Delhi District Court
Wccb vs . Umar Bashir Dar on 30 April, 2019
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts):
CENTRAL: TIS HAZARI COURTS, DELHI.
CC No. 522883/16
WCCB Vs. Umar Bashir Dar
JUDGMENT
(a) Name of complainant : WCCB through
Sh. S.R.V. Murthy
Deputy Director,
WCCB, New Delhi.
(b) Name, parentage and : Umar Bashir Dar
and address of the accused S/o Bashir Ahmed Dar
R/o. 66, Shiva Colony,
Tonk Fatak, Jaipur,
Rajasthan.
(c) Offence complained of/ proved: U/s 39(3)/44/49/48A/49B(1)
of the Wild Life(Protection)
Act,1972 punishable U/s
51 of the said Act.
(d) Plea of accused : Pleaded not guilty.
(e) Final order : Convicted u/s 49/49B(1)
r/w sec. 51 of Wildlife
(Protection) Act
(f) Date of such order : 30.04.2019
Date of institution : 07.08.2013
Arguments heard/order reserved: 12.04.2019
Date of Judgment : 30.04.2019
JUDGMENT
1. The complainant Sh. S.R.V. Murthy, the then Deputy Director, Wildlife Crime Control Bureau (NR), filed the present complaint for contravention of the provisions of section 9/39/44/48A/49/49B of the Wild Life (Protection) Act, 1972 (for short the 'Act') against the accused Umar Bashir Dar.
2. The brief facts of the case are that on 31.07.2012 Wild Life Vs. Umar Bashir Dar CC No.522883/2016 1 of 13 accused arrived from Riyad by Flight No. A1-924 and had exercised the option to walk through Green Channel alongwith his baggage. On suspicion, baggage of accused were scanned through X-ray machine which reflected cloth items besides some woolen shawls. Then a written notice U/s 102 of Customs Act, 1962 was given to the accused and accused gave his consent for the examination of his baggage. Thereafter, baggage of accused (one dark brown colour " Jinsheng brand" trolley bearing Tax No. 0068593974 and one red color "Aristocrat Brand" zipper suitcase) were checked and 102 shawls were recovered from the said baggage. Accused failed to produce any documentary evidence for legal import of the said shawls.
3. On 31.07.2012/01.08.2012, on being called by customs, Wildlife Inspector Sh. B.S. Khati examined the shawls at Customs arrival Halls of the Terminal-3, IGI Airport, New Delhi and opined that 32 shawls were suspected to be of Shahtoosh shawls. Then all the recovered 102 shawls were seized and 32 suspected shawls were sent to Wildlife Institute of India, Dehradun, for expert opinion. As per Wildlife Forensic lab report, all 32 suspected shawls contain hair of Tibetan Antelope (Panthlops hodgsoni) which are banned as covered under Schedule-I of the Act. Accordingly, the case was transferred to WCCB which filed the present complaint.
4. On the complaint cognizance was taken and accused was summoned. Accused appeared and copies of complaint alongwith other documents were supplied to him and matter was fixed for pre-charge evidence.
5. After completion of pre-charge evidence, vide order on charge dated 09.03.15, charge was framed against accused Umar Wild Life Vs. Umar Bashir Dar CC No.522883/2016 2 of 13 Bashir Dar for the offence U/s 39(3)/44/49/48A/49B(1) of the Wildlife (Protection) Act, punishable u/s 51 of the Act to which he pleaded not guilty and claimed trial.
6. In order to substantiate the allegations, the prosecution examined five witnesses.
7. CW-1 Dr. S.P. Goyal, retired scientist from Wildlife Forensic Cell stated that a sealed packet was received from the custom office for species identification which contain 32 shawls marked as F-2296/1-32 to F-2296/32-32. He further stated that the hair present in the shawls were examined for microscopic analysis and based on the examination, 32 shawls contains hair of Tibetan antelope (Panthops hodgsoni). He further stated that a report dt. 31.10.2012 Ex. CW-1/1 was sent the custom department vide covering letter dt. 31.10.2012 Ex. CW-1/2 under his signature. During cross examination, the witness admitted that seal impression is not mentioned in his lab analysis report Ex. CW-1/1 and stated that the packet was received by his P.A. Mr. Thapa. He denied the suggestion that he did not examine the alleged shawls and that he gave his report at the instance of custom officials. He further denied the suggestion that the shawls were not of Tibetan Antelope.
