Gauhati High Court
Crl.A./416/2023 on 13 May, 2024
GAHC010240212023
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
Criminal Appeal No. 416/2023.
Md. Zanab Khan,
S/o Md. Siraj Ahmed,
R/o Sangalyumpham Chereapur Makha,
P.S. - Leikai,
District - Thoubal, Manipur,
Pin Code - 795148.
......Appellant.
VS.
The State of Assam,
Represented by Public Prosecutor of Assam.
......Respondent.
with
Criminal Appeal No. 417/2023.
Md. Habibur Rahman,
S/o Md. Nur Jaman,
R/o Sangalyumpham Chereapur Makha,
P.S. - Leikai,
District - Thoubal, Manipur,
Pin Code - 795148.
......Appellant.
VS.
The State of Assam,
Represented by Public Prosecutor of Assam.
......Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Appearance:-
For the Appellants :- Mr. F. Khan.
For the respondent :- Mr. D. Gogoi, Special Public Prosecutor.
Date of Hearing :- 15.02.2024.
Date of Judgment :- 13.05.2024.
JUDGMENT & ORDER (CAV)
Heard Mr. F. Khan, learned counsel for the accused/appellants
and Mr. D. Gogoi, learned Special Public Prosecutor for the respondent
State of Assam.
2. By this common judgment and order it is proposed to dispose of
two criminal appeals, being Criminal Appeal No. 416/2023 and
Criminal Appeal No. 417/2023 arising out of the same judgment and
order dated 26.09.2023 and 27.09.2023, passed by the learned
Special Judge (Wildlife), Karbi Anglong, Diphu in Special (Wildlife)
Case No. 11/2022.
3. It to be noted here that vide impugned judgment and order
dated 26.09.2023 and 27.09.2023, learned court below has convicted
the accused/appellants namely, Md. Zanab Khan and Md. Habibur
Rahman under Section 51(1) of the Wild Life (Protection) Act, 1972
and sentenced them to undergo rigorous imprisonment for 7 years
and to pay a fine of Rs. 50,000/- and in default of payment, to
undergo further simple imprisonment for 6 months.
4. The background fact leading to filing of this appeal is
adumbrated herein below:-
―On 12.04.2022, during routine Naka checking, taken up by ASI
Jiten Gogoi of Dillai Police Station (P.S.), intercepted one Maruti
Suzuki Ecco vehicle, bearing registration No. MN-01-AG-5829
and found two persons namely, Zanab Khan and Habibur
Rahman with one gibbon species and four primate species under
the family Cercopithecidae. Thereafter, he reported the matter
to the Forester, Mongal Singh Enghi, In-Charge of Lahorijan
Account Beat, under the Central Range Manja, Karbi Anglong
East Division, who arrived at Dillai P.S. and thereafter, taken up
the investigation. During the course of the investigation, he had
examined with the witnesses and seized the aforesaid species
along with the vehicle by preparing seizure list and arrested the
accused/appellants and recorded the statement of the
accused/appellants. Then on the next day he had forwarded
them to the court and on 13.04.2022, the seized species were
sent to the Assam State Zoo, Guwahati for their rehabilitation as
per order of the Chief Judicial Magistrate, Karbi Anglong, Diphu.
Thereafter, on 18.04.2022, he had received a report from the
Divisional Forest Officer of Assam State Zoo, in respect of death
of one primate species, due to ailments. And thereafter, he had
lodged the final complaint, upon which, the learned Special
Judge (Wild Life), Karbi Anglong, Diphu registered a case, being
Special (Wildlife) Case No. 11/2022, under Section 51(1) of the
Wild Life (Protection) Act, 1972 arising out of C.R. Case of
14/2022. Thereafter, complying with the provision of Section
207 of the Cr.P.C. and after hearing learned Advocates of both
side, the learned trial court had framed following charge against
both the accused/appellants, under Section 51(1) of the Wild
Life (Protection) Act, 1972:-
(i) Whether on 12.04.2022 at around 7.00 pm at Dillai Police
Station, the accused were found in possession of one
Gibbon species animal, under the family Hylobatidae and
four numbers of Primate species animal under the family
Cercopithecidae ? If so whether the accused were
involved in illegal transportation and sale/purchase of
such wild animals?
