Gauhati High Court
Arup Baishya vs The State Of Assam on 20 December, 2021
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/11
GAHC010196532021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3848/2021
ARUP BAISHYA
S/O HARMOHAN BAISHYA
R/O VILL- NAKTADAL SUWALKUCHI
P.O. AND P.S. SUWALKUCHI, KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. A K BHATTACHARRYA
Advocate for the Respondent : MR. M. PHUKAN, PP, ASSAM
MR. P N GOSWAMI, ADDITIONAL A.G., ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
20.12.2021 Heard Mr. A.K. Bhattacharyya, learned Sr. counsel appearing for the petitioner. Also heard Mr. M. Phukan, learned Public Prosecutor, Assam Page No.# 2/11 appearing for the State respondent and Mr. P.N. Goswami, learned Additional Advocate General, Assam assisting the learned Public Prosecutor.
2. By this petition filed under Section 438 Cr.P.C., the petitioner, namely, Arup Baishya has prayed for granting pre-arrest bail, apprehending arrest in connection with Offence No. NR/22 of 2021 dated 11.11.2021, under Sections 2/9/39/40/44/48/49 and punishable u/s 51 of the Wildlife (Protection) Act, 1972.
3. The scanned copy of the case record along with the case diary, as called for, is placed before the Court.
4. It may be mentioned that by order, dated 26.11.2021, this Court on hearing of both sides granted the privilege of interim pre-arrest bail to the petitioner subject to conditions, which read as under (relevant partition)-
"Mr. A.K. Bhattacharyya, learned Sr. counsel appearing for the petitioner, strenuously emphasized, inter-alia, on the following points:
1. That the petitioner is a serving Forester-I and he is legally authorized to retain the seized materials;
2. That the complainant has old enmity for a dispute pertaining to 48 bighas of private land with the petitioner. The complainant has been trying to grab the petitioner's land by roping him into this false and motivated conspiratorial case;
3. That the complainant, who is a Forest Ranger, is not authorized under the provisions of the Wildlife (Protection) Act, 1972 to enquire/investigate any case under the said Act;
4. That the complainant, who is unauthorised Forest Range Officer under law, conducted raid at his two houses in absence of him and his family members in gross-violation of the specific provisions of Page No.# 3/11 Cr.P.C.;
5. That the petitioner is the licence holder of the seized guns and ammunitions; and
6. That as the petitioner has already been placed under suspension by the department, there is no chance of him hampering or tampering the enquiry/investigation, if the privilege of interim pre-arrest bail is granted to him so as to enable him to give his statement, subject to any condition(s) Mr. Bhattacharrya has relevantly emphasized on a number of full bench decisions of the Hon'ble Supreme Court in regard to the procedural requirements for conducting search and seizure.
Opposing the pre-arrest bail application, Mr. K.K. Parasar, learned Addl. P.P., Gauhati High Court prays to call for the case record.
On the facts and circumstances as stated above more particularly, the issue of legal authority of the complainant and the allegation of conspiracy and further, strictly subject to materials on the case record, it is provided that in the event of arrest, the petitioner named above, shall be released on interim pre-arrest bail, in connection with the above noted case, on furnishing bail bond of Rs.40,000/- with one surety of like amount to the satisfaction of the arresting authority, subject, of course, to the following conditions:
(i) That the petitioner shall appear before the Investigating Officer and produce all his documents etc. whatever relevant to the case within 7 days, failing which, on the 8th day, this interim pre-arrest bail order shall automatically come to an end;
(ii) That the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) That the petitioner shall refrain from committing any offences similar Page No.# 4/11 to the one of which he is suspected of commission;
(iv) That the petitioner shall not leave the jurisdiction of the complainant-
cum-investigating officer without his prior permission till the above date fixed; and
(v) That the instant interim pre-arrest bail shall not be extended for any reason."
5. The brief fact of the case is that on 11.11.2021, a preliminary offence report was lodged by the Range Forest Officer, Northern Range, Hajo before the Court of learned Judicial Magistrate, First Class, Hajo, Assam alleging, inter-alia, that on 10.11.2021, afternoon, after getting information from reliable source, the Range Forest Officer, Northern Range, Hajo along with range staff conducted a patrolling operation at Sanpara Parbat, Bongshar area and during search operation, at the first house of the petitioner in presence of witnesses, found a piece of bone which was suspected to be of the shell of a turtle along with a bag containing skins of deer, a bag full of porcupine spikes/thorns, facial bones, one DBBL gun, one Air Rifle, animal trapping nets, two numbers of live Tockay Gecko Lizards, used and unused ammunitions of both DBBL gun and Air Rifle, some alcohol bottles and tools used for hunting. In course of another raid operation at the petitioner's second house, huge number of used and unused ammunitions of both DBBL gun and Air Rifle, bullet-proof jacket, wireless phone battery, two number of arms licences, two fishing rods with fishing hooks, departmental flash lights, tranquilizer needles and other hunting tools were found. The aforesaid articles were seized as per seizure memos. On searching in the petitioner's car one sword like tool and one dagger were also found and accordingly seized.
