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Delhi District Court

Wccb vs . Surajbhan @ Sarju & Others on 23 August, 2019

      IN THE COURT OF MS. SANTOSH SNEHI MANN,
           SPECIAL JUDGE (PC ACT): CBI­08:
      ROUSE AVENUE COURTS COMPLEX: NEW DELHI

CC No. 01/2018
CIS No. 20/2019

Wildlife Crime Control Bureau:
Through Regional Deputy Director
(Sh. Nishant Verma, IFS)
Bikaner House, Barrack No. IV,
Shahjahan Road,
New Delhi.
                         Versus
   1. Surajbhan @ Sarju
      S/o Late Sh. Daliya
      R/o Village Akbarpur Barota, PS Kundli
      Tehsil & District Sonepat, Haryana­131103.

   2. Naresh @ Lala
      S/o Sh. Rampat Sharma
      R/o Village Akbarpur Barota, PS Kundli
      Tehsil & District Sonepat, Haryana­131103.

   3. Suraj Pal @ Chacha (Since deceased)
      S/o late Sh. Jagmohan
      R/o B­539, Gali No. 5, Majlis Park,
      Adarsh Nagar, Delhi.

Date of filing of complaint             :    07.11.2013
Date of conclusion of final arguments   :    01.08.2019
Date of announcement of judgment        :    23.08.2019

JUDGMENT

1. A complaint under Section 55 of Wildlife (Protection) Act, 1972 (hereinafter "the Act") was filed by the Wildlife CC No. 01/2018 Page 1 of 67 WCCB Vs. Surajbhan @ Sarju & others Crime Control Bureau (hereinafter WCCB), through its Regional Director Sh. Nishant Verma, IFS, against three persons namely, accused Surajbhan @ Sarju (hereinafter A­1), accused Naresh @ Lala (hereinafter A­2) and accused Surajpal @ Chacha (hereinafter A­3), for committing the offences under Sections 39, 40(2), 44, 48A, 49B, 52, 56 read with 51 of the Act, punishable under Section 51 of the Act. Accused Surajpal @ Chacha (A­3) died during the trial at the stage of final arguments and hence proceedings against him abated on 14.03.2019. Brief Facts:

2. On 16.07.2013, WCCB received information from Additional Principal Chief Conservator of Forests (Wildlife) East, Nagpur, Maharashtra about arrest of 02 persons - Mamru @ Bablu and Chikka @ Krishna in a Wildlife case at Maharashtra who requested assistance of WCCB in apprehending Surajbhan@Sarju (A­1), allegedly involved in the illegal trade of body parts of Tiger (Panthera tigris) from various Forest Divisions of Maharashtra. Consequently, information was gathered which revealed that Surajbhan @ Sarju (A­1) may enter Delhi on 07.09.2013 along with one Naresh @ Lala (A­2) in a car bearing No. HR­1­E­1001, carrying wildlife contraband.

3. On 07.09.2013, the above information was shared by CC No. 01/2018 Page 2 of 67 WCCB Vs. Surajbhan @ Sarju & others WCCB with Delhi Police Crime Branch and a team comprising of officials of Delhi Police Crime Branch, officers of WCCB and Maharashtra Forest Department was constituted. The team reached Chandagiram Akhada 'T' point at 15:00 hours on 07.09.2013. The team got further leads about movement of the car from Kashmiri gate towards Karnal bypass. Barricades were put at the spot and the vehicles passing by were checked.

4. At about 16:00 hours, a white colour Tata Indigo Manza no. HR­11E­1001 was seen coming from Kashmiri Gate side, which was heading towards Karnal bypass. The car was stopped, in which 02 persons were travelling. The driver of the car was accused Naresh @ Lala (A­2) and the person sitting besides him was accused Surajbhan @ Sarju (A­1).

5. The team noticed pungent smell coming from the car and on enquiry, the accused persons disclosed that they were carrying Tiger Body parts in the rear dickey (boot) of the car. A white colour sack was recovered from the car dickey, which was found containing bones, canines and nails etc. of Tiger (Panthera tigris). Cash amounting to Rs. 2,70,000/­ (Rs. Two Lac and Seventy Thousand) was recovered from under the car seat, on which accused Surajbhan @ Sarju (A­1) was found sitting.

6. Tiger body parts (uncured trophies) were seized and CC No. 01/2018 Page 3 of 67 WCCB Vs. Surajbhan @ Sarju & others sealed in 04 Pullandas. The car and the money recovered from it was also seized. Sketch map of the spot was prepared. Accused Surajbhan @ Sarju (A­1) and Naresh @ Lala (A­2) were arrested.

7. During interrogation, accused Surajbhan @ Sarju (A­1) disclosed that he had received money from deceased accused Surajpal @ Chacha (A­3), a resident of B­539, Gali No. 5, Majlish Park, Adarsh Nagar, Delhi, to procure Tiger parts and that the uncured trophies recovered from the car were to be supplied to him.

8. Accused Surajbhan @ Sarju (A­1) also disclosed during interrogation that he had received Rs. 6 lacs from accused Surajpal @ Chacha (A­3) to procure 02 complete sets of Tiger skeletons for which he (A­1) was to get commission of about Rs. 50,000 - Rs. 60,000/­. Accused Surajbhan @ Sarju (A­1) disclosed that he contacted accused Naresh @ Lala (A­2) for this purpose, who accompanied him in his car bearing no. HR­11E­1001 to bring the Tiger body parts from Barhapur, Bijnore, (U.P) and they procured 01 set of Tiger body parts from one Sayeed. A­1 disclosed that the Tiger body parts recovered from the car was the said set and money recovered from the car was the remaining amount.

9. On 08.09.2013, house of deceased accused Surajpal @ Chacha (A­3) was raided by the raiding party comprising CC No. 01/2018 Page 4 of 67 WCCB Vs. Surajbhan @ Sarju & others officials of Delhi Police Crime Branch, WCCB and Maharashtra Forests Department. 18 Tiger nails and Rs. 50 lac (Rs. Fifty lac) in cash were recovered from his house. Accused Surajpal @ Chacha (A­3) was arrested.

10. Deceased accused Surajpal @ Chacha (A­3) disclosed during interrogation that he had given Rs. 6 lacs to the accused Surajbhan @ Sarju (A­1) to procure Tiger body parts from Barhapur, Bijnore, U.P and that in the past also, accused Surajbhan @ Sarju (A­1) had brought him 05 Tiger skins from Nagpur for which he had paid Rs. 20 lacs to accused Surajbhan @ Sarju (A­1). Accused Naresh @ Lala (A­2) disclosed during interrogation that he had purchased the car - Tata Indigo Manza bearing no. HR­1­ E­1001 from Mukesh Sharma.

11. Pullandas of the seized Tiger body parts (uncured trophies) were produced in the Court of ACMM, Special Acts, New Delhi, on 08.09.2013 and by the Court order, WCCB (NR) received 05 Pulandas containing tiger parts for safe custody. The samples were sent to Wildlife Institute of India, Dehradun through a special messenger.

12. During investigation, a team comprising officials of WCCB and Delhi Police Crime Branch conducted searches to identify Sayeed & Riaz Ali and also to identify the location of Tiger poaching. CDR and CAF of the mobile phones recovered from the possession of the accused CC No. 01/2018 Page 5 of 67 WCCB Vs. Surajbhan @ Sarju & others persons were obtained and analyzed. Report from forensic laboratory, Wildlife Institute of India confirmed that the uncured trophies seized from accused no. 1 & 2 were derived from Tiger.

13. Information was sent to Deputy Director, Income­Tax, New Delhi and to the Deputy Director, Enforcement Directorate for initiating legal action under the provisions of Income­Tax Act, 1961 and Prevention of Money Laundering Act, 2002 against accused Surajbhan @ Sarju (A­1) and deceased accused Surajpal @ Chacha (A­3).

14. Cognizance of offence was taken on 12.11.2013 by the Ld. Predecessor.

Pre­charge Evidence:

15. In the pre­charge evidence, 08 witnesses were examined by the Ld. Predecessor. They are - CW­1 Sh. A. K. Jha; CW­2 Sh. B. H. Virsen; CW­3 Dr. S. P. Goyal; CW­4 Sh. V. H. Mali; CW­5 Inspector R. S. Sharath; CW­6 SI Jai Kishan; CW­7A Sh. Ram Nivas and CW­8 Sh. Mukesh Sharma.

Charge:

16.Charges were framed by Ld. Predecessor against all the accused persons separately vide order dated 29.01.2015 under various Sections. Accused Surajbhan @ Sarju (A­1) has been charged under Section 40(2)/44/48A/49/49B read with Section 52/51 of the Act; Accused Naresh @ CC No. 01/2018 Page 6 of 67 WCCB Vs. Surajbhan @ Sarju & others Lala (A­2) has been charged under Section 39(1)

(d)/40(2)/44/48A/49/49B read with Section 52/51 of the Act; and deceased Accused Surajpal @ Chacha (A­3) was charged under Section 40(2)/44/48A/49B read with Section 52/51 of the Act. All accused pleaded not guilty to the charges.

Prosecution Evidence:

17. WCCB has examined 13 witnesses in all including 08 witnesses examined in pre­charge evidence. After conclusion of prosecution evidence, on the application of WCCB u/s 311 Cr.P.C vide order dated 27.05.2019, PW­1 Sh. A.K. Jha, PW­3 Dr. S.P. Goyal, PW­6 Retd. SI Jai Kishan & PW­10 Sh. Nishant Verma, Deputy Inspector General were recalled for further examination and PW­11 Mr. Saurabh Agarwal, Nodal Officer, Vodafone­Idea Limited & PW­12 Mr. Surender Kumar, Nodal Officer, Bharti Airtel Limited were summoned afresh, who were not named in the list of witnesses.

18. PW­1 Sh. A. K. Jha, Assistant Director, WCCB Headquarters, Bhikaji Cama Place, New Delhi, (examined as CW­1 in pre­charge evidence) was member of the team constituted on 07.09.2013 & 08.09.2013. He has testified that on 07.09.2013 he was posted as Assistant Director, WCCB Headquarters, when he was directed to assist Maharashtra Forest Department team for apprehending a CC No. 01/2018 Page 7 of 67 WCCB Vs. Surajbhan @ Sarju & others suspect Sarju and others. Consequently, he reached Police Headquarters along with Maharashtra Forest Department team and requested for police assistance. At about 03:00 PM, he along with the team left the Police Headquarters at Daryaganj and reached outer ring road near Chandgi Ram Akhara where barricades were put by the police personnel and the vehicles passing by were checked.

19. PW­1 deposed that at about 05:30 PM, a vehicle make Tata Indigo bearing registration No. HR­11E­1001 came, in which two persons were sitting including the driver. This vehicle was stopped and the team noticed a strong smell coming from the vehicle. The occupants of the car were - the driver, accused Naresh @ Lala (A­2) and the passenger, accused Surajbhan @ Sarju (A­1). On suspicion, the vehicle was checked and a sack was found in the backside dickey (car boot) from which the smell was coming. PW­1 further deposed that the sack was found containing prohibited wildlife material, comprising of bones and different parts of Tiger along with nails, teeth, canines and skull. The recovered wildlife material was put in 04 packets, which were weighed, sealed and marked A, B, C & D. On search of the vehicle, a bag containing cash of Rs.2,70,000/­ was recovered.

20. PW­1 testified that efforts were made by the police to associate independent bystanders, but they did not agree.

CC No. 01/2018 Page 8 of 67

WCCB Vs. Surajbhan @ Sarju & others Accused Surajbhan @ Sarju (A­1) and Naresh @ Lala (A­2) were taken to the Police Headquarters along with the recovered material, who disclosed that they did not have any valid documents for transporting the wildlife material. In their personal search, mobile phones were recovered besides money. Driving license was also recovered in the personal search of accused Naresh @ Lala (A­2) and both the accused were formally arrested.

