Delhi District Court
Wli vs Arif Qureshi on 3 June, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
WLI vs Arif Qureshi
U/s 55 Of Wild Life (Protection) Act, 1972
CC No.82/1
JUDGMENT
(a) Serial no. of the case : 02401R0532962002 (b) Date of commission of offence : 18.11.1996 (c) Name of complainant : WLI Aarti Singh
(d)Name/parentage/add. of accused:Arif Qureshi s/o Sarif Qureshi r/o H.No.2258 Gali Dokatan, Turkman Gate, 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: 02.06.2015 Date of institution of complaint: 30.10.2002 Arguments heard/order reserved: 21.05.2015 Date of Judgment: 02.06.2015 Brief statement of the reasons for the decision:
1. The complainant Ms. Aarti Singh, then Wild Life Inspector filed the present complaint u/s 55 of Wild Life (Protection) Act, 1972 (for short the 'Act') against the accused for violation of section 40(2)/49 & 49B(1) of the said Act, punishable u/s 51 of the Act.
Succinctly, the facts of the case are that on 18.11.1996, on receipt of information that one person i.e accused is dealing/selling Shahtoosh shawls at his shop no.41, Delhi Hatt, opposite to INA Market, New Delhi, a raid was organized by Wild Life Preservation Office (NR), Ministry of Environment & WLI vs Arif Qureshi CC No.82/1 1 of 16 Forests alongwith other agency and conducted raid at the said shop where accused was found present and five shahtoosh shawls were recovered from his possession. It is further alleged that accused also confessed that he was dealing in Shahtoosh shawls but failed to produce any certificate/licence required to deal in shahtoosh shawls. Recovered shawls were alleged to be made of Tibetan Antelope/Chiru's wool which is a scheduled animal and specified in ScheduleI of the Act. Since, the trade or possession of the said shawls are banned under the Act, the case properties were seized and after completion of investigation, present complaint was filed against the accused.
2. Accused was summoned. On his appearance, copy of complaint and of documents were supplied. After precharge evidence, a charge was framed against him on 16.12.2013 for contravention of provisions of section 39/40(2)/44/49 and 49B(1) of the Act, punishable u/s 51 of the Act to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, the prosecution examined Shri Rahul Dutta, Consultant at Traffic India as PW1, Shri K.N. Singh Assistant Director (retd.) WCCB (NR) as PW2 and WLI Aarti Singh as CW3.
PW1 Shri Rahul Dutta reiterated the facts of the case and deposed that on 18.11.1996, he got an information at about 10.30 am from Mr. R.V. Singh, WLI regarding presence of shahtoosh shawls in a shop at Delhi Hatt, New Delhi. On receipt of this information, he reached the spot at about 1.00 pm where he met WLI R.V. Singh and K.N. Singh besides some other people near WLI vs Arif Qureshi CC No.82/1 2 of 16 the gate of Delhi Hatt. From there, the raiding party reached to shop no.41, Delhi Hatt and presented themselves a decoy customers to the accused who was found sitting in that shop. PW1 further deposed that accused showed one Shahtoosh shawl and compared it with the normal shawls showing the difference and told the raiding party about the fine quality of the shahtoosh shawls and after showing four more shahtoosh shawls, accused again compared the same with the normal shawls. Thereupon, WLI R.V. Singh asked the accused to show any document/permit for possession of shahtoosh shawls which the accused failed to show. Then, accused was arrested by the officials of Wild Life Preservation and all five shahtoosh shawls were seized vide seizure memo Ex.PW1/1.
PW2 Sh. K.N. Singh, member of raiding team, has also supported the prosecution story and corroborated the statement of PW1. PW1 further identified his signature as well as signature of accused appearing on seizure memo Ex.PW1/1. He has also identified the accused as well as case property correctly.
CW3 WLI Aarti Singh is the complainant who filed the present complaint Ex.CW3/1.
4. After completion of post charge evidence, statement of accused was recorded u/s 313 Cr.P.C read with section 281 Cr.P.C. separately wherein accused denied all the material allegations and stated that he went to the Safdarjung Hospital for medical treatment of his wife. While returning, he went to Delhi Hatt for casual visit where he saw that some persons were quarrel in front of WLI vs Arif Qureshi CC No.82/1 3 of 16 one shop. When he reached near place of quarreling, he saw that some persons were tieing up the things there and thereafter they took 56 Kashmiri people alongwith me to their office. The officials kept open the tied bundles there and returned the shawls to the Kashmiri except 5 shawls and they also got signatures on the said shawls from the persons to whom the shawls belonged. They also got signed five papers from five persons alongwith me and also inquired about our addresses on the pretext that it is required for evidence.
