Delhi District Court
Wli vs Firdose Ahmed on 16 April, 2014
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
WLI vs Firdose Ahmed
U/s 55 Of Wild Life (Protection) Act, 1972
CC No.71/1
JUDGMENT
(a) Serial no. of the case : 02401R1577972008
(b) Date of commission of offence : 08.11.2002
(c) Name of complainant : WLI Sh. V.B. Dasan
(d)Name/parentage/add. of accused: Firdose Ahmed s/o Mohd. Maqbool
r/o Rathpura Idgah, Srinagar, Kashmir
Presently r/o M22, Batla House,
IIIrd Floor, New Delhi
(e) Offence complained of/ proved : U/s 55 of Wild Life (P) Act
(f) Plea of accused : Pleaded not guilty
(g) Final order : Convicted
(h) Date of such order: 16.04.2014 Date of institution of complaint: 25.10.2008 Arguments heard/order reserved: 22.03.2014 Date of Judgment: 16.04.2014 Brief statement of the reasons for the decision:
1. The complainant Sh. V.B. Dasan, the then Wild Life Inspector filed the present complaint u/s 55 of Wild Life (Protection) Act, 1972 (for short the 'Act') against the accused for violation of section 44/49 & 49B(1) of the said Act, punishable u/s 51 of the Act.
The allegations against the accused are that on 08.11.02 at about 10.00, near main road bus stop, opposite petrol pump, Lajpat Nagar PartI, New Delhi, accused was found in possession of 11 Shahtoosh shawls alleged to be made of/derived from Tibetan Antelope/Chiru's wool which is a scheduled WLI vs Firdose Ahmed 1 of 14 animal and specified in ScheduleI of the Act. Since, the trade or possession of the said shawls are banned under the Act, the case properties were seized, accused was arrested and present complaint was filed by the complainant against the accused.
2. Accused was summoned. Copies of complaint and of documents were supplied. After precharge evidence, a charge u/s 51 of Wild Life (Protection) Act, 1972, was framed against accused on 30.01.2013 for contravention of provisions of section 44/49 and 49B(1) of the Act, punishable u/s 51 of the Act to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations against the accused, the prosecution examined Sh. C.P. Sharma, Technical GroupIV, from Wild Life Institute Dehradun as PW1, WLI Sh. Misram the then Widlife Guard as PW2, complainant/WLI Sh. VB Dasan as PW3 and WLI Sh. RR Meena as PW4.
For the just decision of the case, let the testimony of complainant/ PW3 WLI Sh. VB Dasan be discussed first as the witness received the secret information, headed the raiding team, investigated the matter and filed the present complaint. This witness reiterated the facts of the case and deposed that on 07.11.2002 in the evening, he received information that on resident of Kashmir would come in the morning time on 08.11.2002 at bus stop, Lajpat NagarI, New Delhi, alongwith Shahtoosh shawls. PW1 shared the said information with senior officer Mr. Jagdish Chander and other wild life officers. Thereafter, PW1 formed a raiding team comprising WLI Sh. RR Meena, Sr. WLI vs Firdose Ahmed 2 of 14 WLI Sh. Jagdish Chander and Wildlife Guard Sh. Misram and reached the spot on 08.11.2002, at about 8 am. The witness further deposed that at about 9.30 am, accused was seen coming on foot with a dark blue colour suitcase in his hand. At the pointing out of secret informer, accused was apprehended, suitcase was checked and it was found containing 11 Shahtoosh shawls. PW1 further stated that accused did not show any legal documents to procure or possess the same. Then, he seized the recovered shawls vide seizure memo Ex.PW2/A, arrested the accused, conducted his personal search vide personal search memo Ex.PW3/A and prepared site plan Ex.PW3/B. PW1 also deposed that on the next date, he produced the accused alongwith case property before the court vide application Ex.PW3/C and proved the complaint as Ex.PW3/D. PW1 is Sh. C.P. Sharma who examined the sample shawls and proved the report Ex.PW1/A. As per PW1, he examined three shawls out of 11 shawls and those three shawls marked as 47802, 47807 and 47811 are stated to be containing guard hairs of Tibetan Antelope (Pantholops hodgsonii). No opinion is given regarding remaining 8 shawls.
PW2 WLG Sh. Misram and PW4 WLI Sh. RR Meena, the members of raiding team, also reiterated the facts of the case and deposed more or less on the lines of PW3. All these witnesses were cross examined on behalf of the accused.
4. After completion of post charge evidence, statement of accused was recorded u/s 313 Cr.P.C read with section 281 Cr.P.C. separately wherein accused WLI vs Firdose Ahmed 3 of 14 denied all the material allegations and stated that nothing was recovered from his possession and he has been falsely implicated in this case.
