Director Corbett Tiger Reserve Uttarakhand vs Mastoo And Others

Sharad Kumar Sharma, J

The present Criminal Revision has been preferred by the Director Corbett Tiger Reserve, Uttarakhand, being aggrieved against the Appellate Court's judgement dated 30.05.2011, as rendered by the Court of Sessions Judge, Nainital in Criminal Appeal No. 28 of 2007, Mastoo and others v. State. As a consequence of the Appellate Court's judgement, it has resulted to the acquittal of the accused persons, who are said to have been involved in the commission of offence under Section 27, as well as for offence under Section 51 of the Wild Life (Protection) Act, 1972, for which they had been otherwise convicted by the Court of Judicial Magistrate, Ramnagar, District Nainital, vide its judgement dated 04.07.2007, as rendered in Criminal Case No. 748 of 2004, State v. Mastoo and others, by virtue of which they have been directed to undergo a sentence as under:

1)         For the offence under Section 27 of the Wild Life (Protection) Act, 1972, they have been directed to undergo a sentence of 6 months of rigorous imprisonment and a fine of Rs. 2,000/- has been imposed upon them and in an event of failure to deposit the penalty they have been directed to further undergo a rigorous imprisonment for a period of 15 days.

2)         For the offence under Section 51 of the Wild Life (Protection) Act, 1972, the respondents have been directed to undergo a rigorous imprisonment of three years each, and in addition thereto, a fine of Rs. 1,000/- has been imposed upon the respondents and further it has been directed that in an event of failure to deposit the penalty, as imposed, they have been directed to undergo an additional sentence of three months of rigorous imprisonment.

Before venturing into the controversy in question, it becomes essential to deal with certain basic facts which are involved for interpretation in the instant case. As per the prosecution story, on receipt of an information from the mukhbir khas, who had given an information to the Forest Range Officer, Dhela to the effect that on 30.06.2004, two van gujjars are about to enter the reserved forest area from the side of pokru in a cycle and the mukhbir khas has informed that there is a possibility that that they may be carrying some restricted part of wild life and hence the they required to be apprehended, before they escape with the booty.

Based upon the aforesaid information, the Forest Range Officer had moved with a team of forest officials and posted them at feeka shrot near Jaspur Block No. 49 and after stationtioning there themselves they were awaiting the arrival of the aforesaid two van gujjars, who were said to have been involved in the trade of parts of the wildlife. As a consequence therewith when the Forest Range Officer and other Forest officials have placed themselves near feeka shrot, they found that at about 1:30 p.m., two persons were found coming on cycle from old kandi road and when they reached at feeka shrot in Block No. 49, the team who have stationed themselves had apprehended the arrival of those two persons had apprehended that and had interrogated them. During the course of interrogation, it was found that they have informed to members of team that they are engaged in the business of sale and purchase of cattles but at the time when they were apprehended, it was found that one of the accused persons who has disclosed their names as Hamish Khan son of Mukhtalis and Mastoo son of Noora. Out of them Mastoo was carrying a bag of black and red colour which had a zip on it.

The Police party, on searching the said bag found that the bag included in it a cotton quilt and in between the quilt, when they were apprehended and they opened it, they found that it was containing in it two tusks of an elephant. Apart from it, there were two further small tusks of the size of about 53 centimetres and 46 centimetres respectively. Total weight of the tusks thus recovered from them was weighing about 8-9 kg. Apart from it, when Mastoo was checked by the forest officials, they found that from the pocket of Mastoo, it had a piece of paper, which contained a small piece of tusk which was wrapped in it and on being interrogated, he informed the members of raiding team of forest officials that said small piece of task was kept as a sample to be shown to the probable purchaser for the purposes of completing the final deal in relation to the tusk which he was carrying. It was further informed by him that there are other tusks also which have been kept by him in the safe custody by burring them in the ground near his hutment and when he along with forest officials went to his hutment, he digged out the tusks from the ground, where he used to keep his cattles and on digging the ground it was discovered from there that in a plastic bag two more tusks were recovered which were about 1.17 meters and 1.15 meters, consequently, the total number of tusks which were carried by them was ultimately found to be of about 28 kg of the elephant teeth.

It was also informed by them and also admitted in their statements recorded before the officials concerned that they were carrying the tusks which was to be sold in the market and they would be carrying out the said tusks for business purpose to Nazibabad, through Jaspur it was expected to be sold to a butcher, who was the resident of Nazibabad. Based on the aforesaid recovery of the protected wildlife animal parts of the body, they were sealed and fard baramdagi was prepared which was placed on record as exhibit 2, the punchnama was also prepared by the forest officials of the recovery which was signed by the Forest Guard, Range Officer, as well as the accused persons, a site plan was also prepared, which was placed on record as exhibit ka (15) and arrest memo was prepared and also placed on record as exhibit ka (20).