5. I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and have gone through the relevant records. I have also gone through written arguments filed on behalf of the parties and the relevant provisions of the Act.
A) The relevant provisions of section 39/40(2)44/49 and 49B(1) are reproduced for ready reference:
39.Wild animals, etc., to be Govt. Property (1) Every
(a) wild animal, other than vermin, which is hunted under section 11 or subsection (1) of section 29 or subsection (6) of section 35 or kept or [bred in captivity or hunted] in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed [***} by mistake; and
(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed;
(c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereafter has been committed;
(d) vehicle, vessel, weapon, trap or tool that has been used for WLI vs Arif Qureshi CC No.82/1 4 of 16 committing an offence and has been seized under the provisions of this Act.
40(2) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or, transport any animal specified in ScheduleI or Part II of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer.
44. Dealings in trophy and animal articles without licence prohibited. (1) [Subject to the provisions of Chapter VA, no person shall, except under, and in accordance with, a licence granted under subsection (4)]
(a) commence or carry on the business as
(i) a manufacturer of or dealer in, any animal article; or
(ii)a taxidermist; or
(iii) a dealer in trophy or uncured trophy; or
(iv) a dealer in captive animals; or
(v) a dealer in meat; or
(b) cook or server meat in any eatinghouse;
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.
B) (i) Learned Special Prosecutor for the state argued that the case of the WLI vs Arif Qureshi CC No.82/1 5 of 16 prosecution has been proved beyond reasonable doubt in view of the testimony of the witnesses as witnesses have identified the case property as well as accused correctly. Therefore, accused may be convicted for the alleged offence.
(ii) On the other hand, apart from several other arguments, learned defence counsel argued vehemently that accused is innocent. Nothing was recovered from his possession. Accused has been falsely implicated in this case and documents were fabricated by the Wildlife Inspectors. He further argued that there are material contradictions in the statement of prosecution witnesses regarding time of reaching the spot, seizure and signature on the case property. The signatures appearing on the case property is in Urdu which is not signed by the accused. Accused was implicated to shield some other persons and prosecution witnesses have failed to show as to whose signatures appeared upon the case property Ex.P1 to P5. Further, no ownership/tenancy and/or license of shop no.41 placed and proved on record to show that the shop no.41 was under control and possession of the accused at the time of incident.
(iii) These plea of the accused does not carry much weight. In this case, the accused was apprehended with case property on 18.11.1996 and recording of prosecution witness started on 04.07.2009 when PW1 examined in chief in precharge evidence. PW1 was cross examined on 03.11.2011, PW2 was examined on 16.01.2012 and was cross examined on 07.03.2012. CW3 was examined on 30.04.2012 and cross examined on the same day. She was WLI vs Arif Qureshi CC No.82/1 6 of 16 further cross examined on 14.07.2014 in post charge evidence. After expiry of such a long period, even an experienced witness can not be expected to speak each and every facts line by line and accused can not be allowed to take advantage of such type of minor contradictions.
(iv) As far as inconsistencies, improvements and contradiction in the version of prosecution witnesses are concerned, much importance can not be given on the minor contradictions. While dealing with the aspect of minor discrepancies, contradictions, the Hon'ble Supreme Court of India in the matter of Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
(v) It is thus quite normal that minor contradictions and discrepancies may WLI vs Arif Qureshi CC No.82/1 7 of 16
appear even in the testimony of a most enlightened witness and it is more normal where there comes a wide gap between the period when the statement was made to the police and deposition made in the Court. In the judgment reported as Bharwada Boginbhai Hijri Bhai vs. State of Gujrat, reported in 1983 Crl.L.J. 1096 the Hon Supreme Court broadly pointed out the reasons due to which discrepancies, contradictions and improvements occur in the testimonies of the witnesses and the same are reproduced as under: "The evidence of prosecution witness has been considered to be worthy of acceptance. It is a pure finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact can not be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant.
Over much importance cannot be attached to the minor discrepancies."