Thereafter, on being read and explained over the charges to the
accused/appellants, they pleaded not guilty and claimed to be
tried. Thereafter, the prosecution side had examined as many as
7 (seven) witnesses and also exhibited six documents in support
of the charge. After closing the prosecution evidence, the
learned trial court had examined the accused/appellants under
Section 313 of the Cr.P.C. The accused/appellants had declined
to adduce evidence in their defence. Thereafter, hearing
arguments of both the parties the learned trial court had found
that the charge under Section 51(1) of the Wild Life (Protection)
Act, 1972 well established and thereafter, convicted the
accused/appellants under the said Section of law and sentenced
them as aforesaid.‖
5. Being aggrieved, the accused/appellants have approached this
Court by filing the present appeal for setting aside the impugned
judgments and orders dated 26.09.2023 and 27.09.2023, on the
following grounds:-
(i) That, the prosecution side has failed to conclusively prove the
charge against the accused/appellants;
(ii) That, the species, which were recovered from the possession of
the accused/appellants does not come under the purview of the
Wild Life (Protection) Act, 1972;
(iii) That, the primate species, which were allegedly recovered from
the possession of the accused/appellants were not listed in
either of the Schedules of the Wild Life (Protection) Act, 1972
and as such, no offence under Section 51(1) of the Wild Life
(Protection) Act, 1972 appears to be made out against the
accused/appellants;
(iv) That, the learned trial court has failed to ascertain as to whether
the species, so recovered from the possession of the
accused/appellants falls under the definition of ‗captive animal'
or ‗wild animal', as defined under Section 2 of the Wild Life
(Protection) Act, 1972 and also failed to verify that the
recovered species were not listed in the Schedule I, II, III or IV
of the Wild Life (Protection) Act, 1972;
(v) That, the officials of the Assam State Zoo, who took the custody
of the species were not examined as prosecution witnesses;
(vi) That, the two material witnesses, who have received information
at the Central Range, Manja have not examined as prosecution
witnesses; and
(vii) That, the evidence of the prosecution witnesses are not
trustworthy and the same suffers from material contradictions
and the learned trial court has failed to appreciate the same and
as such, the conviction of the accused/appellants under Section
51(1) of the Wild Life (Protection) Act, 1972 is not sustainable.
6. Mr. Khan, learned counsel for the accused/appellants has
reiterated the grounds mentioned herein above and stressed upon the
fact that the 5 species which were allegedly recovered from the
possession of the accused/appellants are not scheduled species and as
such, they are neither ‗captive animal' nor ‗wild animal' as defined
under Section 2 of the Wild Life (Protection) Act, 1972. Mr. Khan
further submits that the witnesses, so examined by the prosecution,
have not supported the case and that out of enmity the case has been
lodged and therefore, it is contended to allow the petition. Mr. Khan,
to strengthen his submission, has referred the following case law:-
Titty @ George Kurian vs. Deputy Range Forest Officer,
reported in (2021) 1 SCC 812.
7. On the other hand, Mr. Gogoi, learned Special Public Prosecutor
submits that though the seized species were not scheduled species,
yet, they are ‗wild life' as per definition of the Wild Life (Protection)
Act, transportation of which is prohibited in view of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), to which India is a signatory. Mr. Gogoi, further submits that
the learned trial court, after considering all the aspects, had arrived at
a just finding and the same requires no interference of this Court.
Therefore, Mr. Gogoi has contended not to allow the petition. Mr.