During the course of interrogation, the accused persons have recorded their statement and admitted their guilt that they were in reality were engaged in the trade of selling the tusks which according to them they have collected it from an elephant who had died about 2-3 years back whose skeleton was later on also recovered on the pointing out by the accused persons. The veterinary doctor, who examined the dead animal, he found that the skin of the elephant was absolutely decade only a half part of the skill, the spine of the elephant which is reported to have died about 2-3 years back was recovered from the site in question which was lying in block 16. The statement of the accused persons namely Masto, Iqbal, Ibrahim, Banga and Gazni was placed on record by way of evidence as exhibit Ka(6), ka(7), Ka(8), Ka(9) and Ka(10) respectively. Exhibit 3/30 were the parts of the Skelton of the elephant which was recovered by the forest officials on the pointing out of the convicts. Ultimately, the trial was conducted after registration of the Range Case 10/Dhela/2004-2005/30/TP 2004-05 and the said complaint was placed on record as exhibit Ka(11) for commission of an offence under Sections 2, 9, 39, 40, 41, 44, 47, 48, 49, 50, 51, 52 and 57 of the Wild Life (Protection) Act, 1972 as rendered on 7th July 2007.

The learned trial Court, on examination of the witnesses and after appreciating the evidence on record has come to the conclusion that as far as the evidence which was placed on record, though the fact of the accused being involved in killing wildlife elephant or they using of any weapon in commission of offence was not placed on record nor it was found to be in their possession at the time when they were arrested. But however, the carcass of the wildlife elephant too on its examination by the medical officer Mr. Sudhir Kumar, he did not recorded a finding that the tusk which was recovered from the possession of the accused person, belonged to the elephant who died about 5-6 years back.

Based on the aforesaid evidences, the learned trial Court has ultimately, on appreciating the documents and other supporting evidence on record had submitted that the very possession of the tusk which is a fact admitted as per the statement recorded by the accused persons was said to be an animal article which would covered under sub Section (2) of Section 2 of the Wild Life Protection Act, 1972 which defines animal articles, which includes the tusks/ivory as to be the animal article within the said definition which was substituted by the Act No. 44 of 1991. Section 2(2) of the Wild Life (Protection) Act, 1972 reads as under:-

"(2) "animal article" means an article made from any captive animal or wild animal, other than vermin, and includes an article or object in which the whole or any part of such animal 2[has been used, and ivory imported into India and an article made therefrom]";

Ultimately, the learned trial Court has held that the very possession of the tusk with the accused persons without there being any authority with them would be violative of the provisions contained under Section 39 of the Wild Life Protection Act, 1972, because it would be falling to be within the definition of the state property and if it was found to be in the possession of the accused persons, it would be violative of the provisions contained under Section 39 of the Wild Life Protection Act, 1972 as contained in its Chapter 5, particularly a reference may be had to the provisions contained under sub Section (3) of Section 39 of the Act, which provides that no persons could have a possession of the wildlife article except with a permission in writing otherwise and any such article if it is recovered from a person who is carrying it in an unauthorized manner would be treated as to be a property of the state and would fall to be an offence under Section 51 of the Wild Life Protection Act, 1972. Section 39 of the Act reads as under:-

"39. Wild animals, etc., to be Government property.-

(1) Every-

(a)        wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or 1[bred in captivity or hunted] in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed 2[***] by mistake; and

(b)        animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed;

(c)        ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;

(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act,]

shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat 4[derived from such animal, or any vehicle, vessel, weapon, trap or tool used in such hunting] shall be the property of the Central Government.

(2) Any person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining such possession, make a report as to the obtaining of such possession to the nearest police station or the authorised officer and shall, if so required, hand over such property to the officer-in-charge of such police station or such authorised officer, as the case may be.

(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer-

(a) acquire or keep in his possession, custody or control, or

(b) transfer to any person, whether by way of gift, sale or otherwise,

or

(c) destroy or damage, such Government property."

The aforesaid contention about carrying of the parts of the wildlife animal without permission would fall to be a prohibition of the provisions contained under Section 40 of the Wild Life Protection Act, 1972, particularly a reference may also be had to Section 44 of the Act also, which contemplates that anybody who is engaged in the trade or carrying or dealing with the trophy of any animal articles as defined under sub Section (2) of Section 2 of the Act would be itself amount to the violation of the provisions contained under Section 44 of the Act and he would be liable to be punished under the provisions contained under Section 51 of the Wild Life Act, because as per the language used under Section 47, 48 and 49 of the Act, the statutes creates a restriction to the effect that purchase of animal or animal parts without a valid licence being vested in a person would be an offence and thus persons thus found in possession of animal article without an authority with him is to be prosecuted for the commission of an offence under Section 51 of the Act.