6. Mr. A.K. Bhattacharyya, learned Sr. counsel appearing for the petitioner, Page No.# 5/11 made a vehement submission that the assumption of cognizance by the learned Judicial Magistrate, 1st Class, Hajo, who has no jurisdiction to try the case, by virtue of exhibiting the seizure memos before him, after search and seizure, was a gross legal infirmity sparked by the factum of the mandate of Section 55 of the Act in the case. Mr. Bhattacharrya raises objection against the prayer of the Range Forest Officer, Northern Range, Hajo made in his preliminary offence report, dated 11.11.2021, for cancellation of the interim pre-arrest bail granted to the petitioner as the alleged offence is cognizable and non-bailable under the Act. The investigating Forest official committed illegality by raiding the petitioner's houses and then alleged seizure of the wildlife items followed by taking cognizance of the purported offences by the learned Judicial Magistrate under Section 55 of the Act affecting thereby the right to liberty of the petitioner. Therefore, Mr. Bhattacharrya submits that the sole ground that the offence is non-bailable cannot stand in the backdrop of the aforesaid procedural lapses in the petitioner's right to anticipatory bail.
7. Mr. Bhattacharrya further submits that under Section 50 of the Act only the authorised officer is empowered, and for reasons to be recorded, can enter, search, arrest and detain any person who is suspected to have committed any offence under the Act. But here it is doubtful whether the Forester, who conducted the search and seizure was an empowered forest officer under the Act and that there is no evidence at all to show that he recorded any 'reasonable grounds for believing' that the petitioner had committed such offence under the Act driving him to conduct search in the petitioner's house and premises.
8. It is also submitted that the investigating Forest Officer committed violation of Section 55 of the Act. Mr. Bhattacharrya strenuously raises the legal Page No.# 6/11 issue as to whether investigation and cognizance of the offence under the Wildlife (Protection) Act can go together in a complaint case, which in his view cannot go together in law. Mr. Bhattacharrya also relevantly questions the legal sanctity of Section 51B of the Wildlife (Protection)(Assam Amendment) Act, 2009.
9. It is also submitted by Mr. Bhattacharrya that when the petitioner in terms of the interim pre-arrest bail has given his statement before the investigating Forest Officer and is cooperating in investigation, rejection of his pre-arrest bail will amount to deprivation of his right to equal treatment under law and protection of his liberty enshrined in Articles 14 and 21 of the Constitution of India respectively without reasonable excuse. Mr. A.K. Bhattacharrya, the learned Sr. Counsel, therefore, submits that the interim pre-arrest bail granted to the petitioner may be made absolute.
10. Opposing the pre-arrest bail application, Mr. P.N. Goswami, learned Additional Advocate General, Assam appearing for the State respondent submits that the petitioner, who is working as Forester-1 was at no point of time authorised to possess any wildlife remains or other related items which were seized after conducting search at his residences by authorised forest officer under Section 50 of the Act and filed a preliminary report to the jurisdictional Judicial Magistrate. Mr. Goswami further submits, drawing attention to the Assam Amendment published in the Assam Gazette, dated 20.10.2010, that every offence under the Act is cognizable and non-bailable within the meaning of the Code of Criminal Procedure, 1973 and no accused can be released on bail unless the Public Prosecutor is given an opportunity to oppose such bail application and no bail can be granted by the Court unless satisfied that the accused is not likely to commit any offence while on bail.
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11. Mr. Goswami, learned Additional Advocate General, Assam also submits that in his statement, the petitioner has admitted that except the wireless battery, beer bottles and bullet proof jacket all other seized items are belonged to him and these were recovered from his house at Suwalkuchi, but denied ownership of his second house at Sanpara Parbat Bongshar, although the investigation reveals that its electricity power connection and water supply consumer numbers are standing in his name.
12. It is submitted by Mr. Goswami that the house search was conducted on the strength of two number of search warrants issued by the Divisional Forest Officer, North Kamrup Division, Rangia, who is duly empowered under law, on the written prayer of the Range Forest Officer, Northern Range, Hajo explaining the grounds for believing that the petitioner was suspected to had committed offences under the Act and after seizure of the prohibited materials the petitioner was served with notices under Section 50(8) of the Act on 15.11.2021, 18.11.2021 and 22.11.2021 respectively for appearance to get his statement recorded and to produce documents, if any, in support of his lawful possession of the seized materials, but he did not respond till his appearance on 02.12.2021 as per conditions of the interim pre-arrest bail order, dated 26.11.2021, passed by this Court. Concluding his submission, Mr. Goswami contends that in the aforesaid facts and attending circumstances, the pre-arrest bail application of the petitioner may be rejected and accordingly, the interim pre-arrest bail granted to him may be vacated.
13. In addition to the learned Addl. Advocate General Assam, Mr. M. Phukan, learned Public Prosecutor, Gauhati High Court too vehemently opposes the pre- arrest bail application of the petitioner. Mr. Phukan clarifies that the learned Addl. Advocate General has been assisting him on his permission under Section Page No.# 8/11 302 Cr.P.C.