21. PW­1 further deposed that during interrogation, accused Surahbhan @ Sarju (A­1) disclosed that he was involved in the wildlife trade for a long time and he had procured the recovered Tiger bones from an area falling under PS Badhapur, Nagina, UP, for which he had received Rs. 06 lacs from deceased accused Surajpal @ Chacha (A­3). Accused Surajbhan @ Sarju (A­1) also disclosed that he had hired the vehicle from accused Naresh @ Lala (A­2) for bringing the wildlife material to Delhi for delivering it to the deceased accused Surajpal @ Chacha (A­3), who (A­3) was in this trade for a long time. He further disclosed that he had paid Rs. 03 lac for purchase of the Tiger body parts recovered from the car and that the cash recovered from the car was the remaining amount of the payment received from accused Surajpal @ Chacha (A­3), out of which some amount was spent on miscellaneous expenses.

CC No. 01/2018 Page 9 of 67

WCCB Vs. Surajbhan @ Sarju & others

22. PW­1 deposed that he was member of the team which carried out raid at the house of deceased Surajpal @ Chacha (A­3) on 08.09.2013 from where cash amount of Rs. 50 lac and some Tiger nails were recovered. Accused Surajpal @ Chacha (A­3) was arrested and in his personal search, a mobile phone and Chinese currency was recovered.

23. It has further come in the deposition of PW­1 that accused Surajbhan @ Sarju (A­1) disclosed that in the past also he had procured and supplied 05 Tiger skin & bones to the deceased accused Surajpal @ Chacha (A­3) for which he had received Rs. 20 lac from A­3. Accused Surajbhan @ Sarju (A­1) also disclosed that for transporting wildlife articles and Tiger bones etc., he used to hire vehicle from accused Naresh @ Lala (A­2), who accompanied him to Nagpur several times in the past.

24. PW­1 identified his signatures on seizure memo of Wildlife articles Ex. CW1/1, seizure memo of the vehicle, Ex. CW1/2, arrest memo and personal search memos of accused Surajbhan @ Sarju (A­1) Ex. CW1/3 & Ex. CW1/4 respectively, arrest memo and personal search memo of accused Naresh @ Lala (A­2) Ex.CW1/5 & Ex. CW1/6 respectively, disclosure statements of accused Surajbhan @ Sarju (A­1), Naresh @ Lala (A­2) & CC No. 01/2018 Page 10 of 67 WCCB Vs. Surajbhan @ Sarju & others deceased Surajpal @ Chacha (A­3) as Ex. CW1/7, Ex. CW1/8 & Ex. CW1/9 respectively, seizure memo of Rs. 50 lac as Ex. CW1/10, personal search memo and arrest memo of deceased accused Surajpal @ Chacha (A­3) as Ex. CW1/11 & Ex. CW1/12 respectively, disclosure statement of deceased Surajpal @ Chacha (A­3) as Ex. CW1/13 and statement of one Lal Singh Ex.CW1/14.

25. PW­1 deposed that on 08.09.2013, he appeared in the Court at Tis Hazari where SI Jai Kishan (PW­6) had produced the 05 sealed pulandas Marked A, B, C, D & E along with other case property, when those pulandas were opened and the contents were examined by the Magistrate which were then resealed. He further deposed that by the order of the Court, Ex. PW­6/R­1, on the application of Sh. Nishant Verma, Regional Deputy Director, Wildlife, he (PW­1) received the 05 sealed Pulandas marked A, B, C, D & E from SI Jai Kishan (PW­6) and deposited them in the office of Regional Deputy Director. PW­1 identified the sealed Pulandas, Ex. X1, Ex. X2, Ex. X3, Ex. X4 & Ex. X5, produced and opened in the court during his deposition and identified their contents to be the Tiger parts as detailed in the seizure memos Ex. CW1/1 and Ex. CW1/10.

26. PW­2 Sh. B.H. Virsen, Assistant Conservator of Forest CC No. 01/2018 Page 11 of 67 WCCB Vs. Surajbhan @ Sarju & others (Protection), Nagpur Division, Nagpur, (examined as CW­2 in pre­charge evidence), testified that 02 persons namely Mamru @ Badlu Pansari Patle Pawar and Cheeka @ Krishna Jer Patle Pawar were apprehended by local Crime Branch, Nagpur on suspicion of their involvement in Tiger poaching, who disclosed during interrogation that they had killed Tiger at Ghatang East Melghat Division Chikhaldara, Amarwati District and sold the Tiger skins, bones and nails to one Sarju. They also disclosed about their past involvement in Tiger Poaching and sale of Tiger skin & bones to Sarju. Mamru also disclosed that the Tiger skins were transported in a white color car make Tata Manza. PW­2 deposed that Additional PCCF (East) Wildlife, Nagpur and Deputy Conservator of Forest East Melghat Division Chikhaldara, Amarwati District requested WCCB, New Delhi for assistance in apprehending Sarju and subsequently he along with Deputy Conservator of Forest reached Delhi on 06.09.2013 for investigating the matter with the assistance of WCCB, New Delhi.

27. PW­2 testified that on 07.09.2013 WCCB, New Delhi got a secret information about movement of accused and he along with the officers of WCCB went to Police Headquarters, Daryaganj for assistance in nabbing the Wildife accused. PW­2 has deposed on the lines of PW­1 CC No. 01/2018 Page 12 of 67 WCCB Vs. Surajbhan @ Sarju & others about constitution of a team and subsequent action by the team at outer ring road, Chandagi Ram Akhada, where TATA Indigo Manza car bearing registration no. HR­11E­ 1001 was stopped, in which accused Surajbhan @ Sarju (A­1) and Naresh @ Lala (A­2) were travelling and a sac containing Tiger parts was recovered from the dikki of the car.

28. PW­2 has further deposed on the line of PW­1 about recovery of Rs. 2.70 lac cash from the car, seizure and sealing of recovered Tiger parts in 04 pullandas and their markings as A, B, C & D etc. He has deposed on the lines of PW­1 about detention, arrest and interrogation of accused Surajbhan @ Sarju (A­1) & Naresh @ Lala (A­2), recovery of mobile phones in their personal search and their disclosure about their involvement in the procurement and trade of Wildlife material. PW­2 identified his signatures and various memos Ex. CW­1/1 to Ex. CW­1/9.

29. PW­3 Dr. S.P. Goyal is the Nodal Officer, Wildlife Forensic Cell, Wildlife Institute of India, Chandrabani, Dehradoon (examined as CW­3 in pre­charge evidence), who had analysed 02 sealed packets received from Wildlife Crime Control Bureau for species identification. He referred to his 02 reports Ex. CW­3/1B & Ex. CW­3/2B and testified that as per his report Ex. CW­3/1­B, content CC No. 01/2018 Page 13 of 67 WCCB Vs. Surajbhan @ Sarju & others of packet marked F­2659/1­2 was of Tiger (Panthera tigris). He further testified that as per his report Ex. CW­ 3/2­B, claws in packet marked F­2659/2­2A & 2B were not of Tiger (Panthera tigris).

30. PW­4 Sh. V.S. Mali, Assistant Conservator of Forests (Protection), Gugamal Division, Paratwara, Amravati, Maharashtra, (examined as CW­4 in pre­charge evidence) was the member of the raiding party constituted on 08.09.2013 to conduct search at the residence of deceased accused Surajpal @ Chacha (A­3). He is a witness of recovery of Rs. 50 lacs in cash and Tiger claws from the house of deceased accused Surajpal @ Chacha (A­3) and identified his signatures on the seizure memo Ex. CW­4/1. He identified the currency notes produced in a sealed bag in the denomination of Rs. 1000/­, Rs. 500/­ & Rs. 100/­ as Ex. P­1, the polythene in which the currency notes were kept as Ex. P­3 and the container in which the polythene containing currency notes were kept as Ex. P­2. He is also a witness of recording of statement of accused Surajpal @ Chacha (A­3) Ex. CW­1/10.

31. CW­5 Inspector R.S. Sharan, WCCB, New Delhi, had recorded the statements of deceased accused Surajpal @ Chacha (A­3) on 18.09.2013 & 22.10.2013 as Ex. CW­ 1/13 & Ex. CW­5/1 respectively.

32. PW­6 Retired Sub­Inspector Jai Kishan (examined as CC No. 01/2018 Page 14 of 67 WCCB Vs. Surajbhan @ Sarju & others CW­6 in pre­charge evidence) was posted as Sub­Inspector at AATS Crime Branch, Daryaganj, Kotwali. He deposed that on 07.09.2013 Shri B.H. Virsen, Asstt. Conservator of Forest, Nagpur, Maharashtra (PW­2), Sh. A.K. Jha, Asstt. Director, WCCB (PW­1) & others had come to the office of ACP, when on the direction of Inspector, he joined the raiding party to apprehend the offenders wanted in Wildlife Crime cases. He has deposed on the lines of PW­1 Sh. A.K. Jha and PW­2 Sh. B.H. Virsen about the raiding party reaching at T­point, Chandagi Ram Akhada, outer Ring Road, checking of the vehicles and stopping of Tata Indigo Manza car bearing registration no. HR­11E­1001, which was driven by accused Naresh @ Lala (A­2) and accused Surajbhan @ Sarju (A­1) was on the passenger seat. He has deposed further on the lines of PW­1 and PW­2 that strong smell was coming from the car and on checking, a sack containing Wildlife material was recovered from the dikki of the car.

33. PW­6 deposed that he made 04 packets of the recovered Wildlife material which were weighed, sealed, tagged as A, B, C, D and then seized vide memo Ex. CW­1/1. He has further deposed on the lines of PW­1 & PW­2 about recovery of Rs. 2,70,000/­ cash from under the car seat and its seizure vide memo Ex. CW­1/2, returning to the police station after completing the proceedings at the spot CC No. 01/2018 Page 15 of 67 WCCB Vs. Surajbhan @ Sarju & others taking along the accused persons & seized material and articles.

34. PW­6 has deposed on the lines of PW­1 & PW­2 about recovery of mobile phones in the personal search of A­1 & A­2, recovery of a driving license in the personal search of accused Naresh @ Lala (A­2) and disclosure of A­1 about his involvement in the Wildlife articles trade along with accused Surajpal @ Chacha (A­3) & accused Naresh @ Lala (A­2).

35.PW­6 testified that he prepared a rukka (Ex. CW­6/2) on the basis of which FIR (Ex. CW­6/1) was registered. He arrested accused Surajbhan @ Sarju (A­1) vide memo Ex.CW­1/3 and conducted his personal search vide memo Ex. CW­1/4. He arrested accused Naresh @ Lala (A­2) vide memo Ex. CW­1/5 and conducted his personal search vide memo Ex. PW­1/6.

36.PW­6 deposed on the lines of PW­1 regarding raid conducted by the team including himself at the house of deceased accused Surajpal @ Chacha (A­3) on 08.09.2013, recovery of Rs. 50 lacs in cash and Tiger nails from his house, which were seized by him vide memo Ex. CW­1/10. PW­6 deposed that he arrested deceased accused Surajpal @ Chacha (A­3) vide memo Ex. CW­ 1/11 and conducted his personal search vide memo Ex. CW­1/12. PW­6 identified in the court the contents of 05 CC No. 01/2018 Page 16 of 67 WCCB Vs. Surajbhan @ Sarju & others pullandas, Ex. X­1, Ex. X­2, Ex. X­3, Ex. X­4 & Ex. X­5 as Tiger parts, as per details given in the seizure memos Ex. CW­1/1 & Ex. CW­1/10. He identified the cash of Rs. 2,70,000/­, recovery from the car as Ex. P­4, the polythene containing cash as Ex. P­5 and the plastic katta in which cash in polythene was produced in sealed condition as Ex. P­6.