(vi) So far as the signatures of the accused appearing on case property Ex.P1 to P5 are concerned, the plea of the accused does not inspire any WLI vs Arif Qureshi CC No.82/1 8 of 16 confidence that the signature appearing on Ex.P1 to P5 is in Urdu and same was not put by him. Accused did not raise this issue at the time of precharge evidence. He has also not led any evidence or brought any document pertaining to year 1996 on record to show that he used to sign in English only and not in Urdu. Thus, the plea of the accused that signatures appearing on case property Ex.P1 to P5 was not put by him, does not carry much wait. C) Accused has taken one another stand that the shop does not belong to accused and he has been falsely implicated in this case. There is interpolation in the seizure memo Ex.PW1/1 which shows that it was prepared later on and gives credence to the contention of accused that the signature of the accused was obtained on blank paper on false pretext. However, this submission of the accused does not hold much water. In his statement recorded u/s 313 Cr.P.C, accused stated that he had gone to the Safdarjung Hospital for medical treatment of his wife and while returning back, he went to Delhi Hatt for casual visit where he saw that some persons were quarreling in front of one shop. When he went close to the place of quarreling, he saw some persons were tieing up the things there and thereafter they picked up 56 Kashmiri people from the gathering alongwith me to their office where his signatures were obtained no blank paper. It is not clear from the submissions of the accused that whether he went to the spot alone or along with his wife. Accused has also not placed or proved on record any medical documents which could suggest that in fact, he visited Safdarjung Hospital on the date of incident along with his wife for her medical treatment. If the accused was taken away WLI vs Arif Qureshi CC No.82/1 9 of 16 forcibly and his signature was obtained on blank paper, he ought to have taken appropriate legal action against those persons by filing complaint to police or competent authority. A prudent man is not supposed to keep mum when he was taken away forcibly and his signature on blank paper was obtained by unknown person. But accused kept mum and raised this objection at the fag end of the case. Even his wife failed to loge any complaint about the incident and accused has also failed to examine his wife to support his claim and contentions regarding their visit to hospital on the date of incident. D) (i) Learned defence counsel further argued that case property produced before the court can not be linked with the alleged recovery of the case property from the possession of the accused. There is delay in producing the case property before the court. As per prosecution story, the case property was seized on 18.11.1996 while same was produced before the court on 20.11.1996. Further, the case property is not even proved to be that of Shahtoosh for want of forensic report.
(ii) No doubt, in compliance of section 50(4) of the Act, it is mandatory obligation of the IO/complainant to produce any person detained, or things seized under the forgoing power, forthwith before a Magistrate to dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard. It is admitted position of fact that there was delay in producing the case property before the court as case property was seized on 18.11.1996 and was produced before the court on 20.11.1996. Moreover, accused can not take advantage of this lacunae on the part of IO in WLI vs Arif Qureshi CC No.82/1 10 of 16 view of the peculiar facts and circumstances of the present case. The prosecution witnesses have proved the seizure memo Ex.PW1/1 which also bears the signature of the accused. Accused did not deny his signature appearing on the seizure memo Ex.PW1/1. Accused has also confirmed the raid and receipt of copy of the seizure of shawls on the seizure memo Ex.PW1/1 at point C. In such circumstances, delay in producing the case property in compliance of section 50(4) of the Act is not fatal to the prosecution case.
(iii) The plea of the accused regarding nonexamination of the shawls by expert witness, is immaterial in the facts and circumstances of the present case. In this case, accused himself confessed on the seizure memo Ex.PW1/1 regarding raid, seizure, nonsealing of the case property at the spot and receipt of copy of the seizure proceeding. PW2 Sh. K.N. Singh who was Wildlife Inspector posted in the office of Deputy Director, Wildlife Preservation Office (NR), has clearly stated that all five recovered shawls are made of/derived from Tibetan Antelope/Chiru's wool which is a scheduled animal and specified in ScheduleI of the Act. As per subsection 8(d) of section 50 of the Act, any evidence recorded by Wildlife Officer will be admissible in evidence. Any statement to the Wild Life Officers is not open to doubt since the embargo contained in section 25 of the Act is not applicable to it. In this regard reliance may be placed upon the judgment reported as "1989 CRI. L. J. 2038". Furthermore, if the accused was so apprehensive that the recovered shawls were not made of Shahtoosh, he ought to have taken appropriate steps WLI vs Arif Qureshi CC No.82/1 11 of 16 for sending the case property to Wildlife Institute for expert opinion. But he failed to do so and raised such baseless objection that too at the time of final arguments.
E) (i) It is further argued that the presence of prosecution witnesses are doubtful as the prosecution has failed to produce or prove on record any DD entry showing departure of PW2 or the IO of the case from the Wildlife Office to the spot. He also referred to the provisions of Chapter 22 Rule 46 of Punjab Police Rules 1934. It is also argued that investigation was not conducted by the ACP as per the mandate of the Act and IO of the case was also not examined as he has expired and therefore, testimony of CW3 can not be taken into consideration as she was not the member of raiding team.
(ii) From the statement of witnesses as well as statement of accused recorded u/s 313 Cr.P.C., the raid, search, seizure of the case property and arrest of the accused from the spot have been proved. In his statement as well as written arguments, accused himself stated that while he was roaming in that area, some people took him to their office, obtained his signatures on blank paper and falsely implicated in this case. Thus, raid by the raiding team on the date of incident stands proved in view of statement of accused himself.
