Delhi District Court
Mushtaq Ahmed Butt vs State Through Cbi (Wildlife) on 5 April, 2019
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDITIONAL DISTRICT & SESSIONS JUDGE
TIS HAZARI COURTS: DELHI.
Criminal Appeal No.: 114/2018
Mushtaq Ahmed Butt
s/o Late NoorUDin Butt
Sheikh colony, Brane Nishat Road
Srinagar, J&K.
... Appellant
versus
1. State through CBI (Wildlife)
2. Sh. H.S. Chopra
The then Addl. SP/SIU.XI
CBI, New Delhi (Complainant) ... Respondents
JUDGMENT
Vide this judgment, I shall dispose of an appeal filed against the judgment dated 31.01.2018 and order on sentence dated 01.03.2018 passed by Sh. Pawan Singh Rajawat, Ld. ACMM (Special Acts), Central District, Tis Hazari Courts, Delhi vide which the appellant was convicted for the offences punishable u/s 51 of the Wild Life (Protection) Act, 1972 (hereinafter called 'The Act') for the contravention of Sections 49 and 49B(1) of the Act and was sentenced to undergo SI for three years with fine of Rs.10,000/ for the offence u/s 51 of the Act for the contravention of Section 49 and 49B(1) of the Act and in default of payment of fine to undergo SI for one month CA No. 114/2018 1 of 16 (hereinafter called the 'impugned judgment' and 'impugned order on sentence').
2. Briefly stated the facts relevant for the decision of the present appeal are that upon receipt of secret information that one Bashir Butt along with his relatives are indulging in illegal trafficking of shahtoosh shawls which is a banned item under Schedule I of Wildlife Protection Act, 1972 from their residential premises at A2 Ground Floor, South Extension, PartII, New Delhi, a raiding team comprising of certain Inspectors of CBI besides other officers accompanied with two independent witnesses left the CBI office after completing all formalities and reached the aforesaid premises at 11:30 AM on 02.02.2001. Upon reaching there, the raiding party found that the appellant Mushtaq Ahmed Butt and another person Mubashir Alam were found available in the showroom on the ground floor of the said premises. Both these persons including the appellant were found busy in entertaining 6 or 7 foreign lady customers. After completing the presearch formalities, the foreign ladies were allowed to go after due search and checking of all the items in their possession by Lady Inspector Neelam Singh. The appellant was inquired into about the owner of the business outlet wherein he revealed that the owner of the said showroom was Bashir Butt who had gone to Los Angeles at that point of time to see his children. It was informed that he has left India one and a half month ago and was expected to reach back India within a month. The appellant was asked to call some local witnesses from the CA No. 114/2018 2 of 16 nearby vicinity to which he declined.
3. Thereafter, search of business premises was conducted in the presence of two independent witnesses and in the presence of appellant and one other person namely Mubashir Alam who were reported to be the close relatives of Bashir Butt. During the course of search, one small black colour trolley suitcase was found in wooden almirah and on opening it was found to contain 26 number of shawls. Upon checking the same, it was found to be shahtoosh shawls. All these shawls were taken into police possession. Subsequently, during the course of search one another large size navy blue suitcase was found lying behind the sofa set. Upon checking, it was found to contain 44 shawls. All the 44 shawls were found to be shahtoosh shawls which were taken into police possession. The appellant was arrested thereafter for illegal possession of shahtoosh shawls.
4. A complaint was lodged before the Ld. Trial court by Additional SP Sh. H.S. Chopra mentioning therein all the details of search as well as recovery. It has been mentioned in the complaint Ex.PW3/1 that the investigation has revealed that the accused Mubashir Alam is related to Bashir Butt and Mushtaq Ahmed Butt who was sitting and dealing with foreign lady customers at the time of raid conducted by CBI officers. It appears that the word 'accused' has been wrongly mentioned in the complaint against the name of Mubashir Alam as the said Mubashir Alam has not been made an accused in the complaint CA No. 114/2018 3 of 16 filed by Addl. S.P. Sh. H.S. Chopra, but the complaint has been pursued only against the appellant.
5. Prima facie case u/s 49 and 49B(1) of the Wildlife Protection Act, 1972 punishable u/s 51 of the Act was made out against the appellant for which formal charges were framed. The appellant did not plead guilty to the formal charge and hence trial commenced.