37.PW­6 has deposed on the line of PW­1 that on 08.09.2013 he produced all the 05 sealed pullandas along with other case property in the Court at Tis Hazari Court when in the presence of the Magistrate, the pullandas were opened, the contents were examined by the Magistrate and then re­sealed as it is, which were then handed over to PW­1 Sh. A.K. Jha, vide the Court order Ex. PW­6/R­1, whereas the remaining case property was directed by the Court to be kept with the Crime Branch.

38.PW­7 Sh. B.S. Khati, Wildlife Inspector, has deposed that on 09.09.2013 he was the member of the team which went to Barhapur, District Bijnaur, U.P to trace one Sayeed s/o Peru at the instance of accused Surajbhan @ Sarju (A­1), who was taken along during the search. He is witness of recording of statement of accused Naresh @ Lala (A­2) and accused Surajbhan @ Sarju (A­1) as Ex.CW­7/A and Ex. CW­7/B respectively.

39.PW­7A Sh. Ram Nivas deposed that he is a dealer of sale CC No. 01/2018 Page 17 of 67 WCCB Vs. Surajbhan @ Sarju & others & purchase of vehicles at Sonipat and one white color car no. HR­11E­1001 Tata Indigo Manza registered in the name of Mukesh Sharma (PW­8) was purchased by accused Naresh @ Lala (A­2) for consideration of Rs. 3 lacs. He deposed that related documents were signed in the presence of a witness Arvind Chauhan. He admitted his statement recorded by the Wildlife Inspector as Ex. CW­7/1. This witness was examined as PW­7, but since there is another witness B.S Khati, who has also been examined as PW­7, in order to avoid confusion and clarity in reference to the witnesses, witness Ram Nivas was given no. PW­7A vide proceedings dated 11.01.2019.

40.PW­8 Sh. Mukesh Sharma is the registered owner of vehicle make Tata Indigo Manza bearing registration no. HR­11E­1001, who deposed that he had purchased the car in the year 2010 and had sold it to accused Naresh @ Lala (A­2) through a broker Ram Nivas (PW 7­A) for sale consideration of Rs. 3 lacs on 19.12.2012. He referred to the photocopies of various documents in this regard, his affidavit Mark PW­8/A, Form­30 Mark PW­8/B, Form 29 Mark PW­8/C, PAN card Mark PW­8/D, his Driving License Mark PW­8/E and Registration Certificate Mark PW­8/F.

41. PW­9 Smt. Gurodevi has deposed that accused Surajbhan @ Sarju (A­1) was her neighbor, who had taken the copy CC No. 01/2018 Page 18 of 67 WCCB Vs. Surajbhan @ Sarju & others of her I­card and ration card, by promising to get her Government Old age pension. She deposed that accused Surajbhan @ Sarju (A­1) had taken her thumb impression on the application form and she later on came to know that her documents were used by him for purchasing a SIM card.

42. PW­10 Sh. Nishant Verma, Deputy Inspector General, National Tiger Conservation Authority has filed the complaint on behalf of WCCB and is also the investigating officer. He has deposed on the lines of PW­1 & PW­6 about receiving 05 sealed pullandas of the case property by the Court order dated 08.09.2013, Ex. PW­6/R­1, which were physically received by PW­1 Sh. A.K. Jha.

43. PW­10 deposed that vide his letter dated 09.09.2013 Ex. PW­3/R­1, he had sent 02 sealed packets containing Tiger body parts to Director, Wildlife Institute of India, Dehradun for species identification and that vide his letter dated 27.02.2014 Ex.PW­3/R­3, addressed to the Director, Wildlife Institute of India, Dehradun, he had authorized Ct. Ganesh to collect the case property from Dehradun. He deposed that 02 sealed packets of the case property were received from Wildlife Institute of India, Dehradun by Ct. Ganesh. He identified in the Court the sealed pullandas Ex. X­3 bearing tag/marking ­ "mark F­ 2659/1­2" and Ex. X­5 bearing tag/marking ­ "mark F­ CC No. 01/2018 Page 19 of 67 WCCB Vs. Surajbhan @ Sarju & others 2659/2­2" as the sample pullandas which were sent by him to the Wildlife Institute of India, Dehradun vide his letter Ex. PW­3/R­1 for species analysis.

44. PW­11 Mr. Saurabh Aggarwal, Nodal officer, Vodafone­ Idea Limited identified the copy of Customer Application Form (CAF) pertaining to the mobile no. 8816915062 in the name of Guru Devi, House No. 211, Akbarpur Barota, Tehsil Sonipat, Haryana, certified by him as Ex. PW­11/A, Call Data Record (CDR) pertaining to this mobile no. for the period 01.01.2013 to 30.09.2013 certified by him as Ex. PW­11/B along with his certificate u/s 65­B of Indian Evidence Act as Ex. PW­11/C. He also deposed that he had given the certified copy of Customer Application Form (CAF) pertaining to the mobile no. 8053954451 in the name of Naresh s/o Rampat, House No. 696, Akbarpur Barota, District Sonipat, Haryana to the IO which he had identified as Ex. PW­11/D and certified copy of Call Data Record (CDR) of this mobile no. for the period 01.01.2013 to 30.09.2013 given to IO as Ex. PW­11/E along with his certificate u/s 65­B of Indian Evidence Act as Ex. PW­ 11/F. PW­11 further deposed that he had also given to IO the certified copy of Customer Application Form (CAF) pertaining to mobile no. 9050017505 in the name of Naresh s/o Rampat, House No. 264, Village Akbarpur Barota, District Sonipat, Haryana along with supporting CC No. 01/2018 Page 20 of 67 WCCB Vs. Surajbhan @ Sarju & others documents pertaining to customer ID as Ex. PW­11/G and certified copy of the CDR of this mobile no. for the period 01.01.2013 to 30.09.2013 as Ex. PW­11/H along with certificate u/s 65­B of Indian Evidence Act as Ex. PW­ 11/J.

45. PW­11 produced the Tower Location Chart of the above mobile numbers for Delhi Circle as Ex. PW­11/K, for Haryana Circle as Ex. PW­11/L and for UP­West as Ex.PW­11/M. He also produced and filed the certified copy of Tower Location Chart of tower no. 23607 of Delhi circle as Ex. PW­11/N and tower ID chart of tower codes no. 40652, 46936 and 24051 as Ex.PW­11/O.

46. PW­12 Mr. Surender Kumar, Nodal Officer, Bharti Airtel Limited proved the copy of Customer Application Form (CAF) pertaining to the mobile no. 9910949638 in the name of Mohd. Ayoub s/o Mohd. Wani, House No. B­214, New Sabzi Mandi, Azadpur, Delhi certified by him as Ex.PW­12/A­1. He also proved the Call Data Records (CDR) of above mobile no., certified by him as Ex. PW­ 12/B­1 along with his certificate under Section 65­B of Indian Evidence Act as Ex. PW­12/C. He also filed the Tower Location Chart of the above mobile no. for the Delhi circle as Ex. PW­12/D. CC No. 01/2018 Page 21 of 67 WCCB Vs. Surajbhan @ Sarju & others Statement of accused and Defence evidence

47.Statement of the accused persons were recorded without oath u/s 313 Cr.P.C separately. They denied the incriminating evidence against them and claimed to be falsely implicated. Accused Surajbhan @ Sarju (A­1) desired to lead evidence in defence and examined his wife Smt. Parmeshwari as D1W1. Accused Naresh @ Lala (A­2) did not wish to lead any evidence in defence.

48.D1W1 Smt. Parmeshwari testified that on 07.09.2013 she along with her husband was walking towards the bus stand to board the bus to go to Panipat, when suddenly 5­6 persons came in a vehicle, apprehended her husband and took him away in the same vehicle

49. I have heard at length Advocate Smrati Chaturvedi, Additional Central Government Counsel for WCCB, Advocate Ekta Aggarwal, Legal Aid Counsel for accused Surajbhan @ Sarju (A­1) and Advocate Deepanker Mohan, Legal Aid Counsel for accused Naresh @ Lala (A­2). I have perused the record including the written submissions filed by the parties.

Recovery of Wildlife articles/Tiger parts (Uncured Trophies)

50. It was argued by the Additional Central Government Counsel for WCCB that deposition of PW­1 Sh. A.K. Jha, PW­2 Sh. B.H. Virsen and PW­6 Retd. SI Jai Kishan has proved that on 07.09.2013 at about 5.30 PM, a team CC No. 01/2018 Page 22 of 67 WCCB Vs. Surajbhan @ Sarju & others including PW­1, PW­2 & PW­6 had intercepted a Tata Indigo Manza car bearing registration no. HR­11E­1001, from the dikki (car boot) of which a sack containing Tiger body parts/uncured trophies was recovered and Rs. 2,70,000/­ in cash was recovered from under the car seat.

51. It was argued on behalf of the prosecution that the testimony of above 03 witnesses has proved that the car was driven by accused Naresh @ Lala (A­2) and accused Surajbhan @ Sarju (A­1) was sitting besides him on the passenger seat. They failed to show any document for transportation of the Wildlife articles recovered from the said car. Witnesses have proved that recovered Wildlife articles were put in 04 pullandas which were weighed and then sealed at the spot and were identified by the witnesses during their deposition in the Court. It was argued that Section 57 of the Act puts burden of proof on the accused persons to rebut the presumption of unlawful possession of Wildlife articles against them.

52. It was argued in defence by the Legal Aid counsels for the accused that the alleged recovery of Tiger parts from the car in possession of accused Surajbhan @ Sarju (A­1) and accused Naresh @ Lala (A­2) is planted and the accused have been falsely implicated. It was argued that there are material contradictions in the statements of the witnesses CC No. 01/2018 Page 23 of 67 WCCB Vs. Surajbhan @ Sarju & others on the aspect of recovery and gaps in the prosecution case.

53. The gaps in the prosecution case argued in defence are - there is no evidence of secret information; there is no evidence of constitution of raiding party; there is no independent witness to the recovery despite the fact that it was a public place and no effort was made by PW­6 to join public persons in the proceedings; PW­1 & PW­2 have not signed on the pullandas which makes their presence doubtful at the time of recovery; the guidelines for Wildlife Crime Investigation issued by the Ministry of Environment & Forests, Government of India in the Handbook for Wildlife Crime Investigating Officers (Ex. PW­1/RD­1) have not been followed with respect to recovery, seizure, custody of the Wildlife material & preparation of Wildlife offence report; CCTV footage of toll gates not produced to prove the movement of the car and recovery of Rs. 2,70,000/­ from the car is not duly proved.

54. It was argued by the Legal Aid Counsels that there are contradictions in the statements of PW­1, PW­2 & PW­6 about the documents they had signed, the place where those documents were prepared, the spot from where alleged recovery was made, the time of arrest, the site plan and the material in which contraband was packed which create doubt about their presence at the spot and CC No. 01/2018 Page 24 of 67 WCCB Vs. Surajbhan @ Sarju & others the proceedings.

55. It was vehemently argued that the case property was initially not produced in the Court during examination of the witnesses and when this fact was argued in defence of the accused at the stage of final arguments, the prosecution moved an application u/s 311 Cr.P.C to recall the witnesses, which was allowed and then the case property was produced and shown to the witnesses. It was further argued that there are contradictions in the statements of witnesses about contents & description of pullandas of the contraband produced in the Court; different versions have come in the deposition of PW­6 about the case property and that the case property was not shown to PW­2 Sh. B.H. Virsen.

