Shahid vs State of U.P. and Others

Pankaj Naqvi, J.

Heard Ms. Sunita Jain, learned counsel for revisionist, Sri Satya Narayan Vashisth, learned counsel for O.P. No. 2 and learned A.G.A.

This revision is preferred against order dated 3.9.2013 passed by Addl. Chief Judicial Magistrate (Court No. 5), Allahabad, refusing to release the seized elephant.

An application for release was filed by revisionist-Mohd. Shahid, alleging himself to be a Mahaut of an elephant. It was alleged that on 29/30.7.2013, revisionist fell ill and said elephant was being managed by his colleague, which went berserk, created ruckus, as a result of which, the alleged incident took place. It was further alleged that the seized elephant was tamed, but since the date of occurrence, i.e., 29.7.2013, same is lying chained at Minto Park. A report of the Wild Life Officer dated 22.8.2013 was submitted. The court below rejected the release of elephant on the ground that revisionist was only a Mahaut of seized elephant and not its owner.

It is urged that revisionist is the owner and not the Mahaut of the seized elephant and was thus entitled to its custody and in past too the elephant was released in his favour.

Learned A.G.A. would contend that as there was nothing on record to indicate that revisionist had any authorization/ownership in respect of seized animal, no illegality could be attached to the impugned order.

The Wild Life (Protection) Act, 1972 has been enacted with a view to provide for the protection of wild animal, birds and plants and for matters connected therewith. Section 2(5) of the Act defines a captive animal, to mean any animal specified in Schedule-I, Schedule-II, Schedule-III or Schedule IV, which is captured or kept or bred in captivity. The Indian elephant is reflected at Item 12-B of Part-I of Schedule-I to the Act as a captive animal. Sections 40, 41, 42, 43 and 48-A, 49 and 50 of the Act are extracted hereunder:--

Declarations--(1) Every person having at the commencement of this Act the control, custody or possession of any captive animal specified in Schedule I or Part II of Schedule II, or any uncured trophy derived from such animal or salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days from the commencement of this Act, declare to the Chief Wild Life Warden or the authorised officer the number and description of the animal, or article of the foregoing description under his control, custody or possession and the place where such animal or article is kept.

(2) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer.

2(A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wile life (Protection) Amendment Act, 2002 acquire, receive, keep in his control, custody or possession any captive animal animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance.

2(B) Every person inheriting any captive animal, animal article, trophy or uncured trophy under sub-section (2A) shall, within ninety days of such inheritance make a declaration to the Chief Wild Life Warden or the authorised officer and the provisions of sections 41 and 42 shall apply as if the declaration had been made under sub-section (10 of section 40.

Provided that nothing in sub-sections (2A) and (2B) shall apply to the live elephant.

(3) Nothing in sub-section (1) or sub-section (2) shall apply to a public museum or zoo.

(4) The State Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer any animal article or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, in such manner, and within such time, as may be prescribed.

Inquiry and preparation of inventories--(1) On receipt of a declaration made under section 40, the Chief Wild Life Warden or the authorised officer may, after such notice, in such manner and at such time, as may be prescribed,--

(a) enter upon the premises of a person referred to in section 40;

(b) make inquiries and prepare inventories of animal articles, trophies, uncured trophies, salted and dried skins and captive animals specified in Schedule I and Part II of Schedule II and found thereon; and

(c) affix upon the animals, animal articles, trophies or uncured trophies identification marks in such manner as may be prescribed.

(2) No person shall obliterate or counterfeit any identification mark referred to in this Chapter.

Certificate of ownership--The Chief Wild Life Warden may, for the purposes of section 40, issue a certificate of ownership in such form, as may be prescribed to any person who, in his opinion, is in lawful possession of any wild animal or any animal article, trophy, uncured trophy and may, where possible, mark, in the prescribed manner, such animal article, trophy or un cured trophy for purposes of identification.

Regulation of transfer of animal, etc.--(1) No person having in his possession captive animal, animal article, trophy or uncured trophy in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature, such animal or article or trophy or uncured trophy.

(2) where a person transfers or transports from the State in which he resides to another Sate or acquires by transfer from outside the State, any such animal, animal article, trophy or uncured trophy in respect of which he has a certificate of ownership, he shall, within thirty days of the transferor transport, report the transfer or transport to the Chief Wild Life Warden or the authorised officer within whose jurisdiction the transfer or transport is effected.

