Partly allowed

Md. Sakib Ala and 3 Ors. v. the State of Assam and 2 Ors.

Gauhati HC22 Jun 2022Bail Appln./1101/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed the bail application of four accused persons charged with smuggling protected wild porcupines under the Wildlife Protection Act. Identifying the animals as Bengal Porcupines from Schedule II, the court rejected bail for the first two accused dismissed as habitual wildlife traders, while granting bail to the remaining two accused after 41 days of detention.

What did the court decide?

Bail rejected for Accused No. 1 and 2; Bail granted to Accused No. 3 and 4 on Rs. 50,000 with 2 sureties.

Md. Sakib Ala and 3 Ors. Vs the State of Assam and 2 Ors. — Bail and Remand | Gauhati HC (2022)

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GAHC010093402022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Bail Appln./1101/2022

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MD. SAKIB ALA AND 3 ORS S/O. SARAFAT HUSSAIN, VILL. GULHAN NAGAR, P.S. BELSAI, DIST. MURADABAD (UTTAR PRADESH).

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2: MD. SORHAB PASHA S/O. SHAMIM PASHA R/O. VILL. MURADABAD P.S. GALSHAHID DIST. MURADABAD (UTTAR PRADESH).

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3: MAHAMMAD ALI S/O. AFSAR ALI VILL. ROSHANPUR P.S. BHAGATPUR DIST. MURADABAD (UTTAR PRADESH).

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4: MAHROOF ALI S/O. AFSAR ALI VILL. ROSHANPUR P.S. BHAGATPUR DIST. MURADABAD (UTTAR PRADESH)

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VERSUS

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THE STATE OF ASSAM AND 2 ORS REP. BY PP, ASSAM.

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2:THE PRINCIPAL CHIEF CONSERVATOR OF FOREST FOREST AND ENVIRONMENT DEPTT. ASSAM.

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3:THE FOREST BEAT OFFICER

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SADAR BEAT OFFICE RANGIA ASSAM

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Advocate for the Petitioner : MR. B GOGOI

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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22.06.2022

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Heard Mr. R. Senthil Kumar, learned counsel appearing for the accused petitioner. Also heard Mr. K.P. Pathak, learned Standing Counsel, Forest.

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This application under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr. P.C.’ for short) is filed by accused 1. Md. Sakib Ala 2. Md. Sorhab Pasha 3. Mahammad Ali and 4. Mahroof Ali praying for their release on bail in connection with Case No. R/01 of 2022-23 dated 11/05/2022 (Arising from R/20/offence/2022-2023/16 dated 12.05.2022 u/s 9/39/44/49B/51 of the Wildlife (Protection) Act, 1972 (‘W.L.P. Act’ for short).

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The scanned copy of the case diary/status report is placed before the Court.

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Mr. R. Senthil Kumar, learned counsel appearing for the accused petitioners, contends that the case against the accused petitioners, is wholly based on mere suspicion that the seized porcupines are protected scheduled wild species under the W.L.P. Act and since arrest on 12.05.2022, they are

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languishing in jail despite being absolutely innocent. Mr. Kumar emphatically submits that the seized 2(two) animals are African crested porcupines with scientific name Hystrix Cristata belonged to their origin in South Africa and falls within the category of exotic live species, which are beyond the restricted schedule live species listed under the said Act.

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Mr. Kumar also contends that as per the Government of India Advisory, dated 11.06.2020, such wild animals are permitted to be acquisitioned and traded without any restrictions, but requires to make a voluntary disclosure by their stockists to the Chief Wildlife Warden of the State within 6(six) months and then required to obtain an online certificate of possession, within 6 (six) months of the date of the voluntary disclosure under the scheme. Under the aforesaid scheme, the declarer is not required to produce any documentation in relation to the exotic live species.

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According to Mr. Kumar, the seized live species (African crested porcupine) being exotic live species, the arrest and detention of the accused petitioners under the provisions of the W.L.P. Act certainly amounts to abuse of the process of law and as such, they may be directed to be released on bail. In support of his contentions, Mr. Kumar has relied on the judgment passed by the Hon’ble Supreme Court in Hira Lal Hari Lal Bhagwati Vs. CBI, reported in (2003) 5 SCC 257; judgment passed by the Hon’ble Calcutta High Court in Sukanta Mallick Vs. Union of India and Ors., reported in 2022 SCC OnLine Cal 1301; judgment passed by the Hon’ble Meghalaya High Court in Miss J.S. Wahlang Vs. The Union of India and Ors in PIL No. 15 of 2021; judgment passed by the Hon’ble Delhi High Court in Khodiyar Animal Welfare Vs. Trust and Anr. in W.P.(C) No. 6372/2020.