56. It was argued that the vehicle Tata Manza bearing no. HR­ 11E­1001 was not produced during trial and the prosecution has failed to prove that accused Naresh @ Lala (A­2) was the owner of the car allegedly used for transportation of wildlife contraband, because testimony of PW­7­A Sh. Ram Nivas and PW­8 Sh. Mukesh Sharma cannot be relied in the absence of documents.

57. With respect to the recovery of the wildlife contraband, PW­1 Sh. A.K. Jha, PW­2 Sh. B.H. Virsen & PW­6 SI Jai Kishan have deposed consistently that on 07.09.2013 they were members of a raiding party constituted at Crime CC No. 01/2018 Page 25 of 67 WCCB Vs. Surajbhan @ Sarju & others Branch, Daryaganj, Kotwali, Delhi on the request of officials of WCCB, Delhi and Forest Department, Nagpur Division, who had the information about movement of a wildlife offender Sarju in Delhi. The raiding team was led by PW­6 SI Jai Kishan, who had conducted the proceedings of search, seizure and arrest.

58. It has come in the deposition of PW­1, PW­2 and PW­6 that on 07.09.2013 the raiding team reached at T­point on the outer ring road near Chandagi Ram Akhada at 3.00 PM and started checking the vehicles coming from the Kashmere Gate side. No public person joined the proceedings despite request of PW­6. It has come in the deposition of PW­1, PW­2 and PW­6 at about 5.30 PM, a TATA Indigo Manza car bearing no. HR­11E­1001 came from Kashmere Gate side which was intercepted. The said car was driven by accused Naresh @ Lala (A­2) and accused Surajbhan @ Sarju (A­1) was sitting besides him. Nothing has come in the cross­examination to shake their testimony on these facts.

59. It has further come in the deposition of the witnesses PW­1, PW­2 & PW­6 that strong smell was coming from the car and on search, a sack containing prohibited wildlife articles was recovered from the dikki (car boot). PW­1 & PW­2 have deposed that they identified the wildlife material recovered in the sack as Tiger body parts, CC No. 01/2018 Page 26 of 67 WCCB Vs. Surajbhan @ Sarju & others on the basis of their experience and expertise to deal with such articles. They are corroborated on this fact by PW­6, who deposed that the material was identified as Tiger parts by the wildlife/forest officials in the team. Their testimony has remained unshaken in the cross­ examination.

60. It has come clearly in the deposition of PW­6, corroborated by PW­1 & PW­2 that the recovered wildlife material/uncured trophies of Tiger parts were put in 04 packets by him, which were marked as A, B, C & D, weighed and sealed by him with his seal of 'JK' at the spot.

61. PW­6 SI Jai Kishan identified the 04 sealed pullandas shown to him as the pullandas prepared and seized by him on 07.09.2013 vide memo Ex. CW­1/1, i.e. pullanda A as Ex. X­1, pulanda B as Ex. X­2, pullanda C as Ex. X­3, pullanda D as Ex. X­4. PW­6 identified his handwriting on the pullandas stating that the particulars on the pullandas were written by him. PW­1 & PW­3 identified their signatures on the seizure memo Ex. CW­1/1. PW­1 also identified the pullandas in the Court on the lines of PW­6.

62. In order to understand and appreciate the counter arguments with respect to proof of contraband in the Court during trial, it is necessary to analyse relevant portions of the deposition of PW­6 SI Jai Kishan in the Court during trial, who had conducted the proceedings of CC No. 01/2018 Page 27 of 67 WCCB Vs. Surajbhan @ Sarju & others search & seizure. They are reproduced as under:

PW­6 SI Jai Kishan (as CW­6 in pre­charge evidence on 25.04.2014) ..........................................................................................................

..........................................................................................................

"(At this stage case property produced in a plastic drum is opened. Out of the same Four packets mark­A having seal impression CM and JK containing tiger bones, mark­ B having seal impression JK and CM containing small tiger bones, mark­ C having seal impression DDUN containing sample articles i.e. nails and skull and mark­ D having seal impression DDU containing nails mark­ E having seal impression DDUN containing nails are taken out. Witness states that all these recovered items were packed separately on the spot itself by him and were given mark A to E. The witness has correctly identified the same and now pullanda A is collectively exhibited as Ex. X1, pullanda B as X2, pullanda C as X3 and pullanda D as X4 and pullanda X5."

.......................................................................................................... ..........................................................................................................

(emphasis supplied) PW­6 SI Jai Kishan (deposition dated 03.06.2019 forenoon after recall) I have seen in the Court record, the seizure memo dated 07.09.2013, already Ex. CW­1/1, prepared by me and bearing my signatures at already point C. As per this seizure memo, I had seized & prepared 04 pulandas of the tiger parts as per the details of contents and their weight mentioned in the seizure memo. The pulandas were sealed by me and they were given identification Marks A, B, C & D. Pulanda A contained 15 large tiger bones of different body parts and its weight was 9.950 kg. Pulanda B contained small tiger bones and its weight was 5.918 kg. Pulanda C contained tiger nails (claws) & keele (canine teeth) and its weight was 350 grams. Pulanda D contained tiger skull bones/parts & nails (claws) and its weight was 1.506 kg. I had sealed all the 04 pulandas with my seal of 'JK'.

I have seen in the Court record, the seizure memo dated 08.09.2013, already Ex. CW­1/10, prepared by me and bearing my signatures at already point C. As per this seizure memo, I had seized & prepared a pulanda of 18 suspected wild animal nails as per the details mentioned in the seizure memo. Vide this seizure memo, I had also seized Rs. 50 lacs recovered from the house of accused Suraj Pal @ Chacha (A­3). The pulanda containing 18 suspected wild animal nails was sealed by CC No. 01/2018 Page 28 of 67 WCCB Vs. Surajbhan @ Sarju & others me and it was given identification Mark­E. I had sealed this pulanda with my seal of 'JK'.

......................................................................................................... .........................................................................................................

PW­6 SI Jai Kishan (Deposition dated 03.06.2019 afternoon) [A big yellow color plastic container is produced by WCCB, having a lid which is closed with the help of the cello tape. Container is opened by pulling off the cello tape and removing the lid. It contains an open white polythene which contains 02 sealed cloth pulandas, the color of which is yellowish­dark brown due to the seepage of blood, tissue and bio­material. Individual description of the 02 pulandas as per description mentioned on them is as under:

Pulanda 1: - mark­C; weight ­ .350; FIR No. 155/13; mark F­ 2659/1­2 Pulanda 2: FIR No. 155/13; 08.09.2013; mark F­2659/2­2 A very strong foul smell is coming from the sealed pulandas. Though the seals on the pulandas are intact, the seal impressions are not clear due to melting and smudging of the seal material over a period of time.

The plastic container contains 03 more sealed pulandas. A very strong foul smell is coming from the sealed pulandas. Though the seals on the pulandas are intact, the seal impressions are not clear due to melting and smudging of the seal material over a period of time. Individual description of the 03 pulandas as per appearance and description mentioned on them is as under:

Pulanda 1: ­ white synthetic jute type sealed pulanda with the dripping dark blackish brown liquid; mark­A; weight - 9.950; FIR 155/13; dt 7.9.13; U/S 39, 40(2), 51 WLP Act 1972; PS Crime Branch Pulanda 2: ­ white synthetic jute type sealed pulanda; mark­B; weight - 5.918 kg; FIR No. 155/13; dt 7.9.13; U/S 39, 40(2), 51 WLP Act 1972; PS Crime Branch Pulanda 3: ­ yellowish­brownish (due to blood & tissue) sealed cloth pulanda; mark­D; weight - 1.506 kg; FIR 155/13; dt 7.9.13; U/S 39, 40(2), 51 WLP Act 1972; PS Crime Branch.] ......................................................................................................... .........................................................................................................

(emphasis supplied) PW­6 SI Jai Kishan (Deposition dated 06.06.2019 forenoon) ......................................................................................................... (Case property is produced in the plastic container by Wildlife Inspector A. Pragatheesh from WCCB office, who has submitted that since the case property is lying sealed in pulandas since its seizure for CC No. 01/2018 Page 29 of 67 WCCB Vs. Surajbhan @ Sarju & others about 6 years, it is not advisable to open it in the Court room, which is centrally air­conditioned as it will not only give very strong foul smell, there may be chances of harmful bacteria and viruses being released. It is submitted that the case property be allowed to be opened outside under the open sky or on the terrace of the building. In view of the submission, it is directed that case property be taken outside the building and be opened in the open area outside the lock­ up on the ground floor.) (The 05 sealed pulandas of case property, as per the description noted on the previous day, were opened one by one by breaking the seals in my presence, presence of the Court staff, the lawyers and shown to the witness. Pulanda Mark­A, already Ex.X1 contains big brownish bones (limb bones); Pulanda Mark­B already Ex. X2 contains large number of small brownish bones; Pulanda Mark­C already Ex. X3 contains 13 clear claw nails, one base claw & 04 canine teeth; Pulanda Mark­D already Ex. X4 contains a skull bone, 02 claw nails & a small boney part and Pulanda mark F­2659/2­2 already Ex. X5 contains bunch of claw nails.) I have seen the contents of all the 05 pulandas opened before me. They contain tiger parts as detailed in the seizure memos, already Ex. CW­1/1 and already Ex. CW­1/10, prepared by me. Pulanda mark F­ 2659/2­2 already Ex. X5 which contains bunch of claw nails was prepared by me on 08.09.2013 and was given Mark­E. ......................................................................................................... .........................................................................................................

63. Before I proceed to analyse the deposition of PW­6, it is pertinent to mention that some of the prosecution witnesses were recalled u/s 311 Cr.P.C by this Court vide a detailed order dated 27.05.2019, because it was deemed necessary for just decision of the case. PW­6 is one of such witnesses and the order of this Court has not been challenged by the accused.

64. It is pertinent to mention that during final arguments, before PW­1 Sh. A.K. Jha & PW­6 SI Jai Kishan were recalled for further examination, certain points were CC No. 01/2018 Page 30 of 67 WCCB Vs. Surajbhan @ Sarju & others raised by the Legal Aid Counsels regarding the case property produced and exhibited in the testimony of PW­6 in the pre­charge evidence on 25.04.2014, therefore vide court proceedings dated 06.05.2019, the case property was directed to be produced. On 13.05.2019, the case property was produced in a large plastic container and the observation of this Court about the pullandas C & E is reproduced as under:

13.05.2019 ..................................................................................

...................................................................... Pulandas are perused.

Though the seals on the pulandas are intact, the seal impressions are not clear, which appear to have melted/ smudged over a period of time.

Sealed pulandas marked 'C' & 'E' bear the slips/tags -

"F­2659/1­2" and "F­2659/2­2" respectively, indicative of markings given by Wildlife Forensic Cell, Wildlife Institute of India, as per its reports - CW 3/1B & CW 3/2B respectively.

.................................................................................... ....................................................................................

­sd­ Special Judge (PC Act) (CBI) - 08 RACC/ND : 13.05.2019 It was observed that out of the 05 sealed pullandas, only 02 had the slips/tags of Wildlife Institute of India. These observations have not been challenged by the accused.

65. Record of exhibition of the pullandas in the testimony of PW­6 on 25.04.2014 does not mention that the sealed pullandas were opened. Therefore, possibility of pullandas CC No. 01/2018 Page 31 of 67 WCCB Vs. Surajbhan @ Sarju & others being exhibited without opening on the basis of their appearance cannot be ruled out. There is a clerical mistake in the record about the number of pullandas produced in the Court on 25.04.2014. While 05 pullandas were exhibited on that day, it is mentioned in the record that 04 sealed pullandas were produced. Deposition of PW­6 dated 25.04.2014 gives an impression as if 03 pullandas, Mark­C, D & E had the seal impression of Wildlife Institute of India - "DDUN/DDU". However, it has been observed by this Court in proceedings dated 13.05.2019 that out of the 05 sealed pullandas, only 02 Mark­C & E had the tags bearing no. F­2659/1­2 & F­2659/2­2 indicative of markings of Wildlife Institute of India. Therefore, there is no confusion as to how many and which of the pullandas had the tag of Wildlife Institute of India.

