Attar Singh & Others vs State Of Uttarakhand

Sharad Kumar Sharma, J

These are the two criminal revisions, which are arising out of the order of conviction as rendered by the Courts below for commission of an offence under Sections, 9, 39 & 51 of the Wild Life (Protection) Act, 1972 arising from Case Crime No. 34 of 2011 and Case Crime No. 35 of 2011 respectively, which was registered at P.S. Kotwali District Uttarakashi.

As a consequence of the judgment rendered on 9.01.2015 by the District and Session Judge, Uttarakashi, while dismissing the Appeal No. 36 of 2012 'Attar Singh vs. State of Uttarakhand' and as a consequence thereto, the Appellate Court has affirmed the judgment and order dated 03.12.2012 passed by the Chief Judicial Magistrate , Uttarakashi, convicting the revisionist under Section 51 of the Wild Life Protection Act, 1972, and accordingly sentencing him to undergo 4 years rigorous imprisonment and a fine of Rs. 5,000/- has been imposed upon him on the establishment of the offence in Criminal Case No. 147 of 2012 'State vs. Attar Singh' and in Criminal Case No. 148 of 2012 'State vs. Soban Lal', the revisionist has been directed to undergo the sentence of 5 years of rigorous imprisonment and a fine of Rs. 6,000/- has been imposed on the revisionist of Criminal Revision No. 11 of 2015 'Soban Lal vs. State of Uttarakhand'.

In the connected Criminal Revision No. 11 of 2015 the convict has been sentenced to undergo imprisonment as a consequence of his involvement in commission of an offence under Sections 9, 39 and 51 of the Wild Life (Protection) Act, 1972, which too was registered at Police Station Kotwali, District Uttarkashi, as Case Crime No. 35 of 2011, as a consequence of the conclusion of the trial before the Civil Chief Judicial Magistrate, Uttarkashi, in Criminal Case No. 148 of 2012 'State vs. Soban Lal'. The Trial Court by virtue of a judgment dated 03.12.2012, has convicted the revisionist to undergo a sentence of 5 years of rigorous imprisonment and a fine of Rs. 6,000/- has been imposed upon him. The said judgment was put to challenge by the revisionist in an Appeal being Criminal Appeal No.35 of 2012 'Soban Lal vs. State of Uttarakhand', which was dismissed by the Trial Court by the judgment dated 09.01.2015 and as a consequence thereto, the Court of District and Sessions Judge, Uttarakashi, had affirmed the sentence as imposed upon him by the Trial Court for his involvement in the commission of the offence under Section 51 of the Wild Life (Protection) Act, 1972.

In order to deal with the two revisions, brief facts of each of the case, which are essentially required to be narrated before dealing with the legal preposition, which has been argued by the learned counsel for the revisionist in support of his contention. The brief facts as involved in the instant case are that on 18.06.2010, which is a common date of the incident in both the revisions, it was reported that the Sub-Inspector, Thana Kotwali Mr. Bhaskar Thapliyal and the S.H.O. Dinesh Kumar along with other members of the team and other police officials, who were on their patrol duty, had received an information that there are two persons, who are coming from the side of Dhanari Road, who are carrying a bag on their shoulders, which is having in it the leopards' skin. On the receipt of the said information, the aforesaid police team had intercepted two persons, who were moving in suspicious conditions having the same identity as received in the information. The police team in their official vehicles and some private vehicles reached the spot and had apprehended suspected persons but nothing was found from their possession. It was the case of the prosecution that as soon as they were turning from Dhanari Road to Dhar road, they saw two suspected persons coming on foot and were carrying bags on their shoulders the police personnels. They interrogated the said persons at Dhanari Road itself and on checking them and on opening of the bag, which they were carrying, they found that the same was containing in it a leopard skin. After having traced the same and having taken the leopard skin in custody the Case Crime No. 34 of 2011 was registered against Mr. Attar Singh, who shown himself to be the resident of village Bagori Patti Gajmori, Tehsil Chinyalisaur, District Uttarkashi.

As far as the other accused person is concerned, who was accompanying Mr. Attar Singh, it was found that he was also carrying a red colour bag on his shoulder, which was carrying two leopard skins, and both of them were arrested on the spot by the police team. As the police on their interrogation about possession of leopard skin had not given satisfactory reply, consequence thereto, on the registration of the Case Crime No. 34 of 2011 and 33 of 2011 in both the revisions respectively, the accused were taken in police custody, and consequent to registration of case crime, the investigation was conducted and thereafter on the conclusion of the trial the accused revisionist were found by virtue of the judgment dated 03.12.2012 to have committed the offence under the Wild Life (Protection) Act of 1972, and consequently, they were punished for commission of an offence by undergoing an imprisonment of 4 and 5 years respectively in Revision No. 07 of 2015 and Revision No. 11 of 2015.