8. CW-2 Sh. Kailash Chandra, Superintendent, Central Excise Department stated that on 31.07.12 he was posted as Air Custom Officer and was on duty at Green Channel in International Arrival hall, IGI Airport and intercepted the accused with his baggage who was trying to pass through the green channel and when asked as to whether he is carrying any dutiable or prohibited goods, he answered in negative. He proved list of passengers, check in baggage tag and custom declaration slip as Wild Life Vs. Umar Bashir Dar CC No.522883/2016 3 of 13 Ex. CW-2/1, electronic air ticket as Ex. CW-2/2, panchnama Ex. CW-2/3 through which all recovered 102 shawls were seized, detention receipt for 32 shawls Ex. CW-2/4, arrest memo Ex. CW- 2/5, bail bond furnished by the accused Ex. CW-2/6 and release order Ex. CW-2/7. The witness also identified the accused as well as case property Ex. P-1 to P-32. During cross-examination, he admitted that he did not examine the alleged recovered shawls himself and the CCTV footage at the immigration of the period when accused had left the country. He further stated in his cross- examination during post charge evidence that no complaint has been filed under Customs Act against the accused. But volunteered that they have referred the matter to the Wildlife Department. He admitted that though he had arrested the accused under Customs Act but had not filed any prosecution of the accused under the Customs Act. He denied the suggestion that they have allowed the accused to take the goods/shawls in question abroad which were in permissible limit. He also denied suggestion that he has deposed falsely being interested witness and accused has been falsely implicated.
9. CW-3 S.R.V. Murthy Regional Deputy Director, WCCB has stated that on 01.08.2012 on receipt of information from the custom officials regarding seizure of Shahtoosh shawls from the accused, he directed WLI Sh. B.S. Khati to examine the seized material. He further stated that after transfer of case to Wildlife Department, he issued summons Ex. CW-3/1 to the accused and recorded his statement which is Ex. CW-3/2. He further stated that after conclusion of investigation, he filed the present complaint Ex. CW-3/4 in pursuance to Gazette notification Ex. CW- 3/3. During cross examination he stated that he was told by B.s. Khati that 32 shawls have been identified as Shahtoosh shawls. He admitted that he had no personal knowledge of 32 shawls Wild Life Vs. Umar Bashir Dar CC No.522883/2016 4 of 13 being shahtoosh shawls. He admitted that he had neither gone to Jaipur or Kashmir to verify the claim of accused. He also admitted that nothing incriminating was recovered at Jaipur emporium of accused. He failed to state whether seal impression was taken on a blank paper or not. He stated that after sealing the seized shawls, same were kept with Sh. B.S. Khati for one or two months. He denied the suggestion that he is deposing falsely and accused never made any statement voluntary and his signatures were taken forcibly.
10. CW-4 Sh. B.S. Khati WLI stated that on 31.07.12 upon receiving telephonic call from Customs Preventive Arrival about the detention of one person Umar Bashir Dar with super fine quality shawls, he visited the airport Terminal-III where two trolley bags were shown to him which were opened in the presence of accused and two independent witnesses namely C. Mani and Jaipal, which contained 102 shawls. He further stated that accused was asked to show the documents for legal import of the shawls but accused failed to show any proof. He further stated that he examined those shawls and out of 102 shawls, he identified 32 shawls suspected to be of Shahtoosh on the basis of his training and experience in identifying animal articles with the help of magnifying glass. He then stated that he prepared his report dt. 01.08.2012 Ex. CW-4/1 and suggested to send the said shawls for further confirmation to Wildlife Institute of India, Dehradun. He further stated that panchnama Ex. CW-4/2 was prepared in his presence. He further stated that on 27.11.12 he visited the shop of accused M/s Kashmir Emporium, Hotel Ram Bagh Palace, at Jaipur, he examined the shawls at Emporium. His report in this regard is Ex. CW-4/2. During cross-examination he failed to recollect at what time the call was received from Customs Official on 31.07.12 about detention of accused. He Wild Life Vs. Umar Bashir Dar CC No.522883/2016 5 of 13 stated that they do not maintain departure or arrival register except the attendance register in the office. He admitted that he had not verified from FRRO/immigration departure about the visit of accused to abroad. He stated that he do not have any document to show that he was instructed by seniors to visit IGI Airport on 31.07.12. However, he stated that he was deputed by Regional Deputy Director. He denied the suggestion that no shahtoosh shawls were recovered from the bag of accused or the shawls recovered were separate shawls which were taken by accused from India on 25.07.12 for selling abroad and same shawls were brought back on 31.07.12. He denied the suggestion that he had not gone to IGI Airport and had not examined 32 shawls.
11. CW-5 Sh. D.B.R. Nagpaul stated that he was working as an Air Customs of Superintendent. He recorded statement of accused Ex. CW-5/1 which bears his signatures as well as that of accused. He identified accused who was present in the Court. During cross-examination he stated that he recorded the statement of accused after arrival of Wildlife Inspector who prepared the pachnama before the statement was recorded. He admitted that he had not signed the panchnama and had not obtained signature of I.O. or Wildlife Inspector on the statement of accused. He denied the suggestion that accused never made any statement or his signatures were taken under dueress and pressure on blank paper. He admitted that statement of accused was typed on computer.