(iii) The plea of the accused that the investigation of the case in hand ought to have been conducted by the ACP is not sustainable at all. As per the provisions of section 50 of the Act, search and seizure is to be conducted by the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police WLI vs Arif Qureshi CC No.82/1 12 of 16 officer not below the rank of a subinspector. It is pertinent to mention here that an ACP may hold the investigation of the case pertaining Wild Life (Protection) Act only in a case in which an FIR was got registered in the PS. In this case, no such FIR was got registered. Thus, the question of investigation of the case in hand by the ACP does not arise at all and as per provisions of section 50 of the Act, WLI Mr. R.V. Singh (who has expired now) was competent to investigate the present case. No doubt, the prosecution has lost the testimony of IO Mr. R.V. Singh after his death, yet, this would not affect the prosecution case as the case of the prosecution has been proved by PW1 and PW2 who were also member of raiding team and testimony of PW1 is also well corroborated by PW2 in his statement.
F) It was further argued on behalf of the accused that the testimony of prosecution witnesses is not reliable as no independent public witness was joined in this case. The raid was alleged to have been conducted on the basis of secret information and therefore in that event presence of public/independent witness is a must. Learned defence counsel referred to provisions of section 43 and 100 Cr.P.C stating that seizure is hit by the said provisions. It is also argued that Delhi Hatt is a crowded place and there were many shops around the spot/shop in question but no independent witness was joined. Nonjoining of public witness is fatal to the case and no credence can be attributed to the alleged seizure. In support of claim and contentions, reliance is placed upon the judgments reported in (i) Prithivi Pal Singh vs. State (Delhi High Court) 84(2000) Delhi Law Times 464 (ii) Pradee vs State of WLI vs Arif Qureshi CC No.82/1 13 of 16 Haryana 1988 (1) RCR 409 (iii) Gurdial Singh vs. State of Punjab 2004(2) RCR (Criminal) 745 P&H. This arguments of the learned defence counsel does not carry much weight as material facts have been proved by the prosecution witness or admitted by accused himself in the seizure memo Ex.PW1/1 in the form of acknowledgment qua raid, seizure and receipt of copy of seizure memo. Therefore, nonjoining of witness is not fatal to the prosecution case. In any case, if independent persons are not willing to be a witness, the prosecution can not be blamed and evidence of other witness can not be discarded. In support of claim and contention, reliance may be placed upon the judgment reported in "AIR 1988 SC 1998". It is respectfully observed that the case laws cited by the learned defence counsel are not applicable to the peculiar facts and circumstances of the present case. G) Accused has also taken one another stand in his written submissions that he has been falsely implicated in this case. However, this plea of the accused does not have any substance. Accused opted not to lead any defence evidence or bring anything on record to disprove the prosecution story. Accused have failed to explain any reason of his being implicated falsely in this case. Except bald statement, the accused did not come up with any explanation or reason for his false implication. No animosity/enmity has been proved by the accused against the witnesses. Hence, a completely dis interested witness having no enmity or animosity against the accused can not be disbelieved.
WLI vs Arif Qureshi CC No.82/1 14 of 16 H) There is presumption of unlawful possession and in this regard provisions of section 57 of the Wild Life (Protection) Act is reproduced which runs as under:
57. Presumption to be made in certain case. 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 or 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 or derivative thereof].
Thus, from the bare reading of the provisions of section 57, it is clear that prosecution is to prove that the accused was found in possession/custody or control of any part or derivative of any captive animal and untill the contrary is proved, which is to be proved by the accused, custody of such person will be treated to be unlawful custody. If the defence of the accused is taken into consideration, same appears to be afterthought and thus he failed to rebut presumption of unlawful custody of Shahtoosh shawls recovered from his possession.
I) In view of the aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt against the accused that five shawls were recovered from the possession possession of accused, on the said date, time and place. From the statement of PW1 and PW2 and quantity of recovered shawls, it is clear that accused was indulged 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 WLI vs Arif Qureshi CC No.82/1 15 of 16 ScheduleI of the Act and thus accused have contravened the provisions of section 44/49 and 49B(1) of the Act which is punishable u/s 51 of Wild Life (Protection) Act, 1972. Accordingly, accused is held guilty and is convicted for the offence u/s 44/49 and 49B(1) of Wild Life (Protection) Act. Case property, if any, be confiscated to the state.
Let accused be heard on sentence on 03.06.2015.
(DEVENDRA KUMAR SHARMA) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 2nd June, 2015 (Total number of page 16) (One spare copy attached) WLI vs Arif Qureshi CC No.82/1 16 of 16