Bangalore District Court
State By Ashoknagar Police Station vs Abdul Jabbar S/O. Abdul Shalik on 1 April, 2022
IN THE COURT OF THE XXIX ADDL.C.M.M
MAYO HALL UNIT, BENGALURU
Dated: The 01st April 2022
PRESENT: Sri. G.R.KULKARNI,
B.A.(LAW)., LL.B.,
XXIX Addl. Chief Metropolitan Magistrate, Bengaluru.
C.C.No.24752/2012
COMPLAINANT :- State by Ashoknagar Police Station
(By Sr.APP)
ACCUSED Abdul Jabbar s/o. Abdul Shalik,
Aged 36 years,
R/at. Anasari House,
near Gujarat Gouser Hotel,
Dayasar Highway, Bombay.
(By Anees Ali Khan & Associates., Advocate)
DATE OF COMMENCEMENT 25.01.2018
OF EVIDENCE
DATE OF CLOSING OF 25.02.2022
EVIDENCE
DATE OF JUDGMENT 01.04.2022
JUDGMENT
This is a charge sheet filed by the PSI of Ashoknagar Police Station against the accused for the offences punishable u/s.39, 48(A), 49(b), 49(c), 50, 51 of Wildlife (Protection) Act, 1972 r/w Sec.379 of IPC.
2 C.C.No.24752/20122. BRIEF FACTS:-
The case of prosecution is that on 06.03.2012 at 3.40 P.M in front of Kohinoor Granites Shop, B.G.Road within the jurisdictional limits of Ashoknagar Police Station the accused is found trying to sell a walking stick made of ivory illegally.
3. Based on the first information of CW.1, the police have registered the case, investigation was conducted and after completion of the investigation final report is filed against the accused.
4. The accused has entered appearance in response to the summons and has been enlarged on bail. The prosecution papers have been supplied to the accused. After hearing, the charge against the accused was framed to which he pleaded not guilty and claimed to be tried.
5. The prosecution has examined PW.1 and PW.2 and Ex.P1 is exhibited. The statement of the accused u/s.313 of Cr.P.C., was recorded wherein he denied the incriminating circumstances as false. The accused submits no defence.
6. Heard arguments on both sides.
7. The following points arise for my consideration:-
1. Whether the accused person had committed theft of ivory walking stick thereby the accused committed an offence u/s.379 of IPC?
2. What order?3 C.C.No.24752/2012
8. My answer to the aforesaid points is as under:
Point No.1 - In the Negative
Point No.2 - As per final order for the following:
REASONS
9. Point No.1:- This is a charge sheet submitted by the PSI of Ashoknagar police station for the offences punishable u/s.39,48(A),49(b),49(c),50,51 of Wild Life (Protection) Act, 1972 r/w Sec.379 of IPC. My predecessor in office has taken cognizance of the alleged offences punishable u/s.39, 48(A), 49(b), 49(c), 50, 51 of Wildlife (Protection) Act, 1972 r/w Section 379 of IPC upon the charge sheet submitted by the PSI of Ashok Nagar P.S who is not the authorised officer as contemplated u/s 55 of the Wild Life (Protection) Act, 1972.
10. It is pertinent to note that Section 55 of the Wild Life (Protection) Act, 1972 indicates that Courts are barred from taking cognizance in respect of any of the offence under the Act except upon a complaint in writing of the Authorized Officer. It means that the Authorized Officer shall file a complaint before the jurisdictional magistrate within the meaning of Section 2(d) of Cr.P.C. But in the instant case, though the prosecution alleges that there is contravention of Wildlife (Protection) Act by the accused, the complaint as prescribed under Section 2(d) of Cr.P.C. has not been filed by the officer authorized. Hence taking cognizance of the offence punishable u/s. 39,48(A), 49(b),49(c), 50, 51 of Wild Life (Protection) Act, 1972 is bad in law.
4 C.C.No.24752/201211. However the charge-sheet is also submitted for the offence punishable u/s 379 of IPC. Therefore in this context it is useful to refer to Sec. 26 of the General Clauses Act, 1897 which provides:
"Section 26: Provision as to offences punishable under two or more enactments: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
12. Therefore even though the cognizance of the offences under the provisions of Wildlife Protection Act, 1972 is bad in law, the cognizance of the offence punishable u/s 379 of IPC is lawful and the charge framed against the accused and tried for the said offence is correct.