12. After completion of post charge evidence, statement of the accused was recorded separately U/s 313 Cr.P.C. wherein accused stated that he took pashmina shawls to abroad to sell but could not do so and brought them back. He further stated that Wild Life Vs. Umar Bashir Dar CC No.522883/2016 6 of 13 while leaving India through immigration, the shawls were checked by the customs officials and no shawl was found to be of shahtoosh just 4-5 days prior of his arrival at the same airport. He further stated that customs officials had cleared all the shawls being pashmina but on arrival the custom officials manipulated and falsely implicated him in the present case.
13. No defence evidence was lead by the accused.
14. I have heard Ld. Counsel for both the parties. I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and have gone through the relevant records and also the relevant provisions of the Act.
15. The relevant provisions of section 49 and 49B(1) 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 Wild Life Vs. Umar Bashir Dar CC No.522883/2016 7 of 13
(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.
16. Ld. Defence Counsel for the accused have vehemently argued that story of prosecution is doubtful and accused has been falsely implicated in the present case. Ld. Counsels for the accused also submitted that there are various contradictions in the deposition of prosecution witnesses. He pointed out that CW- 1 was not shown the shawls in the court and he had not stated the seal impression. He also stated that the seal impression was not mentioned even in the analysis report. Ld. Counsel for accused also argued that non examination of independent panch witnesses is fatal to the case of prosecution and the tampering with the case property cannot be ruled out as the seal of customs by which the case property was initially sealed was not handed over to the independent witnesses after sealing the case property. He also pointed out that CW-5 has recorded the statement of accused U/s 108 of Customs Act after the arrival of Wildlife Inspector but had not obtained his signatures as attesting witness to the statement of accused. He relied upon judgments in the matter of Saifulla Vs. State : 1993 (1) Crimes 2004, Mohdmmadali Suleman Varachhia Vs. State of Gujrat & Ors.: 1996 Cri.L.J 3125, Amarjit Singh & Anr. Vs. State (Delhi Administration): 1994 IV AD Delhi 1171, Kailash @ Kuddu Vs. State of Delhi : 2000 Cri.L.J.2134, Madhu Sudan Gupta Vs. Dinesh Gupta decided on 16th October 2006 and Niwas @ Patel Vs . State : Crl. Appeal No. 522/2005 decided on 31.08.2009.
17. On the other hand, Ld. Counsel for complainant argued Wild Life Vs. Umar Bashir Dar CC No.522883/2016 8 of 13 that all the complainant witnesses have fully supported the case of the prosecution and complainant proved its case beyond reasonable doubts.
18. Whether the shawls seized are shahtoosh shawls:
In view of testimony of CW-1 who was Wildlife Forensic Expert who has given his report as Ex. CW-1/1 stating that on the basis of his microscopic analysis he had come to a conclusion that 32 shawls contained hair of Tibetan antelope ( Panthalops hodgsonii) which is protected under Schedule-I of the Act. Despite detailed cross-examination of the expert witness, the defence could not show any lacuna in the report of the expert witness except that the shawls were not produced before him in the Court. However, non production of shawls before the expert witness in the Court does not disprove his report which is categorical. Hence, non mentioning of the seal impression by CW-1 is also not fatal to prove the report. No suggestion has been put by CW-1 that he has not received the case property in a sealed condition or that he had not received the packet. No evidence has been led by the defence to disprove the said fact.
19. Since the recovery was effected by intercepting the accused while he was passing through green channel after his arrival from Riyadh by Flight No. AI-924 on 31.07.12, the role of custom official comes into play in this case.
20. Complainant examined CW-2 who has firstly intercepted the accused with the baggages containing shawls in question. CW-2 has categorically stated that accused has denied having any prohibited goods but when his luggage was passed through X-ray machine, commercial quantity of clothes were noticed which on examination found to be 102 shawls. Accused has Wild Life Vs. Umar Bashir Dar CC No.522883/2016 9 of 13 claimed that all 102 shawls are pashmina shawls which he has taken from India for trading on 25.07.12 and the said shawls were brought by him in his luggage. However, no permission whatsoever of custom/immigration authorities either of India or of Saudi Arabia has been produced by the accused. Moreover, accused despite opportunity has not led any evidence to show that he has procured these 102 shawls from some vendors in Kashmir as stated by him in his statement Ex. CW-5/1. No particulars of such sellers and the amount given to them towards the said purchase, were mentioned by the accused in his statement. He claimed that he has purchased all the shawls in cash which as per his statement are approx Rs. 10,000/- per piece which totals to Rs. 10,00,000/- for 102 shawls. The source of such a huge amount has not been disclosed by the accused. No bank details of any withdrawal of such amount is placed on record.
