Delhi District Court
Wli vs Ramesh Chander Tondon on 4 October, 2012
IN THE COURT OF SH. GORAKH NATH PANDEY,
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
WLI vs Ramesh Chander Tondon
U/s 55 Of Wild Life (Protection) Act, 1972
CC No.108/1
JUDGEMENT
(a) Serial no. of the case : 02401R0042261995
(b) Date of commission of offence : 01.11.94
(c) Name of complainant : WLI VB Dasan
(d) Name, parentage, residence: Ramesh Chander Tandon
Jagmohan Lal Tandon,
Prop. of M/s Apollo Leather Emporium
204, Mohan Singh Market, I.N.A.
Super Bazar, New Delhi
(e) Offence complained of/ proved : U/s 55 of Wild Life (P) Act
(f) Plea of accused : Pleaded not guilty
(g) Final order : Convicted.
(h) Date of such order: 04.10.12 Date of institution : 10.04.95 Arguments heard/order reserved: 29.09.12 Date of pronouncement of Judgment: 04.10.12 Brief statement of the reasons for the decision:
1. Present complaint was filed by Mr. V.B. Dasan, the then Wild Life Inspector (WLI) u/s 55 of Wild Life (Protection) Act, 1972, for contravention of provisions of section 49 & 49B of the Wild Life (Protection) Act, 1972 (hereinafter called the 'Act') which are punishable u/s 51 of the said Act.
As contended, on receipt of an information regarding illegal trade of snake skins articles, a raid was conducted at the business premises of WLI vs Ramesh Chander Tondon 1 of 13 accused i.e. M/s Apollo Leather Emporium, 204, Mohan Singh Market, I.N.A. Super Bazar, New Delhi on 01.11.94 and 25 ladies bags made of Indian Corba (Naja Naja) skins and 2 ladies bags made of Dhaman or Rat Snake skins were recovered from the said shop. As accused contravened the provisions of section 49 and 49B of Wild Life (Protection) Act, 1972, accused was apprehended and case property was seized and this complaint is filed by the complainant against the accused.
2. The accused was summoned for the aforesaid offence and after completion of precharge evidence, a charge u/s 51 of Wild Life (Protection) Act, 1972, was framed against the accused for contravention of the provisions of section 49 & 49B of the Act to which he pleaded not guilty and claimed trial. Thereafter case was listed for post charge evidence.
3. In order to substantiate the aforesaid allegations the prosecution examined three witnesses i.e. complainant/WLI Sh. VB Dasan as PW1, WLI Sh. Mis Ram as PW2 and WLI Sh. SS Negi as PW3.
PW1 Mr. VB Dasan deposed that on receipt of information a raid was conducted at the business premises of accused on 01.11.94 and a thorough search was made resulting recovery of 25 ladies bag made of skins of Kobra Snakes and 2 ladies bag made of skins Dhaman or Rat Snakes and proved his authority letter Ex. PW1/A. It is alleged that the accused failed to produce any legal source of procurement or any document or licence or any authority to keep, possession or to take the same. Thereupon recovered WLI vs Ramesh Chander Tondon 2 of 13 articles were seized vide seizure memo Ex.PW 1/B. The witness correctly identified the accused and proved the case property Ex. P1 to P27.
PW2 WLI Mis Ram and PW3 WLI SS Negi also reiterated the facts of the case and deposed nothing but as deposed by PW1.
4. Statement of accused was recorded u/s 313 Cr.P.C wherein accused denied the allegations leveled against him and stated that he has been falsely implicated in this case. Accused further stated that he used to deal with suitcase only and that too of branded companies like VIP and Aristocrat. Accused further stated that it was festival days of Diwali and few patriwalas used to put their stalls on pavement in front of shops. On the alleged date, few officials conducted raid at the pavement and some recovery was effected and asked him to sign the seizure memo. Upon this he along with other shopkeepers refused to sign the seizure memo. In the mean time the person from whom the recoveries were effected, managed to run away and later on wildlife officials falsely shown the recovery to be effected from his shop. The accused did not come up with any explanation or reason for his false implication, if any. There is not even a single word mentioned in his statement as to why he would be falsely implicated by the complainant in this case.