Learned counsel for the revisionists has argued few legal questions so as to enable him to make out a case that offence is not made out against them, one of the question was to the effect that as far as the police team is concerned, they do not have any power to interrogate or apprehend the persons, who are alleged to be involved in commission of an offence under the Wild Life (Protection) Act, 1972. In that regard he has placed reliance upon the provisions contained under Section 50(4) of the Wild Life (Protection) Act to be read with Section 55 of the said Act. Section 50(4) of the Wild Life (Protection) Act, which provides that the manner in which a prevention or detention of an accused person can be made, who is said to be involved in commission of an offence under the Wild Life (Protection) Act. Section 50(4) provides that a person detained or things which are seized under their forgoing powers shall forthwith be taken to the Magistrate concerned to deal with it and in accordance with the law under, the prior intimation to the Chief Wild Life Warden or any other such officer authorized by the Wild Life Department in that regard, the cognizance could be taken. Section 50 (4) of the Wild Life (Protection) Act, 1972 is quoted hereunder:

"50. Power of entry, search, arrest and detention.-

(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law 6[under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard]."

The reference has also been made to Section 55 of the Act, which pertains to the cognizance of the offence, which has to be taken under the Wild Life (Protection) Act, it has to be done by the officers, who are named in the said provision and thus since here the offence and the police party has apprehended the accused persons, they were not liable to be arrested by the person in the absence of the officer as described under Section 55 of the Act of 1972.

Learned counsel for the revisionists has also placed reliance on Section 50 of the Code of Criminal Procedure. In the light of the provisions contained under Section 50 of the Cr.P.C. what he contends that if the police party who has arrested the accused revisionists from the spot, the person thus arrested are to be informed of the grounds of arrest and of the right of theirs, which is available to them to get bail. Section 50 contemplates that when the police officer exercises its power of arresting a person without there being a prior warrant issued against him, the police officer shall forthwith communicate to him the full particulars of the offence for which the arrest has been made of the accused person. Section 50 of Code of Criminal Procedure is quoted hereunder:

"50. Person arrested to be informed of grounds of arrest and of right to bail.

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf."

As per the findings, which has been recorded by the Court below with regards of the involvement of the revisionists in the commission of the offence under Section 51 of the Wild Life (Protection) Act, 1972, it is observed that the police authorities they have been vested with the powers to take an action or apprehending a person for commission of an offence in the light of the provisions, which has been contained, and the powers, which has been vested with them, in the light of the Government Order, which has been issued by the State Government being Government Order No. 4003/14-3-67/1974 dated 30.04.1976, which reads as under:

"उत्तर प्रदेश सरकार

अनुभाग(3)

संख्या 4003/14-3-67/1974

लखनऊ दिनांक 30 अप्रैल 1976

अधिसूचना

प्रकीर्ण

वाइल्ड लाइफ (प्रोटेक्शन) ऐक्ट, 1972 (ऐक्ट संख्या 53, 1972) की धारा-55 क अधीन शक्ति का प्रयोग करके राज्यपाल समस्त सहायक वन्य जीव प्रतिपालकों, समस्त रेल अफसरों, पुलिस विभाग के समस्त उप पुलिस अधीक्षकों, सभी सहायक निरीक्षकों जो किसी पुलिस थाना और पुलिस चौकी में तैनात हो, और उप मुख्य वन्य जीव प्रतिपालक को अपनी अधिकारिता में उक्त ऐक्ट क अधीन अपराधों के विरूद्ध शिकायत दाखिल करने का प्राधिकार देते है।

आज्ञा से

एन0पी0 त्रिपाठी

सचिव"

By virtue of the aforesaid Government Order for all the offences, which are contained under the Wild Life (Protection) Act of 1972, and particularly in the light of the implications contained under Section 55 of the Wild Life (Protection) Act the Governor has conferred upon the power to the police department and its officials that they too can take cognizance of the offences as committed under the Wild Life (Protection) Act, for which the exclusive power, which is vested with the authorities mentioned under Section 50(4) or Section 55 of the Act, may not be relevant for the purposes being the only exclusive authority for taking cognizance of the offence under the Wild Life (Protection) Act of 1972.

Learned counsel for the revisionists submits that the said Government Order since happens to be that of 30.04.1976, the same has not been adopted under Section 86 of the Reorganization Act and, hence, in the absence of there being any valid adoption made by the State of Uttarakhand after its creation under Reorganization Act, the powers, which has been vested with the police authorities under the said Government Order will not constitute to be law as defined under Article 13 of the Constitution of India. Hence, it will not be attracted and will not be applicable in relation to the wild life offence, if they are committed within the territory of the State of Uttarakhand and thus, according to the counsel for the revisionist the police will have no right to investigate or prosecute the wild life offences.

