Delhi District Court
Wli vs . Aishwarya Bardhan And on 11 October, 2019
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ACMM(Spl. Acts):CENTRAL:TIS HAZARI COURTS, DELHI
CC No. 518349/2016
WLI Vs. Aishwarya Bardhan and
Anr.
JUDGMENT
(a) Name of complainant : Wildlife
Through its Wildlife Inspector,
Sh. V.B. Dasan.
(b) Name, parentage : (1) Aishwarya Bardhan
S/o Sh. Madhup Kumar Verma
R/o 114, New Rajdhani
Enclave, Vikas Marg
Delhi.
(2) Raju Kanwar
S/o Sh. Ramesh Kanwar,
R/o RZ G-72B, Mahavir
Enclave, Palam Dabri Road,
New Delhi
(c) Offence complained of : U/s 39, 49, 49 (b)(1) and 48 A of
the Wildlife (Protection
Act)and punishable u/s 51 of Wild
Life (Protection) Act, 1972.
(d) Plea of accused : Pleaded not guilty.
(e) Final order : Acquitted
(f) Date of such order : 11.10.2019
Date of institution : 08.07.2013
Date of order reserved : 11.10.2019
Date of Judgment : 11.10.2019
Brief statement of the reasons for the decision:-
1. Brief facts of the complaint are that on the basis of secret information received in the office of Anti extortion cell, Chankya WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 1 of 21 puri, Delhi a raid was conducted on 26.02.2008, at about 3:30 pm at Satya Marg, Shantipath Chambry wherein accused persons namely Aishwarya Bardhan and Raju Kanwar were apprehended with two ivory pieces and thereby contravened the provision of section 39, 49 and 49 (b)(1) and 48 A which are punishable under section 51 of the Wildlife Protection Act, 1972.
2. In support of allegations, complainant examined PW-1 Sh.
V.B. Dasan, WLI, PW-2 S.S. Negi, retired WLI, PW-3 HC Vishnu Bhagwan , PW-4 HC Lalit, PW-5 SI Sanjeev Kumar Yadav and PW-6 Sh. Balbir Singh Gurum.
3. In pre-charge evidence, complainant examined PW-1 Sh.
V. B. Dasan. He stated that he received the case file of FIR No. 49/2008 PS Chankya Puri, New Delhi alongwith the documents mentioned in possession memo Ex. PW1/A and the case property duly sealed with the seal of SK by WLI Sh. S. S. Negi vide Road Certificate Ex. PW1/B and Ex. PW1/C which was marked to him further necessary action. He stated that he filed the present complaint Ex. PW1/D alongwith the copy of notification under Rule 49 of the wildlife rules issued by Chief Wildlife Warden, Delhi Ex. PW1/E and Ex. PW1/F. During cross examination in post charge evidence, he admitted that during the complete investigation, he had not participated in the investigation and his role was limited in filing the complaint. He admitted that he has not verified the license of ivory articles . He denied the suggestion that he has not applied his mind for filing the complaint and had deliberately suppressed the fact that accused is having license of WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 2 of 21 the articles seized duly issued by the authority concerned.
4. PW-2 Sh. S. S Negi, Wildlife Inspector, stated that on 10.03.2008, he was working as Wildlife Inspector in the office of Chief wildlife Warden, Delhi and on that day received the present case file alongwith the document mentioned in possession memo already Ex. PW1/A alongwith the case property i.e. ivory pieces duly sealed with the seal SK from SI Sanjeev Kumar of PS Anti Extortion Cell, R. K. Puram, New Delhi vide RC already Ex. PW1/B and Ex. PW1/C. He further stated that the case property was deposited with the Malkhana. This witness was not cross examined in pre-charge evidence and was not recalled in post charge evidence also.