5. In defence evidence accused examined one Mr. Raj Kumar Bhatia as DW1, his son Mr. Sameer Tandon as DW2, inadvertently Mr. Raj Kumar Bhatia was again examined as DW2, Mr. Madan Mohan Goyal as DW3 and Sh. Deepak, Assistant Ahlamd as DW4.
WLI vs Ramesh Chander Tondon 3 of 13 DW1 Mr. Sameer Tandon deposed that on the date of incident he was present at his shop. The witness further deposed that due to festival season (Diwali), MCD had put stalls under Tehbazaari, in front of the closed shops of super Bazar. The witness further deposed that one person namely Jai Kumar had put his stall of leather purses in front of his shop. 23 persons in civil clothes came there and started inquiring about the helper of Jai Kumar and also asked him to open his bag which contained expensive purses. The said helper refused to open the bag. During this process many public persons including shopkeepers of the market, gathered there. Police official from the police post was also called. Thereafter, the wildlife officials started opening the said bag upon which his father/accused objected the same despite that they opened the bag and took his father/accused to Tis Hazari Complex. The witness further deposed that the two wheeler scooter of Jai Kumar was parked near the stall and same was got deposited in the police station by the shopkeepers of the market.
DW2 Mr. Raj Kumar Bhatia deposed that he knew the accused for the last about 20 years and accused is/was running his shop of leather goods at shop no.204, INA Market, New Delhi. The witness further stated that he used to put counter of candles and the MCD had allowed and allotted him the said counter. In the month of November, 1994 when he was present at his counter, a person who was also having a counter on the pavement, came there on a scooter. Some police officials of crime branch came there at about 3.4 pm. On seeing them the scooterist ran away and that officials of crime branch WLI vs Ramesh Chander Tondon 4 of 13 lifted the articles bag etc from the counter of scooterist. Accused called the police but before reaching the police the said officials took the material. As the accused asked them to give the receipt of the said articles, he was lifted from there.
DW3 Mr. Madan Mohan Goyal deposed that the accused is/was running his shop near his shop in the said market. Upon hearing noise he reached there spot where some police officials also reached. In the mean time Jai Kumar who was running his counter in front of shop of accused ran away from there. DW3 further deposed that the said officials started taking articles which was objected by the accused. Again said some police official reached there in plain clothes and they took the accused and the said articles from there. The scooter of Jai Kumar was taken by the police. Thereafter what happened he does not know.
DW4 Mr. Deepak did not disclose anything about this case and proved the seizure memo in the case file no.18/1 Ex. DW4/A wherein the name of Mr. Sameer Tondon is mentioned as witness at serial no.4. The said complaint case filed by Wild Life Inspector is pending before this court in which Jai Kumar is an accused.
6. I have heard the arguments on behalf of both the parties and gone through the relevant records. I have also gone through the written arguments filed on behalf of accused and considered the relevant provisions of Wild Life (Protection) Act. Learned APP argued that prosecution witnesses have proved the prosecution WLI vs Ramesh Chander Tondon 5 of 13 case and identified the accused as well as case property correctly. Learned defence counsel, on the other hand, argued that nothing was recovered from the shop of accused and he has been falsely implicated in this case and prayed to acquit the accused.
7. The relevant provisions of section 49 and 49B are reproduced for ready reference:
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. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals. (1) 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 eatinghouse.
Section 51 provides punishment and relevant paras of this provisions are reproduced for ready reference:
51. Penalties. (1) Any person who [contravenes any provision of this Act [(except Chapter VA and section 38J)] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and WLI vs Ramesh Chander Tondon 6 of 13 shall, on convict, be punishable with imprisonment for a term which may extend to [three years] or with fine which may extend to [twentyfive thousand rupees] or with both:
[Provided that where the offence committed is in relation to any animal specified in Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be less than ten thousand rupees.