66. PW­6 in his deposition dated 03.06.2019 (on recall), gave description about the weight and contents of the pullandas as per the seizure memo Ex. CW­1/1. The witness is not expected to remember the weight and description of contents of the pullandas, which is likely to fade in his memory over a period of time. On 03.06.2019 when the pullandas were produced, it was observed by the Court that the seals were intact, though seal impression were not legible, which appeared smudged due to passage of time and heat. On 06.06.2019 sealed pullandas were opened, CC No. 01/2018 Page 32 of 67 WCCB Vs. Surajbhan @ Sarju & others its contents were seen & identified by the witnesses PW­1 & PW­6. The contents of the pullandas A(Ex. X­1), B (Ex. X­2), C(Ex. X­3) and D(Ex. X­4) matched with the description in the seizure memo Ex. CW­1/1. It is to be noted that PW­6 deposed that particulars on the pullanda were written in his handwriting.

67. On point of contents of pullandas, Mark­C & D, PW­6 was confronted with his previous statement in the connected case no. 04/15, CIS No.21/2019, titled B.K. Singh (Enf. Directorate) Vs. Surajpal @ Chacha and others" and he explained that contents of the pullandas C & D were as deposed by him in this case and admitted that there is mistake in his statement on this fact in the other case. It has come in the cross­examination that he did not make any application in the other case for correction in his statement.

68. In Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646, Hon'ble Supreme Court held:

69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature CC No. 01/2018 Page 33 of 67 WCCB Vs. Surajbhan @ Sarju & others that it impairs his evidence in its entirety.

(emphasis supplied)

69. In view of Shyamal Ghosh (Supra) testimony of PW­6 about identity of case property in the Court has to be read as a whole and conclusion should not be drawn by picking up an isolated portion of his testimony. On reading of deposition of PW­6 as a whole, it is clear about the identity of the pullandas of the contraband and its contents, which is corroborated by PW­1 on these facts.

70. Absence of independent witnesses in the proceedings during investigation by the police was considered by the Supreme Court in "Karamjit Singh Vs. State (Delhi Administration), (2003) 5 SCC 291" and it was held:

8..................................................................................

.................................................................................... The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.

................................................................................... ...................................................................................

(emphasis supplied)

71. In Karamjit Singh (supra) was followed by Delhi High Court in Mohd. Anwar @ Annu Vs. State, 2011 SCC OnLine Del 1047 as under:

14. I do not find any merit in the contention of the learned counsel for the Appellant that non­joining of public CC No. 01/2018 Page 34 of 67 WCCB Vs. Surajbhan @ Sarju & others witnesses casts a serious doubt on the prosecution case.

Testimony of PW2 ACP Amrik Singh Bhuller that no public witness was asked to join the proceedings in his presence is of no consequence.

.................................................................................... ................................................................................... ................................................................................... ................................................................................... Further, it is well­settled that even in the absence of joining of public witnesses, the conviction can safely be based on the testimony of police witnesses if the same inspires confidence, as held in Karamjit Singh v. State (Delhi Administration), 20903(5) SCC 291.

72. It has come in the deposition of all recovery witnesses that efforts were made by PW­6 to join public witnesses in the proceedings of search and seizure of wildlife contraband on 07.09.2013 and there is no reason to disbelieve their testimony. It has come in the cross­examination of PW­1 that the spot was a highway and not the residential area, therefore, public witnesses would not be readily available. There is no contest on the fact that the place of alleged search and seizure was a busy road, therefore, the fact that there were some residential complexes near the spot would not ensure availability of the public witnesses. In the facts and circumstances of the matter, testimony of PW­1 Sh. A.K. Jha, PW­2 Sh. B.H. Virsen & PW­6 SI Jai Kishan cannot be held unworthy of credence merely for the reason that there are no public witness.

73. PW­1 & PW­6 were subjected to lengthy cross­examination on the aspect of secret informer by the Legal Aid Counsels. It was argued that non­examination of the secret informer CC No. 01/2018 Page 35 of 67 WCCB Vs. Surajbhan @ Sarju & others and contradiction in the testimony of the witnesses about his presence create doubt about the prosecution story.

74. In this regard, Chapter­2: Collection of Intelligence in the Wildlife Crime Investigation handbook, Ex. PW­1/RD­1 deals with this aspect and the relevant portion is reproduced as under:

.................................................................................... 2.2. Wildlife crimes do not affect the public at large and therefore, usually, public don't come forward voluntarily to give information about the wildlife offenders. Therefore, the law enforcement agencies have to find ways and means to motivate the members of public to pass on information about such offenders.

Hence, it is essential to cultivate a set of reliable informers/sources.

2.3..................................................................................... 2.4. Details of the sources need not be disclosed in any legal proceeding including trial. Section 124 and 125 of Indian Evidence Act provide for (Protection) of the identity of the informer even in judicial trial. Identity of the sources or informers may be known only to the officer employing them.

.................................................................................... ....................................................................................

(emphasis supplied)

75. Therefore, examination of the secret informer as a witness in the Court is not only unwarranted in wildlife cases, it is prohibited for a purpose. Facts related to the secret information and informer are not relevant to decide the fact of recovery of wildlife contraband. Therefore, discrepancy in the statements of the witnesses about presence of the secret informer is inconsequential.

CC No. 01/2018 Page 36 of 67

WCCB Vs. Surajbhan @ Sarju & others

76. Procedure for search and seizure of wildlife contraband is provided in the Wildlife Crime Investigation handbook, Ex. PW­1/RD­1, according to which for the purposes of search and seizure under Section 50 of the Act, the procedure prescribed under Section 100 Cr.P.C is to be strictly followed. (Para 4.1)

77. In Sansar Vs. State, 1994 (28) DRJ, while dealing with the credibility of search & seizure in a Wildlife offence, High Court of Delhi held:

12. As far as the legal proposition is concerned, it is settled law as has been laid down by the Hon'ble Supreme Court in 1964 (3) S.C.R. 237 that the requirements of procedure are generally intended to subserve the ends of justice and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused.

(emphasis supplied)

78. Guidelines in the handbook for Wildlife Crime Investigation (Ex. PW­1/RD­1) with respect to Wildlife Offence Report (WLOR) are regulatory to bring about the standardized practices and procedure. They are not mandatory and it has come so in the deposition of PW­1, CC No. 01/2018 Page 37 of 67 WCCB Vs. Surajbhan @ Sarju & others who also deposed that for the purposes of search and seizure under Section 50 of the Act, presence of Gazetted Officer is not necessary and that WLOR is for department purpose only and that only seized wildlife contraband is required to be produced before the Magistrate. His testimony on this aspect has gone unrebutted. Therefore, non­compliance of guidelines in the handbook about search & seizure in the present case does not vitiate the trial, because nothing has come on record to show that the contravention has caused prejudice to the accused.

79. With respect to the omission, contradiction and description in the statements of the recovery witnesses, as argued by the defence counsels, decisions of Supreme Court in Karamjit Singh (supra) and Shyamal Ghosh (Supra) are relevant. In Karamjit Singh (Supra), Supreme Court held:

9..................................................................................

.................................................................................... In our opinion the learned counsel has tried to make a mountain out of a molehill from a stray sentence in the cross­examination of the witness. In his examination­ in­chief which was recorded on 21­5­1994 PW 5 has not stated anything regarding the time when he saw the appellant being interrogated. He was cross­ examined on 23­7­1994 i.e. nearly three years and nine months after the incident. After such a long gap he may not be remembering the exact time when he reached the police station. PW 11 Pratap Singh has clearly stated in his cross­examination that SI Kartar Singh had come to the police station in pursuance of a wireless message sent to the Operation Cell by ACP Shakti Singh and that he came after 3.30­4.00 p.m. Therefore, it is not at CC No. 01/2018 Page 38 of 67 WCCB Vs. Surajbhan @ Sarju & others all possible to discard the testimony of the prosecution witnesses merely on account of a stray sentence appearing in the cross­examination of PW 5.

(emphasis supplied)

80. In Shyamal Ghosh (Supra), Supreme Court held:

68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution.

Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.

(emphasis supplied)

81. In view of the above legal position discrepancy in the statements of recovery witnesses with respect to the time of search, place where the documents were signed, the number of documents signed, absence of barricades and position of the raiding party in the site plan and time & place of arrest are inconsequential as they do not go to the root of the matter. Similarly discrepancy in the statements CC No. 01/2018 Page 39 of 67 WCCB Vs. Surajbhan @ Sarju & others of witnesses about constitution of the raiding party and its departure from the police station are inconsequential.

82. The Tata Manza car no. HR­11E­1001 allegedly used by accused Surajbhan @ Sarju (A­1) & accused Naresh @ Lala (A­2) for transportation of the wildlife contraband, is a relevant fact. According to Section 59 of the Indian Evidence Act, all facts, except the contents of documents or electronic records, may be proved by oral evidence. The section further provides that if a fact refers to something which could be seen, it must be the evidence of the person who says he saw it. Therefore, physical production of the car during trial is not essential to prove the use of car. It can be proved by oral evidence of the witnesses, who saw that the wildlife contraband was recovered from the car. Testimony of PW­1, PW­2 & PW­6 is very clear on this fact that wildlife contraband/Tiger parts were recovered from the boot of the car no. HR­11E­1001 and their testimony has remained unshaken in the cross­examination.

83. It was argued in defence of accused Naresh @ Lala (A­2) that prosecution has failed to prove that accused Naresh @ Lala (A­2) is the owner of the Tata Manza car no. HR­ 11E­1001. On the other hand, Additional Central Government Counsel for WCCB argued that this fact is proved by the witnesses CW­7­A Sh. Ram Nivas and CW­8 Sh. Mukesh Sharma.

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84. It has come in the testimony of PW­8 Sh. Mukesh Sharma that he is the registered owner of the vehicle no. HR­11E­ 1001 which he had sold to accused Naresh @ Lala (A­2) through a broker Ram Nivas (PW­7A) for a consideration of Rs. 3 lacs. PW­7A has deposed on the same lines. It has come in the testimony of these witnesses that documents for sale of the vehicle were prepared and signed including the sale agreement, delivery receipt and affidavit etc. It has come in the deposition of PW­8 that original documents are not in his possession. The original documents are not produced by the prosecution on record.

85. It was argued by the Additional Central Government Counsel for WCCB that accused Naresh @ Lala (A­2) has admitted the fact of ownership of car in his statement recorded u/s 50 of the Act (Ex. CW­7/A) which is admissible in evidence, as proof of this fact.

86. In defence, the Legal Aid Counsel for accused Naresh @ Lala (A­2) argued that the prosecution cannot prove this fact merely on the basis of statement of accused and has relied on A. Tajudeen Vs. Union of India, (2015) 4 SCC

435.

87. In A. Tajudeen (Supra) in a matter under Foreign Exchange Regulation Act (FERA), 1973 while dealing with the evidentiary value of the statement made by the accused in proceedings under Section 50 of the Act, it was CC No. 01/2018 Page 41 of 67 WCCB Vs. Surajbhan @ Sarju & others held by the Hon'ble Supreme Court that:

28. Having given our thoughtful consideration to the aforesaid issue, we are of the view that the statements dated 25­10­1989 and 26­10­1989 can under no circumstances constitute the sole basis for recording the finding of guilt against the appellant. If findings could be returned by exclusively relying on such oral statements, such statements could easily be thrust upon the persons who were being proceeded against on account of their actions in conflict with the provisions of the 1973 Act. Such statements ought not to be readily believable, unless there is independent corroboration of certain material aspects of the said statements, through independent sources. The nature of the corroboration required, would depend on the facts of each case. In the present case, it is apparent that the appellant A. Tajudeen and his wife T. Sahira Banu at the first opportunity resiled from the statements which are now sought to be relied upon by the Enforcement Directorate, to substantiate the charges levelled against the appellant. We shall now endeavour to examine whether there is any independent corroborative evidence to support the above statements.