21. Ld. Counsel for accused has stressed his argument on the lacunas on the part of investigating officer in not handing over the seal of customs by which the case property was initially sealed and not examining the CCTV footage of the airport. However, lacunas if any, cannot be the sole ground to acquit anyone if there are other incriminating evidence proving the guilt has come on record. It is not in dispute that accused has not arrived from flight no. AI-924 from Riyadh on 31.07.12 as his name appears in the list of passengers at serial no. 51 in Ex. CW- 2/1. The boarding pass of the accused is also on record alongwith the electronic ticket Ex. CW-2/2.The non preservation/examination of CCTV footage is not fatal to the case of the complainant as presence of accused at the spot is not disputed at all. As per seizure memo Ex. CW-2/3 which is dt. 31.07.12 and signed on 01.08.12 by the witnesses including the accused , the accused has not denied that he was intercepted at the green channel Wild Life Vs. Umar Bashir Dar CC No.522883/2016 10 of 13 while he was passing through. It is also not denied that his luggage was subjected to examination by the customs authorities. The total number of shawls recovered from the luggage of the accused is also not in dispute. No invoices have been produced by the accused for keeping such a large number of shawls for trading purposes. The presumption goes against the accused as onus was upon him to reasonably explain the possession of such number of shawls. As per complaint, after the case property was sealed and seized on 01.08.12, same was sent to Wildlife Institute of India on 02.09.12 which is opined that the 32 shawls contained hair of Tibetan Antelope which is a protected species. The non mentioning of seal impression is not fatal as no evidence has been led by the accused showing the probability of any tampering. The seizing officer is a government servant and is presumed to be acting without any malice towards anyone. No previous enmity has been alleged against the seizing officer by the accused. The judgment of Saifulla (supra) is not applicable to the facts of the present complaint as CW-1 has categorically stated that he received the sealed parcel and the report also states that after examination the parcel was handed over in a sealed condition. Moreover, during testimony of CW-2, the case property was produced in a sealed pulanda having seal of WII.D.Dun. There was specific observation of the Court that the case property cannot be taken out or kept inside without breaking the seal.
22. The judgment of Mohammadali (supra) is also not applicable as there was no unexplained delay in sending the case property for analysis as the case property was sent within one month of the seizure. The other judgments cited are also not applicable to the present complaint and therefore, same are not discussed individually.
Wild Life Vs. Umar Bashir Dar CC No.522883/2016 11 of 13
23. 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}.
24. Hence, as per section 57 of the Act, prosecution 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 person will be treated to be unlawful custody. The accused has not lead any evidence to rebut the presumption of Section 57 of the Act. From the cross examination of prosecution witnesses, accused has failed to bring anything on record to rebut the said presumption.
25. It is also pertinent to mention here that during the course of cross examination of the witnesses, Ld. Defence Counsel did not give any suggestion as to why the witnesses are deposing against the accused. Even otherwise, it is not the case of accused that witnesses were inimical towards the accused. It is Wild Life Vs. Umar Bashir Dar CC No.522883/2016 12 of 13 also to be kept in mind that the case property is not easily available in the market. Witnesses have totally supported the case of the prosecution regarding the recovery of shahtoosh shawls as well as their trade and also they all are corroborating each other on all material aspects and there is no inconsistency contradictions in their statement. Their statements on record are found to be cogent, inspire the confidence of the Court and there is no reason to disbelieve the same. I do not find any reason that why complainant would falsely implicate the accused.
26. In view of the aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt against the accused Umar Bashir Dar as the seized shawls were found to be containing hair of Tibetan Antelope which were recovered from his luggage at the said date, time and place and the quantity of shawls shows that accused was indulging in the business of Shahtoosh shawls without any permit or licence. The said shawls were made of/derived from Tibetan Antelope (Pantholops hodgsonii) which are specified in Schedule-I of the Act and thus accused has contravened the provisions of section 49 and 49B(1) of the Act which is punishable u/s 51 of Wild Life (Protection) Act, 1972. Accordingly, accused Umar Bashir Dar is held guilty and convicted for the offence punishable U/s 51 of the Act for the contravention of sections 49 and 49B(1) of Wild Life (Protection) Act.
27. Case property be confiscated to the State. Copy of the judgment be supplied free of cost to the convict.
Digitally signed by PAWAN PAWAN SINGH
SINGH RAJAWAT
Date: 2019.04.30
Announced in open Court RAJAWAT 16:04:59 +0530
on 30th April, 2019 (PAWAN SINGH RAJAWAT)
ACMM (Special Act) : Central
Tis Hazari Courts : Delhi.
Wild Life Vs. Umar Bashir Dar CC No.522883/2016 13 of 13