Delhi District Court
Wli (Cbi) vs M/S Bhat Shawl Industries on 27 March, 2015
WLI (CBI) vs M/s Bhat Shawl Industries
CC No.03/1
27.03.2015
Present. Sh. Jai Hind Patel, learned APP for CBI.
Sh. Mir Akhtar Hussain, advocate for accused.
Accused is absent.
An exemption application moved on behalf of accused.
Heard. Accused is exempted from personal appearance for today
only.
Arguments are heard on the point of charge.
Be taken up at 4.00 pm for order.
(D.K. SHARMA)
ACMM (Spl. Acts)/CENTRAL
DELHI/27.03.2015
Date of Institution: 23.06.2009
Date of order: 27.03.2015
ORDER ON CHARGE
1.Vide this order, I shall dispose off the issue of charge.
2. (i) The complainant Sh. N.M.P. Sinha, the then Deputy Superintendent of Police/CBI/EOU V New Delhi, filed the present complaint for contravention of the provisions of section 40/49/49B and 58 of the Wild Life (Protection) Act, 1972 (for short the 'Act') against accused no.1 firm M/s Bhat Shawl Industries, WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 1 and its Managing Partner i.e accused no.2 Mohd. Latief Bhat.
(ii) In this case, FIR No. RCSIB 2009 E 0002 dated 03.02.2009 Ex.CW10/A was registered by the CBI on the basis of complaint/letter No. 363/WN08/1410 dated 23.01.2009 of Sh. Ramesh K. Pandey, IFS, Deputy Director, Wild Life Crime Control Bureau (for short 'WCCB;) (NR), New Delhi, mentioning therein detention of an Export consignment containing contraband item i.e Shahtoosh Shawls under Shipping Bill No.3473328 dated 25.11.2008 at Air Cargo, IGI Airport, New Delhi. After registration of FIR, investigation was assigned to Inspector Jasvir Singh.
(iii) During investigation, it was revealed that accused no.1 who was alleged to be manufacturer and exporter of shawls, carpets etc. booked a consignment containing 455 Woolen Pashmina Shawls for its export to M/s Almalaki Group of Co., Doha, Qatar, under S.B. No.3473328 dated 25.11.2008. During inspection by the authorities of WCCB and the Custom Department, Cargo Shed, IGI Airport, New Delhi, a total number of 25 shawls were suspected to be containing Shahtoosh hairs. It is further alleged that a consignment containing 445 number of shawls of various varieties, sent by the accused no.1 firm to Jet Airways vide Air Waybill NO. 76487541 dated 24.11.2008 M/s Shubham Logistic Pvt. Ltd. for its shipping to M/s Alomalaki Group of Company, Dohar, Qatar. The said consignment reached New Delhi on 25.11.2008 in four bales which were received by one Mr. Bunti Kumar, the representative of M/s Shubham Logistic Pvt. Ltd. who as per Invoice No. BIS/71 dated 24.11.2008 received through fax from accused no.1 firm, prepared WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 2 export Invoice and Packing list and handed over the same along with aforesaid consignment to Mr. Randeep Singh, Clearing Agent of M/s Trade Wings Pvt. Ltd., a registered Customs Handling Agent on 25.11.2008 for its export process.
(iv) On 26.11.2008, Mr. Sandeep Singh submitted the said consignment to Custom Authorities at Cargo Shed, IGI Airport, New Delhi, along with export documents for its examination and clearance. The officers of Customs, ordered for "NOC" from the Wildlife department. Accordingly, the consignment was subjected to examination by Ms. Aarti Singh, Wild Life Inspector, WCCB. WLI Ms. Aarti Singh took out two shawls suspected to be containing Shahtoosh hairs from bale no.7 in presence of Custom Officers and Mr. Randeep Singh. These two shawls were sealed separately in a packet and forwarded to Wildlife Institute of India, Dehradun, for its examination and export opinion. The Wildlife Institute confirmed that both shawls contained hair of Tibetan Antelope (Panthalops hodgsoni) which is listed in ScheduleI of the Act. On receipt of positive report, remaining 23 shawls were also sent to the said Institute who confirmed and gave similar positive report. Hence, present complaint.
3. On the complaint cognizance was taken and accused was summoned. Accused appeared and he was supplied copies of complaint alongwith its annexure and matter was fixed for precharge evidence.
4. In order to substantiate the allegations, the prosecution examined WLI Ms. WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 3 Aarti Singh as CW1, Sh. Jagmender Singh the then Cargo Export at the O/o Addl. Commissioner of Air Cargo (Export), IGI New Delhi, as CW2, Sh. Ramesh Kr. Pandey the then Deputy Director in WCCB as CW3, Sh. Sanjay Kumar s/o Sh. Ramesh Singh as CW4, Sh. Manzoor Hussain Bhat the then Branch Head, J & K Bank, International Bank Division, MA Road Srinagar, as CW5, Sh. Sanjeev Dhaulta Director of M/s Shubham Logistic as CW6, Sh. C.P. Sharma from Wildlife Institute as CW7, Sh. Bunty Kumar working with M/s Shubham Logistic as CW8, Sh. Randeep Singh working with M/s Trade Wing Limited at the relevant time as CW9, Inspector Jasvir Singh, the IO of the case as CW10, Sh. Rafique Ahmed the then Inspector of Police, CBI, Anti Corruption Branch, Srinagar, as CW11 and Sh. N.M.P. Sinha as CW12 who filed the present complaint.