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Opposing the bail application, Mr. K.P. Pathak, learned Standing Counsel, Forest, contends that the seized live Porcupines are protected animal under the W.L.P. Act. Mr. Pathak states that the seized Porcupines do not fall within the category of exotic live species as claimed by the accused petitioners.

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Drawing attention to Annexure E, the registration of change in stock due to Transfer of Exotic Live Species, Mr. Pathak submits that the aforesaid computer generated document is a proposal made online by one Kiran Mithra of Mumbai, dated 11.05.2022, at about 5.11 a.m. and submitted to the Chief Wildlife Warden and his proposal as shown in ‘STATUS’ ‘proposal is pending’, that is, on the date of detection of the case (11.05.2022 at about 12 p.m.).

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Mr. Pathak submits that in their statements recorded under Section 50(8) of the W.L.P. Act, the accused persons have admitted that they failed to produce any document related to possession and transportation of the seized wild animals, before the police and then the Forest officials, from North-East region to Mumbai, on instruction of one absconding accused person.

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Mr. Pathak submits that the statements of the accused persons also reveal that they collected and transported the seized Porcupines from the state of Mizoram and they are habitually involved in trade of wildlife species and their dealing centres are located in Mizoram, Guwahati, Gorakhpur and Mumbai. Therefore, Mr. Pathak vehemently submits that in the aforesaid facts and circumstances as revealed from the case record, the bail application may not be accepted.

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I have given due consideration to the above submissions made by the learned counsel of both sides and perused record.

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The complaint reveals the allegation that on 11.05.2022 at about 12 p.m., an information was received from the Officer-in-Charge, Rangia P.S. by the North Kamrup Forest Division about seizure of 02 (two) Porcupines and some others from a container truck bearing registration No. UP 21 BN 7208, wherefrom all 4(four) accused persons were also apprehended by them. Immediately a forest team of North Kamrup Division and Sadar Beat went to Rangia P.S., where all the seized materials and live species along with the apprehended accused persons were handed over to them.

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It is noticed that the accused persons are in judicial custody for 41 days since 12.05.2022.

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A perusal of the case record reveals that the seized wild porcupines are known as Bengal Porcupine which species is protected as per Schedule II, Part I of the W.L.P. Act, subject, however, to the final outcome in investigation. The accused persons have admitted that those wild porcupines were smuggled from the State of Mizoram and transported by seized truck bearing registration No. UP- 21 BN-7208 for delivery in Mumbai via Muradabad. It is further revealed that prima facie the accused petitioners No. 1 and 2 are habitually involved in trade and commerce of such protected wildlife species and they are members of an underground wildlife racket group.

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It may be pointed out that the statement recorded under Section 50(8) is admissible in evidence under Section 51(9) of the W.L.P. Act.

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I have considered the above cited judgments by the accused petitioners’ side and found that in the backdrop of facts and evidence collected so far in the case, the seized wild animals are being protected wild animals under the W.L.P.

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Act, the principles laid therein could not be applied to the instant case.

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The evidence on record reveals that the seized Porcupines are not exotic live species as is strenuously submitted by the learned counsel for the accused petitioners.

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On appreciation of the incriminating evidence on record, the bail application of the accused petitioners No. 1 and 2, namely Md. Sakib Ala and Md. Sorhab Pasha respectively stands rejected.

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However, on scrutiny of the evidence available on the case record and the length of detention, this Court is of the opinion that further continuation of detention of the accused petitioners No. 3 and 4, namely Mahammad Ali and Mahroof Ali respectively is not required for the purpose of the ongoing investigation in the case.

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Accordingly, it is provided that each of the accused petitioners No. 3 and 4, namely 3. Mahammad Ali and 4. Mahroof Ali , shall be released on bail of Rs. 50,000/- (Rupees Fifty Thousand) with 2(two) sureties of like amount to the satisfaction of the learned S.D.J.M. (M), Rangia subject to the following conditions-

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i) That the accused/petitioners No. 3 and 4 shall cooperate with the Investigating Officer as and when required;

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ii) That the accused/petitioners No. 3 and 4 shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Police Officer or the Court; and

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iii) That the accused/petitioners No. 3 and 4 shall refrain from committing any offences similar to the one of which they are accused or suspected of commission.

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iv) That out of the two bailors, one must be a government servant subject to verification of the relevant documents, if deemed necessary and after such verification, the learned Court below shall return the original documents retaining legible scanned copy thereof on record for future reference.

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This disposes of the bail application.

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JUDGE

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Comparing Assistant

Md. Sakib Ala and 3 Ors. v. the State of Assam and 2 Ors.

Case brief

What is this about?

What did the court decide?

Md. Sakib Ala and 3 Ors. v. the State of Assam and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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