(3) Nothing in this section shall apply--

(a) to tail feather of peacock and animal article or trophies made therefrom;

(b) to transfer of captive animals between recognized zoos and public museums.

48A. - Restriction on transportation of wild life.--No person shall accept any wild animal (other than vermin), or any animal article, or any specified plant or part or derivative thereof, for transportation except after exercising due care to ascertain that permission from the Chief Wild Life Warden or any other officer authorised by the State Government in this behalf has been obtained for such transportation.

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.

Provided that nothing in this section shall apply to a recognized zoo subject to the provisions of Section 38-1 or to public museum.

Power of entry, search, arrest and detention.--(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,-

(a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy or uncured trophy in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;

(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;

(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy in the possession of any person and appearing to him to be Government property, together with any trap, tool, vehicle, vessel or weapon used for committing any such offence, and unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him.

Provided that where a fisherman residing within ten kilometers of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized.

(2)... (deleted)

(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detain-any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.

(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or an Assistant Conservator of Forests, who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

(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.

(5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce under this section, shall be guilty of an offence against this Act.

(6) Where any meat or uncured trophy is seized under the provisions of this section, the Assistant Director of Wild Life Preservation or any other officer of a gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer may arrange for the sale of the same and deal with the proceeds of such sale in such manner as may be prescribed.

(7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance in the prevention or detection of an offence against this Act, or in apprehending persons charged with the violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of such person or persons to render such assistance.

(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of the Forests authorized by the State Government in this behalf shall have the powers, for purposes of making investigation into any offence against any provisions of this Act,--

(a) to issue a search warrant;

(b) to enforce the attendance of witness;

(c) to compel the discovery and production of documents and material objects; and

(d) to receive and record evidence.

(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused persons.

A conjoint reading of aforesaid provisions would indicate that there are statutory restrictions in respect of control, custody or possession of a captive animal apart from the articles derives from such animals and that a person has to make a declaration in respect of possession thereof within 30 days from the commencement of the Act before the Chief Wild Life Warden or the authorized Officer regarding the number and description of the animal or article possessed. Sub-section 2 of Section 40 imposes a restriction with regard to transfer or transport of any such animal/article except with the previous permission in writing to the Chief Wild Warden or the authorized Officer. Sub-section 2-A provides ,that no person other than a person having a certificate of ownership shall after the commencement of the Wild Life (Protection) Act, 2002 would acquire, receive and keep in possession or have control or custody to any captive animal or animal article, etc. except by way of inheritance. On receipt of declaration, the Chief Wild Life Warden or the authorized officer may after search notice, affix identification mark upon such animals as may be prescribed. Section 42 of the Act provides that Chief Wild Life Warden may for the purposes of Section 40, issue a certificate of ownership in such form as may be prescribed to any person, who in his lawful opinion, in lawful possession of any wild animal or any article. Section 50 of the Act confers powers upon the Director or any other Officer authorized by him in this behalf or the Chief Wild Life Warden or the authorized officer or any authorized officer or any police officer not below the rank of Sub-Inspector, may if he has reasonable grounds for believing that any person has committed an offence under this Act, he may seize any captive animal, etc. Sub-section 3-A provides that seized captive animal may be given its custody on execution by any person on a bond for the production of such animal, as and when required before the Magistrate having jurisdiction on account of the seizure has been made. The seizure of elephant was made for an offence under Section 9/51 of the Act. The revisionist could not adduce any evidence of ownership in respect of seized animal as required under Section 40 of the Act. The claim of the revisionist that O.P. No. 3, i.e., Mohd. Rafiq was the owner, was also rejected by the court below on the ground that no ownership certificate was filed on his behalf too. The claim of revisionist that his application for grant of licence was pending since 7.12.2012 before the Regional Director (Forest), Allahabad, has been denied in paragraph 12 of the counter affidavit. Thus, in the absence of any rejoinder, the Court has no option but to presume the contents of the counter affidavit as true and correct. If that be so, no orders can be passed in relation thereto.

In this view of the matter, revisionist could not establish ownership of the captive animal, which was a must to obtain its release.

The view taken by the court below cannot be said to be improper/illegal.

The revision is dismissed.