5. PW-3 HC Vishnu Bhagwan, stated that on 26.02.2008, he was posted in Crime Branch, R. K. Puram, New Delhi as Head Constable and on that day, SI Sanjeev Kumar received a secret information regarding some boys having in their possession illegal ivory pieces who are present at Shanti Path for the purpose of sale. He further stated that on that basis, SI Sanjeev Kumar joined himself and also joined SI Ravi Dutt, Ct. Lalit and Ct. Chitranjan and thereafter they left their office and reached near Rail Sangharalaya at Shanti Path. He further stated that SI Sanjeev thereafter requested some passerby to join them at Rail Sanghralaya but none agreed. He further stated that they all reached at the spot at Chambary Shanti Path and Satya marg and found both the accused persons and they apprehended both the accused persons at the spot. He further stated that SI Sanjeev WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 3 of 21 Kumar recovered one ivory piece from accused Aishwarya Bardhan and another ivory piece from accused Raju Kanwar and he prepared two separate pulandas of said two ivory pieces by keeping the same in transparent two separate jars and then sealed with the same with the seal SK and seized the same vide seizure memo Ex. PW3/A and Ex. PW3/B respectively. He further stated that thereafter IO prepared rukka and got the FIR recorded through him, vide FIR Ex. PW3/D, recorded disclosure statement of accused persons vide Ex. PW3/E and PW3/F and arrested them vide arrest memo vide Ex. PW3/G, Ex. PW3/H and conducted their personal search memo vide Ex. PW3/I and Ex. PW3/J respectively. He further stated that before seizing the ivory pieces same were weighted. He identified the case property as well as the accused persons when produced before him. During cross examination, PW-3 stated that SI Sanjeev Yadav along with Ct. Lalit, Ct. Chitranjan had taken a private car to reach to the spot and he along with SI Ravi Dutt had also taken a private car to reach at the spot. He further stated that they had not taken any conveyance charge from the department. He further stated that the spot was at Satya Marg, Shanti Path and because of paucity of time, they had not requested Rail Bhawan staff to become the witness of the raid/inspection/seizure on the Shanti Path/Embassy at Chankayapuri. He further stated that SI Sanjeev Yadav had used his stamp 'SK' for sealing of articles and seal after use handed over to him. He further stated that he was not able to recollect whether there was handing over memo of the same. He further stated that he had kept the seal with him till seizure and thereafter, handed over the seal back to SI Sanjeev Yadav and this WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 4 of 21 proceedings had completed on the same day on the same spot. He further stated that he had asked license/ownership documents of Ivory pieces from the accused but not provided by them to him. He further stated that he was not aware whether SI Sanjeev Yadav verified the ownership from the department on the direction given by this Hon'ble Court as the same was exhibited as Ex.PW5/D1 to Ex.PW5/D3. He denied the suggestion that suggest that accused was not arrested at the alleged spot. He admitted that no purchaser was found by him regarding Ivory pieces. He denied the suggestion that since the alleged recovery was not genuine this was the only reason that we had not asked public witness to join the seizure/disclosure/arrest/personal search memo. He denied the suggestion that he was deposing falsely.
6. PW-4 HC Lalit stated that on 26.02.2008 he was posted at Crime Branch, RK Puram, New Delhi and on that date, SI Sanjeev received a secret information regarding sale of ivory piece and after receiving the said information, SI Sanjeev shared the said information with senior officers and thereafter he formed a raiding team comprising himself, SI Ravi Dutt, HC Vishnu, Ct. Chitranjan and thereafter they left their office in a two private cars and reached near Rail Sanghralaya, Shanti Path. He further stated that IO requested some passersby to join the raiding team after telling the secret information but none agreed and thereafter, at about 3.30 pm, they reached at the spot i.e Chambry, Shanti Path and Satya Marg alongwith secret informer where both the accused persons correctly identified by the WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 5 of 21 witness, were present there and the secret informer pointed out them. He further stated that on the pointing out of secret informer, they apprehended both the accused persons at the spot and he apprehended accused Aishwarya Bardhan and Ct. Chitranjan apprehended the accused Raju and both the accused persons were carrying one bag each. He further stated that IO searched their bags and recovered one ivory pieces was recovered from the bag carrying by accused Aishwarya Bardhan and one another ivory piece was recovered from the bag carrying by the accused Raju and stated that In the meantime, one official of wildlife department reached at the spot. He further stated that IO showed both the ivory pieces to the wildlife officers who identified the same to be ivory pieces. He further stated that IO measured both the ivory pieces and thereafter IO kept both the ivory pieces in separate plastic box and wrapped the mouth of the plastic boxes with the