6. The basic contention raised by ld. Counsel for the appellant was that he was not disputing the presence of the appellant in the premises at the time of raid from where aforementioned shahtoosh shawls were recovered. In fact he submitted that the showroom was run and owned by one Bashir Butt of whom the appellant was the relative and was present in the showroom in casual capacity not even as an employee or Manager, but as a temporary caretaker because of the fact that his relative Bashir Butt was away from India to USA for a temporary period to see his children who are putting up at Los Angeles. It was also highlighted that the appellant was neither having any knowledge regarding the availability of shahtoosh shawls in the showroom at the time of raid nor the shahtoosh shawls were found scattered or displayed in the showroom at the time of raid. It was urged that the appellant was innocent as recovery of shahtoosh shawls was effected from two suitcases which were kept behind a couch. It was further urged that this is not a case where even the constructive possession rests with the CA No. 114/2018 4 of 16 appellant as the appellant was not expected to have knowledge about each and every item being available in the showroom as he was not running the business. It was also elaborated that the appellant was just a hawker who used to sell Kashmiri shawls in Delhi whenever winter season commenced at Kashmir and it was only at the request of the said Bashir Butt being his relative and in order to oblige him that he was assisting the other person Mubashir Alam in the showroom. It was also explained that the said Mubashir Alam had not been made an accused.
7. Ld. Counsel further strenuously argued that in order to attract the provisions of Section 49B of the Act, there must be allegation of trading with respect to the banned items and for the purpose of Section 49 of the Act, the possession of the banned item is a must. He elaborated that when the appellant was not having knowledge regarding the banned items being available in the showroom which was recovered from two suitcases kept at some secluded place, he can't be presumed to have been in possession of the banned items for the purposes of Section 49 of the Act. Ld. Counsel further stated that there is infirmity and illegality in the order passed by Ld. Trial court as the Ld. Trial court has not cared to appreciate this fact raised before it regarding no knowledge of the appellant with respect to the availability of the banned items.
8. Per contra, ld. Sr. PP for CBI stated that since the appellant was available in the showroom at the time of raid CA No. 114/2018 5 of 16 conducted by CBI and that since he stepped into the shoes of his relative Bashir Butt in his absence and more particularly since he was running the business of the said Bashir Butt while he was being away from India, the ld. Counsel for the appellant can't take plea now that the appellant was not having knowledge regarding the availability of banned items and hence appellant can very well be said to be in possession of the said items. Therefore, as per Ld. Sr. PP for CBI the appellant committed the offences u/s 49 & 49 B of the Act for which he has been rightly convicted. It has further been argued that the appellant is having a gas connection at the rented residential premises. He also stated that the witnesses produced by the prosecution have deposed in a cogent, convincing and trustworthy manner and the appellant has been rightly convicted and sentenced by the court below. Ld. Sr. PP submitted that the recovery has been duly proved by various witnesses brought by CBI before the Ld. Trial court and recovered items have also been proved to be shahtoosh shawls as per the laboratory report. The Ld. Sr. PP for CBI requested that the impugned judgment and order on sentence be upheld as it does not deserve any interference and has been passed within the periphery of law.
9. I have heard the Ld. Sr. PP for CBI as well as the Ld. Counsel for the appellant. I have also perused the record.
10. At the outset, it is clear from the arguments advanced by the Ld. Counsel for the appellant that the appellant is not CA No. 114/2018 6 of 16 disputing the very recovery of shahtoosh shawls from the afore noted premises where he was present at the time of raid being carried on by the CBI. Accordingly, this court is not inclined to discuss the testimonies of various prosecution witnesses who have been produced by the CBI in order to prove the factum with respect to recovery of shawls. The appellant has not disputed that the shawls were shahtoosh shawls stated to be containing guard hair of Tibetan Antelope (Panthelops hodgsoni) which are banned as covered under ScheduleI of the Act.
