Allowed

Saddam Ali v. the State of Assam

Gauhati HC8 Sept 2025Crl.Rev.P./233/2013

Case brief

AI extract

What is this about?

Criminal revision allowed. The High Court set aside the conviction and acquittal the petitioner because the prosecution failed to provide evidence that the seized 'HUDU' birds were listed in the Schedule to the Wildlife (Protection) Act, relying on newspaper reports which constituted hearsay. The court distinguished the identification discrepancy in Titty @ George Kurian.

What did the court decide?

Conviction and sentence set aside; petitioner acquitted.

Saddam Ali Vs the State of Assam — Narcotics (NDPS) | Gauhati HC (2025)

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GAHC010130372013

2025:GAU-AS:13313

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

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Case No. : Crl.Rev.P./233/2013

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SADDAM ALI

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S/O- LT. HAMID ALI, R/O- NO. 2 MOTHGHARIA, UNDER NOONMATI P.S., DIST.- KAMRUP, ASSAM.

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VERSUS

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THE STATE OF ASSAM

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Advocate for the Petitioner : MS.I KRISHNATRAIYA, MR.A K BHUYAN,MR.M K DAS,MS.S CHUTIA,MS.P PATHAK,MS.N CHOUDHURY

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Advocate for the Respondent : , ,,PP, ASSAM,,

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BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS

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JUDGMENT & ORDER (ORAL)

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Date : 09-09-2025

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Heard Mr. A.K. Bhuyan, learned counsel assisted by Ms. N. Choudhury,

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learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Special Public Prosecutor for Forest Department, Government of Assam looking after wildlife for offences.

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2. The criminal revision has been filed by the petitioner, namely, Saddam Ali invoking powers under section 397/401 of Cr.PC assailing the judgment and order dated 21.05.2013, passed by the learned Additional Sessions Judge No.1, Kamrup, Guwahati in Criminal Appeal No.100/2012 , whereby the conviction and sentence of the present petitioner recorded by the learned trial court was upheld and confirmed.

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3. The petitioner faced trial in G.R Case No. 624/2008 under Section 51 of the Wildlife (Protection) Act, 1972, (hereinafter referred to as Act) and upon completion of such trial, the learned trial court was pleased to convict him under Section 51 of the Act and sentence him to undergo Simple Imprisonment (S.I) for 1(one) year and pay a fine of Rs.10,000/-( in default undergo SI for three months) .

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4. The background facts, in a nutshell, are that based on specific information, Sri Ashok Kumar Das, Officer-in-charge of Amchang Wildlife Sanctuary, Guwahati Wildlife Division, carried out a search operation along with his staff on 18.02.2008 in Islampur village under Noonmati P.S and allegedly recovered two HUDU birds from the possession of the petitioner. General Diary Entry (GDE No. 845) was made and subsequently, Noonmati PS Case No. 61/2008 was registered under Section 51 of the Wildlife (Protection) Act, 1972, giving rise to the aforementioned G.R Case No. 624/2008.

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5. During the trial, the prosecution examined only two witnesses, while the defence did not adduce any evidence. As already stated, the judgment and order of conviction and sentence, though taken up in appeal, resulted in the affirmation of the conviction and sentence, giving rise to the present revision. Before proceeding further, the relevant extracts of Section 51 of the Act are reproduced herein below :

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51. Penalties. -

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(1) Any person who contravenes any provision of this Act (except Chapter V-A and section 38-J) or any rule or order made thereunder or who commits a breach of any of the conditions of any license or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to three years or with fine which may extend to [one lakh rupees] or with both:

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Provided that where the offence committed is in relation to any animal specified in Schedule I [****] or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park [or where the offence relates to a specimen of a species listed on Appendix I of Schedule IV], such offence shall be

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punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be less than [twenty-five thousand rupees]:

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Provided further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term of the imprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less than [one lakh rupees].

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(1-A) Any person who contravenes any provisions of Chapter V-A, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and also with fine which shall not be less than [twenty-five thousand rupees].

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(1-B) Any person who contravenes the provisions of section 38-J shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

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Provided that in the case of a second or subsequent offence, the term of imprisonment may extend to one year or with fine which may extend to five thousand rupees.

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(1-C) Any person, who commits an offence in relation to

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the core area of a tiger reserve or where the offence relate to hunting in the tiger reserve or altering the boundaries of the tiger reserve, such offence shall be punishable on first conviction with imprisonment for a term which shall not be less than three years but may extend to seven years, and also with fine which shall not be less than fifty thousand rupees but may extend to two lakh rupees; and in the event of a second or subsequent conviction with imprisonment for a term of not less than seven years and also with fine which shall not be less than five lakh rupees but may extend to fifty lakh rupees.

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(1-D) Whoever, abets any offence punishable under subsection (1-C) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for that offence.

