Lt. Col. Ashutosh Tripathi (Retd.) vs The State Of Assam And Anr on 29 May, 2020

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Gauhati High Court

Lt. Col. Ashutosh Tripathi (Retd.) vs The State Of Assam And Anr on 29 May, 2020

This is an application, filed under Section 438 of the Cr.P.C, praying for pre-arrest bail of the petitioner Lt. Col. Ashutosh Tripathi (Retd.) in connection with Guijan Wildlife Case No.05/2020, under Sections 09/39/52 of the Wildlife (Protection) Act, 1972 (hereinafter referred to as 'the Wildlife Act'), corresponding to W.L.P. Case No.01(T)/2020, pending in the Court of learned Sessions Judge, Page No.# 2/4 Tinsukia.

Heard Mr. P. Deka, learned counsel for the petitioner as well as Mr. B.K. Mahajan, learned Special P.P., Wildlife Forest, Assam and perused the case diary.

As per the offence report lodged by the Divisional Forest Officer, Tinsukia Wildlife Division, four persons were arrested at Makum along with six Feral Horses by the Forest Officials of Tinsukia, which were stated to be illegally hunted for Polo Club and Horse Riding Club and illegally transported from Dibru Soikhowa National Park and it was revealed that those illegal transport was done on the instruction of the present petitioner Lt. Col. Ashutosh Tripathi (Retd.). It is stated that such horses are hunted and illegally transported outside the National Park, without permission which amounts to destruction of habitat, thereby it attracts the violation of Sections 9/29/52 of the Wildlife Act, which is punishable under Section 51 of the said Act.

The petitioner preferred the present petition contending that he is running the Guwahati Riding and Polo Club and the Club deal with horse riding, horse sports and recreational activities and the petitioner being a retired Army Personnel has been working towards the equine development including horses which are young, sick and old and give them proper love and affection to uplift the horses to the main stream rearing. As regards the occurrence, it is submitted that while researching for such purpose, the Club was contacted by one Gaurav Gogoi, a contractor by profession and a resident of village in Tinsukia District and said Gaurav Gogoi intended to tend his horses to the Club of the petitioner for proper care of the horses. So it is the case of the petitioner that with the said understanding and after payment of Rs.10,000/- for the seven domesticated horses belong to Gaurav Gogoi, the said horses were transported from Tinsukia towards Guwahati from the village of Gaurav Gogoi but it was intercepted by the Forest Officials.

Referring to the Annexure-VI (pate-22), a non-judicial stamp paper written by one Gaurav Gogoi and one Rijumoni Gogoi, it is submitted that the said horses were given by Gaurav Gogoi to the petitioner's Club for proper care and the petitioner has not violated any provision of the Wildlife Act.

The learned Spl. P.P., Assam for the Wildlife Forest has produced the case diary and the relevant statement of other accused persons who were arrested as directed by this Court and also filed objection against the prayer of the petitioner.

Also considered the rival submission of both the parties.

It is contended by the learned counsel for the respondent that Feral Horses in Dibru Soikhowa National Park are dwindling in recent times and the role of the present petitioner in this regard needs Page No.# 3/4 to be thoroughly investigated and for that purpose his custodial detention is necessary to reach a logical end. Refuting the submission of the learned counsel for the petitioner that those apprehended horses were given by Gaurav Gogoi vide Annexure-VI, it is submitted that the same is not an acceptable document as it does not bear the signature of the purchaser and no credence can be given to the said document, as it was not notarized and the values of six horses has been shown as Rs.10,000/-, which reflect the magnitude of falsehood.

Referring to the contention of the petitioner in para-13 of the petition, wherein it is stated that domestic horses were given to the petitioners by Gaurav Gogoi and other villagers of Tinsukia, it is contended that the said submission is contrary to the content of the documents shown. Thus pointing towards the inconsistency plea taken by the petitioner himself that the horses were given to him by said Gaurav Gogoi or the villagers, it is submitted that an international racket of smuggling horses is operational in the Dibru Soikhowa National Park and the role of present petitioner has greater ramification and needs to be thorough investigation and hence custodial interrogation is necessary. It is also pointed out that the co-accused arrested have also divulged that at the instance of the present petitioner, who even went to the place for transportation of the horses by engaging vehicles, it is contended that his involvement in such illegal transportation without any document is a serious matter.

I have considered the rival contention of both the parties and also considered the materials in the case diary.

The four accused persons who were apprehended along with the horses, in their statement, have stated that the accused/petitioner was present at the place to arrange for transportation of the horses and it was one Gaurav Gogoi, with whom the petitioner has all the transaction for such transportation.

Now let as appreciate the various relevant provisions of the Wildlife Protection Act.

As per Section 2(5) of the Wildlife Protection Act, "captive animal" means any animal, specified in Schedule I, Schedule II, Schedule III or Schedule IV, which is captured or kept or bred in captivity.

Section 2(15) of the Wildlife Protection Act defines that "habitat" includes land, water or vegetation which is the natural home of any wild animal.

As per Section 2(16) of the Wildlife Protection Act, "hunting" includes capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal.

As per Section 2(37) of the Act, "wild life" includes any animal, aquatic or land vegetation which forms part of any habitat. In that view, the seized horses are also come within the purview of the aforesaid Page No.# 4/4 provision of Section 2(37) of the Act.

Section 29 of the Wildlife Protection Act provides that no person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the sanctuary, except under and in accordance with permit granted by the Chief Wild Life Warden and no such permit shall be granted unless the State Government being satisfied in consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of water into or outside the sanctuary is necessary for the improvement and better management of wild life therein.

The present petitioner admittedly has no such permit to remove any wildlife even from outside the National Park.

On the other hand, Section 52 of the Act provides that Whoever attempts to contravene, or abets the contravention of, any of the provisions of this Act or of any rule or order made there under shall be deemed to have contravened that provision or rule or order, as the case may be.

From the materials on record it reveals that there is reason to believe that the petitioner has violated the provisions of the Act.

As per the Act, the violation of the provision of Section 51 is cognizable and non-bailalbe and triable by the Court of Sessions. The Assam Amendment of Section 51(B)(2) of the Act provides stringent condition for release of the accused that where the Public Prosecutor opposes the bail application, bail can be considered if the Court is satisfied that there are reasonable ground for believing that the accused is not likely to commit any offence, while on bail. In the present case such an opinion cannot be rendered in favour of the accused person.

In view of the above discussion, it is found and hold that the petitioner cannot be granted the privilege of pre-arrest bail and accordingly the same is rejected.

Return the case diary.

True copy of the order be furnished under the seal and signature of the Court Master.

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Gauhati High Court