Ultimately, the learned Court Judicial Magistrate on appreciation of the evidence on record found that the recovery of the animal article from the possession of the present accused person at feeka shrot, which was lying under block 49 of the Reserved Forest area and furthermore the recovery of the two tusk which were admittedly buried by the accused persons near their hutment would amount to be entering into a reserved forest area without there being any valid permission with animal article and hence it would fall to be an offence under Section 27 of the Wild Life Protection Act and since admittedly even as per the statement recorded by the accused person as referred above to be exhibit Nos. 6, 7, 8 and 9, it rather shows that they were engaged in the business of animal articles and hence they were liable to be punished under Section 51 of the Wild Life Protection Act.

Thus, on the entire appreciation of evidence, the total recovery of the wildlife elephant tusk which was recovered from them was amounting to about 7 pieces of tusks weighing about 28 kgs. Consequently, the learned Judicial Magistrate vide its judgement dated 04.07.2007, has convicted the accused persons for the offences under Sections 27 and Section 51 of the Wild Life Protection Act.

Being aggrieved against the said judgement of conviction, the revisionist had preferred an Appeal under Section 46 of the Wild Life Protection Act, 1972, before the learned Sessions Judge. The learned Sessions Judge, by a wrongful appreciation of the evidence on record had acquitted the present respondents for the commission of offence under Sections 27 and 51 of the Act by the impugned judgement under challenge in the present revision. Ultimately, the Appeal thus registered as Appeal No. 28 of 2007 was adjudicated upon by the learned Sessions Judge on the ground that merely a possession of the parts of the animal articles covered under sub Section (2) of Section 2 of the Wild Life Protection Act, 1972 itself will not amount to be a commission of offence until and unless it is proved by evidence on record that the convict/respondents were actually engaged in the act of killing a wildlife and hence it has been held in its para, which is quoted hereunder that merely the possession of tusk itself will not amount to be an offence.

"पत्रावली के अवलोकन से यह स्पष्ट है कि अभियुक्तगण को हाथी के दांत रखने एवं बिक्री हेतु ले जाते समय गिरफ्तार किया गया। अभियोजन की ओर से प्रस्तुत साक्षीगण द्वारा अभियोजन कहानी का पूर्ण रूप से समर्थतन किया गया है। पत्रावली पर उपलब्ध साक्ष्य से अभियुक्तगण द्वारा हाथी दांत अपने कब्जे में रखना व उन्हें बिक्री हेतु ले जाना पूर्णतया साबित है, परन्तु पत्रावली पर उपलब्ध साक्ष्य से यह साबित नहीं है कि अभियुक्तगण द्वारा किसी हाथी को मारा गया हो और उसके दांत निकाले गये हों। ऐसे में अभियुक्तगण के विरूद्व मात्र हाथी दांत रखना व उसे बिकी्र करने का अपराध सिद्व होता है।"

The learned Appellate Court has recorded a finding that as far as the evidence on record is concerned, it proves that the accused persons did had possession of the tusks when they were arrested by the forest officials and further it was held that they were engaged in the trade of the animal articles which includes the ivory under sub Section (2) of Section 2 of the Act but the distinction which has been carved by the learned Appellate Court it was on account of non-establishment of the fact of the accused persons, having being actually involved in actual killing of the wild elephant. This Court is of the view that the reasoning assigned in the impugned judgement dated 30.05.2011 that for the purposes of convicting a person for commission of offence under Section 27 to be read with Section 51 of the Wild Life Protection Act, it is not necessary that the actual indulgement of the accused persons in killing the wildlife animal is essential for the purpose of conviction under Section 51 of the Wild Life Protection Act. The act of possession of an animal article which is prohibited under the Act that in itself in violation of the provisions contained under Section 39 to be read with Section 44 of the Wild Life Protection Act, 1972 that in itself will amount to be an offence which was sufficient for conviction under Section 51 of the Wild Life Protection Act, 1972. Consequently, the reasoning which has been assigned by the learned Appellate Court for acquitting the revisionist for commission of offence is untenable and this Court is not in agreement with the reasoning assigned by the learned Appellate Court, consequently, the judgement dated 30.05.2011 is hereby quashed.

After having quashed the order of the learned Appellate Court, it would result into a revival of the judgement of the learned Judicial Magistrate as rendered on 04.07.2007 against which an appeal was filed by the revisionist herein. Since on account of restrictions imposed by sub Section (3) of Section 401, where the High Court exercises its power as against the appellate Court order, setting aside the order/judgement of acquittal and affirming the judgement of conviction of the learned Judicial Magistrate, the Court cannot upheld the judgement of conviction because it would result into depriving the right of the convict persons of preferring of an appeal as against the judgement of conviction.

After having quashed the judgement of acquittal as rendered by the learned Appellate Court and in view of the restrictions imposed by sub Section (3) of Section 401, the matter is remitted to the Appellate Court for its reconsideration, exclusively on its own merits without being influenced by any of the finding(s) recorded herein. Except the legal ratio as laid down, the appeal would be decided as expeditiously as possible.