Gogoi has also referred the following case laws to strengthen his
submission:-
(i) Balram Kumawat vs. The Union of India and Ors., reported in
(2003) 7 SCC 628;
(ii) Indian Handicrafts Emporium and Ors. vs. The Union of
India and Ors., reported in (2003) 7 SCC 589;
(iv) Navnath Tukaram Dhaigude vs. The Union of India &
Nannath Tukaram Dhaigude vs. The State of Assam, reported
in (2021) SCC OnLineGau 1962; and
(v) Bail Application No. 1008/2022 of Gauhati High Court.
8. In view of the submissions, so advanced by learned Advocates
of both the parties, the issue, to be decided by this court is - ‗Whether
the animal species, so recovered and seized from the possession of
the accused/appellants, were ‗captive animal' or ‗wild animal' as
defined in section 2 of the Wild Life (Protection) Act, hunting,
possession, transportation of which, without approval from
appropriate authority, is prohibited under sections 9, 39, 40(2),
40(2A), 48, 48(A), 49, 49(B), 50 of the Wild Life (Protection) Act.
9. Having heard the submissions of learned Advocates of both sides,
I have carefully gone through the memo of appeal and the ground
mentioned therein and also gone through the record of the learned
trial court and also the case laws, referred by learned Advocates of
both sides.
10. As in the case in hand, contravention of the provision of Section
9, 39, 40(2), 40(2A), 48, 48(A), 49, 49(B), 50 of the Wild Life
(Protection) Act, are being alleged by the prosecution side, which is
punishable under section 51 of the said Act, it would be in the interest
of justice to understand the provision of Section 2, 9, 39, 40(2),
40(2A), 43, 48, 48(A), 49, 49(B) and 50 of the Wild Life (Protection)
Act which are relevant to dispose of the present appeals.
11. Section 2 is of the Act deals with definitions.
11.1. Sub-section 2(1) deals with ‗animal', which includes mammals,
birds, reptiles, amphibians, fish other chordates and invertebrates and
their young, and also includes, in the cases of birds and reptiles, their
eggs;
11.2. Section 2(5) defines ―captive animal‖, means any animal,
specified in Schedule I, Schedule II, Schedule III or Schedule IV,
which is captured or kept or bred in captivity.‖
11.3. Section 2(16) defines ―hunting‖, which with its grammatical
variations and cognate expressions, includes:-
(a) killing or poisoning of any wild animal or captive animal and
every attempt to do so;
(b) capturing, coursing, snaring, trapping, driving or baiting any
wild or captive animal and every attempt to do so;]
(c) injuring or destroying or taking any part of the body of any
such animal or, in the case of wild birds or reptiles, damaging
the eggs of such birds or reptiles, or disturbing the eggs or nests
of such birds or reptiles;
11.4. Section 2(36) defines ―wild animal‖, as it included any animal
specified in Schedules I to Schedule IV and found wild in nature.
11.5. And section 2(37) of the Wild Life (Protection) Act defines ‗wild
life' as it includes any animal, aquatic or land vegetation which forms
part of any habitat.
11.6. Section 9 of the Act deals with prohibition of hunting, and it
provides that:- ‗No person shall hunt any wild animal specified in
Schedules I, Schedule II, Schedule III and Schedule IV except as
provided under section 11 and section 12.
11.7. Section 39(1) of the Wild Life (Protection) Act provides that
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 bred in captivity or hunted in contravention of
any provision of this Act or any rule or order made there under or
found dead, or killed 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 there under 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 Rules made there under 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.
Sub-section -2 provides that 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
Sub-section (3) provides that:- 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.
11.8. Section 40 deals with declarations and sub-section (1) provides
that (1) Every person having at the commencement of this Act the
control, custody or possession of any captive animal specified in
Schedule I [****], or animal article, trophy or 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. Sub-section (2) provides that ―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 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. 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) 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 of Part II of Schedule II except by way of inheritance.
11.9. Section 43 of the Act provides for regulation of transfer of
animal, etc. and Sub-section (1) provides that ―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) .........