help of cloth piece and then sealed the same with the seal of SK and seized the same vide seizure memo already Ex.PW3/A and Ex.PW3/B. He further stated that IO also sealed both the bags of accused persons by keeping the same in a pullanda with the same seal and seized the same vide memo already Ex.PW3/C. He further stated that IO prepared rukka and got FIR registered through ct. Vishnu. He further stated that IO arrested both the accused persons vide their arrest memos and personal search memos already Ex.PW3/H to Ex.PW3/K. He further stated that after the showing the disclosure statement of accused persons bearing the signature of witness, the witness states that the disclosure statement of both the accused persons already Ex.PW3/E and Ex.PW3/F were prepared at the spot in his WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 6 of 21 presence and the site plan was also prepared at the spot which is mark A. he further stated that IO recorded his statement and he can identify the case property. He proved the case property already Ex. P1, P2, P3 and P4 respectively. During cross examination, he stated that he was in the office on 26.02.2008. He stated that IO namely SI Sanjeev had written the departure as well as arrival entry and he was not carrying any other articles at the time of of his departure. He further stated that they departed at 2:45 pm though he cannot tell at what time they reached at the spot. He further stated that both the accused were found at Satya Marg Chamberi, near Railway Museum at Chanakya Puri, New Delhi. He further stated that he did not remember whether they informed with respect to the proceedings at the spot, to the chanakya puri police station. He further stated that he did not remember whether they had worn plant, t-shirt, jeans or shirt and he cannot tell the color of the same with regard to both the accused. He further stated that they were carrying two bags but he did not know about the colour or size. He further stated that bags were not seized by him. He further stated that he was the witness of the disclosure of both the accused and the same was recorded at the spot. He further stated that they had not found any buyer of the case property at the spot. He further stated that thereafter, he was not the part of the investigation in the present matter. He further stated that IO had sealed the case property with the mark SK. He further stated that he did not know whether there was any other identification mark in the case property. He further stated that he can able to identify the case property only because the mark SK was there in the seal. He further stated that WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 7 of 21 IO had given the seal to HC Vishnu in his presence. He further stated that there was no handing over memo in the file, with regard to handling over the seal. He denied the suggestion that both the accused were not arrested at the spot. He denied the suggestion that both accused were not there at the spot for trading of the case property, although he admitted that no buyer was found at the spot. He denied the suggestion that the only purpose of not involving public witness is that they had wrongly seized the case property from both the accused.
7. PW5 SI Sanjeev Kumar Yadav, stated that on 26.02.2008, had posted in Crime Branch, R.K. Puram, New Delhi as SI. He further stated that on that day he was present in his office along with SI Ravi Dutt, HC Vishnu, HC Lalit and Ct. Chitranjan. He further stated that at about 2.20pm, he received a secret information regarding two boys having in their possession some illegal ivory pieces at Shanti Path for the purpose of sale and he conveyed the information to Inspector Arvind Kumar and on the direction of Inspector Arvind Kumar, he had organized a raiding party consisting of himself, SI Ravi Dutt, HC Lalit, HC Vishnu and Ct Chitranjan and thereafter they had left their office vide DD No.10 at 2.45pm and before departing from office, he informed telephonically to wildlife officer about the information and requested them to join the raiding party. He further stated at about 3.10pm he along with staff reached near Rail Sanghralaya at Shanti Path there also he had requested five persons to join them at Rail Sanghralaya but none agreed. He further stated that they all reached at the spot at Chambary Shanti Path and Satya WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 8 of 21 Marg and found both the accused persons correctly identified were sitting at Chambary. He further stated that they had apprehended both the accused persons at the spot and disclosed the identification of raiding team to them. He further stated that on search, he recovered one carry bag having India Gate Marka on it which was found containing one ivory piece from accused Aishwarya Bardhan and recovered another carry bag mark Kutions containing one ivory piece from accused Raju Kanwar. He further stated that in the meanwhile, Shri B.S. Gurum, Assistant Director from WCCB also reached the spot and he had requested Mr Gurum vide his written request Ex.PW5/A to check the recovered ivory articles. He further stated that on his request, Mr Gurum verified the recovered ivories and gave his report which was on record and the same is Ex.PW5/B. He further stated that , after weight and measurement of the recovered