8. Learned defence counsel argued that the spot/shop from where the alleged recovery was effected is situated in a crowded area and being festival season of Diwali, many public persons were passing from there, however, no public witness joined the investigation. This court does not find much weight in these arguments. In this case, recovery has been proved by the prosecution witnesses beyond reasonable doubt, as such, accused cannot get any advantage of nonjoining of public witness to the prosecution case. Moreover this defence witness also deposed regarding the recovery of articles by the raiding team.
9. The sole defence of the accused in this case is that he used to deal with suitcase only and that too of branded companies like VIP and Aristocrat.
Dealing with branded suitcase does not conclude that the accused was not dealing with the articles made of leather. It is further argued that on the eve of of Diwali, few patriwalas used to put their stalls on pavement in front of shops under the permission of MCD and one Mr. Jai Kumar have a stall/counter in WLI vs Ramesh Chander Tondon 7 of 13 front of shop of accused and wildlife officials seized articles belonged to Jai Kumar. As wildlife officials taken the articles and same was objected by the accused, he was falsely implicated in this case. This plea of the accused does not hold water. DW2 Raj Kumar Bhatia and DW3 Madan Mohan Goyal deposed that on the eve of Diwali, MCD allotted some space on the pavement to their counter of articles under Tehbazari of MCD. But no such document/order by MCD is produced on record that in fact MCD has allowed and permitted them to put their counters/stalls on the payments. No step was taken by the accused also to summon any witness from MCD/ or document to show that the space was allotted to Jai Kumar. No explanation is also furnished by accused in this respect. The accused not examined any Jai Kumar to prove that any space was allotted to him under Tehbazari by MCD. Admittedly, said Jai Kumar was running the shop in front of shop of accused and therefore, the consent of accused is imputed in running the shop, if any, by accused.
10.The defence of the accused further appears to be falsified by DW1 Sameer Tondon. In his statement Mr. Tondon clearly stated that MCD had put stalls under Tehbazari, in front of of the 'closed shops' of Super Bazar while accused as well as other defence witnesses stated that Mr. Jai Kumar was having a counter in front of shop of accused and the said shop was running. Further a permanent shopkeeper hardly allow any person or hawker to put a stall/counter in front of his shop especially on the eve of festival season, which may affect the business of accused. It is further argued that on the alleged WLI vs Ramesh Chander Tondon 8 of 13 date, few officials conducted raid at the pavement and some recovery was effected and the accused was asked to sign the seizure memo, upon this accused along with other shopkeepers refused to sign the seizure memo. In the mean time the person from whom the recoveries were effected, managed to run away and later on wildlife officials falsely shown the recoveries to be effected from his shop. This plea of the accused does not inspire any confidence. No one is supposed to keep mum if he is/was being implicated in a false case. If it so happened, accused ought to have taken appropriate action by filing complaint before the concerned court/higher authority. Admittedly, there was an association of shopkeepers there but no action was taken by the association or by the accused especially when the accused had sufficient time to do. All defence witnesses have clearly stated that no complaint to any authority was made regarding false implication of the accused by the wildlife officials.
11.The testimonies of defence witnesses appears to be contradictory to each other. From the statement of defence witnesses it appears that either they have deposed falsely or they were not present at the spot. As per statement of DW2 Mr. Raj Kumar Bhatia, some officials of crime branch reached the spot and lifted the alleged articles, while DW3 Mr. Madan Mohan Goayal is not sure as to who reached the spot and lifted the articles from the spot. In his entire statement DW3 did not disclose whether the person who seized the goods were from the police personnel or from wildlife. DW3 also did not disclose WLI vs Ramesh Chander Tondon 9 of 13 about the goods/articles being sold in the shop of accused. From bare perusal of statement of DW3 it appears that whatever stated by him, is a hearsay because in his statement DW3 has clearly stated that his workers (employees) had told that Mr. Jai Kumar was running his counter in front of shop of accused. There is every likelihood that the Tehbazari, if any, run by Jai Kumar was under
control and supervision of accused and he was running only the shop (extended) of accused.