11.10. Section 48 deals with purchase of animals, etc., by licensee. It
provides that -―No licensee under this Chapter shall- (a) keep in his
control, custody or possession,- (i) any animal, animal article, trophy
or uncured trophy in respect of which a declaration under the
provisions of sub-section (2) of section 44 has to be made but has not
been made; (ii) any animal or animal article, trophy, uncured trophy
or meat which has not been lawfully acquired under the provisions of
this Act or any rule or order made thereunder; (b) (i) capture any wild
animal, or (ii) acquire, receive keep in his control, custody or
possession, or sell, offer for sale or transport, any captive animal
specified in Schedule I or Part II of Schedule II or any animal article
trophy, uncured trophy or meat derived there from or serve such
meat, or put under a process of taxidermy or make animal article
containing part or whole of such animal, except in accordance with
such rules as may be made under this Act; Provided that where the
acquisition or, possession, control or custody of such animal or animal
article, trophy or uncured trophy entails the transfer or transport from
one State to another, no such transfer or transport shall be effected
except with the previous permission in writing of the Director or any
other officer authorised by him in this behalf. .....
11.11. Section 48-A deals with restriction on transportation of ‗wild
life'. It provides that -―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.‖
11.12. Section 49 deals with purchase of captive animal, etc., by a
person other than a licensee. And it provides that -―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 there from otherwise than from a dealer or from a person
authorised to sell or otherwise transfer the same under this Act......
11.13. Section 49-B deals with prohibition of dealings in trophies,
animal articles, etc., derived from scheduled animals. Sub-section-(1)
provides that- ―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
there from 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
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
eating-house. ....
12. Section 50 of the Act deals with power of entry, search, arrest
and detention. Sub-section (1) provides that- 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, uncured trophy, specified plant or part or derivative thereof 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) ..............
13. Thus, a bare perusal of the aforementioned provisions indicates
that in order to establish contravention of said provisions i.e. Section
9, 39, 40(2), 40(2A), 48, 48(A), 49, 49(B) and 50 of the Wild Life
(Protection) Act, by the appellants, so as to attract the penal provision
of section 51 of the said Act, the prosecution side has to establish that
the animals, which were found in their possession are either ―Captive
Animal‖ means any animal specified in Schedule-I, Schedule-II,
Schedule-III or Schedule-IV, which is captured or kept or bred in
captivity, or ―Wild Animal‖ which means any animal specified in
Schedule-I, Schedule-II, Schedule-III or Schedule-IV and found wild in
nature.
14. Now, let it be seen how far the prosecution side has been able to
establish that the five animals recovered and seized from the
possession of the accused/appellants were ―Captive Animal‖ or ―Wild
Animal‖ as defined in section 2(5) and 2(36) of the Wild Life
(Protection) Act, 1972.
15. In order to discharge its burden, the prosecution side has
examined as many as 7 witnesses herein this case. Out of seven
witnesses, so examined by the prosecution side, P.W. 6 is Home
Guard Mai Sing Tokbi and P.W.7 is ASI Jiten Gogoi, who were
attending Naka Checking duty at the Naka Cheking point at Dillai
Tiniali. Their evidence reveals that on 12.04.2022, at about 06.20 pm,
they, along with other police personnel found one Maruti Ecco vehicle
coming from Manipur side towards Guwahati. They stopped the
vehicle and on checking the same they have found five numbers of
Chimpanzees in five numbers of plastic boxes and they have also
found accused Zanab Khan and Habibur Rahman in the said vehicle.
Then P.W.7 seized the five numbers of Chimpanzees in five numbers
of plastic boxes, vide seizure list (Exhibit-P6), in presence of
witnesses. Thereafter, P.W.7 had informed the matter to the Forest
Officials and handed over the Chimpanzees to the Forest Department.
Probative value of the evidence of these two witnesses could not be
demolished in their cross-examination. It is, however, elicited in cross-
examination of P.W.7 that as per verbal instruction of the Officer-in-
Charge he had seized the Chimpanzees.
