TMI Blog2019 (12) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove its case was duty bound to connect the materials which they claimed to have received from the DRI Authorities. No document in evidence has been produced regarding the materials and/or the documents being seized/reseized by the complainant of the instant case being the Authorized Ranger attached to the office of the Conservator of Forest, Wildlife Circle from the DRI Authorities. The connecting document and/or transfer of document being absent failed to establish any official change of custody of the seized articles which were the subject matter of the case. On the evidence so relied upon by the prosecution it is not a case of mere irregularity but raises a grave suspicion regarding the manner and mode of search and seizure alleged to be conducted at the said premises and it would not be fit and proper to arrive at a finding of guilt on the basis of the search and seizure. The petitioner is acquitted from the charges under Section 40(2) of the Wildlife (Protection) Act, 1972 read with Section 51(1-A) of the said Act. The petitioner is on bail, he shall therefore be discharged from the bail bonds - Application allowed. - CRR 3523 of 2010 - - - Dated:- 23-12-2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the goods so seized were liable to confiscation under the provisions of Customs Act, 1962 read with Foreign Trade (Development) Act, 1992. The petitioner was thereafter produced before the Ld. Chief Metropolitan Magistrate (Ld. CMM), Calcutta on 6-8-1995. It is seen from the records of the Ld. CMM, Calcutta that from 6-8- 1995 the petitioner was in custody till 11-9-1995 when he was granted bail by the Ld. Chief Judge, City Sessions Court, Calcutta. It would be pertinent to state that in the meantime on 8-8-1995 a communication was made from the office of the Chief Conservator of Forest, Wildlife and Chief Wildlife Warden to the Additional Director General, DRI, Calcutta, wherefrom it is revealed that since all the seizures related to Schedule-I, animals, under the provisions of the 1972 Act, a detailed report was required in respect of the case along with copies of the documents and seized articles for which Sri P. Mukherjee, Forest Ranger, Wildlife Wing was authorized to communicate. The records further reveal that by a communication the Conservator of Forest, Wildlife Circle, West Bengal was pleased to engage the Investigation Officer (IO) being Mr. Sajal Baran Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) On 2-11-1995 the seized articles along with other papers relating to the case were received by the complainant from DRI. Thereafter the seized articles were sent to Zoological Survey of India, Calcutta for identification as per the Court Order dated 9-1-1996 and on 15- 2-1996 the report by concerned department was submitted before the Court. vi) a) As the accused did not obtain any permission from the authorized officer for acquiring or keeping in possession/transfer/transport of the animal parts derived from animals specified in Schedule-I of the 1972 Act, he has violated the provisions of Section 40(2) of the 1972 Act. b) As the accused procured the wildlife animal articles mentioned in the seizure list other than from a dealer or from the person authorized to sell or otherwise transfer the same under the 1972 Act, he has violated the provisions of Section 49 of the 1972 Act. c) As the accused failed to produce any permit/certificate in support of legal collection/procurement/transfer or any document relating to stock declaration, it is alleged that the parts so derived from wild animals which were hunted illegally from nature by his self arrangeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he examination as aforesaid was over the Ld. Court called on the defence to adduce its evidence in support of its case, accordingly the defence cited one witness namely, Md. Sonaullah as a witness. The Ld. Magistrate on appreciation of the evidence adduced by the prosecution as also by the defence was pleased to hold the present petitioner not guilty in respect of offences under Section 9, 43 and 49 of the 1972 Act and held the petitioner guilty for commission of the offence under Section 40(2) of the 1972 Act read with Section 51(1A) of the said Act and sentenced him as aforesaid. The present petitioner being aggrieved by the judgment and order of conviction and sentence passed by the Ld. Magistrate preferred an appeal being Criminal Appeal No. 31 of 2010. The Ld. Appellate Court after reappraisal of the evidence and the judgment and order of the Ld. Trial Court was pleased to affirm the finding of guilt as well as the order of conviction and sentence so passed by the Ld. Magistrate. This Court after taking into account the judgment delivered by the Ld. Trial Court and the Ld. Appellate