(emphasis supplied)

88. In view of above legal position in the absence of documents to prove sale of the car by PW­8 Sh. Mukesh Sharma to accused Naresh @ Lala (A­2), it will not be safe to declare the accused the owner of the car merely on his statement u/s 50 of the Act.

89. It has come in the testimony of PW­1, PW­2 & PW­6 that Rs. 2,70,000/­ in cash was recovered from under the car seat on which accused Surajbhan @ Sarju (A­1) was sitting. Nothing has come in their cross­examination to shake their deposition on this fact. Money was produced CC No. 01/2018 Page 42 of 67 WCCB Vs. Surajbhan @ Sarju & others in a sealed pullanda in evidence of PW­6, who identified the cash in denomination of Rs. 500/­ and Rs. 100/­ collectively as Ex. P­4, the polythene in which the money was kept as Ex. P­5 and the plastic katta in which the polythene containing cash was kept and sealed as Ex. P­6. Evidence on this fact has gone unrebutted.

90. Though Surajbhan @ Sarju (A­1) has examined his wife Smt. Parmeshwari as D1W1 to create the defence that he was picked up from the village in Haryana, but no such suggestion was put to the recovery witnesses in their cross­examination and hence accused Surajbhan @ Sarju (A­1) has failed to substantiate his defence.

91. On combined reading of testimony of PW­1, PW­2 & PW­6, it is clearly established that on 07.09.2013 at about 4 PM

- 5.30 PM at T­point, Chandagiram Akhada, outer Ring Road, they were members of a raiding party led by PW­6 which had intercepted the car no. HR­11E­1001, which was driven by accused Naresh @ Lala (A­2) and accused Surajbhan @ Sarju (A­1) was on the passenger seat. Their testimony is cogent and trustworthy on the fact that a sack containing wildlife contraband was recovered from the car boot which was seized and sealed in 04 pullandas at the spot, which were identified by PW­1 & PW­6 in the Court. Their testimony is also consistent on the fact that Rs. 2,70,000/­ in cash was recovered from under the car seat.

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WCCB Vs. Surajbhan @ Sarju & others Expert opinion on Wildlife Contraband and Link Evidence

92. Additional Central Government Counsel for WCCB argued that the sample of the contraband seized from the possession of accused Surajbhan @ Sarju (A­1) & accused Naresh @ Lala (A­2) was sent to Wildlife Institute of India, Dehradun for examination and that Dr. S.P. Goyal (PW­3) has confirmed that the uncured trophies/sample seized from accused Surajbhan @ Sarju (A­1) and accused Naresh @ Lala (A­2) was Tiger body part. It was further argued that safe custody of the pullandas containing Tiger parts including the sample pullanda has been proved by PW­6 Retd. SI Jai Kishan and it is mentioned in the order of a Court before whom the case property was produced by PW­6 on 08.09.2013, that the seals were intact.

93. It was further argued by the Additional Central Government Counsel for WCCB that testimony of PW­1, PW­6 and PW­10 prove that 05 sealed pullandas containing Wildlife material were produced before the Metropolitan Magistrate on 08.09.2013, where they were opened and re­sealed by the Court and then were handed over to WCCB on the application of PW­10, which were received by PW­1 and deposited in the malkhana. It was further argued that the deposition of PW­3 and PW­10 prove that 02 sealed packets were sent through a Constable by PW­10 to the Director, Wildlife Institute of CC No. 01/2018 Page 44 of 67 WCCB Vs. Surajbhan @ Sarju & others India, Dehradun where they were received intact by PW­3 Dr. S.P. Goyal, who analysed them and gave his opinion. It was argued that as per report Ex. CW­3/1B the sample packet contained Tiger body part.

94. Legal Aid Counsels in defence of accused Surajbhan @ Sarju (A­1) and Naresh @ Lala (A­2) argued that the prosecution has failed to prove its case about identity of the contraband allegedly recovered from the accused persons and that there are material contradictions in the statements of the witnesses. It was argued that the pullandas of the contraband allegedly recovered on 07.09.2013 were not deposited in the malkhana on the same day; CFSL form was not prepared and filled at the spot; guidelines issued by Ministry of Environment & Forest, Government of India in the handbook (Ex. PW­ 10/RD­1) were not followed with respect to seizure & sampling of the contraband; the seal of 'JK' was not proved by examining Ct. Jitender to whom it was handed over on 07.09.2013 after use by PW­6; the same seal of 'JK' was used by PW­6 for sealing the pullandas of the case property on 08.09.2013 and it is not explained how PW­6 came in possession of the seal on 08.09.2013 when it was handed over by him to Ct. Jitender on 07.09.2013. For the above reasons it was argued that possibility of the pullandas of the contraband being tampered cannot be CC No. 01/2018 Page 45 of 67 WCCB Vs. Surajbhan @ Sarju & others ruled out.

95. It was further argued in defence that the forensic report Ex. PW­3/1B according to which the sample packet was of Tiger, do not mention about the specimen seals on the pullanda which create doubt about the prosecution story about sealing of the pullandas at the spot. There is contradiction in the statements of PW­1, PW­6 and PW­10 as to who had received the custody of 05 pulandas from PW­6 by the Court order on 08.09.2013 and that there are discrepancies and contradictions in the statements of witnesses and documents as to which and how many pulandas were sent to Wildlife Institute of India, Dehradun for DNA analysis.

96. It was argued in defence that the samples were sent for analysis on 12.09.2013 i.e. after 04 days of the recovery, which create doubt. Report of PW­3 is not reliable as it does not mention the method/manner and the procedure followed for analysis and arriving at the conclusion. The report does not mention which part was received for analysis and which part was used for analysis. The defence counsel has heavily placed reliance on "Radha Kishan Vs. State, 2000 (56) DRJ (Suppl) 619" to argue that link evidence is not proved.

97. Investigation with respect to search and seizure of the wildlife contraband was carried out by a team headed by CC No. 01/2018 Page 46 of 67 WCCB Vs. Surajbhan @ Sarju & others PW­6 SI Jai Kishan of which PW­1 & PW­2 were the members. In the earlier part of the judgment, testimony of PW­1, PW­2 & PW­6 has been accepted as trustworthy & credible on the facts that the contraband/Tiger body parts recovered from the possession of accused Surajbhan @ Sarju (A­1) and accused Naresh @ Lala (A­2) on 07.09.2013, was seized and sealed in 04 pullandas marked A, B, C & D by PW­6 by using his seal of 'JK'. It has come in the deposition of above witnesses that on 08.09.2013 suspected Tiger nails recovered from the house of deceased accused Surajpal @ Chacha (A­3) were seized by PW­6 and sealed in a pullanda with his seal of 'JK'. As per seizure memo Ex. CW­1/10, this sealed pullanda was marked - E. It has come very clearly in the deposition of PW­6 that on 07.09.2013 & 08.09.2013, seal after use was handed over to HC Jitender. PW­6 is corroborated on this fact by PW­1 & PW­2. Deposition of PW­6 about seizure of Wildlife contraband/Tiger parts and sealing of the pulandas is also corroborated by the seizure memos Ex. CW­1/1 & Ex. CW­1/10.

98. In Radha Kishan (Supra), with respect to the ambit of Sections 50 & 57 of Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985 in the context of right of accused to be searched before the Magistrate or a Gazetted Officer and compliance of the procedure during CC No. 01/2018 Page 47 of 67 WCCB Vs. Surajbhan @ Sarju & others seizure of incriminating article, required to be sent to CFSL for testing, it was held by the Delhi High Court that:

.................................................................................... .................................................................................... I have heard learned Amicus Curiae and the learned counsel appearing for the State. Section 50 of the NDPS Act envisages valuable safeguard for the rights of the accused of being searched before a Gazetted Officer or a Magistrate.................................................................... ....................................................................................

The sanctity of his valuable right has to be preserved. Unless the prosecution ensures that the accused was made fully aware of his right, the chances of false implication cannot be ruled out. The strict compliance of the provisions of this Section is absolutely imperative................................................................... ....................................................................................

It is the normal procedure that when the incriminating articles are seized and are required to be sent to the Central Forensic Science Laboratory those articles are immediately sealed and deposited in Malkhana at the Police Station till they are taken out and sent to the Laboratory. In the instant case this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on sealed articles is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory............ .................................................................................... ....................................................................................

(emphasis supplied)

99. In State of Haryana Vs. Asha Devi and Another, (2015) 8 SCC 39, Hon'ble Supreme Court dealt with link evidence CC No. 01/2018 Page 48 of 67 WCCB Vs. Surajbhan @ Sarju & others in a case of recovery of ganja and held that:

11. There has been a controversy with respect to possession of seal. The controversy is that IO Ramphal had given the seal "RP" to ASI Rishiraj on 3­2­2006 after sealing the contraband and samples thereof. However, the next day when the case property was produced before the learned Judicial Magistrate, after verification it was resealed again with "RP"..............................................

................................................................................... ................................................................................... ................................................................................... ................................................................................... There is uncontroverted evidence to the fact that the samples were produced before the learned Judicial Magistrate, where seal of one sample was broken and resealed with "RP". Thereafter, the sample was deposited in Judicial malkhana from where it was sent to FSL. The FSL report notes that the seal was intact and the sample was untampered.

12. All the persons who possessed the contraband sample have been brought on record to support that no tampering was done with the samples. The defence failed to bring out anything in the cross­examination of the witnesses with respect to tampering of the samples. Thus, we find that the samples were properly dealt with throughout and the same was found to be ganja. Going further, with respect to the seal that was handed over to ASI Rishiraj, the defence failed to cross­examine IO Ramphal as to how did he got possession of seal back from ASI Rishiraj. Under these circumstances, we do not believe that the prosecution was duty­bound to explain the movement of the seal from one person to another in the given circumstances. Since, the movement of sample has been proved and found to be regular, the prosecution has sufficiently proved its case to establish the guilt of the accused in the present case.

(emphasis supplied)

100.Defence has not cross­examined PW­6 as to how he got possession of seal back on 08.09.2013. Therefore, in view CC No. 01/2018 Page 49 of 67 WCCB Vs. Surajbhan @ Sarju & others of Asha Devi (Supra) the prosecution is not bound to explain the movement of seal. Since the seal was returned by PW­6 to the HC Jitender on 07.09.2013 & 08.09.2013 after use, tampering or manipulation of pullandas is ruled out, even when they were not deposited in malkhana by PW­6.

101.It has come in the deposition of PW­6 that on 08.09.2013 he had produced all the 05 sealed pulandas marked A, B, C, D & E in the Court of Duty Magistrate along with other case property i.e. Tata Indigo Manza car bearing registration no. HR­11E­1001, Rs. 2,70,000/­ recovered from the car and Rs. 50 lacs recovered from the house of the deceased accused Surajpal @ Chacha (A­3). The pullandas were opened, the contents were seen by the Magistrate and then resealed by the order of the Court. PW­6 deposed that he handed over all the 05 sealed pulandas to PW­1 by the Court order dated 08.09.2013, Ex. PW­6/R­1.