ivories, he seized both the ivories separately and kept the same in two transparent jars and sealed them with the seal of SK and Jar containing the ivory recovered from accused Aishwarya Vardhan was given mark A and Jar containing the ivory recovered from accused Raju kanwar was given mark B and both the jars containing ivories were taken in police possession through seizure memos Ex.PW3/A and Ex.PW3/B respectively. He further stated that the carry bags recovered from each accused were also taken into possession after sealing in a pullanda which was also sealed with the seal of SK. The same was also taken in police possession vide seizure memo Ex.PW3/C. He further stated that all the three seizure memos bear his sign at point C and the seal after use was handed over to HC Vishnu. thereafter he prepared rukka Ex.PW5/C and WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 9 of 21 got the FIR recorded through HC Vishnu, vide FIR Ex.PW3/D. Thereafter he interrogated both the accused, both of them failed to provide any legal document regarding possession of recovered ivories. He further stated that after this, on sufficient ground, he arrested both the accused persons at the spots vide arrest memos already Ex.PW3/G and Ex.PW3/H and conducted their personal search vide memos already Ex.PW3/I and Ex.PW3/J and arrest information had given to their residence. He further stated he recorded their disclosure statements Ex.PW3/E and Ex.PW3/F respectively. He further stated that he prepared the site plan Mark A at the spot and the same is now exhibited as Ex.PW5/D and he further stated that after this, during investigation, case property was deposited in the Malkhana. He further stated that both the accused got medically examined from Safdarjung Hospital and he recorded the statement of witnesses. He further stated on 27.02.2008, he produced both the accused along with case property before the Court Concerned vide his application Ex.PW5/E. He further stated that both the accused were sent to JC and case property and further investigation of this case was handed over to Wildlife Department vide order of the Court. He further proved the possession memo Ex.PW1/A, and Road Certificate Ex.PW1/B and Ex.PW1/C and stated that he can identify the case property, if the same is shown to him. He further stated that on another pullanda duly sealed with the seal of court i.e. DKS bearing particulars of present case also produced. He further stated that seal was broken and pullanda was opened and One polythene and one carry bag was taken out from the above said pullanda and same was shown to the witness who correctly WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 10 of 21 identified the above said polythene and carry bag to be the same in which the ivory pieces were recovered from the possession of the accused persons. The above said polythene and carry bag are Ex.P3 and P4 respectively. During cross examination, he admitted that during arguments on bail application the counsel for both the accused had produced the Declaration Form dated 06.03.2008 which was verified by him from the concerned authority. He also admitted that the same was found to be genuine in his report dated 05.04.2008 which was Ex. PW5/D1 and copy of Declaration Form as Ex. PW5/D2. He admitted that during investigation he had not found anything with regard to alleged buyer, if any. He further stated that he had not checked during investigation from the concerned authority at Bihar whether accused persons having any transport permit to carry the articles in dispute from Bihar to Delhi. He voluntarily stated that since no document was recovered like declaration or transport permit and therefore, no such investigation was conducted by him at that time. During post charge evidence, PW-5 stated that on 26.02.2008, at about 2:00 pm, he received a secret information thereby he intimated the same to his concerned ACP and Inspector, personally, just after receiving the same and thereafter, he had recorded the DD entry vide DD No. 10 with respect to information provided to the concerned officers. He further stated that at 02:20pm, he proceeded for the spot and he had not recorded any log book entry as he had taken his personal vehicle for the spot and there was no official vehicle available with him. He further stated that he had not made any request for official vehicle. He further stated that accused persons were present on the spot when he reached WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 11 of 21 there. He further stated that at Shantipath, there was no public person was present on the spot and not even guards or security persons so there as no opportunity for him to request for public person. He voluntarily stated that before reaching the spot, he had requested five public persons for joining the raiding party near Railway Museum. He further stated that he had not conducted any raid before the present one at Shantipath. He denied the suggestion that at Shantipath there was always an availability of security guards and officials as considering the security of the place. He further stated that he had taken IO kit before leaving his office for the raid, the same was recorded in the above mentioned DD entry and there was a scale for measurement, weighing machine, Doctor tape, cello tape, cloth etc. was always available