11. It is also clear from the testimony of various witnesses that the appellant was not found trading of the said shahtoosh shawls at the time of raid as neither the shawls were found scattered nor were found displayed in the showroom at that point of time. This fact is further fortified from the evidence of various witnesses wherein it has been deposed that certain foreign ladies were present at the time of raid and as per PW2 Harish Chand Sharma, the said foreign lady customers were being shown shawls and handicraft items. The lady customers were searched by lady official of CBI and no incriminating article i.e. shahtoosh shawls etc. was found with them. It has also been deposed by PW1 Manoj Jain that nothing incriminating was found with the lady customers at the time of raid and it is only thereafter the search of premises began. During the search of premises, one black colour small suitcase was found in wooden almirah and after sometime another blue colour suitcase was found behind the sofa in the same room. The PW4 M.C. Sahni has also CA No. 114/2018 7 of 16 categorically deposed in his examination that though the statement of those foreign lady customers who were found present at the time of raid was not recorded but they were questioned. They did not tell the raiding party that the appellant offered for sell/trade of shahtoosh shawls. No other customer even told the raiding party that the shahtoosh shawls were offered for sale. It has also been described by PW4 in his deposition that no decoy customer was made by raiding party for the purposes of purchasing shahtoosh shawls from the appellant and that the appellant did not offer any member of the raiding party for sale/trade of shahtoosh shawls. From the testimonies of various members of raiding party itself during their examination in the docket, it is clear that the prosecution has not been able to prove the factum that the banned items were being traded by the appellant from the showroom where the raid was conducted.
12. Now the question is as to whether the appellant can be said to have acquired or received or purchased the animal articles within the meaning of Section 49 of the Act. For this purpose given the particular circumstances of this case, it would be apposite to deal with testimonies of various witnesses in order to appreciate the arguments of the Ld. Counsel for the appellant that in fact the appellant was not even in constructive possession of the banned items or that he was not having knowledge regarding the availability of banned items in the showroom where raid was carried on by CBI.
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13. On this aspect, first of all this court shall deal with the testimony of prosecution witness PW6 Mohd. Siddique Khan (hereinafter called PW6). The PW6 at the time of precharge evidence recorded on 03.12.2012 stated that Mubashir Alam was his employee and relative; had worked in his firm for a quite lone time and had left the job at the time of recording of statement of PW6. He also stated that one Bashir was also related to him from her inlaws side. In winter season, the said Bashir and the appellant used to come to PW6 and in summer season, PW6 used to go to their place in Kashmir. It was also highlighted by PW6 that the appellant deal in shawls as pheriwala (casual hawker) and that they have their permanent shop in Kashmir. It was also deposed that the appellant used to sell shawls by roaming to different places and used to leave their goods at his residential place. The said PW6 had categorically stated in his statement that he was the owner of the premises at A1 & A2, South Extension, PartII, New Delhi. The said Bashir Butt is stated to be a relative of PW6 and that he was not charging any rent for the said premises. It has also been mentioned in the crossexamination that the appellant is related to Bashir Butt and that the appellant never stayed in the house. At one point of time, the PW6 stated before the court that he had seen the appellant working for Bashir Butt in Kashmir and he had seen the appellant in the premises i.e. A1 & A2 South Extension, PartII. Later on it was clarified in the statement given by PW6 in the court that the appellant was working for Bashir Butt and he had stated so on the basis of presumption as he had seen the CA No. 114/2018 9 of 16 appellant working for him in Kashmir. It was also clarified in the crossexamination itself that the appellant was never seen working for Bashir Butt in the aforesaid premises.
14. The testimony of PW6 was of utmost importance for analysing the arguments advanced by ld. Counsel for the appellant that the appellant was neither the owner, nor the manager or employee in the showroom which was being run by Bashir Butt at the aforenoted premises. It has been established by PW6 that the premises was never rented out to the appellant nor he was in any way employee of the appellant. Relationship between the appellant and Bashir Butt has also been described in detail by the PW6 as PW6 himself was a relative of said Bashir Butt. The picture has been made clear by PW6 that he had never seen the appellant working for Bashir Butt in the aforesaid premises.
However in order to further corroborate the version of the ld. Counsel for the appellant that the appellant was not having knowledge regarding the availability of the banned items, the ld. Counsel has also highlighted the testimony of PW5 Harpreet Singh Sodhi. This court has also perused the testimony of PW5 Harpreet Singh Sodhi wherein it has come to light that the said PW5 was running a courier agency in the name of M/s Global Express Services and deposed that Bashir Butt was his client and used to sent parcels to various countries. He deposed that he had seen the appellant with Bashir Butt on several occasions. It was also highlighted that the appellant used to CA No. 114/2018 10 of 16 mention the details of the material contained in the parcel on a slip and PW6 used to tally the material contained in that parcel with that slip. However, in the entire testimony, PW5 has not been able to decipher any particular bill or any other document which may show that the appellant was having knowledge that in fact the parcels of shahtoosh shawls were being dispatched by him to PW5 for onward transmission to its destination through courier agency of PW5.