102.PW­1 Sh. A.K. Jha and PW­10 Sh. Nishant Verma have corroborated PW­6 Retd. SI Jai Kishan about production of 05 sealed pulandas by him in the Court of Metropolitan Magistrate on 08.09.2013 and receipt of those 05 sealed pullandas by PW­1 on the application of PW­10. It has come in the deposition of PW­1 & PW­10 that the sealed pullandas were then deposited by PW­1 in the office of CC No. 01/2018 Page 50 of 67 WCCB Vs. Surajbhan @ Sarju & others PW­10 at WCCB. It has come in the cross­examination of PW­10 that the Court order Ex. PW­10/RD­1 bears his endorsement of receipt of sealed pulandas along with his signatures.

103.On the combined reading of the testimony of PW­1, PW­6 & PW­10 and the order of Metropolitan Magistrate Ex. PW­6/R­1, it is clear that on the application of PW­10, custody of the sealed pulandas of the contraband was taken by PW­1 from PW­6 in the Court of Metropolitan Magistrate on 08.09.2013, by the order of the Court. While written acknowledgement was given by PW­10 on the copy of the order Ex. PW­10/RD­1, sealed pullandas were physically received by PW­1 & deposited in the office of PW­10. There is no scope of any confusion or discrepancy as to who received the pullandas in the Court on 08.09.2013.

104.It has come in the testimony of PW­10 that on 09.09.2013 vide his letter Ex. PW­3/R­1 he had sent 02 sealed packets of Tiger body parts to the Director, Wildlife Institute of India, Dehradun for species identification. He is corroborated on this fact by PW­3 who has deposed that on 11.09.2013, being the Nodal officer of Wildlife Forensic Cell, Wildlife Institute of India, Dehradun, he received 02 sealed packets sent by Regional Deputy Director, WCCB for species identification and identified CC No. 01/2018 Page 51 of 67 WCCB Vs. Surajbhan @ Sarju & others his acknowledgement with signatures in this regard on the letter Ex. PW­3/R­1. It has further come in the deposition of PW­3 that he had sent a formal letter of acknowledgment of receipt of 02 sealed packets as Ex. PW­3/R­2 and gave the reports Ex. CW­3/1B & Ex.CW­3/2B.

105.It has come in the testimony of PW­10 that vide his letter dated 27.10.2014, Ex. PW­3/R­3 addressed to Director, Wildlife Institute of India, Dehradun, he had authorized Constable Ganesh of WCCB to collect the sample pullandas from the Institute. PW­10 is corroborated on this fact by PW­3, who has deposed that after analysis, 02 sealed sample packets of case property were received by Constable Ganesh of WCCB. PW­10 & PW­3 and identified the acknowledgement of Constable on the letter Ex. PW­ 3/R­3.

106. Since an issue has been raised in defence of the accused persons about identity of the sample pullandas sent to CFSL, it is necessary to take note of certain portions of deposition of IO PW­10 Sh. Nishant Verma and PW­3 Dr. S.P. Goyal.

PW­10 Sh. Nishant Verma (Deposition on 03.06.2019) ...................................................................................................... ...................................................................................................... Court question: On the basis of your letters and your record, please tell out of 05 sealed pulandas of case property Mark A, B, C, D & E, which 02 pulandas were sent by you to the Director, Wildlife Institute of India, Dehradun for species identification ?

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WCCB Vs. Surajbhan @ Sarju & others Answer: My letters and record does not find mention as to which 02 sealed pulandas were sent to Director, Wildlife Institute of India, Dehradun for species identification. (Vol.) On the basis of my record, I can say that sealed pulandas Mark E was one of the pulandas sent. And the other pulanda was one from the sealed pulandas Mark A, B, C & D. ........................................................................................................... ..........................................................................................................

PW­10 Sh. Nishant Verma (Deposition on 05.07.2019) On the basis of weights of different pullandas seized and mentioned in the seizure memo dated 07.09.2013, already Ex. CW­1/1, I can say that one of the sealed pullanda sent by me to Forensic Lab of Wildlife Institute of India, Dehradun vide my letter dated 09.09.2013, already Ex. PW­3/R­1 was pullanda Mark­C (Ex. X­3) having weight of 0.350 kg. This particular pullanda also had the tag/marking ­ "mark F­ 2659/1­2" of Wildlife Institute of India, Dehradun. Similarly on the basis of tag/marking ­ "mark F­2659/2­2" of Wildlife Institute of India, Dehradun and the seizure memo dated 08.09.2013, already Ex. CW­1/10, I can say that the second sealed pullanda sent by me to Forensic Lab of Wildlife Institute of India, Dehradun vide my letter dated 09.09.2013, already Ex. PW­3/R­1 was pullanda Mark­E (Ex. X­5) containing 18 suspected Tiger nails. ........................................................................................................... ..........................................................................................................

PW­3 Dr. S.P. Goyal (Deposition on 03.06.2019) .......................................................................................................... .......................................................................................................... As soon as the 02 sealed sample packets were received, I had marked them as "F­2659/1­2 & F­2659/2­2" respectively with the help of permanent markers, on the cloth bags of the sealed packets. The marking was put on the packet itself and not on a separate tag or the cloth.

........................................................................................................... ........................................................................................................... Court question: Did the sample packets bear any identification mark as A, B, C, D & E ?

Answer: I do not remember any such thing because after receiving the packet, distinct identity number is given by the lab itself as was given in this case.

........................................................................................................... ...........................................................................................................

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WCCB Vs. Surajbhan @ Sarju & others PW­3 Dr. S.P. Goyal (Deposition on 04.06.2019) .......................................................................................................... ........................................................................................................... I have seen the 02 packets outside the Court today bearing marks F­ 2659/1­2 (already Ex. X3) & F­2659/2­2 (already Ex. X5). These were the same packets which were received by me in sealed condition on 11.09.2013 through forwarding letter of Regional Deputy Director, WCCB, for species identification, already Ex. PW­3/R­1. After seeing the contents of these pulandas, I say that the pulanda Ex. X3 contains claw nails & canine teeth, the biological sample of which was examined by me for species identification, on the basis of which I had given my report already Ex. CW­3/1­B. ........................................................................................................... ...........................................................................................................

107.Testimony of PW­3 Dr. S.P. Goyal and PW­10 Sh. Nishant Verma clearly establish that 02 sealed pulandas were sent by PW­10 to Director, Wildlife Institute of India, Dehradun through a Special Messenger, which were received by PW­ 3 at the Institute being the Nodal Officer. Seal on the 02 pulandas were intact when they were received at Wildlife Institute of India, Dehradun by PW­3. Though neither the forwarding letter of PW­10, nor the acknowledgment of PW­3 mention about any identification mark on the sample pullandas or the seal impression on them, however, it has come in the testimony of PW­3 that as soon as the sealed pulandas were received by him, he had marked them as ­ "F­2659/1­2 & F­2659/2­2".

108.On the basis of mark F­2659/1­2, PW­3 & PW­10 identified one of the sample pulandas in the Court as Ex. X­3, which contained claw nails and canine teeth. This CC No. 01/2018 Page 54 of 67 WCCB Vs. Surajbhan @ Sarju & others was pulanda Mark­C as per the weight and contents mentioned in the seizure memo Ex. CW­1/1. Similarly, on the basis of mark F­2659/2­2, PW­3 & PW­10 identified the other sample pulanda in the Court as Ex. X­5, which contained number of claws. This was pulanda mark­E as per the contents mentioned in the seizure memo Ex. CW­ 1/10. Nothing has come in the cross­examination of PW­3 & PW­10 to shake their testimony about the identification of the sample pulandas Ex. X­3 & Ex. X­5 or to create any doubt about their deposition to this effect.

109.PW­3 & PW­10 were subjected to lengthy cross­ examination by the Legal Aid Counsels for accused Surajbhan @ Sarju (A­1) and accused Naresh @ Lala (A­2). Nothing has come in the cross­examination of PW­ 10 to create any doubt about tampering or manipulation of the sample pulanda, which remained throughout sealed from the time it was received by PW­10 by the order of the Court on 08.09.2013 and was sent through special messenger to the Wildlife Institute of India, Dehradun vide letter dated 09.09.2013, where it was received by PW­3 on 11.03.2013. There is no delay in dispatch of sample pullandas by PW­10 to the Wildlife Institute of India, Dehradun.

110.PW­3 Dr. S.P. Goyal in his lengthy cross­examination has explained in detail the standard protocol/procedure CC No. 01/2018 Page 55 of 67 WCCB Vs. Surajbhan @ Sarju & others followed on receipt of the sample for species identification and his testimony has remained unshaken on the facts that the 02 sample pullandas received by him were duly sealed. It has come in the cross­examination of PW­3 that for the purposes of analysis, DNA extracted from the sample was compared with the DNA data base and that as per the lab protocol, only method and final conclusion is mentioned in the final report and not the complete procedure. He produced the record of Data Analysis and filed its copy as Ex. PW­3/RD­1, which was the basis of his report Ex. CW­3/1B about the packet mark F­2659/1­2 as "Tiger (Panthera Tigris)". As already discussed above, the packet bearing mark F­2659/1­2 was identified by PW­3 & PW­10 as Ex. X­3, which was pulanda Mark­C as per deposition of PW­6 & seizure memo Ex. CW­1/1, recovered from the possession of accused Surajbhan @ Sarju (A­1) & Naresh @ Lala (A­2).

111.Testimony of PW­1 Sh. A.K. Jha, PW­3 Dr. S.P. Goyal & PW­10 Sh. Nishant Verma establish an unbroken chain of custody of sample pullandas mark­C (Ex. X­3) and mark­E (Ex. X­5). Their testimony is consistent that when the pullandas were handled by them, they were duly sealed and remained intact. The fact that the documents about movement of 02 sample pullandas from WCCB to Wildlife Institute of India, Dehradun, do not mention the seal CC No. 01/2018 Page 56 of 67 WCCB Vs. Surajbhan @ Sarju & others impression and any identification mark of the pullandas for the purposes of identification, is inconsequential in the light of other evidence discussed as above. Nothing has come in the cross­examination of PW­3 to create any doubt about his testimony & report Ex. CW­3/1B that the sample pullanda marked F­2659/1­2 (Ex. X­3) contained Tiger part.

112.In the context of identification of the wildlife contraband, it is relevant to refer to Chapter­6: Investigation and Complaint of the handbook, Ex. PW­1/RD­1. It's para 6.40 reads as under :

"The field formations should keep in mind that WII and other scientific institutions are primarily research & training institutes. Their involvement in wildlife crime forensic examination, affects their capacity to perform their primary tasks. Therefore, wildlife articles or carcass or live animals, whose genus and species identification could be done on their morphological study, should not be sent toWII or any other institute, for identification. All Forest Officers especially the ones with biology background are qualified and competent enough to give such opinions, and their reports have same level of admissibility in courts as that of the scientists from WII or other institutes. For such identification, they may refer to the species identification protocols developed by the WII, Dehradun, and the trial courts should be explained/convinced of it at the time of trial."

(Emphasis supplied)

113.Therefore, as per the prescribed standard procedure, genus and species identification of wildlife articles can be done on morphological study by the Forest Officers, who CC No. 01/2018 Page 57 of 67 WCCB Vs. Surajbhan @ Sarju & others are qualified and competent to give such opinion and their reports have same level of admissibility in the courts as that of scientists from Wildlife Institute or other institutes. As per the manual, the wildlife articles should not be sent in routine to Wildlife Institute for genus and species identification.

114.In reference to above, testimony of PW­1 Sh. A.K. Jha, Assistant Director, WCCB and PW­2 Sh. B.H. Virsen, Assistant Conservator of Forest (Protection), Nagpur Division is relevant, who have specifically deposed that the contraband recovered from the car in possession of accused Surajbhan @ Sarju (A­1) & Naresh @ Lala (A­2) on 07.09.2013 was Tiger parts, which they could identify on the basis of their experience. With respect to the competency of PW­1, it has come in his cross­examination that he was taught the subject of wildlife in his training and that he had ascertained that the recovered wildlife organs were of Tiger, which he could identify on the basis of his long experience in dealing with wildlife crimes. Similarly, it has come in the cross­examination of PW­2 that he has undergone training at Central Forest Ranging Training Center at Chandelpur which included training in wildlife. On this aspect PW­6 also deposed that the wildlife material was identified by WCCB officials in the team at the spot on 07.09.2013.

