Delhi District Court
Wildlife vs . Sodhi Freight Carriers on 19 January, 2010
IN THE COURT OF SH. DIG VINAY SINGH, ACMM(SPL. ACTS), CENTRAL, DELHI
CASE NO.76/1
U/S.44,49,49B(1)/51 OF THE WILDLIFE PROTECTION ACT, 1972
WILDLIFE VS. SODHI FREIGHT CARRIERS
ORDER ON CHARGE
19.01.2010
Present : Wild Life Inspector SS Negi with Ld. APP for the State Mr. Atiq Ahmed.
None for the A1 company today again, which has been ordered to be proceeded against in absentia in terms of section 305 Cr.PC on the last date of hearing.
Proceedings against A2 Sukhdev Singh Sodhi already abated.
Accused no.3 Jagdish Singh Sodhi already p.o.
Accused no.4 M.B. Tiwari is present with counsel Mr. R.D. Sahni, Adv. Arguments on charge heard. Ld counsel for accused no.4 argues that the accused was merely a Manager in the transport company from where the alleged articles were recovered after it was booked from the transport office of the company at Bhiwani and that the accused had no knowledge of the articles and there is no material that he was in conscious possession of the articles, therefore, charges cannot be framed against him as there is no material showing connivance.
Briefly, the facts of the case are that on 28.2.1992, on receipt of some secret information that a consignment of uncured scheduled animal's skin is lying in the godown of A1 company i.e. M/s. Sodhi Freight Carriers Pvt. Ltd., Delhi, for delivery to the consignee, a raid was conducted at the office of the company at Subzi Mandi, Delhi. A4 M.B. Tiwari was personally present there and one bundle weighing 50 KGs was recovered from the office of the partnership firm, which was containing 145 pieces of uncured skins of jungle cat and three pieces of uncured skins of jackal. The A4 was Manager in the transport company. The articles were seized as no valid licence of it could be put forth.
It would be pertinent to mention here that accused no.1 Sodhi Freight Carriers has been referred to as a private limited company, but it is also simultaneously claimed that it Order on charge in Wildlife Vs. Sodhi Freight Carriers/Case No.76/1/ page no. 1 of 6 dtd.19.01.2010 C is a partnership firm of whom, accused nos.2 & 3 were partners. Whether it is a company or a partnership firm, both are covered u/s.58 of the Wildlife (Protection) Act, 1972. There is no denial of the fact that the accused no.4 was the Manager in the said transport firm.
It is the case of the complainant that the accused was in conscious possession of the banned animal articles and he was in connivance with the partners. All the four accused were summoned by my Ld. Predecessor Court and thereafter pre charge evidence was recorded.
Section 58 of the Wildlife (Protection) Act, 1972 provides where an offence against this Act has been committed by the company, every person who at the time the offence was committed was incharge of and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against. The provisio clause appended to subsection 1 of section 58 provides that if a person proves that offence was committed without his knowledge or that all due diligence was exercised by him to prevent the commission of offence, then the said person shall not be liable. The onus to prove that the offence was committed without knowledge or that the accused exercised all due diligence to prevent the commission of offence is on an accused. The said stage to discharge the onus is yet to come as it can come only after framing of charges and leading of defence by the accused. Subsection 2 of section 58 further provides that if it is proved that an offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any Director, Manager, Secretary or other officer of the company, such person shall be deemed to be guilty. The word used in subsection 2 are that even where an offence is committed which is attributable to any neglect on the part of Manager or other employees, still the said person would be deemed to be guilty.
The explanation to section 58 provides that the word "company" means and includes a firm. It also provides that a "Director" in relation to a firm means a partner. Order on charge in Wildlife Vs. Sodhi Freight Carriers/Case No.76/1/ page no. 2 of 6 dtd.19.01.2010 C Therefore, section 58 is squarely applicable in the case of A1 partnership firm of which A4 was admittedly a Manager.
Section 57 of the Wildlife (Protection) Act, 1972 also raises a presumption in favour of the complainant and against an accused. It provides that when in any prosecution under this Act, it is established that a person is possession, custody or control of any animal article (so far as relevant for our case), it shall be presumed until the contrary is proved that such person is in unlawful possession, custody or control of the said article. The onus of proving the contrary lies on the accused. Even u/s.57 of the Wildlife (Protection) Act, 1972 presumption is against the accused.
