Bangalore District Court
V Raju vs Nazir Ahmed on 19 August, 2024
KABC030010312012
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 19th Day of August, 2024
C.C. No.969/2012
State by Kalasipalya Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1.Sri Nazeer Ahamed
Aged about 24 years
S/o. Sri. Afthaf Ahamed
No. 53/1, Lalbagh Road,
Mavalli, Bangalore
2.Sri Babu @ Rehamatulla
Aged about 44 years,
S/o Sri Abdul Khaleek,
R/at No.3 and 4,
9th Main road, B.T.M.
KABC030010312012 CC No.969/2012
Layout, Bengaluru.
3. Sri Faizulla @ Sri Lallu
Classic Chicken Center,
Rasal Market ... Accused
Case against the Accused No. 1 and 3 could not be
secured and hence directed to file separate charge
sheet by the order dated 09/07/2024.
(Accused No.2 represented By Sri A.M.Mujawar,
Advocate)
1. Date of commission of 27-12-2010
offence
2. Name of Complainant Sri. V. Raju
3. Offences complained of Under Section 9, 33,
40, 44, 49, 50 and 51
of the Wild Life
Protection Act, 1972
4. Charge Pleaded not guilty
5. Final Order Accused No.2 is not
found guilty
6. Date of order 19-08-2024
2
KABC030010312012 CC No.969/2012
JUDGMENT
The Police Sub-Inspector of Kalasipalya Police Station submitted charge sheet against accused No.1 to 3 for the offences punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act, 1972.
2. Prosecution Case: On 27-12-2010 at Kalasipalya, Mavalli, Lalbagh Road within the limits of Kalasipalya Police Station, the accused No.1 was in possession of Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) or Grey Patridge in his shop namely A.N. Chicken stall without any license in order to sell the same at a higher price. The Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) or Grey Patridge comes within the prohibited species as defined under the Wildlife Act. The Accused No.2 and 3 supplied the Goujala Hakki to the accused No.1.
3. First Information Report: Upon the receipt of credible information, CW1/PW1 - Sri V.Raju, PSI, CID, Forest Division, Bengaluru along with police personnel CW2 to 4, CW5 to 12 were raided on A.N.Chicken Stall situated at Kalasipalya and seized 90 Goujala Hakki in presence of CW4 as per Ex.P1 and subjected the same to property form No.158/2010 and lodged complaint as per Ex.P2.
3KABC030010312012 CC No.969/2012 The P.S.I. of Kalasipalya PS has received the complaint and registered a Crime No.414/2010 against the accused No.1 to 3 for the offenses punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act, 1972, prepared FIR and sent the same to the Court and to his superior officers.
4. Investigation: During the course of investigation, CW15/PW2 on the receipt of complaint from CW1/PW1, registered FIR as per Ex. P. 10 and handed over Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) to the Bannerughatta National Park on 29/12/2010 and obtained the photographs of Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) as per Ex. P. 3 to 9 and recorded the statements of requisite witnesses, collected the documents of rental agreement wherein the accused No.1 has running the A.N.Chicken Stall and submitted the charge sheet for the alleged offences against the accused No.1 to 3.
5. Charge: On receipt of charge sheet, this Court took cognizance of offences alleged against the accused No. 1 to 3. Accused No.2 is enlarged on bail. Case against accused No.1 and 3 is ordered to be split up/separate charge sheet by the order dated 09/07/2024. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused No.2. After hearing learned Sr. APP and 4 KABC030010312012 CC No.969/2012 counsel for accused charge for the offenses punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life Protection Act have been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
6. Prosecution Evidence: The prosecution in order to establish its case cited 15 witnesses, examined 3 witnesses and exhibited 10 documents and closed their side. The presence of CW2 and CW3 and CW5 to CW9 and CW11 to CW14 could not secured despite due execution of proclamation and hence given up by the order dated 14/07/2023, 14/09/2023 and 13/02/2024 respectively.
7. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.2 was examined as per section 313 of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
8. Heard the arguments. Perused materials on the record.
9. The following point are arises for consideration is as follows;
5KABC030010312012 CC No.969/2012
1. Whether the prosecution proved beyond all reasonable doubt that on 27-12-2010 at Kalasipalya, Mavalli, Lalbagh Road within the limits of Kalasipalya Police Station, the accused No.1 was in possession of Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) or Grey Patridge in his shop namely A.N. Chicken stall without any license in order to sell the same at a higher price.
The Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) or Grey Patridge comes within the prohibited species as defined under the Wildlife Act and the Accused No.2 and 3 supplied the Goujala Hakki to the accused No. 1 thereby resulted in commission of the offences under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act ?