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WCCB Vs. Surajbhan @ Sarju & others

115.Therefore, besides the expert opinion of PW­3 that the pullanda Ex. X­3 contained Tiger parts, this fact is proved independently by PW­1 & PW­2 being the experts to identify wildlife material on morphological study. Hence, it is established that contraband recovered from the car no. HR­11E­1001 in possession of accused Surajbhan @ Sarju (A­1) & Naresh @ Lala (A­2), which was seized and sealed in pullandas mark­A, B, C & D proved in the Court by PW­1 & PW­6 as Ex. X­1, X­2, X­3, & X­4 contained Tiger parts/uncured trophies. Tiger (Panthera tigris) is included at no. 39 in the list of mammals in Part I of Schedule I of the Act, possession of which is prohibited under Section 40 of the Act. Possession for this purpose includes uncured trophy.

Call Data Records (CDR)

116.According to the prosecution story made out in the complaint, mobile phones were recovered from accused Surajbhan @ Sarju (A­1) and Naresh @ Lala (A­2) in their personal search. Call Data Records (CDR) and Customer Application Form (CAF) of those mobile phone numbers were obtained from Crime Branch, Delhi Police and were analysed for establishing linkages.

117.It was argued by the Additional Central Government Counsel for WCCB that the statements of accused persons recorded by PW­10 Sh. Nishant Verma during CC No. 01/2018 Page 59 of 67 WCCB Vs. Surajbhan @ Sarju & others investigation, are admissible in evidence u/s 50(8) of the Act. PW­1, PW­2 & PW­6 have proved that mobile phones were recovered in the personal search of both the accused persons and as per the Customer Application Form (CAF) and Call Data Record (CDR) proved by PW­11 Mr. Saurabh Agarwal, Nodal Officer, Vodafone­Idea Private Limited, those mobile phones were used by the accused.

118.Government Counsel further argued that the CDR of the mobile phones recovered from the possession of accused Surajbhan @ Sarju (A­1) & accused Naresh @ Lala (A­2) and the corresponding tower location chart, duly proved by PW­11 Mr. Saurabh Agarwal establish that they both were present in Delhi on 07.09.2013 when the Tiger body parts/uncured trophies were recovered from their possession.

119.Legal Aid counsels argued in defence of the accused that recovery of mobile phones from the accused persons has not been proved as per law; the mobile phones were not produced during trial in the Court and further that there is no evidence to prove that particular mobile numbrs were used by the accused. It was argued that CAF of mobile number will not prove that it was used by the applicant and that in the absence of corroboration, statement of accused u/s 50(8) of the Act, will not prove use of the mobile no. by the accused. There is no evidence that the CC No. 01/2018 Page 60 of 67 WCCB Vs. Surajbhan @ Sarju & others CDRs or the tower location charts were collected during investigation by the IO (PW­6).

120.It has come in the deposition of PW­6 Retd. SI Jai Kishan that a mobile phone was recovered each in the personal search of A­1 & A­2 which were seized. This fact has also come in the deposition of PW­1 Sh. A. K. Jha and PW­2 Sh. B.H. Virsen. All the 03 witnesses have identified their signatures on the personal search memo of accused Surajbhan @ Sarju (A­1) Ex. CW­1/4 and personal search memo of accused Naresh @ Lala (A­2) Ex. CW­1/6. Articles recovered in the personal search of accused Surajbhan @ Sarju (A­1), Ex. CW­1/4 includes a red and black mobile phone with IMEI No. 860334021147741 and personal search memo of accused Naresh @ Lala (A­2), Ex. CW­1/6 show a black colour mobile phone make Nokia no. CE0168.

121.PW­11 Mr. Saurabh Agarwal, Nodal Officer, Vodafone­ Idea Ltd. deposed that the mobile no. 8816915062 was in the name of Guru Devi r/o House No. 211, Akbarpur Barota, Tehsil Sonipat, Haryana and on the requisition of IO, he had given copy of CAF along with customer ID as Ex. PW­11/A. He proved the Call Data Record of this particular no. from 01.01.2013 to 30.09.2013 as Ex. PW­ 11/B and a certificate of its correctness u/s 65­B of Indian Evidence Act as Ex. PW­11/C. He also proved the certified CC No. 01/2018 Page 61 of 67 WCCB Vs. Surajbhan @ Sarju & others copy of the CAF pertaining to a mobile no. 8053954451 in the name of Naresh s/o Rampat, House No. 696, Akbarpur Barota, District Sonipat, Haryana as Ex. PW­ 11/D and its Call Data Record from 01.01.2013 to 30.09.2013 as Ex. PW­11/E along with certificate of its correctness u/s 65­B of Indian Evidence Act as Ex. PW­ 11/F. He proved the certified copy of the CAF pertaining to the mobile no. 9050017505 also in the name of Naresh s/o Rampat, House No. 264, Village Akbarpur Barota, District Sonipat, Haryana as Ex. PW­11/G and its Call Data Record from 01.01.2013 to 30.09.2013 as Ex.PW­ 11/H along with certificate of its correctness u/s 65­B of Indian Evidence Act as Ex. PW­11/J.

122.PW­11 Mr. Saurabh Agarwal, Nodal Officer, produced and proved the tower location charts pertaining to cell IDs of mobile nos. 8816915062, 8053954451 and 9050017505 for the period January, 2013 to September, 2013 for Delhi, Haryana & UP­West Circles as Ex. PW­11/K, Ex. PW­11/L & Ex. PW­11/M respectively.

123.The data in the mobile phones recovered from an accused may contain vital evidence about his involvement in the crime, his connectivity with other offenders and his presence at a particular spot. Since the electronic data is very sensitive and prone to tampering and manipulation, a strict rule for its preservation is required to be followed. It CC No. 01/2018 Page 62 of 67 WCCB Vs. Surajbhan @ Sarju & others is a settled protocol procedure for preservation of electronic evidence that when a mobile phone is recovered from the possession of an accused and is seized, it should be immediately sealed and sent to Cyber Crime Laboratory to retrieve the data. This procedure is also provided in the Wildlife Crime Investigation hand book Ex. PW­1/RD­1 (Chapter­6, para 6.43).

124.Personal search of both the accused was conducted by PW­ 6 Retd. SI Jai Kishan in the presence of PW­1 Sh. A.K. Jha and PW­2 Sh. B.H. Virsen. The witnesses do not say that the mobile phones allegedly recovered from the possession of the accused persons were sealed. The personal search memos Ex. CW­1/4 & Ex. CW­1/6 do not mention the mobile phone no. allegedly used by the accused persons. Though physical production of the mobile phones during trial is not required to prove CAF & CDR, but there has to be cogent evidence that particular mobile phone numbers were used by the accused.

125.There is no evidence to show that the mobile phone allegedly recovered from the possession of accused Surajbhan @ Sarju (A­1) had the SIM bearing no. 8816915062 and the mobile phone allegedly recovered from the possession of accused Naresh @ Lala (A­2) had the SIM bearing no. 8053954451 or 9050017505. It is surprising that PW­10 Sh. Nishant Verma, who is the IO CC No. 01/2018 Page 63 of 67 WCCB Vs. Surajbhan @ Sarju & others and filed the complaint, is totally silent on this aspect which is an important link to connect the evidence of PW­11 with the mobile phones recovered.

126.Though it has come in the statement of accused Naresh @ Lala (A­2) recorded u/s 50 of the Act during investigation by PW­10 as Ex. PW­7/B that he was using the mobile no. 8053954451, which is admissible in evidence, but in the absence of any independent evidence to corroborate this fact, it will not be safe and proper to act on such statement. Reliance is placed on A. Tajudeen (Supra) to arrive at this conclusion.

127.It may be argued that since the mobile phone nos.

8053954451 and 9050017505 are in the name of accused Naresh @ Lala (A­2) and PW­9 Smt. Gurodevi has deposed that her documents were taken by the wife of accused Surajbhan @ Sarju (A­1) for getting a mobile SIM card, it may be inferred that those mobile SIM cards were used by the 02 accused persons.

128.The fact that a particular mobile SIM card is issued in the name of a person cannot lead to a presumption that it was used only by the same person at a given time and place. It is a matter of common knowledge, that SIM cards issued on the I.D of a person are used by others. As in the present case, SIM card issued in the name of PW­9 Smt. Gurodevi was allegedly used by accused Surajbhan @ Sarju (A­1).

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129.In order to prove and establish that a particular mobile phone no./SIM was used by accused Surajbhan @ Sarju (A­1) or Naresh @ Lala (A­2) at a particular time, the most important factor was recovery of the mobile phones from them containing particular SIM cards, which the prosecution has miserably failed to prove in this case.

130.Though WCCB propose to rely heavily on the CDRs, there is no evidence as to how it was collected during evidence. As per complaint, CAF & CDR were obtained from Crime Branch, but PW­6 who is the only witness from Crime Branch, has deposed that he did not collect. PW­10 has also deposed that he did not collect. In these circumstances, the prosecution case fails to link CDRs & Tower Location Charts with the accused persons.

131.In view of the above, deposition of PW­11 Mr. Saurabh Agarwal, Nodal Officer, Vodafone­Idea Limited with respect to CAF, CDRs and tower location charts would be inconsequential to prove either the location or the connectivity of the accused persons with each other or the others at a particular time and place.

Conclusion

132.In view of the above discussion and evidence on record, prosecution has succeeded in proving beyond reasonable doubts that on 07.09.2013 at about 5.30 PM at T­point, Chandagiram Akhada, outer Ring Road, Kashmere Gate, CC No. 01/2018 Page 65 of 67 WCCB Vs. Surajbhan @ Sarju & others Delhi, accused Surajbhan @ Sarju (A­1) and accused Naresh @ Lala (A­2), being dealers in the business of wildlife trade, were carrying in the boot of the car no. HR­ 11E­1001, uncured trophies of Tiger, an animal specified in the Schedule (I) of the Act, in contravention to the provisions of Sections 40(2)/48­A/49­B punishable u/s 51 of the Wildlife (Protection) Act. Accused Surajbhan @ Sarju (A­1) and accused Naresh @ Lala (A­2) are held guilty for committing the above offences and are convicted accordingly.

Disposal of the case property

133.An uncured trophy derived from a scheduled animal and the vehicle seized for being used in the commission of a wildlife offence, are the property of the State Government, as per Section 39(1) of the Act. Section 51(2) of the Act provides for disposal of the Government property, according to which the Court after pronouncing conviction, shall order forfeiture of uncured trophy and the vehicle used in the commission of the offence to the State Government. Hence, it is ordered that the case property comprising of uncured trophy/Tiger parts and the Tata Manza car bearing no. HR­11E­1001 are forfeited to the State Government.

134.Cash amount of Rs. 2,70,000/­ recovered from the car no.

HR­11E­1001 and Rs. 50 lacs recovered from the house of CC No. 01/2018 Page 66 of 67 WCCB Vs. Surajbhan @ Sarju & others deceased accused Surajpal @ Chacha (A­3) are the subject matter/case property in the connected case no. 04/15; CIS No. 21/2019 titled B.K. Singh, Enforcement Directorate Vs. Surajpal @ Chacha & Ors. under the PMLA Act. Their disposal shall be dealt with in the said case.

135.Parties be heard on point of sentence.

Announced in the open Court (Santosh Snehi Mann) on 23rd August, 2019 Special Judge (PC Act), CBI­08, Rouse Avenue Courts Complex, New Delhi.

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