, CENTRAL, TIS HAZARI COURTS DELHI Judgment/wildlife vs. Mohd. Ishaq Baig / C.C.No 133/1/January 11, 2010/ Page 33 of 33