2. What order?
6KABC030010312012 CC No.969/2012
10. The court's findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order REASONS
11. Point No.1: In this case, the prosecution is required to prove that the accused No.2 along with accused No.1 and 3 have committed the offences punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act, as per the charges leveled against them. In order to prove the case, the prosecution has examined the following witnesses as follows.
i. CW1/PW1 Sri. V.Raju, the informant and the then PSI of CID, Forest Division, has deposed in his evidence that, on 27-12-2010, on receipt of credible information he along with his police personnel visited A.N.Chicken Stall wherein accused No.1 was present and was selling the Goujala Hakki without license. On enquiry that the accused No.1 stated that these birds were brought from Shivajinagar and Goruguntepalya and kept for sale at higher price. He seized the 90 Goujala Hakki through seizure mahazar as per Ex.P1 and produced the same before SHO with along with requisition to register the 7 KABC030010312012 CC No.969/2012 case as per Ex.P2. He identified the 90 Goujala Hakki through photographs as per Ex.P3 to Ex.P9.
ii. CW15/PW2 Sri Imthiyaz Patel, the then PSI of Kalasipalya Police Station deposed in his evidence that on 27-12-2010 CW1 has produced accused persons, 90 Goujala Hakki along with mahazar. On receipt of the requisition from PW1, he registered the FIR and sent the same to court as per Ex.P10, recorded statement of witnesses and collected the rental agreement in the name of accused No. 1. After completion of investigation, he submitted charge sheet against accused persons. He further deposed that he sent the seized birds to Bannerughatta National Park and identified the Goujala Hakki in the photographs as per Ex.P3 to 9 .
iii. CW10/PW3 Sri Ananthaiah, the then PSI of CID, Forest Division, Bengaluru, who was accompanied with PW1 has reiterated the evidence of PW1. He identified his signature on the spot cum seizure mahazar and the same is marked as Ex. P. 1B.
12. It is the specific case of prosecution that on 27-12-2010, the accused No.2 namely Sri Babu @ Rehamatulla and accused No.3 Sri Faizulla @ Lallu supplied Goujala Hakki to accused No.1 for sale in 8 KABC030010312012 CC No.969/2012 his chicken stall situated at Lalbagh Road without license. In this regard the accused No.2 and 3 have taken the specific defense that Goujala Hakki (ಗೌಜಲಹಕ್ಕಿ) or Grey Patridge does not come within the prohibited species as defined under the Wildlife Act however the learned counsel for accused relied upon the notification No.LLP/13854/2010 dated 5-7-2010 which has been enumerated as follows;
QUAIL BREEDING AND TRADE:
Japanese quail has been introduced into India from abroad as domesticated species, it qualified as a poultry bird and does not fall within the preview of wild life (Protection) Act 1972 according to V.N.K.Pillai, Assistant Inspector General of Forest letter issued to the Chief Wild Life warden dated 9th July 1979 the Japanese quail is becoming an increasingly popular and important agricultural species.
The imported domesticated Japanese Quails (Couturnix Japonica) can be developed and bred like poultry by farmers to cater to market of Quail meal, however, Indigenous Quails, according to Late Dr.Salim Ali has mentioned the existence of quails in nature in India. He has reported there presence in North Easter States. Any breeding in capacity 9 KABC030010312012 CC No.969/2012 of trade in the species is prohibited. Indiscriminate hunting and reducing habitat has alarmingly reduced its population.
So, on perusal of the said notification, it is clear that the Japanese Quail/Natti chicken and Goujala Hakki are resembles one and the same.
13. The accused has cross examined CW15/PW3/IO wherein ಸದರಿ ಗೌಜಲಹಕ್ಕಿಗಳು ಪೌಲ್ಟ್ರಿ ಪಾರಂಗೆ ಅಥವಾ ಕಾಡಿಗೆ ಸಂಬಂಧಪಟ್ಟ ಬಗ್ಗೆ ಮಾಹಿತಿ ಪಡೆದಿರುತ್ತೇನೆ. ವಶಪಡಿಸಿಕೊಂಡಿದ್ದ ಗೌಜಲಹಕ್ಕಿಗಳು ಪೌಲ್ಟ್ರಿ ಪಾರಂಗೆ ಸಂಬಂಧಪಟ್ಟಿದ್ದು ಕಾಡಿನ ಹಕ್ಕಿಗಳು ಅಲ್ಲ ಎಂದು ಹಾಗೂ ಸದರಿ ಹಕ್ಕಿಗಳನ್ನು ಮಾರಾಟ ಮಾಡಲು ಅನುಮತಿ ಅವಶ್ಯಕತೆ ಇಲ್ಲ ಎಂದು ಕರ್ನಾಟಕ ಸರ್ಕಾರದವರು ಆದೇಶ ಹೊರಡಿಸಿರುವ ಬಗ್ಗೆ ಆರೋಪಿತರು ತಿಳಿಸಿದ್ದರೂ ಸಹ ಸುಳ್ಳು ವರದಿ ನೀಡಿದ್ದೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸದರಿ ಗೌಜಲಹಕ್ಕಿಗಳನ್ನು ಕೇರಳ ಮತ್ತು ತಮಿಳುನಾಡಿನಲ್ಲಿ ಪಾರಂ ಮಾಡಿ ಸಾಕುತ್ತಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ಅಂಗಡಿಗಳಲ್ಲೂ ಸಹ ಸದರಿ ಹಕ್ಕಿಗಳನ್ನು ಮಾರಾಟ ಮಾಡುತ್ತಿರಬಹುದು.