Section 48A of the Wildlife (Protection) Act, 1972 further provides that no person shall accept any animal article for transportation except after exercising due care to ascertain that permission from the Chief Wildlife Warden or any other officer authorised by the State Government in that behalf has been obtained for such transportation. Accordingly, the accused was expected to exercise due care when these articles were received during transportation in his office. It was all the more necessary for him to do because in the invoice/consignment note, Ex.PW1/A, it was specifically mentioned that the consignment contains raw skins. When the consignment note itself revealed that the consignment was containing skins, all due care ought to have been taken by the A4, who was Manager to check the consignment that it was not in contravention of Section 48A of the Wildlife (Protection) Act, 1972.
It may also be mentioned that in the consignment note, although it is shown to have been consigned by one Tilak Raj, but the address of consignor was not even obtained by the transport agency while receiving the consignment for transportation. This again create serious suspicion that there were some involvement of the transport firm and its Manager and other unknown persons.
The present complaint has been filed by the Wildlife Inspector Mr. Jagdish Chander in terms of the section 55 of the Wildlife Act, 1972 r/w Rule 49 of the Wildlife Order on charge in Wildlife Vs. Sodhi Freight Carriers/Case No.76/1/ page no. 3 of 6 dtd.19.01.2010 C Protection Rules, 1973. The prosecution witnesses examined in pre charge evidence have supported the case of prosecution. The complaint has been filed for the offences u/s.44,48A,49,49B(1) r/w section 51 of the Wildlife (Protection) Act, 1972.
It is well settled law that at the stage of framing of charge, only prima facie is to be seen. Law regarding consideration at the stage of framing charges are well settled now. The court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out. It is held that when the material placed before the court discloses great suspicion against the accused which has not been properly explained the court will be justified in framing charge. The judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial. If on the basis of materials on record a court could come to the conclusion that commission of the offence is a provable consequence, a case of framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame a charge , though for conviction the conclusion is required to be that the accused has committed the offence. At the stage of framing of a charge probative value of the materials on record cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S. 227 or S. 228 of the code. At that stage the Court is not to see whether there is sufficient ground for Order on charge in Wildlife Vs. Sodhi Freight Carriers/Case No.76/1/ page no. 4 of 6 dtd.19.01.2010 C conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the investigating agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate i n his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. Reliance placed on the cases of Union of India vs. Prafulla Kumar AI R 1979 Supreme Court 366 :
State of Maharashtra and others vs. Som Nath Thapa and others JT 1996 (4) SC 615 State of Bihar v. Ramesh Singh, ;
AI R 1977 S C. 2018: (1 977 CRI LJ 1606)
; Umar Abdula Sakoor Sorathia vs.
Intelligence officer narcotic control
bureau JT 1999 (5) SC 394 ;
Kallu Mal Gupta
vs. State 2000 I AD Delhi 107.
The contradictions pointed out by the accused are irrelevant at this stage. The witnesses have categorically deposed about the recovery of abovementioned skins in the presence of A4. The very recovery of such large number of skins shows that it was meant for business and nothing else. The contradictions at this stage are irrelevant since only primafacie case is to be seen.
Section 57 of the Wild Life Protection Act 1972 raises a presumption against the accused that the article which is animal articles were received by the accused from person other than authorised to deal in these articles, that he was trading in the articles without licence and that these articles were meant for trade, which is prohibited Order on charge in Wildlife Vs. Sodhi Freight Carriers/Case No.76/1/ page no. 5 of 6 dtd.19.01.2010 C under the Wildlife Protection Act, 1972, u/s.44,48A,49 & 49B(1) of the said Act, which is punishable u/s.51 of the said Act. The said species are protected species, as mentioned at Part II Schedule II of the said Act.
The onus of discharging the burden is on the accused to show that he took due care in terms of section 48A of the Act. The onus to discharge the burden of presumption against him u/s.57 is also on the accused. Subsection 2 of Section 58 also clearly provides that even if the offence is attributable to neglect of the accused, he shall be deemed to be guilty.
Accordingly, prima facie there are sufficient material to frame charges against the accused u/s.44,48A,49 and 49B(1) of the Wildlife Protection Act, 1972, which is punishable u/s.51 of the said Act.
Let the charges be framed.
Formal charges dictated separately.
Put up for framing of formal charge on 01.2.2010.
ANNOUNCED IN OPEN (DIG VINAY SINGH)
COURT ON 19.01.2010 ACMM(SPL. ACTS)
CENTRAL, DELHI/
19.01.2010
Order on charge in Wildlife Vs. Sodhi Freight Carriers/Case No.76/1/ page no. 6 of 6 dtd.19.01.2010 C