Jammu & Kashmir High Court - Srinagar Bench
Tenzin Dorjee vs State Of J&K Through Sho P/S Leh on 17 September, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRMC No. 305/2015
Reserved on: 13.08.2021
Pronounced on: 17.09.2021
Tenzin Dorjee .....Petitioner(s)
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. A. Hanan, Advocate
V/s
State of J&K through SHO P/S Leh, Ladakh ..... Respondent(s)
Through: Mr. T. M. Shamsi, ASGI
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. The petitioner seeks indulgence of this Court under Section 561-A Cr.PC, to quash the criminal proceedings in case titled State v. Tenzin Dorjee and Ors., pending before the Court of Chief Judicial Magistrate, Leh, (for brevity "Trial Court") in case FIR No. 11/2009, registered against him at Police Station, Leh, for the commission of offences punishable under Sections 15, 16/46, 39-A of J&K Forest Act, Sections 3/7/55 of Biological Diversity Act, 2002 (for short "Act of 2002") and Sections 60, 60-A of J&K Wild Life (Protection) Act (for short "WLPA").
2. The allegations are that petitioner has procured a "forest produce" (Yarsa Gumboo), which was seized at Leh. Consequent to the seizure, two sets of legal proceedings were initiated against the petitioner and other co- accused. One set of proceedings initiated were under the provisions of Forest Act, including Section 26 and other allied Sections, for seizure/confiscation of the "forest produce". The Authorized Officer passed an order against the petitioner. Aggrieved thereof, a Revision was 2 CRMC No. 305/2015 filed before the Sessions Judge, Leh. Revision was dismissed, against which petition has been filed before this court, which is pending consideration. The other set of proceedings initiated against the petitioner are that after the "forest produce" was seized, a case FIR No.11/2009, came to be registered in Police Station, Leh and upon completion of investigation, challan was presented before the Trial Court, in which the order for framing of charges has been passed against the petitioner and the prosecution has been directed to produce evidence.
3. The petitioner questions the pendency of the Criminal Challan against him and submits that same be quashed, inter alia, on the grounds that neither he has committed any offence nor his action constitutes any offence; that Forest Act, defines "forest produce" and according to respondent, the 'forest produce' seized is "Yarsa Gumboo", but no such produce is found in the forests of the entire State of Jammu and Kashmir; that the provisions of Forest Act, apply only to such "forest produce" as are defined therein and are available in the forests of Jammu and Kashmir; that even the Rules framed under the Act, relating to transportation of "forest produce" do not apply to the seized "forest produce"; that the "forest produce" is available in Nepal and one of the co-accused Atuk Lama, lawfully purchased the said produce and paid all the taxes on it; that this material is reported to have medicinal value and is used by Buddhists in Leh; that it is not the case of the prosecution that the seized "forest produce" is available anywhere in the State of Jammu and Kashmir; that the provisions of Forest Act, will not apply to the seized product. This issue is also involved in other petition being OWP No. 1117/2012.
3 CRMC No. 305/2015
4. Learned senior appearing counsel for petitioner contends that assuming that the seized material is a "forest produce", but the same is found in Nepal and in some other states of India where it is auctioned openly. There is no ban on acquiring the said "forest produce' and can be transported to any part of country. Once a product is not a "forest produce" within the State of Jammu and Kashmir, the provisions of Forest Act, WLPA or Act of 2002, will not apply. It is also stated that for purpose of Forest Act, it is essential that the product must qualify to be "forest produce" under the provisions of Section 2(g)(a)(b) of the Act. The provisions of Section 15/16, 39A, 46 Forest Act, have no application to the seized "forest produce". Similarly, the provisions of WLPA, in particular Section 60 and 60-A, have no application to the "forest produce". For the same reason, Sections 3, 7/55 of the Act of 2002, also have no application to the "forest produce". No charge under Sections 379/34 RPC has been framed. The petitioner has also been charged under Sections 379/34 RPC. It is also contended that there was no allegation that the petitioner removed alleged "forest produce" from the custody or possession of any person. Further, there was no common intention amongst the accused persons as would be evident from the final police report filed under Section 173 Cr.PC, as well as from the statement of witnesses recorded under Section 161 Cr.PC, copy whereof has been placed on record of this petition. The Trial Court has also charged the petitioner under Section 420 RPC. Interestingly, the order dated 23.09.2015 makes no mention of Section 420 RPC. This is patently illegality. It is further stated that apart from above, there is another set of proceeding pending against him, which has been diarized as OWP No. 1117/2012. The petitioner is, therefore, being prosecuted under the same 4 CRMC No. 305/2015 law, both for confiscation and for alleged criminal offence. Petitioner submits that this is not permissible. The two proceedings arising under the same Act cannot be initiated simultaneously. The petitioner is prejudiced by the two sets of proceedings. Besides it is illegal. The continuance of the proceedings before the Trial Court constitutes abuse of the process of the law. It is stated that to meet the ends of justice, it is necessary that the proceedings before the Trial Court are quashed.