PW2 deposed that:
ವಶಪಡಿಸಿಕೊಂಡಿದ್ದ ಕೌಜಲ ಹಕ್ಕಿಗಳನ್ನು ತಜ್ಞರ ಪರೀಕ್ಷೆಗೆ ಕಳಿಸಿಕೊಟ್ಟಿರುವುದಿಲ್ಲ. ವಶಪಡಿಸಿಕೊಂಡಿದ್ದ 10 KABC030010312012 CC No.969/2012 ಕೌಜಲಹಕ್ಕಿಗಳನ್ನು ಸಾಕಬಹುದು ಹಾಗೂ ಮಾರಾಟ ಸಹ ಮಾಡಬಹುದು ಎಂದು ಸರ್ಕಾರದಿಂದ ಸುತ್ತೋಲೆ ಆಗಿದ್ದ ಬಗ್ಗೆ ನನಗೆ ಮಾಹಿತಿ ಇಲ್ಲ.
PW1 deposed that:
3ನೇ ಆರೋಪಿ ಶಿವಾಜಿನಗರದಲ್ಲಿರುವ ಒಂದು ಚಿಕನ್ ಅಂಗಡಿಯಲ್ಲಿ ಸಹಾಯಕನಾಗಿ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದು ಆತನ ವಿರುದ್ದ ಸುಳ್ಳು ವರದಿ ನೀಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸದರಿ ಗೌಜಲಹಕ್ಕಿಗಳನ್ನು ಕೇರಳ ಮತ್ತು ತಮಿಳುನಾಡಿನಲ್ಲಿ ಪಾರಂ ಮಾಡಿ ಸಾಕುತ್ತಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ. ಅಂಗಡಿಗಳಲ್ಲೂ ಸಹ ಸದರಿ ಹಕ್ಕಿಗಳನ್ನು ಮಾರಾಟ ಮಾಡುತ್ತಿರಬಹುದು.
However it appears from the entire record, the prosecution has not placed any single document to corroborate seized 90 Goujala Hakki comes within the prohibited species as defined under the Wildlife Act or are reared in poultry farming. Rather the evidence of PW3 makes it very clear that these Japanese Quail/Natti chicken are reared in poultry farming in the state of Tamil Nadu and Kerala and are available for sale in market.
14. Prosecution has not placed the source of alleged 90 Goujala Hakki from the possession of the accused No. 2 and 3 for having supplied to the accused No.1.
11KABC030010312012 CC No.969/2012
15. The prosecution could have secured the opinion from experts with regard to alleged seizure of 90 Goujala Hakki belongs to Wildlife species or poultry farming/domesticated birds.
16. Thus, the evidence of PW1 to PW3 emerges that the Japanese Quail/Natti chicken and Goujala Hakki are resembles one and the same with regard to appearance, without any cogent evidence, this court cannot come to a conclusion that the accused No. 1 was selling the wildlife species of Goujala Hakki to attract the offenses alleged under offences punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act.
17. Mere sending of Goujala Hakki to the Bannerghata National Park, this court cannot come to the conclusion that the seizure of 90 Goujala Hakki in a rack would be wildlife species
18. PW1 without any knowledge about the said Japanese Quail/Natti chicken and Goujala Hakki, arrested the accused persons in this case. The prosecution did not prove the main ingredients of alleged offences mainly Goujala Hakki belongs to wildlife species and such being the case, this court had to accord benefit of doubt to this accused No. 2.
12KABC030010312012 CC No.969/2012 Thus, by extending the benefit of doubt in favour of accused No. 2, this court answer the above point No.1 in the negative.
19. Point No.2:- For the foregoing discussion and the findings to the above point No.1, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.2 is found not guilty and acquitted from the offences punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act, 1972.
(ii) Accused No.2 is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
13KABC030010312012 CC No.969/2012
(iv) Office to keep this file against split up accused No.1 and 3.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 19th day of August, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : V.Raju PW2 : Imthiyaz Patel PW3 : Ananthaiah
Documents marked on behalf of the prosecution:
Ex.P1 : Seizure mahazar Ex.P2 : Complaint Ex.P3-9 : Photographs Ex.P10 : F.I.R.
Material Objects marked on behalf of the prosecution: NIL 14 KABC030010312012 CC No.969/2012 Witnesses examined for the defence: Nil Documents marked on behalf of the defence: Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.
15KABC030010312012 CC No.969/2012 19-08-2024 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.2 is found not guilty and acquitted from the offences punishable under Section 9, 33, 40, 44, 49, 50 and 51 of the Wild Life (Protection) Act, 1972.
(ii) Accused No.2 is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Office to keep this file against split up accused No.1 and 3.
(v) Ordered accordingly.
VIII ACJM, Bengaluru.
16KABC030010312012 CC No.969/2012 17 KABC030010312012 CC No.969/2012 18