5. I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and have gone through the relevant records. I have also gone through written arguments filed on behalf of accused as well as the relevant provisions of Wild Life (Protection) Act, 1972. A) The relevant provisions of section 44/49 and 49B(1) are reproduced for ready reference:
44. Dealings in trophy and animal articles without licence prohibited.
(1) [Subject to the provisions of Chapter VA, no person shall, except under, and in accordance with, a licence granted under subsection (4)]
(a) commence or carry on the business as
(i) a manufacturer of or dealer in, any animal article; or
(ii)a taxidermist; or
(iii) a dealer in trophy or uncured trophy; or
(iv) a dealer in captive animals; or
(v) a dealer in meat; or
(b) cook or server meat in any eatinghouse;
49. Purchase of captive animal, etc, by a person other than a licensee. No person shall purchase, receive or acquire any captive animal, wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this act. 49B. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals. (1) Subject to the other provisions of this section, on and after the specified date, no person shall,
(a) commence or carry on the business as
(i)a manufacturer of, or dealer in scheduled animal articles; or [ia)a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]
(ii)a taxidermist with respect to any scheduled animals or any parts of such animals; or
(iii) a dealer in trophy or uncured trophy derived from any scheduled WLI vs Firdose Ahmed 4 of 14 animal; or
(iv) a dealer in any captive animals being scheduled animals; or
(v) a dealer in meat derived from any scheduled animal; or
(b) cook or serve meat derived from any scheduled animal in any eatinghouse.
B) Learned APP for the state argued that the case of the prosecution has been proved beyond reasonable doubt in view of the testimony of the witnesses and witnesses identified the case property as well as accused correctly.
On the other hand, learned defence counsel argued that accused is innocent. Nothing was recovered from his possession. Accused has been falsely implicated in this case and documents were fabricated by the Wildlife Inspectors. He further argued that there are material contradictions in the statement of prosecution witnesses.
C) In this case, charge has been framed against the accused for the offence u/s 44/49 and 49B(1) of the Act. However, from the testimony of witnesses and material available on record, it appears that the prosecution has failed to prove charge against the accused u/s 44 and 49B(1) of the Act. Section 44 and 49B(1) prohibit of dealings in trophies, animal articles, etc., derived from scheduled animals and no person shall commence or carry on business of any wild animals or articles derived from the wild animals which are specified in the Act.
In his statement, PW3 has simply stated that as per secret information one person i.e accused would pass from the aforesaid spot alongwith Shahtoosh shawls and he is supposed to deliver the said shawls. From the report of WLI vs Firdose Ahmed 5 of 14 expert opinion Ex.PW1/A, it is clear that the recovered shawls were used one and thus, there is a little bit chance of purchase of old/used shawls by a shopkeeper. Except bald statement, nothing has come on record in the testimony of any of the witnesses which could suggest that accused was indulged in trade/business of said shawls. No document is placed on record which could suggest that the accused is/was a dealer or indulged in trade of said shawls. In such circumstances, accused can not be said to be dealer or involved in trade of said shawls unless the contrary is proved. In view of the aforesaid discussions and totality of the facts and circumstances of the case, this court is of the considered opinion that the prosecution has failed to prove charge u/s 44 and 49B(1) of the Act against the accused. Hence, accused is acquitted for the offence u/s 44 and 49B(1) of the Act. D) Section 49 prohibits purchase of captive animal, etc, possession of any articles derived from wild animals by a person other than a licensee. Thus, the prosecution was required to prove that accused was possessing the aforesaid shawls illegally in contravention of section 49 of the Act. Learned defence counsel firstly argued that prior to the amendment in section 51 (proviso), the maximum sentence was of 3 years and thus, the present complaint is barred by limitation. However, this plea of the accused appears to be completely redundant/superfluous. The offence alleged against the accused is covered in ScheduleI of the Act for which maximum punishment was prescribed upto six years even prior to amendment in the Act which came into force w.e.f 01.04.2003 and there is no limitation prescribed WLI vs Firdose Ahmed 6 of 14 for offence punishable for more than three years u/s 468 Cr.P.C. Thus, it is held that present complaint is not barred by limitation. E) It is next argued that the Act does not apply in the region of Jammu & Kashmir and accused is resident of Jammu and was coming from there and therefore, accused is not liable for the aforesaid offence. This plea of the accused does not carry much weight. It might be that the trade of aforesaid articles might have not been banned in that area. But nonbanning of such articles, if any, in the area of Kashmir is not of much help to the accused as the incident took place in the Delhi and the Act and Law prevailing in the territory of Delhi, will apply against the accused. Presently, two kinds of Act pertaining to wildlife animals, are being followed across the country. First is Wildlife Crime Control Bureau of Central Government and another one is Wildlife (Protection) Act of respective States. Learned defence counsel has not brought anything on record which could suggest that either of the Act or any Act of that State is/was not applicable at the relevant time in the region of Jammu & Kashmir and trade of Shahtoosh shalws, derived from Tibetan Antelope was permissible there.
