Delhi District Court
State vs . Yogender Shukla on 10 February, 2010
2 nd
BAIL APPLICATION
FIR NO.31/10
PS SUBZI MANDI
U/S.44/49/49B(I) & 51 OF WILDLIFE PROTECTION ACT, 1972
STATE VS. YOGENDER SHUKLA
10.2.2010
This is second bail application of this accused Yogender Shukla. Pr. Wildlife Inspectors S.S. Negi, R.R. Meena, V.B. Dasan with Ld. APP for the State Sh. Atiq Ahmed.
Counsel Sh. Sunil Mittal, Adv. for the applicant.
The first bail application of this accused was dismissed by this Court on 30.1.2010 and thereafter an application for bail was preferred by the applicant before Hon'ble Sessions Court but it is stated that on 09.2.2010, it was withdrawn without arguments from the Sessions Court with a view to file an application in this Court.
At the outset, Ld. Counsel for the applicant was questioned by this Court as to the change in the circumstances for this Court to entertain the second bail application, to which it is claimed that accused has spent ten days in custody which is a change in circumstance and also that this Court granted bail to another accused in another case. The said another case is absolutely on a different issue and in that case, the articles allegedly recovered were opined to be absolutely not covered under the Wildlife Protection Act, 1972, by the concerned Wildlife Inspector and, therefore, bail was granted. Grant of bail in that case has no Bail order in Wildlife Vs. Yogender Shukla, FIR no.31/10 PS Subzi Mandi/dated 10.2.2010 page 1 to 6 k bearing whatsoever in the facts of this case. Similarly, spending ten days in custody is also no satisfactory change in circumstance to entertain this application.
Ld. Counsel for the accused vehemently contended that even in this case, the articles allegedly recovered are not protected species under the Wildlife Protection Act, 1972. Ld. Counsel for the accused has shown certain coloured photographs of the prohibited articles and the articles allegedly recovered from the accused, to show the difference in the articles. He also requested the court to get the articles visually examined by some senior officer of wild life stating that articles are not covered under the wild life protection Act. On this, before lunch, the Wildlife officials were directed to bring the case property to the Court for its examination. Wildlife officials informed that from the twelve different types of articles recovered from the accused, 2 samples each were separately drawn and those samples can be brought to the court and examined, which was allowed.
The sample property, sealed in one pullanda with the seal of this Court, is brought to the Court after lunch and in the meantime senior officer, Assistant Director from the Wildlife Crime Control Bureau was also called to examine the articles.
Bail order in Wildlife Vs. Yogender Shukla, FIR no.31/10 PS Subzi Mandi/dated 10.2.2010 page 2 to 6 k After lunch, Mr. V.K. Dikshit, Asstt. Director from the Wildlife Crime Control Bureau also came to the Court and on the direction of this court, the sample property was opened and examined jointly by Mr. V.K. Dikshit, Asstt. Director and, the Wildlife Inspectors Sh. R.R. Meena and Sh. V.B. Dasan.
After examining the sample articles, a joint report is given by them stating that out of twelve kind of articles recovered from the accused, the samples of only two articles, i.e., 'Orange Spider Conch' (Lambis Crocea); and 'Top Shells' (Trochus Niloticus Linnacus), visually matches with the prohibited articles. The Wildlife officials also states, orally, that out of remaining kinds of shells, visually the two articles 'Turbo Marmatus', and 'Map Cowri', he is only 50% sure on visual examination that these articles appear to be prohibited. He submits that there are 50% chances that these articles may not be the prohibited one.
It is stated by the Wildlife officials that the remaining samples does not tally with the prohibited articles.
Accordingly, in nutshell, the visual examination by the Wildlife officials reveal that other articles other than the four named above does not fall in the Wildlife Protection Act, 1972 as protected species. It is also clear that Turbo Marmoratus and Map Cowri alleged to be recovered from the accused may or may not be the same as prohibited.
Bail order in Wildlife Vs. Yogender Shukla, FIR no.31/10 PS Subzi Mandi/dated 10.2.2010 page 3 to 6 k It means only Orange Spider Conch and Top Shells appear to be prohibited one. These articles are admittedly falling in ScheduleIV of the Wildlife Protection Act, 1972. The maximum sentence provided for possessing and dealing in these articles of ScheduleIV is three years. Admittedly, no ScheduleI article is recovered from the accused, as per the report given by V.K. Dikshit, R.R. Meena and V.B. Dasan today.
Ld. Counsel for the accused even points out that as per the book 'Identification ManualcumPractical Field Guide' 'Mollusca', with coloured photographs, in the 'Orange Spider Conch', there are six arms, whereas it is not so in the recovered articles. It is contended that even the orange spider conch does not matches with the prohibited one.
Without going into that question, in my considered opinion when today it is submitted that out of so many recovered articles, only two appear to be matching with the prohibited one, it makes a good case for bail. On the last occasion it was submitted that schedule I articles were also recovered and remaining all articles were claimed to be schedule IV articles. Whereas it has come today that only two articles matches with schedule IV articles only. In view of the report given by the Wildlife officials today that only Top Shells and Orange Spider Conch appear to be visually matching, the second bail application of this accused deserves to be entertained. Maximum sentence for dealing in schedule IV articles Bail order in Wildlife Vs. Yogender Shukla, FIR no.31/10 PS Subzi Mandi/dated 10.2.2010 page 4 to 6 k is 3 years. Accused has already spent 10 days in JC. There is no previous involvement of the accused. Remaining investigation can be conducted without keeping the accused in J/C. In view of Gurucharan Singh & Ors Vs. State, AIR 1978 SC 179; Sudhir Nathani Vs. CBI 108(2003) DLT 108; Anil Mahajan Vs. Commissioner of Customs and another, 2000 II Apex Decision (Criminal) Delhi High Court 141; Court on its own motion Vs. CBI 109 2004 DLT 494, accused Yogender Shukla is admitted to bail upon furnishing personal bond surety bond in the sum of Rs.25,000/ with one surety of like amount.
This order is subject to the condition that accused shall join the investigation as and when required and he shall not try to influence any of the witnesses, shall not involve himself in any other kind of offence, shall not tamper with the evidence, failing which his bail will be liable to be cancelled. In case, the accused holds any passport, the same shall be surrendered before the IO within two days of his release and in case he is not holding any passport, he shall file an affidavit with the IO within the same period that he does not hold any passport. The accused will not travel abroad without prior permission of this Court. The application is disposed of.
Bail order in Wildlife Vs. Yogender Shukla, FIR no.31/10 PS Subzi Mandi/dated 10.2.2010 page 5 to 6 k The sample property which is produced today be again sealed back in the same pullanda with the seal of this Court and be sent for its scientific analysis to the Marine Biological Station, Zoological Survey of India, 100 Santhome High Road, Chennai, as this address is provided by Mr. V.K. Dikshit, Asstt. Director, saying that this lab is competent to examine these articles, scientifically.
Copy of this order be given dasti to both sides.
(DIG VINAY SINGH) ACMM(SPL.ACTS)/CENTRAL TIS HAZARI COURTS/DELHI 10.2.2010 Bail order in Wildlife Vs. Yogender Shukla, FIR no.31/10 PS Subzi Mandi/dated 10.2.2010 page 6 to 6 k