16. P.W.5, Shri Suraj Roy is a Pan Shop owner situated near Dillai
Gate and he is the witness of seizure of the 5 numbers of monkeys by
police. His evidence reveals that at about 05.30/06.00 pm on the day
of occurrence he saw recovery of five numbers of monkeys from a
Van and Exhibit-P6 is the said seizure list of the said monkeys. It is
however elicited in his cross-examination that he had not seen the
monkeys inside the Van, but he had seen the same when kept on the
ground near the Van. Thus, this witness also supported the evidence
of P.W.6 and 7, about recovery of five numbers of monkeys from the
Van.
17. P.W. 3, Shri Mongal Sing Enghi is a Forester-I, posted at Lahorijan
at the relevant point of time. He is the complainant and seizing officer.
His evidence reveals that on 12.04.2022, at about 06.45 pm he got
information from Dillai Police about recovery of five numbers of
monkeys from a vehicle, during Naka Checking. Then he rushed to
Dillai P.S. with one Longbir Engti Kathar, Forester-I and Divison Engti,
Forest Guard and found five numbers of monkeys in five plastic boxes
and then police handed over to him the original seizure list and one
Maruti Ecco vehicle and five numbers of monkeys in five plastic boxes
and two persons, namely, Md. Zanab Khan and Habibur Rahman.
Then returning to his office at Manja, he had seized the original
seizure list and one Maruti Ecco vehicle - bearing registration number
MN-01-AG-5829, and five numbers of monkeys, in five plastic boxes,
vide seizure list-Exhibit-P1. Thereafter, he took photographs of the
seized monkeys and of the vehicle and Exhibit-P2 and Exhibit-P3 are
the said photographs of the monkeys and vehicle. Thereafter, he had
recorded the statements of the accused, namely, Md. Zanab Khan and
Habibur Rahman in presence of witnesses and during interrogation
both the accused confessed having brought the monkeys from
Manipur to Guwahati. Then on the next day he had produced the
accused and the seized monkeys before the court and the court had
handed over the monkeys to the officials of State Zoo, Guwahati.
Thereafter, he had filed Offence Report- Exhibit-P4, against the two
accused namely, Md. Zanab Khan and Habibur Rahman for
contravention of the provision of sections
9/39/40(2)/40(2A)/48/48(A)/49/49(B) and 50 of Wild Life (Protection)
Act, punishable under section 51 of the said Act. The appellant side
cross-examined this witness at length. But, noting tangible could be
elicited so as to demolish the probative value of his evidence.
18. P.W.1 Shri Longbir Ingti Kathar is Forester-I and P.W.-2 - Shri
Divison Engti is Forest Guard who had accompanied P.W.3 to Dillai
Police Station. Close on the heel of P.W.3, these two witnesses i.e.
P.W.1 and 2 also deposed about recovery of five numbers of monkeys
from a Maruti Ecco vehicle - bearing registration number MN-01-AG-
5829, on 12.04.2022, at about 06.45 pm during Naka Cheking. Both
P.W.1 and 2 are also the witness of seizure of the monkeys and the
vehicle by P.W.3; vide seizure list - Exhibit-P1. Both these witness had
identified the accused persons, namely, Md. Zanab Khan and Habibur
Rahman in the court. Though these two witnesses were cross-
examined by the appellant side, yet, nothing tangible could be elicited
to discredit their evidence.
19. P.W.4 is Assistant Conservator of Forest, namely, Shri Bikram
Singh Rongpi. This witness also testified about recovery of four
numbers of Primate Species and one Gibbon Species by Dillai police,
while the same were being carried by the two accused persons in a
Maruti Car and handing over of the same to P.W.3 by police. Then
P.W.3 had handed over the two accused persons to him and then on
13.04.2022 he had forwarded them to the court along with the four
numbers of Primate Species and one Gibbon Species and the Car.
Thereafter, the court had handed over the species to Assam State
Zoo. Thereafter, the Zoo authority had handed over four species to
them so as to release them in Nambor Forest and accordingly, they
have released the four species in Nambor Reserve Forest. His
evidence also reveals that one of the species suffered demise at Zoo.