12.From the statement of DW1 Sameer Tondon it appears that at the time of raid police personnel also reached there. DW1 Mr. Tondaon deposed that one person namely Jai Kumar had put his stall of leather purses in front of his shop. 23 persons in civil clothes came there and started inquiring about the helper of Jai Kumar and also asked him to open his bag which contained expensive purses. The said helper refused to open the bag. During this process many public persons including shopkeepers of the market, gathered there. Police official from the police post was also called. Thereafter, the wildlife officials started opening the said bag upon which his father/accused objected the same despite that they opened the bag and took his father/accused to Tis Hazari Complex. While DW2 Raj Kumar Bhatia testified that the accused called the police but before reaching the police the said official took the said material because the accused asked them to give the receipt of the said articles lifted from there. Moreover, I do not find any occasion for the accused to protest the alleged recovery if he was not concerned any way with them particularly when WLI vs Ramesh Chander Tondon 10 of 13 other public persons/shopkeepers were also present.
13.On one hand it is claimed that Mr. Jai Kumar is not known to accused, on the other hand DW1 Mr. Tondon stated that helper of Jai Kumar was asked to open the bag of Jai Kumar which contained expensive purses. If Mr. Jai Kumar is not known to accused or DW1 Mr. Tondon, then as to how he came to know that bag of Mr. Jai is/was containing expensive purses. The act of the accused narrated by DW2 and DW3 further create doubt over the defence taken by the accused. As per DW2 and DW3 the accused asked the officials to give receipt of said articles which were seized. It is very strange as to why the accused was asked for the receipt regarding seizure of goods of a person not known to him or he was not concerned with. All these facts reflect nexus between and case property and the accused has taken this plea just for the sake of his defence. DW3 also stated that he cannot say as to why the accused was demanding the receipt of articles of Jai Kumar when accused was not having any business relation with Jai Kumar.
14.Learned defence counsel further argued that the bags which were alleged to have been recovered from the shop of the accused were not sent for expert opinion, hence, it cannot be said that the recovered article is actually the skins of alleged wild animals. In rebuttal, learned APP submitted that it has not been the case of the defence that there has been any manipulation or tampering with the case property. He also submitted that the identity of the bags has not been disputed by the learned defence counsel during cross examination of the WLI vs Ramesh Chander Tondon 11 of 13 prosecution witnesses. Identity of the bags made of snake skins has not been disputed by the learned defence counsel during cross examination of the witnesses as well as in final arguments. Prosecution witnesses has clearly stated that recovered articles/ladies bags are made of skins of Indian Corba and Dhaman Rat Snakea and this testimony of prosecution witnesses remained uncontroverted and unchalleged being not cross examined on this point. Prosecution witnesses have also correctly identified the case property/recovered bags Ex.P1 to P27 which were recovered from the shop of accused. Learned APP further submitted that even if the case property not sent to CFSL for expert opinion, it is not fatal to the prosecution story because a WLI inspector can very well identify the skins. As such, this court does not find any thing on record which shows that there has been any manipulation of the case property.
15.Keeping in view of the foregoing discussions and facts and circumstances of the case, this court is of the considered opinion that the prosecution proved this case against the accused beyond reasonable doubt. Aforesaid wild snakes are protected species in partII of Schedule II of Wild Life (Protection) Act. Section 49 of Wild Life (Protection) Act, 1972 provides that no person shall purchase, receive or acquired any wild life article otherwise than from a dealer or from a person authorized to sell or otherwise transfer the same under this Act. Section 49B of this Act provides that no person shall commence or carry on business as a dealer in scheduled animal articles. Since, aforesaid snakes are covered in ScheduleII of PartII of of the Wild Life (Protection) Act, 1972.
WLI vs Ramesh Chander Tondon 12 of 13 As the accused contravened the provisions of section 49 and 49B of the Act, he is held guilty and convicted for the aforesaid offence which is punishable u/s 51 of Wild Life (Protection) Act, 1972.
(GORAKH NATH PANDEY) ACMM(SPECIAL) ACTS, CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 04.10.12 WLI vs Ramesh Chander Tondon 13 of 13