13. Now let me examine the evidence tendered by the prosecution in order to establish the offence of theft allegedly committed by the accused. PW.1 who is the police official has deposed that on 06.03.2012 his superior officer Dy.S.P M.K. Murali had received an information that within in the jurisdictional limits of Ashoknagar police station one person was illegally selling an ivory walking stick. He deputed PW.1, CW.1, CW.5 and CW.8 to look into the matter. Accordingly at about 12.30 P.M they left the office and reached Kohinoor Granite shop and in front of it he saw a suspect who was holding a black coloured rexine bag and was waiting for someone. When they tried to apprehend the said person he threw the bag and tried to run away but he was apprehended. On searching the bag they found a ivory walking stick with rajasthani flower art which was folded in parts. On 5 C.C.No.24752/2012 enquiring him regarding the walking stick, the accused told him that it was his ancestral property and he had brought it from Mumbai to Bangaluru to sell it as he was in need of money to meet his financial crises. The accused was taken into custody and the ivory walking stick, mobile phone and railway ticket were seized by drawing a panchanama in the presence of pancha witnesses. Thereafter the accused alongwith the seized property was produced before CW.1. PW.1 has identified his signature over the panchanama at Ex.P1. He has also identified the accused and the seized property at M.O.1 to M.O.4.
14. PW.2 is also the police official who had accompanied CW.1 has deposed that their superior officer M.K.Murali had deputed him,PW.1, CW.1, CW.4 and CW.8 to look into the matter regarding the illegal sale of ivory. He has stated that they went to Kohinoor Granite shop and in front of it they saw one person waiting for someone with black colour rexine bag. Suspecting him they tried to secure the said person but he threw the bag and tried to run away from them. However he was secured and enquired about the bag. On searching the bag they saw one ivory walking stick with rajasthani flower art which was folded in parts. The accused told them that it was his ancestral property and he had brought it from Mumbai to Bengaluru to sell it as he was in need of money to meet his financial crises. The accused was taken into custody and the ivory walking stick, mobile phone and railway ticket were seized by drawing a panchanama in the presence of pancha witnesses. Thereafter the accused alongwith the seized property was produced before CW.1. PW.1 has 6 C.C.No.24752/2012 identified his signature over the panchanama at Ex.P1. He has also identified the accused and the seized property at M.O.1 to M.O.4. The evidence of PW.1 and PW.2 has gone unchallenged as they have not been cross-examined on behalf of the accused.
15. CW.1 is the complainant, CW.2 and CW.3 are the alleged attesting witness to the spot cum seizure panchanama at Ex.P.1, CW.6 to CW.8 are the Forest Officials who were also the companions of the raiding team, CW.9 is the Research Scientist, CW.10 is the I.O who have not been secured by the prosecution inspite of all effective measures against them and therefore these witnesses were dropped.
16. Now let me determine as to whether the essential ingredients of the offence of theft is established by the prosecution. In this context it is useful to reproduce Section 378 of IPC which is as follows:
"Section 378 - Theft - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which 4 prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move 7 C.C.No.24752/2012 everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
17. Section 379 is the penal provision for the offence of theft. The essential ingredients to prove an offence under Section 379 IPC is as follows:-
1. Accused had taken the movable property dishonestly.
2. Property was taken out of the possession of its original owner.
3. Property was taken out without consent of the original owner.
18. It is necessary for the prosecution to establish as to who is the owner of the stolen property i.e., the ivory walking stick (M.O.1) and whether it was taken out of the possession of the original owner with a dishonest intention without his consent. There is absolutely no iota of evidence to establish as to who is the original owner of the stolen ivory walking stick and whether it is in fact the stolen property. There is also no evidence so as to establish that the accused has taken it from the possession of the original owner with a dishonest intention without his consent.
19. The evidence of PW.1 and PW.2 culls out that during the enquiry the accused has stated that he has brought the ivory walking stick (M.O.1) from Mumbai which is his ancestral property and in order to meet his financial needs he had come to Bengaluru to sell it. This evidence on record does not in any manner indicate that the ivory walking stick (M.O.1) is the subject matter of theft 8 C.C.No.24752/2012 and that it was stolen by the accused from it is original owner with a dishonest intention without his consent.