He confirmed Exhibit-P5, the forwarding letter by which he had
forwarded the accused and species to the court. Nothing could be
elicited by the appellants in cross-examination of this witness.
20. Thus, the evidence of the prosecution witnesses, specially the
evidence of P.W.6 and 7, as discussed above, along with the Exhibit-
P-1 and P-6 the seizure lists, Exhibit-P-2 and P-3 -the photographs,
Exhibit-P4 -the Offence Report goes a long way to establish beyond all
reasonable doubt about the factum of recovery of one Gibbon Species
and four Primate Species from the possession of the present
appellants, while the said Species were being carried by them in a
Maruti Ecco vehicle - bearing registration number MN-01-AG-5829, on
12.04.2022, at about 06.45 pm and also establish the identity of the
appellants. Thus, having appreciated, analysed and assessed the
evidence of the prosecution witnesses by the yardstick of probabilities,
its intrinsic value and the animus of the witnesses, I find no ground to
disbelieve the same.
21. The species, so recovered from the possession of the appellants
are shown below.
Sl. No. Species Family
01. Gibbon(siamang) Hylobatidae
02. Cresdted black Macaque (Female) Cercopithecidae
03. Cresdted black Macaque (Male) Cercopithecidae
04. Moor Macaque (Female) Cercopithecidae
05. Celebes Cresdted Macaque Cercopithecidae
22. Admittedly, none of the above species, so recovered and seized
from the possession of the appellants are Schedule species. Though,
two species, namely, Western Hoolock Gibbon and Eastern Hoolock
Gibbon finds mention in the Part-I of Schedule I, yet, it appears that
the Gibbon found in the possession of the appellants was a Siamang
Gibbon, [as per report of the Divisional Forest Officer, Assam State
Zoo Division, Guwahati, which is available on the record] belonging to
family Hylobatidae. And the same is not a Schedule species.
23. The four primate species also, which were recovered and seized
from the possession of the accused, admittedly, are not schedule
species. Though the name of Assamese Macaque, Pig-tailed Macaque,
Rhesus Macaque and Stump-tailed Macaque finds mention in the Part-
I of Schedule-II, yet, the name of four primates, recovered and seized
herein this case, are not there in the said Schedule.
24. This being the factual position, none of the animal species, which
were recovered and seized from the possession of the
accused/appellants were ―Captive Animal‖ or ―Wild Animal‖ as defined
in section 2(5) and 2(36) of the Wild Life (Protection) Act 1972.
25. Mr. F. Khan, the learned counsel for the appellants has rightly
pointed this out during hearing and I find substance in his submission.
And the ratio laid down in the case law Titty @ George Kurian
(supra) also strengthened his submission. It is to be mentioned here
that Hon'ble Supreme Court, in the said case, had affirmed the view
taken by the High Court of Kerela, that Indian Flapshell Turtle,
which was seized, was not found included in Part II of
Schedule I to the Wild Life (Protection) Act, 1972, hence,
such possession of the turtle of that species will not invite the
offences alleged against the accused. It is to be noted here that
in the said case Kerela High Court had allowed the application and
quashed the criminal proceeding.
26. In para No.13 of the said decision, Hon'ble Supreme Court has
held as under:-
"13. A perusal of the letter given by the Veterinary
Surgeon as extracted above indicates that Veterinary
Surgeon has identified the Turtle as „Indian Flap Shell
(Lissemy‟s Punctata)‟ whereas the Turtle which is
included in Part II of Schedule I of the Act, 1972 is
"Indian Soft-shelled Turtle (Lissemys punctata
punctata)." Lissemys punctata is a species of which
Lissemys punctata is infraspecies. Although Lissemys
punctata is included in Part II of Schedule I of the Act,
however, the Turtle which has been seized is not that
which is included in Part II of Schedule I. In the facts of
the present case, on the face of it, the Turtle seized is not
included in Schedule I Part II and the Turtle having
already been freed on the second day of its seizure, the
High Court did not commit any error in quashing the
criminal proceedings registered for Wild Life offences."