Court felt that re-appreciation of the evidence were required in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused. The witness in his cross-examination stated that he is unable to identify the articles to the extent whether the same belongs to this case or any other case and proceeded to state that the material parts were produced before PW3. PW3, Dilip Chattopadhyay identified his signature on the statement recorded under Section 108 of the Customs Act. PW4, Sajal Baran Das reiterated his contention as made in the petition of complaint and added that he had sent the articles for expert opinion to Zoological Survey of India. The witness identified all the materials which were already marked as MAT Exhibits. In crossexamination the witness admitted that in the seizure list the coloumn relating to place of seizure do not reflect any premise number. He also stated in cross-examination that he had never been to the place of occurrence, no sketch map was drawn in respect of premises where the seizure was affected and admitted that he filed on the basis of presumption that the articles were seized from the accused. PW5, Dr. Sujit Chakraborty identified the report which was marked as Ext.6 and deposed that the report was submitted after examining the tiger skin, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable doubt as the seizure lists support the same. The statement of the accused/petitioner under Section 108 of the Customs Act also corroborates the factum of seizure regarding the communications which are available in the record, the same are in original and it reflects that the seized materials were acknowledged by a communication on 7-8-1995. According to Mrs. De Ghosh as the seized articles qualified uncured trophy of animals following under Schedule-I Part I as Article 12B, 30 and 39 of the 1972 Act, charge was framed under Section 15 of the 1972 Act, which is not a complete code and the DRI Authorities have jurisdiction to investigate such offences. Mrs. De Ghosh relied upon Moti lal vs. Central Bureau of Investigation Anr., AIR 2002 SC 1691 and State Ors. vs. NMT Joy Immaculate, 2004 (5) SCC 729 on the issue of mere irregularity will not vitiate the proceedings. In Balbir Singh s case (supra) relied upon by the Ld. Advocate for the petitioner in paragraph 25, which is held as follows:- 25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of Sections 193 and 228 of the Indian Penal Code. The enquiry contemplated under Section 108 is for the purpose of 1962 Act and not for the purpose of convicting an accused under any other statute including the provisions of the Act. In The State of Gujarat vs. Anwar Osman Sumbhaniya Ors. relied upon by the Ld. Advocate for the petitioner in paragraph 24, which is as follows:- 24. Even in the present case, it is noticed that the prosecution has essentially relied upon the confessional statement of the accused recorded under the provisions of TADA. That will be of no avail and certainly not admissible against the accused in the trial for offences under other enactments, especially when the Designated Court could not have taken cognizance of the offence under TADA for lack of a valid sanction. Additionally, in the present case, the evidence produced by the prosecution regarding search and seizure is replete with fatal deficiencies. We do not wish to deviate from the view taken by the Designated Court that there was no legally admissible evidence to establish the charges against the respondents regarding offences under other enactments (other than TADA). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the deposition of the 5 witnesses relied upon by the prosecution, the documents so relied upon by the prosecution which were admitted in evidence as also the findings of the Ld. Courts below. While assessing the evidence of the prosecution witnesses, I do not find any material except the oral deposition of the witnesses particularly PW1 from where it would be evident that the said witness in his official capacity led the DRI officials for conducting search and seizure at the above mentioned said premises. No documents relating to search authorization or movement register reflecting that the DRI officers on the basis of information they received had been to the residence of the present petitioner, are available. None of the other DRI officers (PW2 and PW3) ever represented in their oral deposition that they were present at 16, Rotu Sarkar Lane, Kolkata- 700073 when the raid was conducted and search and seizure had taken place. Further no information was given to the local police authorities prior to conducting any search at the said premises/residence of the present petitioner. This assumes much importance in view of the fact that the Ld. Courts below has laid much emphasis on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