An identical ratio pertaining to the implications of the adoption in relation to the central legislation came up for consideration before the Division Bench of this Court in a judgment reported in UD 2016(2) 521 'Vivek Singh & Others vs. Constable 243 CP Mohan Singh Tomkiyal & Others'. The Division Bench of this Court in paragraph 121 has held that after the carving of the State of Uttarakhand if there happens to be a central legislation, which is governing the filed of an activity with regards to the discharge of an official duties by the police authorities or the PAC, who had then held to be an important limb of maintaining discipline in the society, in such an eventuality, where the action of an authority is protected by a central legislation, which has its applicability on the creation of the State by virtue of the Reorganization Act, it becomes an integral part and parcel of the Union of India and as soon as it is carved out and gets a new status of that of a State, in such an eventuality, the applicability of the central legislation will not be ousted from its enforceability on the State and, hence, it has been held that the law, which has been framed by the Government of India and since being a central legislation would be a law within the meaning of the States Reorganization Act of 2000 under which the State of Uttarakhand was created. Paragraph 121 of the said judgment is quoted hereunder:

"121. Therefore, we may notice that it was discerned that the PAC has been discharging a very important role and has beneficially helped the police as a parallel force on the pattern of quasi-military force in maintaining law and order. It may, at once, be remembered that maintaining of law and order is an important aspect of policing and is the duty of the police force. In the course of the quest for relevant inputs to decide the issue, it is necessary to ascertain as to what is the concept of police force. In this regard, Mr. Shobhit Saharia would draw our attention to a central enactment, namely, the Police Forces (Restriction of Rights) Act, 1966 (hereinafter referred to as the "1966 Act"). The said Act, it is pointed out, came into force on 28.03.1973 in the State of Uttar Pradesh. Therefore, being a law within the meaning of the State Reorganisation Act, 2000, under which State of Uttarakhand was created, the same also would apply in the State of Uttarakhand unless it was done away with, for which nobody has a case. Section 2(a) of the 1966 Act defines "member of a police force" as meaning any person appointed or enrolled under any enactment specified in the Schedule. The word "police-force" is defined under Section 2(b) of the 1966 Act as including any force charged with the maintenance of public order. Under Section 3 of the 1966 Act, various restrictions have been imposed on the members of the police force. In the Schedule, it is relevant to notice, the 1861 Act figures at serial No. 3. So also at serial No. 17 is the PAC Act of 1948. Therefore, it tends to indicate that members of the PAC would be treated as members of the police force. (It is true that this aspect does not figure in the consideration by the PEC or by the Government, this being a matter of law)."

In response to it, the learned Government Counsel for the State as well as in the proceedings before the Court below the Court has placed reliance on a judgment of 'Moti Lal vs. Central Bureau of Investigation & Another' reported in 2002 (4) SCC 713 wherein, the Hon'ble Apex Court while dealing with the said issue with regards to exercising of powers and for convicting a person in commission of an offence under Sections 50, 55, 54 and 51 of the Wild Life (Protection) Act, 1972, which has provided that the said offences can be investigated by the C.B.I. or on being empowered by the Central Government by issuing notifications under the Delhi Establishment Act by the police personnels and which has specifically laid down that as such the implications as contained under Section 50 of the said Act would not exclude the powers of the police officers and from their power of being an investigating officers under the said Act, since it contemplates adoption of special procedure under the Act is contrary to the provisions which are contained under the Code of Criminal Procedure. As such the same would prevail in view of sub-section (4) of Section 2 of the Code of Criminal Procedure and that does not mean that the offences under the Wild Life (Protection) Act cannot be investigated by the police officials. The relevant concept in that regard has been dealt with in paragraph 14 and 15 of the said judgment, which is quoted hereunder:

"14. In our view, the aforesaid judgment has no bearing in the present case. As stated above, the Central Government has issued notification dated 21.3.2000 under Section 5 read with Section 6 of the Act empowering the CBI for investigation of the case against the appellants under the Wild Life Act andIndian Penal Code. The scheme of Section 50 of the Wild Life Act makes it abundantly clear that Police Officer is also empowered to investigate the offences and search and seize the offending articles. For trial of offences, Code of Criminal Procedure is required to be followed and for that there is no other specific provision to the contrary. Special procedure prescribed is limited for taking cognizance of the offence as well as powers are given to other officers mentioned in Section 50 for inspection, arrest, search and seizure as well of recording statement. The power to compound offences is also conferred under Section 54. Section 51 provides for penalties which would indicate that certain offences are cognizable offences meaning thereby police officer can arrest without warrant. Sub-section (5) of Section 51 provides that nothing contained in Section 360 of the Code of Criminal Procedure or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a national park or of an offence against any provision of Chapter 5A unless such person is under 18 years of age. The aforesaid specific provisions are contrary to the provisions contained in Code of Criminal Procedure and that would prevail during the trial. However, from this, it cannot be said that operation of rest of the provisions of the Code of Criminal Procedure are excluded.