27. This being the legal and factual position, it cannot be said herein
this case that the prosecution side has succeeded in establishing that
the animal species, which were recovered and seized from the
possession of the accused/appellants were ―Captive Animal‖ or ―Wild
Animal‖ as defined in section 2(5) and 2(36) of the Wild Life
(Protection) Act, 1972, hunting, possession, transportation of which,
without permission of the appropriate authority, contravenes the
provision of Sections 9/39/40(2)/40(2A)/48/48(A)/49/49(B) and 50 of
the Wild Life (Protection) Act, so as to attract the penalty prescribed
under section 51 of the said Act.
28. Though Mr. Gogoi, the learned Special P.P. Wild Life, submits
that though the seized species were not of Schedule Species under
the Wild Life (Protection) Act, yet, they may be treated as wild life in
view of the Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES), to which India is a signatory and
which prohibits transportation and illegal business of wild life, yet, this
court is unable to record concurrence to such submission. As a general
rule, this court is inclined to adhere to strict construction of the statute
and desist from enlarging by implication or intent of the definition of
‗wild life', ‗captive animal' and ‗wild animal' beyond the fair meaning of
the language used in the relevant sections, so as to encompass the
offences and individuals other than those clearly described and
provided for in their language, and also to decide any ambiguity in
favour of the accused.
29. A Constitutional Bench of Hon'ble Supreme Court in the case of
Commissioner of Customs (Import), Mumbai v. M/s Dilip
Kumar and Company & Ors., reported in (2018) 9 SCC 1, has
held that- ―The penal statute which tends to deprive a person of right
to life and liberty has to be given strict interpretation or else many
innocent might become victims of discretionary decision making.‖ This
means that a criminal statute may not be enlarged by implication or
intent beyond the fair meaning of the language used or the meaning
that is reasonably justified by its terms. Therefore, criminal statutes
will not be held to encompass offences and individuals other than
those clearly described and provided for in their language. The strict
construction of criminal statutes complements the rule of lenity, which
holds that ambiguity in a criminal statute should always be decided in
favour of the accused, provided, it is not contrary to legislative intent.
30. However, this rule is of not universal application. Penal statute
should be construed in a manner which will suppress mischief and
advance the object which the Legislature had in view, as held in the
case of Indian Handicrafts Emporium (supra) and Balram
Kumawat (supra) which are being referred by Mr. Gogoi and also in
the case of Lalita Jalan v. Bombay Gas Co. Ltd. reported in
(2003) 6 SCC 107. In State of Madhya Pradesh v. Shri Ram
Singh, AIR 2000 SC 575, it has been observed that Prevention of
Corruption Act is a social legislation defined to curb illegal activities of
public servants and is designed to be liberally construed so as to
advance its object. It has also been held that procedural delays and
technicalities of law should not be permitted to defeat the object
sought to be achieved by the Act.
31. As discussed herein above, neither the name of Siamang Gibbon,
nor the four primate species, which were recovered and seized from
the possession of the accused/appellants, finds mention in Part-I of
Schedule-II, or in any other Schedule, so as to show contravention of
the provisions of sections 9/39/40(2)/40(2A)/48/48(A)/49/49(B) and
50 of the Wild Life (Protection) Act.
32. In view of the factual and legal position, as discussed herein
above, the finding, so recorded by the learned trial court, to the
considered opinion of this court, had failed to withstand legal scrutiny
and the same warrants interference of this court.
33. In the result, I find sufficient merit in this appeal and accordingly,
the same stands allowed. The impugned judgment and order of
conviction of the learned trial court stands set aside. The appellants
shall be released from the jail hazot forthwith, if not warranted in any
other case.
34. Send down the record of the learned court below, with a copy of
this judgment and order. The parties have to bear their own cost.
JUDGE
Comparing Assistant