F) It was further argued that section 40(A) (2) of the Act provides immunity from prosecution for a violation of section 40 of the Act which pertains to declaration and any pending proceedings shall at the commencement of the Act for such violation shall stand abated. He has also placed reliance upon the judgment reported in "1995 Supp (2) Supreme Court Cases 684". Perused the case WLI vs Firdose Ahmed 7 of 14 law. It is respectfully observed that this case law is not applicable to the peculiar facts and circumstances of the present case. The amendment came into effect on 01.04.2003 while the offence is alleged to have been committed on 08.11.2002.
In rebuttal, learned APP argued that section 40(A)(2) is not applicable to the present case on two counts, firstly present complaint case is not filed for violation of section 40 of the Act which pertains to declaration and secondly the facility of immunity shall be given to those persons who are/were possession of any wildlife articles and have already declared regarding its stock or possession. In this case accused has not made any declaration regarding stock or possession of the recovered shawls, hence, accused can not be allowed to take advantage of immunity scheme, if any, prevailing at the relevant time. The submissions of learned APP appears to be logical and have force. From the bare perusal of records and testimony of witnesses, it is clear that accused has not declared the stock or possession of the said shawls nor placed any declaration on record in support of his claim and contentions. Thus, accused does not deserve to take benefit of the aforesaid immunity scheme.
G)Learned defence counsel further argued that the case property produced in the court during evidence can not be linked with recovery of alleged Shahtoosh shawls from the possession of the accused as the case property was produced before the court on 08.11.2002 and sealed for the first time with the seal of court. Thereafter, case property was sent to Wildlife Institute of WLI vs Firdose Ahmed 8 of 14 India, Dehradun for expert opinion vide request letter dated 18.06.2003. Thereafter the case property was produced for the first time before the court at the time of evidence of PW1 and the case property produced before the court was sealed with court seal which reflects that case property was never examined by the Wildlife Institute.
The aforesaid submissions of learned defence counsel appears to be incorrect. PW1 Mr. CP Sharma was firstly examined on 28.01.2010 and his further examination in chief was deferred for wants of original report. Thereafter, his evidence was completed on 09.09.2010. During this period, the prosecution examined PW2 Sh. Misram, the then Wildlife Guard, during whose evidence, the case property was produced before the court on 28.01.2010. sealed with the seal of Wildlife Institute, Dehradun. H) Learned defence counsel further argued that there are innumerable inconsistencies, improvements and contradiction in the version of prosecution witnesses, no public witness was joined and therefore, the testimony of prosecution witnesses are not reliable. These arguments of the learned defence counsel do not hold much water as the recovery has been proved by the prosecution witnesses. From the seizure memo Ex.PW2/A, it is clear as to how and in what manner the accused was apprehended with alleged shawls. Accused has also not disputed his signature appearing on seizure memo Ex.PW2/A as well as personal search memo Ex.PW3/A. In his cross examination, PW4 has clearly stated that PW3 had asked the public persons WLI vs Firdose Ahmed 9 of 14 to join the raiding party but none agreed. Generally, public persons abstain himself from becoming a witness in case due to fear and undue harassment. Therefore, nonjoining of public witness is not fatal to the prosecution case. In any case, if independent persons are not willing to be a witness, the prosecution can not be blamed and evidence of other witness can not be discarded. In support of claim and contention, reliance may be placed upon the judgment reported in "AIR 1988 SC 1998".