in IO kit. He further stated that he had used traveling bag for the purpose of IO kit. He further stated that he had explained grounds of arrest before arresting the accused persons and thereafter, he had intimated their family members after reaching his office and only after direction of the court, he verified whether the accused were having license permit for the articles seized. He voluntarily stated that though before the arrest he asked for the valid license or any other document for lawful possession of the articles but they had not produced before arrest. He further stated that witness had shown the transfer permission given by concerned department of West Champaran, Bihar dated 02.08.2006, exhibited as Ex PW 5/D3. He further stated that he had conducted investigation for two days including the day of raid and there was no buyer available on the spot. He further stated that he had given the seal to the Head Constable Vishnu WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 12 of 21 Bhagwan on the spot and even though, there was no document qua handing over of the seal was made on the spot but the same was recorded in the seizure memo. He denied the suggestion that he had arrested the accused in a haste just without verifying any documents to this effect and the case had been made on the basis of presumption only.
8. PW-6 Sh. Balbir Singh Gurum, Assistant Director Wild Life Crime Control Bureau (retired), New Delhi. He stated that on 26.02.2008 their office has received an information regarding the illegal sale of ivory by some persons near Rail Museum, Shanti Path, New Delhi. He further stated that the IO/Sub Inspector Sanjeev Kumar sent a letter addressed to the Deputy Director of WCCB to joint their raiding party for the examination/identification of the two pieces of raw ivory and accordingly, he proceeded in his office vehicle and reached the destination and met the raiding party. He further stated that they seized two ivory pieces from the place Chambary at Shanti Path near Rail Museum from two persons namely Aishwarya Bardhan and Raju and the ivory pieces were shown to him by SI Sanjeev Kumar and he had identified those two pieces being approximately 1.650 kg. and the other was approximately 0.750 kg as Indian elephant ivory tusks were marked as mark A & B respectively and which is already Ex. PW6/A. He identified that the case property as ivory pieces which were already Ex. PW3/P1 & P2 correctly. He further stated that he had given his report to the IO in which he had stated that the recovered ivory pieces are elephant tusks (ivory). He further stated that the possession or WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 13 of 21 sale etc of these items was prohibited under Wild Life (Protection) Act, 1972. During cross examination, he had not made any departure entry with regard to his proceed towards the spot of incidence. He voluntarily stated that in his office there was no provision for this and no register was maintained by the department with regard to the same. He further stated that after receiving the oral instruction he left the for the spot in the official vehicle. He did not remember the vehicle number. He further stated that he made an entry in the log book of the vehicle toward his department and the copy of the log book was not available in the court file. He further stated that he did not remember the entry number of the log book. He further stated that he himself maintained the log book register in the department. He further stated that he had taken Mr. Ashok, office driver with him to the spot. He further stated that he had not taken any other articles with him from the office to the spot. He further stated that IO Mr. Sanjeev Kumar told him the weight and size of the articles and he did not personally measure the articles himself. He admitted that even though there were few independent people but he cannot tell their numbers. He further stated that IO had inquired from the said independent people in his presence. He further stated that IO asked the independent people to join the investigation but they refused to join. He further stated that he did not know whether the IO had given any notice to the public persons. He further stated that he did not know whether IO had noted down the name and address of the said independent people. He further stated that he left the office at about 3:00 pm for the spot and returned to the office at about 6:30 pm. He further stated that he had not WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 14 of 21 made any entry of his arrival in the office but he had submitted a report to my Deputy Director namely Mr. Ramesh Pandey. He further stated that copy of said report was not filed in the court. He further stated that IO had seized the ivory articles in his presence and his signatures were not obtained on the seizure memo by the IO. He further stated that he did not remember whether IO had given a notice of arrest to the accused. He further stated that he did not remember who had signed the seizure memo. He further stated that he had not signed the seizure memo. He further stated that he had not signed the ivory articles for the purpose of identification. He denied the suggestion that he had not gone to the spot. He denied the suggestion that all the proceedings were carried out in their office.