In this view of the matter, there is no substance in the contention raised by the learned counsel for the appellant that Section 50 of the Wild Life Act is complete code and, therefore, CBI would have no jurisdiction to investigate the offences under the said Act. Hence, it cannot be said that the judgment and order passed by the High Court rejecting the petition filed by the appellant is in any way illegal or erroneous."

The provisions, which are contained under the Wild Life (Protection) Act, are the Central Legislation and in view of the provisions contained under Article 254 of the Constitution of India, the Central Legislation will have precedence over the State laws, more particularly, when the powers of investigation or for taking cognizance of an offence are falling from the legislation, which has been centrally framed by the Government of India, in such an eventuality, where action is being taken under the Wild Life (Protection) Act and, in view of the spirit and mandate of Article 254 of the Constitution of India for the purposes of exercising the powers under Section 50 of the Wild Life Protection Act and coupled with the fact that the implications of the Government Order issued by the State Government empowering the officials named therein for taking cognizance to the offences under the Wild Life (Protection) Act, it cannot be said that the police team, who has interrogated and arrested the accused persons from the spot on 18.06.2011, were not competent in accordance with the provisions as contained under the Wild Life (Protection) Act of 1972.

As far as the argument as extended by the learned counsel for the revisionists to the effect that the Government Order as issued on 30.04.1976 is concerned, since the same has not been adopted by the State of Uttarakhand under the Reorganization Act, the same will not be applicable so as to enable the police authorities to exercise their powers under Section 50 to be read with Section 51 of the Wild Life (Protection) Act. This argument is not acceptable for the reason that the ratio with regards to vesting of the powers with the police authorities to take cognizance of the offences under the Wild Life (Protection) Act as has been specifically postulated by the ratio as propounded by the Hon'ble Apex Court in the judgment of 2002(4) SCC 713 (supra), which in that eventuality, will have a precedence over the argument, which has been extended by the learned counsel for the revisionists pertaining to the applicability of the Government Order No. 4003/14-3-67/1974 dated 30.04.1976.

This Court cannot be oblivious of the fact that, it is not in dispute that as far as the leopards are concerned, they are the animals which are protected under the schedule which is contained under the Wild Life (Protection) Act and they are the protected animals in accordance with the entry 16 B and entry 17 of Schedule 1 of the Wild Life (Protection) Act, and as such, illegally hunting the animals protected by Schedule 1 of the Act or having possession of any part of the body of the protected wild life covered by Schedule 1 would definitely make the person accused, who is apprehended by the police and on its investigation and if accused is found in possession of any of the part of the body of the protected animals contained under the Schedule of the Wild Life Act as to make them liable for punishment of an offence under Section 51 of the Wild Life (Protection) Act, which contemplates the penalties which are to be imposed upon the person, who is accused or later on convicted for commission of an offence under the Wild Life (Protection) Act of 1972.

What is important to be remarked at this stage in the instant case is that when the accused persons were apprehended on 18.06.2010 by the team of police personnels near Devidhar Band, on seeing the police team approaching towards them, they tried to escape from the place in question, but they on being apprehended by the police, it was found that Mr. Attar Singh, who was carrying a red bag, and Mr. Soban Lal, who was carrying a black bag, the police team on the search being conducted on them found that they were carrying one leopard skin in the bag of Attar Singh and two leopards' skin in the bag of Soban Lal.

In view of the fact that they were apprehended along with leopard skin, which was a prohibited animal under Section 8 and 9 of the Wild Life (Protection) Act the offence under Section 51 was made out against them and they had been rightly convicted by the Trial Court by imposition of an offence for undergoing a rigorous imprisonment of 4 years and 5 years respectively and a fine of Rs. 5,000/- and Rs. 6,000/- respectively has been rightly imposed upon the revisionists by the impugned order under challenge.

Learned Trial Court while conducting the Trial in relation to the offence in question and on considering the report, which was submitted by the police officials by way of a chargesheet had provided ample opportunity of defense to the accused persons under Section 313 and has recorded their statement and had tried to derive any defense, which they wanted to have in relation to the commission of an offence under the Wild Life (Protection) Act of 1972.