14. Mr. Phukan contends that Article 48A of the Constitution of India requires the State to make an endeavour to protect and improve the environment and to safeguard the forest and wildlife and so, under Article 51A(g) of the Constitution emphasises discharge of the solemn duty by every citizen to protect and improve the natural environment including forests and wildlife etc. and to have compassion for living creatures and in consonance with the aforesaid Constitutional mandate Section 51B (1) and (2) are incorporated in the Wildlife (Protection)(Assam Amendment) Act, 2009, making every offence punishable under the Act to be cognizable and non-bailable within the meaning of Cr.P.C. This amended provision has put a specific embargo on the Court not to release the accused on bail, without giving an opportunity to the Public Prosecutor to oppose the application and where the Public Prosecutor opposes, the Court is called upon to be satisfied that there are reasonable grounds for believing that such accused is not likely to commit any offence while on bail and further, the offences shall be triable by the Court of Sessions.
15. Mr. Phukan, learned Public Prosecutor, further submits that it is the burden of the accused to prove that he legally possessed the wildlife property so seized. Therefore, Mr. Phukan emphatically submits that the authorised Forest Officer recorded the reasonable grounds for believing that the accused had committed an offence under the Act as required under Section 50 and thereafter, conducted the searches in presence of witnesses which led to seizure of the various prohibited wildlife and other items.
16. Highlighting the material contradictions in the case, Mr. Phukan submits that the petitioner, in his statement, which is admissible in evidence like a statement u/s 164 Cr.P.C., contradicted his pleas taken in the petition and which Page No.# 9/11 were conveniently summarized in the interim pre-arrest bail granted vide order, dated 26.11.2021 as he admitted recovery and seizures made by the authorized/empowered Forest Officer out of his exclusive possession, whereas he challenged the competency of the Forest Officer to carry out his house searches and seizure of the items mentioned in the seizure memos. Mr. Phukan further submits that in this case, the investigating Forest Officer has filed a preliminary offence report, dated 11.11.2021 to the jurisdictional Judicial Magistrate and the Final Report will only be submitted on completion of investigation into the case.
17. Mr. M. Phukan, the learned Public Prosecutor, therefore, has urged upon this Court to consider the statement of objects and reasons for the legislature's enactment of the Wildlife (Protection) Act, 1972 and the Wildlife (Protection) (Assam Amendment) Act, 2009 in the context of the urgent need for protection of the wildlife in the State of Assam and as such, strongly opposes the grant of pre-arrest bail to the petitioner as there is every possibility of the petitioner, who is a Forest Officer, of committing more similar offences while on bail.
18. I have considered the above submissions made by the learned counsel of both sides and perused the averments made in the petition along with the documents annexed therewith.
19. A perusal of the case record reveals that there is prima facie evidence to show that the authorised forest officer after recording the reasonable grounds in writing for believing that the petitioner had been hunting wild animals in the forest area of Sanpara Reserved Forest and hid the hunting weapons and remains of the hunted wild animals in his one house located at Sanpara Parbat and also at his another house at Naktadal, Suwalkuchi, on the strength of two search warrants issued by the Divisional Forest Officer, North Kamrup Division, Page No.# 10/11 Rangia conducted search in the said two house premises of the petitioner. During such house search in compliance of Section 50 of the Act seized the above various wildlife and wildlife remains of Schedule-IV and Schedule-III species under the Wildlife (Protection) Act, 1972 along with firearms and ammunitions as well as other tools used in such prohibited activities in the forest areas despite by virtue of the petitioner being a Forester-I was responsible for protecting the forest and wildlife.
20. It is further prima facie noticed that the petitioner Forester, in terms of the claims made in the averment in paragraph No. 6 of the petition and the pleas made during hearing which are recorded in serial Nos. 1 to 6 and further, in terms of the condition No. 1 of the interim pre-arrest bail order, dated 26.11.2021 has not produced any documentary evidence.
21. The petitioner did not even respond to the notices issued by the competent senior authority of his department granting him opportunities to get his statement recorded and to produce the relevant documents in support of his legal possession of the aforementioned prohibited huge seized wildlife and other items.
22. A perusal of the materials on the case record including the statement of the petitioner, it is thus clear that there is abundance of prima facie incriminating materials against the petitioner, who is a Forest Officer, subject, of course, to final outcome in investigation. Therefore, on being not satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged and that he may not commit any similar offences while on bail within the parameters of Section 51A of the said Act and the state amended provision in this regard, this Court is of the opinion that the petitioner is not entitled to the privilege of pre-arrest bail merely on a hyper-technical approach Page No.# 11/11 to the case.
23. Accordingly, the pre-arrest bail application stands rejected.
The interim pre-arrest bail order, dated 26.11.2021 stands vacated.
This disposes of the anticipatory bail application.
JUDGE Comparing Assistant