9. After completion of complainant evidence, statement of accused recorded u/s 313 r/w 281 of Code of Criminal Procedure (hereinafter called Cr.P.C.) on 11.10.2019 wherein accused Raju Kanwar stated that he has been falsely implicated as he was not in possession, control, custody of ivory at the time of alleged raid. Accused Aishwarya Bardhan stated that he has been falsely implicated in the present case and the case property is an ancestral property of his family and he has placed the document on record Ex. PW5/D1 to Ex. PW5/D3 and he has requested the IO to take the document on record but they refused and said that he should place them before the Hon'ble court and he was not in possession, control, custody of ivory at the time of raid/seizure.
WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 15 of 21
10. I have heard Ld. Counsel for both the parties. I have given my thoughtful consideration to the submissions in advance on behalf of both the parties and have gone through the relevant records and also the relevant provisions of the Act. Relevant provisions of Section 39/ 49/ 49B(1) of the Act have reproduced for ready reference....
39. Wild Animals, etc. to be Government property:
(1) Every---
(a) Wild animal, other than vermin, which is hunted u/s 11 or sub-
section (1) of section 29 or sub-section (6) of section 35 or kept or [bred in captivity or hunted] in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed by mistake; and
(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed;
[(c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;
(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act,] shall be the property of the State Government, and , where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat [derived from such animal, or any vehicle, vessel, weapon, trap or tool used in such hunting] shall be the property of the Central Government.
(2) Any person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining of such possession to the nearest police station or the authorised officer and shall, if so required,hand over such property to the officer-in- charge of such police station or such authorised officer, as the case WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 16 of 21 may be.
(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or th e authorised officer--
(a) acquire or keep in his possession, custody or control, or
(b)transfer to any person, whether by way of gift, sale or otherwise, or
(c) destroy or damage, such Government property.
49. Purchase of captive animal, etc, by a person other than a licensee.- No person shall purchase, receive or acquire any captive animal, wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this act.
49B(1). Prohibition of dealings in trophies, animal articles, etc. derived from scheduled animals - Subject to the other provisions of this section, on and after the specified date, no person shall,-
(a) commence or carry on the business as-
(I) a manufacturer of, or dealer in scheduled animal articles; or (ia) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]
(ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or
(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or
(iv) a dealer in any captive animals being scheduled animals; or
(v) a dealer in meat derived from any scheduled animal; or
(b) cook or serve meat derived from any scheduled animal in any eating-house.
Explanation.-For the purposes of this sub-section, "eating-house" has the same meaning as the Explanation below sub-section (1) of section
44.
11. Ld. Government counsel for complainant has argued that all the complainant witnesses have fully supported the case of the prosecution and complainant proved its case beyond reasonable WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 17 of 21 doubts.
12. Per contra, Ld. Counsel for the accused argued that the complainant has failed to prove the case against the accused persons as it has come on record that the ivory articles are the ancestral property of accused Aishwarya Bardhan and he was not attempting to sell them. He prays for acquittal.
13. Heard. Considered.
14. Complainant has to prove that accused was found in possession of wildlife articles (ivory) without any license or permit and they were indulging trading of the said articles.
15. Whether the articles seized were ivory (Elephant Tusks) :
All the witnesses of complainant have categorically stated that the articles were identified as ivory as by PW-6 who was an official of wildlife crime control bureau. Moreover, accused Aishwarya Bardhan claimed that the said articles were of ivory but he was in possession as it was his ancestral property for which he was having valid documents. Hence, it has come on record that the alleged seized articles were made of ivory.