Even before the Trial Court the said plea pertaining to the competence of the police authorities to hold an investigation and submit a chargesheet was also questioned in view of the implications as sought to be derived by the revisionists by attracting the provisions contained under Section 55 of the Wild Life (Protection) Act.

Before venturing further, if the language of Section 55 of the Act is taken into consideration, the bar of taking cognizance for the offence contained under the Wild Life (Protection) Act is only in the absence of a complaint as against the person concerned. It provides that the cognizance could be taken on the basis of the complaint against a person, who is involved in the commission of an offence under the Wild Life (Protection) Act, which is present in the instant case as police has registered the FIR as Case Crime No. 34 and 35 of 2011 respectively against the revisionist.

The source of complaint here under Section 55, which has been sought to be addressed by the learned counsel for the revisionists, would be flowing from the Director of the Wild Life Prevention, the Member Secretary of the Central Zoo, Member Secretary of the Tiger Conservation Authority, Director of the concerned Tiger Reserve, Chief Wild Life Warden, the Officer Incharge of the Zoo, as provided under Section 55, but it does not include police within its ambit, but the revisionists have failed to take note of the exception carved out under sub-clause (c) of Section 55 of the Wild Life (Protection) Act, wherein, the source of information for commission of an offence under the Wild Life Protection Act can be parted over by any person, who has given the notice with regard to the commission of an offence of atleast 60 days in the manner prescribed therein. Section 55(C) of the Act is quoted hereunder:

"(c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the officer authorised as aforesaid.]"

It is not the case of the revisionists that the period of notice as contemplated under sub-clause (c) of Section 55 was not complied with nor it was the case, which was argued before this court or before the courts below, where an order of conviction has been rendered against him Thus, the embargo of Section 55 will not be attracted in view of the ratio, which has been laid down by the Hon'ble Apex Court and also in view of the preposition, which has been formulated by the Government Order dated 30.04.1976, where the source of complaint as contained under Section 55 has been clarified by the Government Order, wherein, the power has been vested with the police investigating officer also to hold an investigation and submit a chargesheet for commission of the offence. This mode too will fall to be within the ambit of source of offence contemplated under Section 55 of the Act.

Learned Trial Court held that in view of the implications flowing from the Government Order daeted 30.04.1976 to be read in the light of the provisions contained under the Act No. 53 of 1972 particularly as contained under Section 55 of the said Act, all Sub-Inspectors, who are stationed at police station or police chowki, they had been vested with the powers to investigate and conduct an investigation against the accused person for the offences contemplated under the Wild Life (Protection) Act.

Learned Trial Court also considered the impact of Section 50 of Cr.P.C. pertaining to the competence of the police authorities and the mode to be adopted to conduct the confiscation process, wherein, as per the finding, which has been recorded by the learned Trial Court that the police team at the time of investigation when they have apprehended the accused person and when they have opened their bags, they have found a leopard skin, which was the fact which has not been ever denied by the accused persons that the leopard skin was not found from their custody, which was being carried by them in their respective bags.

In view of the reason, which has been assigned and also considering the fact that the police authority, who were well within their competence and power to hold an investigation and to proceed in accordance with the provisions contained under the Code of Criminal Procedure and thereby on the basis of the report submitted by the police, the Trial Court has conducted a full fledged trial and provided ample opportunity to the revisionists to defend themselves against the allegations of commission of an offence under Section 51 of the Wild Life (Protection) Act and after on appreciation of evidence, when the Court has concluded that the skin, which was found in their custody happened to be that of a leopard, which is protected animal as per Section 8 and 9 to be read with Schedule I, which is a protected animal as per the Schedule I of the Wild Life (Protection) Act, they had been rightly inflicted the punishment of 4 and 5 years rigorous imprisonment respectively along with the imposition of the penalty of Rs. 5,000/- and Rs. 6,000/- respectively on the revisionists.

Consequently, this Court does not find any merit in the revision. Hence, the revisions are dismissed and the conviction as leveled against the accused revisionists by both the courts below concurrently is hereby affirmed.

The accused persons, who are on bail, they will immediately forthwith surrender themselves before the Magistrate concerned to serve the sentence, which has been inflicted on them by the learned Trial Court and the bail bonds, which have been furnished by them in compliance of the order passed by this Court on 2.03.2015 will stand discharged and sureties would be discharged.

Revision is thus dismissed. The orders of conviction passed by the Trial Court on 19.06.2011 and Appellate Court's judgment dated 29.01.2015 are confirmed.

However, there would be no order as to cost.