A) CW1 WLI Ms. Aarti Singh deposed that on 26.11.2008 the shipment of accused no.1 firm was marked to her for inspection by customs. On checking packages no.4 and 7, she suspected two shawls drawn from package no.7 to be containing Shahtoosh hairs. Both shawls were sealed in the presence of Custom inspector Ms. Veena Hindwani and the Custom House Agent of M/s Trade Wings Mr. Randeep Singh. The witness further deposed that on 29.11.2008, she along with her Deputy Director, Assistant Director and another Wildlife Inspector did 100% examination of all four packages and 23 more shawls drawn from package no.7, were suspected to be containing Shahtoosh hairs. She has also identified the seized shawls before the court which were WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 4 produced in pullanda Ex.CW1/P1 containing 23 shawls Ex.CW1/P2 to Ex. CW1/24 and packet Ex.CW1/P27 containing two shawls Ex.CW1/P26 and Ex.CW1/P27.
B) CW2 Sh. Jagmender Singh deposed that on 01.12.2008, CW1 WLI Ms. Aarti Singh told to Mr. MK Yadav, Custom Superintendent that there was suspected consignment and same was to be detained. Accordingly, he arranged two independent witnesses Mr. Japesh and Sanjay Kumar, took 23 shawls from the said consignment, prepared a punchnama already Ex.CW1/1 in presence of Custom House Agent and aforesaid witnesses and handed over to CW1. C) CW3 Sh. Ramesh Kr. Pandey deposed that on 26.11.2008, CW1 WLI Ms. Aarti Singh inspected a consignment of 455 shawls out of which two shawls were suspected to be made of Shahtoosh. Both shawls were seized and sent to Wildlife Life Institute for identification vide letter dated 27.11.2008 Ex.CW3/1 and in pursuance to letter Ex.CW3/1, he received report dated 28.11.2008 Ex.CW3/2 confirming the presence of hairs of Tibetan Antelope. CW3 further deposed that after following all the legal formalities, 23 shawls were also sent to Wildlife Institute who gave similar report dated 09.01.2009 Ex.CW3/3. D) CW4 Sh. Sanjay Kumar is one of the witness in whose presence 23 Shahtoosh shawls were checked and sealed by CW1. He also identified his signature appearing on panchnama Ex.CW1/1 and pullanda Ex.CW1/P1.
WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 5 E) CW5 Sh. Manzoor Hussain Bhat deposed that there were three partners in the accused no.1 firm, namely, Mohd. Latif Bhat, Shabir Bhat & Hilal Ahmed Bhat. Subsequently, Shabir Bhat resigned from the firm and fresh partnership was executed on 06.08.2007. CW5 also proved the letter written by CBI for providing information of bank account of accused no.1 firm, as Ex.CW5/A, certified copy of account opening fromcumspecimen signature card of accused no.1 firm as Ex.CW5/B, certified photocopy of importexport code as Ex.CW5/C, copy of partnership deed dated 09.12.1987 Ex.CW5/D, resignation of Shabir Ahmad Bhat from accused no.1 firm as Ex.CW5/E and copy of fresh partnership deed dated 06.08.2007 as Ex.CW5/F. F) CW6Sh. Sanjeev Dhaulta deposed that accused no.1 firm was one of his clients. On 24.11.2008, his company M/s Subham Logistics received invoices and packing list through fax of 4 bundles of 455 shawls which were sent through Jet Airways from Srinagar to New Delhi. He has also proved relevant documents i.e invoice, packing list, form SDF of shipping Bill No.3473328, AnnexureD under the DEPB Declaration of shipping, AnnexureA the Export Value Declaration and copy of authority letter dated 07.10.2008 given by accused no.1 firm, Ex.CW6/A to Ex.CW6/F respectively. G)CW7 Mr. C.P. Sharma who examined the suspected shawls, deposed that on examination, he found all 25 shawls are containing hairs of Tibetan Antelope and relied upon report Ex.CW3/2 and Ex.CW3/3 prepared by him. The witness also deposed that two sample shawls received through letter dated 28.11.2008 WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 6 and 23 sample shawls were received through letter 09.01.2009 proved both letters as Ex.CW7B and Ex.CW7/C. H) CW8 Mr. Bunty Kumar deposed that on 26.11.2008 he received a consignment of garments consisting of four packets from Domestic Airport Palam and delivered the same to the godown of M/s RG Trade Wings and got marked the Air Bills given by his company to collect the consignment, as mark A. I) CW9 Sh. Randeep Singh deposed that on 26.11.2008, four packets of accused no.1 firm were taken from his godown at Mahipal Pur and were taken to IGI Cargo for custom clearance where WLI Ms. Aarti Singh examined the packet no.4 and 7 on which numbers were given by custom department. After examination of both packets, two shawls were taken out from packet no.7 and sealed.