15. In his crossexamination by ld. Counsel for the appellant, the PW5 has categorically termed it to be correct that he had told in his statement to CBI that he was dealing with Bashir Butt and that he had not described anything about the appellant Mushtaq Ahmed Butt. He also clarified in the cross examination that he had never seen the appellant issuing any bill at any stage. Moreover, the appellant himself have claimed before the raiding party as has been mentioned in detail by different PWs that he was not the owner of the premises and that the showroom was owned by one Bashir Butt. No bills etc. or in other documents regarding sale purchase are stated by different witnesses to have been issued by the appellant for running the business of said Bashir Butt who was away at USA at a particular point of time when the raid was being carried on. Though it has been argued by the Ld. Sr. PP for CBI that the appellant is having a gas connection at the rented residential premises, but the said gas connection has not been proved by the prosecution and the matter has not duly been investigated in this regard. Even CA No. 114/2018 11 of 16 though this factum is taken as gospel truth that the appellant is having gas connection in his name this hardly going to assist the prosecution as it has not been established that the appellant was the same person in whose name the said gas connection was issued.
16. As already said, this court has not gone deeply into the testimonies of different prosecution witnesses regarding search, seizure, recovery or the FSL report regarding the banned items as the Ld. Counsel for the appellant has not disputed the same. The concept was confined as to whether the appellant was in possession of the banned items for which his knowledge was required to be ascertained from the facts and circumstances. The said knowledge was required to be assessed from the circumstantial evidence. In view of the aforementioned statements of different prosecution witness in view of the discussions made herein above, it is clear that given the circumstances when the appellant was just a casual care taker being relative of Bashir Butt who was away at USA, no cogent evidence could be produced by CBI in order to substantiate its claim that the appellant was having knowledge regarding the availability of the shahtoosh shawls where the raid was committed and recovery of shahtoosh shawls was made. Moreover, the shahtoosh shawls are stated to have been recovered from closed boxes lying behind couch. The said shahtoosh shawls were not found scattered or displayed in the showroom and hence there arises doubt in prosecution story with CA No. 114/2018 12 of 16 respect to the fact as to whether the accused was having knowledge that the said shahtoosh shawls were lying in showroom in boxes.
17. In this regard, I am being guided by the judgment of Hon'ble High Court of Delhi dated 22.01.2015 Cr. Appeal No. 1550/11 titled Ram Shakal @ Pappu Vs. State while referring the judgment have guided the subordinate courts to deal with the cases under circumstantial evidence as under:
"Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the the best evidence must be adduced which the nature of the case admits: (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the CA No. 114/2018 13 of 16 accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
18. In order to decide as to what other factors should be taken into consideration for dealing the case based on circumstantial evidence, I am being guided by the judgment of the Hon'ble Supreme Court of India in its judgment titled as Shakuntala vs State, Crl.A. No.836/2001where it is held that: "41. The Supreme Court in a number of cases has observed that while appreciating circumstantial evidence, Court must adopt a very cautious approach and the conviction should be recorded or upheld only if all the links in the chain are complete pointing out to the guilt and every Crl A. 836 of 2001 Page 28 of 68 hypothesis of innocence is capable of being negated on evidence. This also cannot be disputed that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be CA No. 114/2018 14 of 16 accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. The Court must be satisfied of : a. That the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt.
b. That the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused, and c. That the circumstances, taken collectively, are incapable of explanation on any reasonable hypotheses save that of the guilt sought to be proved against him."
19. After taking guidance from the aforenoted judgments, this court is of the view that the prosecution has not been able to prove its case against the appellant for which he has been charged by the trial court. Accordingly, the impugned judgment dated 31.01.2018 and order on sentence dated 01.03.2018 passed by Ld. ACMM are set aside. The appellant is acquitted of the charges accordingly. His bail bond stands cancelled. Surety stands discharged.
CA No. 114/2018 15 of 16 Bond u/s 437A has already been furnished by the appellant.
TCR be sent back alongwith the copy of this order.
Appeal file be consigned to record room. Digitally signed
by SANJAY
SANJAY KUMAR
Announced in the open court KUMAR AGGARWAL
AGGARWAL
on this 05th day of April, 2019. Date: 2019.04.06 11:34:53 +0530 (SANJAY KUMAR AGGARWAL) Addl. District & Sessions Judge Tis Hazari Courts: Delhi.
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