20. Although there is evidence to demonstrate that the ivory walking stick (M.O.1) was recovered from the possession of the accused, that alone is not sufficient to establish the essential ingredients of theft. The prosecution has to establish that the ivory walking stick is the stolen property from the original owner and the accused has stolen the said property with a dishonest intention without his consent. These essential ingredients have not been establish by the prosecution in any manner much less beyond reasonable doubt.
21. Further although there is evidence of PW.1 and PW.2 who are the official witnesses and have testified in support of the case of the prosecution and that its settled law that the evidence of the police officials should not be discarded outrightly and can be held reliable as held by the Hon'ble Supreme Court in the case of the Surendar Kumar v/s State of Punjab (2020) 2 SCC 563, the evidence of PW.1 and PW.2 is not sufficient to hold the accused guilty. The material witnesses such as CW.1 to CW.3, CW.6 to CW.10 have not been secured by the prosecution which proves fatal. The essential ingredients of the offence of theft it is not proved by the prosecution with cogent evidence. Hence it is imperative to hold that there is no credible evidence to point towards the guilt of the accused.
9 C.C.No.24752/201222. In so far as the seized ivory walking stick at M.O.1 is concerned, there is no material on record to show that the accused is having the licence to deal with M.O.1 and that he is the rightful custodian of the said property. He does not make any claim towards the release of M.O.1. Under such circumstances, the seized ivory walking stick at M.O.1 becomes the property of the State Government as contemplated u/s.39(1)(b) of Wildlife Protection Act, and is required to be handed over to the Chief Wildlife Warden who is the authorized officer under the said Act.
23. In this case the prosecution has failed to establish that the accused has committed theft of M.O.1 beyond reasonable doubt. Therefore I am of the considered view that the accused deserves to be acquitted for the alleged offence of theft. Accordingly I answer point No.1 in the NEGATIVE.
24. Point No.1: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting u/s.248(1) Cr.P.C. accused is hereby ACQUITTED for the offences punishable u/s.39, 48(A), 49(b), 49(c), 50, 51 of Wildlife (Protection) Act, 1972 r/w. Sec.379 of IPC of IPC.
The bail bond of the accused stands cancelled. M.O.1 is confiscated to the State Government and shall be handed over to the Chief Wildlife Warden after the appeal period is over.
M.O.2 to M.O.4 shall be destroyed after the appeal period is over.10 C.C.No.24752/2012
The cash security offered by accused for his release on bail shall be refunded on proper identification.
(Dictated to the stenographer directly on the computer, same is corrected and then pronounced in open Court on this the 01st April 2022) (G.R.Kulkarni) XXIX ACMM, BENGALURU 11 C.C.No.24752/2012 ANNEXURES LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Mukunda - SI (CID) Forest Department PW.2 N.Lakshmi Narasimhaiah - PSI (CCB) LIST OF EXHIBITS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Spot cum seizure mahazar Ex.P.1(a) Signature of PW.1 Ex.P.1(b) Signature of PW.2 LIST OF MATERIAL OBJECTS GOT MARKED :-
M.O.1 Walking Stick
M.O.2 Bag
M.O.3 Mobile Phone
M.O.4 Railway Ticket
(G.R.Kulkarni)
XXIX ACMM, BENGALURU
12 C.C.No.24752/2012
01.04.2022
State by APP
Accused
For Judgment
(Judgment passed separately in the Open Court) ORDER Acting u/s.248(1) Cr.P.C. accused is hereby ACQUITTED for the offences punishable u/s.39, 48(A), 49(b), 49(c), 50, 51 of Wildlife (Protection) Act, 1972 r/w Sec.379 of IPC of IPC.
The bail bond of the accused stands cancelled. M.O.1 is confiscated to the State Government and shall be handed over to the Chief Wildlife Warden after the appeal period is over.
M.O.2 to M.O.4 shall be destroyed after the appeal period is over.
The cash security offered by accused for his release on bail shall be refunded on proper identification.
XXIX ACMM