5. In the objections filed by the respondent, it is stated that on 22.11.2009, Police Station Nyoma, received an information through a reliable source that one person, namely, Sherap Angdu, along with his associates, was in possession of forest produce banned under law and were proceeding towards Nyoma with an intention to smuggle such forest produce across the border to China. On this information, a case FIR No. 11/2009 was registered at Police Station Leh, for the commission of offences punishable under Sections 15, 16/46, 39-A of Forest Act, Sections 3/7/55 of Act of 2002 and Sections 60, 60-A of WLPA, against the accused. During the course of investigation, one vehicle bearing No.JK0B-9469 (TATA-207) was intercepted by SHO P/S Nyoma. During the search of vehicle, the illicit forest produce was recovered, packed in four bags. All the forest produce along with said vehicle was seized on spot in presence of witnesses including SDM Nyoma, and statement of the witnesses was recorded. It is also stated that the seized forest produce was transported without any relevant legal Forest Transit Permit. The seized material was weighed in the presence of Executive Magistrate 1st Class, Leh, which weighed approximately 73 Kgs and the rate of such forest produce aimed to be smuggled was estimated to be more than Rs. 1.60 cores, as Forest Development Corporation, in the state of Uttrakhand has fixed the rate at 5 CRMC No. 305/2015 Rs. 2.30 lacs per kg. The sample of seized items was sent to Wildlife Institute of India, Dehradun and Forest Institute of India, Dehradun, for expert opinion. As per the expert opinion, the seized material has medicinal value and is used in Chinese system of medicine. The institute has further certified that Yarsha Gonbo (Cordyseps Sinensis) is a forest produce. The Forest Research Institute, has also informed that it grows in various parts of India. It is found in large quantity in many parts of India. The Yarsha Gunboo is a forest produce as per Section 2(g) Forest. During the course of investigation, it came to fore that there is a racket going on for the transportation of the said seized items and these seized items were collected by one of the accused, namely, Sherab Angdu R/o Mudh, Nyoma, from a Tibetan lady, namely, Tsering Mingyur, accused no.2 from her residence cum hotel, Potala, Choglamsar, Leh, on 22.11.2008 on the instructions (via telephone) of her husband, i.e., petitioner (Tenzin Dorjee). The seized items were to be smuggled to China, across border at Dumtselei at Chinese territory. These seized items were sent via Kingfisher Airlines Cargo from Delhi to Leh and the said consignments were collected at Leh Airport by accused no.3, Karma Yountan. However, the Cargo was addressed in the name of accused no.4, namely Kalsang Angmo, showing the consignment as Nodual Perishable Blanket. During the course of investigation, Investigating Officer, has collected both oral and documentary evidences and finally charge sheet under Section 173 Cr.PC, after obtaining sanction from authorized officer from forest Department Leh, was submitted before the Trial Court on 28.04.2015 and thereafter, learned Trial Court framed the charge against the accused persons on 23.09.2015 for the commission of offences punishable under Section 15/16, 6(ee), 39-A, 46 Forest Act, 3, 6 CRMC No. 305/2015 7/55 Act of 2002, 60, 60-A WLPA, 379/34 RPC and prosecution was directed to produce evidences.
6. Heard learned counsel for the parties and perused the material on record.
7. The Trial Court has charged the accused for the offences punishable under Sections 15/16, 6(ee), 39-A, 46 of Forest Act, Sections 3, 7/55 Act of 2002, 60, 60-A of WLPA, 379/34 RPC. Now on the basis of the allegations, it is to be seen as to whether offences, for which accused has been charged under the Act, i.e., Ranbir Penal Code, J&K Wild Life (Protection) Act, Biological Diversity Act and J&K Forest Act, are, prima facie, made out against him and as to whether he can be put to trial before the Trial Court for the commission of said offences.