16. Whether the ivory articles were recovered from the possession of accused persons:- The member of the recovery team i.e. PW-3, PW-4 and PW-5 categorically stated that accused persons were apprehended by them on 26.02.2008 at Shantipath Chambry. Despite detail cross examination, the recovery from the possession of the accused persons is proved as questions have WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 18 of 21 been put to PW-3 that whether he had asked about the license/ownership documents from the accused. In their statement under section 313 Cr.PC, both the accused Raju had stated that he was not in possession of the ivory articles at the time of raid. Similarly accused Aishwarya Bardhan stated that the he had requested the IO to take the document to showing his legal possession of his articles. This shows the presence of accused at the spot. Moreover, the seizure memo and arrest memo all mentions the spot of seizure and arrest as Shantipath SatyMarg crossing. The departure/arrival entry Ex. A-1, A-2,A3 and A4 mentioned in detail the departure of raiding party to the spot as well as the arrival in the police station and further departure to the court and returned to the police station.
17. At this stage it would be relevant to go through section 57 of the Act which says:
Presumption to be made in certain cases. Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part of derivative thereof} it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part of derivative thereof}.
18. Hence, as per section 57 of the Act, the complainant has to prove that accused was found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be proved by the accused, custody of such WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 19 of 21 person will be treated to be unlawful custody. The accused has placed on record Ex. PW5/D1 and Ex. PW5/D2 and Ex. PW5/D3 to show the legal possession of the ivory items. Ex. PW5/D1 is a report filed by SI Sanjeev Kumar before the Ld. Predecessor regarding the verification of Ex. PW5/D2 which is a letter dated 06.03.2008. as per the verification report, SI Sanjeev Kumar has mentioned that he had verified the letter no. 599 dated 06.03.2008 issued by S. Chander Shekar, District Forest Officer cum Dy. Director, Walmiki Tiger Project, Div-I, Betia. He also mentioned that the said letter was issued to Sh. Madhup Kumar alongwith copy of declaration having diary no. 3589 dated 16.10.2002 mentioning the details of ivory in the said declaration.
Ex. PW5/D3 is the certificate issued by the Assistant Dy. Director, Forest Division in favour of Sh. Madhup Kumar Verma S/o late Sh. Yashoda Nand Verma also mentioning the details of the ivory for transporting them to Delhi with the rider that Sh. Verma will not sell the said ivory items. Accused Aishwarya Bardhan Verma is the son of Madhop Kumar Verma and I find force in submissions of accused that the ivory articles are his ancestral properties. Complainant has not led any evidence to dis prove the said fact. Moreover, none of the witnesses have pointed the presence of any alleged buyer at the spot of recovery. No investigation with respect to the alleged buyer is conducted by the complainant.
19. In the absence of any attempt by accused to sell the ivory articles for which accused Aishwarya Bardhan Verma is having lawful possession, no offence is made out under the Wildlife Protection Act, as not only the possession was legal but also WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 20 of 21 complainant has not brought any evidence to prove the alleged sale to anyone.
20. Hence, in view of the above findings, I am of the considered opinion that complainant has failed to prove the case against accused persons namely Aishwarya Bardhan Verma and accused Raju Kanwar beyond reasonable doubt.
21. Accordingly, accused persons namely Aishwarya Bardhan Verma and accused Raju Kanwar are acquitted for the offence under Section 39, 49, 49 (b)(1) and 48 A which are punishable under section 51 of the Wildlife Protection Act, 1972.
22. Copy of the judgment be supplied free of cost to the accused persons. Digitally signed PAWAN by PAWAN SINGH SINGH RAJAWAT Date: 2019.10.14 RAJAWAT 15:57:54 +0530 Announced in open court on 11th of October, 2019 (PAWAN SINGH RAJAWAT) ACMM(Special Acts) : CENTRAL TIS HAZARI COURTS: DELHI WLI Vs. Aishwarya Bardhan and Anr. CC No.518349/16 21 of 21