The witness further deposed that on 29.11.2008, he was again called by WLI Ms. Aarti Singh and she examined all the consignment of accused no.1 firm. On 01.12.2008 again the packets were examined and 23 shawls were taken out from the packet no.7 and sealed. On 16.01.2009, whole consignment of accused no.1 firm was seized. The witness also proved Declaration From as Ex.CW9/A and also identify his signature on seizure memo already Ex.CW1/2 and Ex.CW1/2.
J) CW10 Inspector Jasvir Singh, the IO of the case, reiterated the facts of the case and proved copy of FIR Ex.CW10/A and information regarding accused WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 7 no.1 firm Ex.CW10/B. K) CW11 Sh. Rafique Ahmed (the then Inspector of Police) who made inquiry and collected information regarding accused no.1 firm and its bank account, on the receipt of letter dated 02.05.2009 and relied upon documents already proved by CW5. He also proved statement of CW5 Sh. Manzoor Hussain Bhat as Ex.CW11/A recorded by him.
L) CW12 Sh. N.M.P. Sinha is the complainant who filed the present complaint Ex.CW12/A.
5. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and have gone through the relevant records. I have also gone through relevant provisions of Wild Life (Protection) Act, 1972.
6. Learned defence counsel argued that prima facie, no charge is made out against the accused and testimony of prosecution witness is not reliable as no public witness was joined in the investigation.
On the other hand, Learned APP for CBI, argued that there are sufficient grounds to frame charge against the accused in view of testimony of prosecution witnesses and materials available on record.
7. The accused no.1 firm based at Sringar, was engaged in manufacturing and exporter of shawls, carpets etc. The accused no.2 who was alleged to be looking after business of accused no.1 firm, tried to export a consignment WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 8 containing 455 Woolen Pashmina Shawls to M/s Almalaki Group of Co., Doha, Qatar and sent the consignment through Jet Airways vide Air Waybill NO. 76487541 dated 24.11.2008 to M/s Shubham Logistic Pvt. Ltd. for its shipping to M/s Alomalaki Group of Company. During clearance process, the custom officers suspected some shawls to be of contraband and accordingly CW1 WLI Ms. Aarti Singh checked the consignment and total number 25 shawls out of 455 shawls, were suspected to be containing Shahtoosh hairs.
8. The factum of seizure and inspection of the shawls have been corroborated by the prosecution witnesses. CW7 Sh. C.P. Sharma who examined the sample/suspected shawls also proved his report Ex.CW3/2 and Ex.CW3/3. As per his reports, all 25 shawls are containing guard hair of Tibetan Antelope (Panthelops hodgsoni). The Species of Tibetan Antelope are specified in ScheduleI of the Act.
9. It is well settled law regarding consideration at the stage of framing of charge that the court has power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained, the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 9 provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge, though for conviction the conclusion is required to be that accused has committed the offence. At the stage of framing of a charge probative value of the materials on records cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which has prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the provable defence of the accused. It is not obligatory for the judge at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter u/s 227 or u/s 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 10 supposed to decide whether the materials collected by the Investigating Agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. I have carefully gone through the record. In this regard this court is supported with law laid down by the Hon'ble Apex Court and Hon'ble High Court reported as "UOI vs Prafulla Kumar, AIR 1979 SC 366, State of Maharashtra and others vs Som Nath Thapa and other JT 1996 (4) SC 615, State of Bihar vs Ramesh Singh, AIR 1997 SC 2018: (1997 CRI LJ 1606), Umar Abdula Sakoor Sorathia vs. Intelligence Officer Narcotic Control Bureau JT 1999 (5) SC 394, Kalu Mal Gupta vs. State 2000 I AD Delhi 107".
10.The legal proposition qua the framing of charge is well settled and has been quoted in a catena of decisions. In the judgment of R.S. Nayak vs. A.R. Antulay and another passed in CA No.658 of 1985 dated 17.04.1986 it has been observed that: "The Cr.P.C. contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under Section 227, the trial Judge is required to discharge the accused if 'he considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under Section 239 arises when 'the Magistrate considers the charge against the accused to be groundless.' The power to WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 11 discharge is exercisable under Section 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction.....". It is a fact that Section 227 and 239 provide for discharge being ordered before recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge U/s 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, legal position is that if the trial Court is satisfied that a prima faice case is made out, charge has to be framed."
11.In view of the aforesaid discussions and facts and circumstances of the case, prima facie there are sufficient grounds to frame charge u/s 40/49/49B and 58 of the Wild Life (Protection) Act, 1972. Let formal charge be framed against the accused separately.
Learned counsel submits that he will cross examine all the witnesses. Hence, put up for framing of charge/post charge evidence on 21.05.2015. Witness PW1 & PW2 be summoned for their cross examination.
(D.K. SHARMA) ACMM (Spl. Act)/CENTRAL DELHI/27.03.2015 Announced in open court on 27th March, 2015 WLI (CBI) vs M/s Bhat Shawl Industries CC No.03/1 12