8. Sections 378 and 379 of RPC deal with the offences of the theft. In terms of Section 378, whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that properly in order to such taking, is said to commit theft. It is when the allegations discloses that such person has dishonestly taken any moveable property out of the possession of any person without the consent of that person, that person is said to have committed theft, for which punishment is provided under Section 379 of RPC. The allegations contended in this petition are with regard to the possession of Yarsa Gumboo, which is a biological resource as per the provisions of Act of 2002. There is no allegation that same has been taken dishonestly from the possession of any person without the consent of that person, therefore petitioner cannot be framed as accused under Section 379 of RPC. The allegations are that on 22.11.2009, accused was travelling in vehicle bearing registration no. JK0B-9469 and on its search , four bags of forest produce in the form of "worms" was found and an amount of Rs. 7 CRMC No. 305/2015 8,12,500/- also found in their possession. Police took the possession of vehicle, said worms as well as the money which was found in their possession. Consequent to the said seizure, investigation was carried and during the course of investigation one King Fisher Airway Cargo Bill was seized. In addition to that, fourteen Baby Blankets were also seized. The total weight of worms, which is claimed to be a forest produce was 73.922 Kgs. The said forest produce as per the investigation was received by accused persons from Delhi and transported through King Fisher Airlines. Another vehicle bearing registration no. JK01J-4496 was also seized. The material recovered and seized from their possession was sent to Forest Research Institute, Dehradun, for expert opinion, which confirmed that seized material is a forest produce. The worms, which have been seized from the possession of accused and which is claimed to be forest produce, attract the provisions of Forest Act and WLPA. The seized material is "Yarsa Gumboo", which is available in Nepal, where same has been purchased by Atuk Lama. The said material is said to have medicinal value. The material recovered from the possession of accused is stated to be forest produce in Nepal, but not in Jammu and Kashmir, which could have attracted the provisions of the Forest Act. The product must fall within the definition of forest produce as given in the provisions of Forest Act, i.e., Section 2(g)(a)(b) and if it does not fall within the definition, a person cannot be prosecuted for the commission of offences punishable under Sections 15/16, 39-A and 46 of the Forest Act. The provisions of WLPA and Forest Act are not applicable. WLPA has been promulgated in J&K to provide for the protection of wild animals, birds and plants and for matters connected therewith or ancillary or incidental thereto and it was applicable in the erstwhile State of Jammu and 8 CRMC No. 305/2015 Kashmir, the animals, birds and plants and the matters connected therewith or ancillary or incidental thereto were defined or provided in WLPA. Section 2 thereof deals with the matters which fall within the purview of this Act. The material, thus, recovered from the possession of the accused does not fall within the definition of provisions of WLPA. Therefore, the provisions of WLPA, are also not attracted in this case.
9. What has been recovered from the accused is "Yarsa Gumboo". Yarsa Gumboo, the caterpillar Fungus and its biological name is ophiocordyceps sinensis and its origins are Tibetian and is a kind of Yellow caterpillar (Lepidoplera) Fungus Combination. Thus, Yarsa Gumboo is biological resource and falls within the definition of Section 2(c) of the Act of 2002, which reads as under:
"2(c) biological resources means plants, animals and micro- organisms or parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value but does not include human genetic material".
10. Chapter II of the Act of 2002 deals with the Regulations of Access to Biological Diversity. Section 3 being relevant and is reproduced as under:-
"3. Certain persons not to undertake Biodiversity related activities without approval of National Biodiversity Authority-(1) No person referred to in sub-section (2) shall without previous approval of the National Biodiversity Authority, obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization. (2) the persons who shall be required to take the approval of the National Biodiversity Authority under sub-section (1) are the following namely:-
(a) a person who is not a citizen of India;
(b) a citizen of India, who is a non-resident as defined in clause (30) of section 2 of the Income Tax Act, 1961 (43 of 1961)
(c) a body corporate, association or organization:-
(i) not incorporated or registered in India; or
(ii) incorporated or registered in India under any law for the time being in force which has any non-Indian participation in its share capital or management".9 CRMC No. 305/2015
11. Section 7 prohibits having possession of any biological resource for commercial utilization, or bio-survey and bio-utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board concerned. However, this prohibition is not applicable to the local people and communities of the area and also growers and cultivators of of biodiversity. In the present case, the accused was found in possession of Yarsa Gumboo, a biological resource, without there being any intimation to the State Biological Board, thus, having violated the provisions of Section 3 as well as Section 7 of Act of 2002 and is liable under the provisions of Section 55 of the Act, which provides penalization. Section 55 of Act of 2002 reads as under:
"55. Penalties-(1) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of section 3 or section 4 or section 6 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both".
12. Section 55, thus, provides punishment for contravention or where attempts to contravene or abets the contravention of the provisions of Section 3 and Section 7 of the Act.
13. For the foregoing reasons and having regard to investigation conducted by the prosecution and record of the file, prima facie, commission for offences punishable under Sections 3, 7 and 55 of the Act of 2002, is made out against the accused. The offences punishable under Section 379/34 RPC, Sections, 60, 60-A of Jammu and Kashmir Wildlife (Protection) Act, 1978 and also Sections 15/16, 6(ee) 39-A, 46 of the Jammu and Kashmir Forest Act, are not attracted or made out in this case.
14. Record and report of the Trial Court would reveal that after framing the charge, prosecution has examined 17 witnesses out of total 41 witnesses 10 CRMC No. 305/2015 till date and other witnesses are yet to be examined. Since as per the discussion made above, the offences under Ranbir Penal Code, Jammu and Kashmir Wild Life (Protection) Act, and Jammu and Kashmir Forest Act are not made out, therefore, order, whereby charge has been framed to the said extent, is quashed, however, the charge framed to the extent of Sections 3, 7 and 55 of Act of 2002, shall continue. Accordingly, the Trial Court shall proceed further for recording statement of rest of the witnesses strictly in accordance with rules. Thus, petition filed under Section 561-A Cr.PC is partly allowed.
15. Registry to send copy of this order to Trial Court.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 17.09.2021 "Manzoor"
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
MANZOOR UL HASSAN
DAR
2021.09.20 17:10