I) Learned defence counsel further argued that there are material contradictions respecting seizure of case property, its colour and measurement and the bag/suitcase in which the accused was carrying the case property. These arguments are not of much help to the accused. Perusal of record reveals aforesaid minor contradictions in the testimony of PW3 and accused can not be allowed to take advantage of such type of minor contradiction. The incident pertains to November, 2002 and recording of precharge evidence started in this matter in the year 2010 and PW3 was firstly cross examined in precharge evidence on 09.09.2010 after a gap of more than seven years and thereafter he was again cross examined in post charge evidence on 30.10.2013 after a gap of more than two years. Thus, it can not be assumed even from a diligent witness to put each and every thing of an incident in his memory after expiry of such a long period. Dealing with the aspect of minor discrepancies, contradictions, the Hon'ble Supreme Court of India in the matter of Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under: WLI vs Firdose Ahmed 10 of 14 "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
6. It is thus quite normal that minor contradictions and discrepancies may appear even in the testimony of a most enlightened witness and it is more normal where there comes a wide gap between the period when the incident occurred and deposition made in the Court. In the judgment reported as "Bharwada Boginbhai Hijri Bhai vs. State of Gujrat, reported in 1983 Crl.L.J. 1096" the Hon'ble Supreme Court broadly pointed out the reasons due to which discrepancies, contradictions and improvements occur in the testimonies of the witnesses and the same are reproduced as under: "The evidence of prosecution witness has been considered to be worthy of acceptance. It is a pure finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact can not be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been WLI vs Firdose Ahmed 11 of 14 challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or re appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Over much importance cannot be attached to the minor discrepancies."
7. Learned defence counsel further argued that the expert opinion/report Ex.PW1/A is not reliable as out of 11 shawls only three shawls were examined and nothing has been stated regarding remaining shawls. On the other hand, learned APP submitted that recovered shawls were made/derived from Tibetan Antelope (Pantholops hodgsonii) and PW3 and PW4 have also clearly identified the case property stating that recovered shawls are made of wool derived from Tibetan Antelope which fall in ScheduleI of the Act. Learned APP also submitted that a Wild Life Inspector/Officer is competent to identify the wild life articles and even the expert opinion is not necessary to prove the genuineness of the shawls to be made of wool of Tibetan Antelope. However, just because of abundant precaution, the recovered shawls were sent for expert opinion to avoid any controversy. It is also argued that several wild life articles come to Wild Life Institute of India, Dehradun, across the country for expert opinion and some times each and every sample could not be examined due to paucity of time and over work load which fact is evident from the letters dated 18.06.2003, 01.09.05, 20.03.2006 and 07.12.07 available on record. Even if for the sake of arguments, it is assumed that only three shawls were made of Shahtoosh, that does not mean that accused did not commit the offence alleged.
Moreover, the seized case property/shawls were identified by the WLI vs Firdose Ahmed 12 of 14 Wildlife Inspectors PW3 and PW4 who are competent to identify animal articles as held by the Hon'ble Supreme Court in "Criminal Appeal No.622 of 1988, AIR 1995 SC 1159, Pyare Lal vs State (Delhi Administration)". J) Accused has also taken one stand in his statement that he has been falsely implicated in this case. However, this plea of the accused does not have any substance. Accused opted not to lead any defence evidence or bring anything on record to disprove the prosecution story. Accused have failed to explain any reason of his being implicated falsely in this case. Except bald statement, the accused did not come up with any explanation or reason for his false implication. No animosity/enmity has been proved by the accused against the witnesses. Hence, a completely disinterested witness having no enmity or animosity against the accused can not be disbelieved. K) In this regard provisions of section 57 of the Wild Life (Protection) Act is reproduced which runs as under:
57. Presumption to be made in certain case. Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, [trophy, uncured trophy, specified plant, or part or derivative thereof] it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat [trophy, uncured trophy, specified plant or part or derivative thereof].
Thus, from the bare reading of the provisions of section 57, it is clear that prosecution is to prove that the accused was found in possession/custody or control of any part or derivative of any captive animal and untill the contrary is WLI vs Firdose Ahmed 13 of 14 proved, which is to be proved by the accused, custody of such person will be treated to be unlawful custody. If the defence of the accused is taken into consideration, same appears to be afterthought and thus he failed to rebut presumption of unlawful custody of Shahtoosh shawls recovered from his possession.
L) In view of the aforesaid discussions, it is held that the prosecution has proved its case beyond reasonable doubt against the accused that he was found in possession of aforesaid wild life articles i.e 11 Shahtoosh Shawls made of/derived from Tibetan Antelope (Pantholops hodgsonii) on the said date, time and place, without any licence or authority. The species of Tibetan Antelope are specified in ScheduleI of the Act and thus accused has contravened the provisions of section 49 of the Act which is punishable u/s 51 of Wild Life (Protection) Act, 1972. Accordingly, accused is held guilty and is convicted for the offence u/s 49 of Wild Life (Protection) Act. Let accused be heard on sentence.
Main file be consigned to the record room. Ahlmad to prepare a Miscellaneous file for the purpose of arguments on sentence on 17.04.2014.
Judgment be sent to the server www.delhidistrictcourt.nic.in.
(DEVENDRA KUMAR SHARMA) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 16.04.2014 (Total number of page 14) (One spare copy attached) WLI vs Firdose Ahmed 14 of 14