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(2)When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy, uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to

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the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.

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(3)Such cancellation of licence or permit or such forfeiture shall be in addition to any other punishment that may be awarded for such offence.

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(4) Where any person is convicted of an offence against this Act, the Court may direct that the licence, if any, granted to such person under the Arms Act, 1959 (54 of 1959), for possession of any arm with which an offence against this Act has been committed, shall be cancelled and that such person shall not be eligible for a licence under the Arms Act, 1959 (54 of 1959), for a period of five years from the date of conviction.

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(5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 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 V-A unless such person is under eighteen years of age.

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6. The case of the prosecution was that the “HUDU” birds seized from the possession of the petitioner falls within the list of endangered wildlife species mentioned in the Schedules to the Act and that possession of the same being a punishable offence under the law, the petitioner was rightly prosecuted and tried for an offence under the Act.

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7. Before proceeding further, it may be mentioned herein that the Court has a limited mandate in adjudicating a criminal revision against conviction, especially pursuant to concurrent findings of facts by two learned criminal courts below.

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8. As per the settled principles of law, the threshold for interference with concurrent findings of fact is rather high and is permissible in a situation where the finding of fact by both the Courts below is perverse, that is, based on no evidence or perhaps complete misreading of evidence. The mandate would also extend to a situation where there is gross irregularity; a jurisdictional error or a gross error of law leading to a miscarriage of justice. In this regard, there are catena of decisions of the Hon’ble Supreme Court as well as of this Court. However, for the purpose of the present judgment, a reference may be made to the decision of the Hon’ble Supreme Court in the case of Ram Briksh Singh Vs. Ambika Yadav, reported in (2004) 7 SCC 665, wherein, as stated in para no.4.

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9. The relevant paragraph (para no.4) may be reproduced herein below :

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4. Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised

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sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.

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10. On the touchstone of these broad principles, now, the materials revealed by this case have to be perused and studied to determine whether the impugned judgments recorded by the learned Courts below require any interference in exercise of revisional jurisdiction against the conviction of the petitioner.

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11. The learned counsel for the petitioner has submitted that the case has been registered and investigated by an official who is not authorized in law under the Act to do so, thereby, constituting an infirmity in the investigation and prosecution right from the inception.

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12. It is further submitted that there are discrepancies in the testimony of the 2 (two) prosecution witnesses casting doubts on the seizure of the alleged endangered birds from the possession of the petitioner. It is pointed out and submitted that one of the prosecution witnesses has stated and testified about seeing the petitioner/accused and the alleged endangered birds in the police station.

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13. Another contention raised by the petitioner’s side through his learned counsel is that the prosecution has not been able to prove that the seized

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“HUDU” birds are indeed a listed endangered wildlife, the possession of which could constitute an offence under that Act.

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14. Summing up the submissions, the learned counsel for the petitioner’s side submitted that the conviction and sentence of the petitioner has been wrongly recorded and he has also suffered a criminal proceeding for so many years since 2008 and that the impugned judgments and orders may be set aside and quashed.

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15. On the other hand, Mr. Sharma, the learned Special P.P appearing on behalf of the Forest Department, supports the impugned judgments and orders, contending that there is no infirmity in the same. It is submitted, referring to the State of Assam - that a Range Officer is one of the authorized persons for such investigation. In this regard, the learned Special P.P has drawn attention of the Court to Section 3 of the Assam Wildlife (Protection) Rules, 1997.

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16. The relevant Section 3(1) as referred to by the learned Special P.P may be reproduced herein below :

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Authorities appointed- (1) Forest Officer' means any person appointed by name or as holding an office by or under the orders of State Government to be Principal Chief Conservator of Forests, Chief Conservator of Forests, and Chief Wildlife Warden, Conservator of Forests, Director/Field Director, Deputy Conservator of Forests, Senior Wildlife Warden, Divisional Forest Officer, Enforcement Officer, Deputy Field Director, Assistant

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Conservator of Forests, Research Officer, Range Officer, Forest Ranger, Deputy Ranger, Beat Officer, Depot Officer, Sub-Beat Officer, Forester-I, Forester-II, Forest Guard or to discharge any function of a Forest Officer appointed under clause (2) of Section 2 of the Indian Forest Act, 1927 and Assam Forest Regulation, 1891.

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(2) In the exercise of the duties and functions, a Game Keeper shall be equivalent in rank to that of a Deputy Ranger, a Head Game watcher shall be equivalent in rank to that of a Forester and the Game Watcher and other Officers and employees below that rank shall be equivalent in rank to that of a Forest Guard, while other Officers not mentioned herein shall be considered equivalent in ranks of the Forest Officers as may decided by the State Government.It is also submitted by the learned Special P.P that despite the prosecution adducing 2 (two) prosecution witnesses, their testimony has cogently proved that the petitioner was in possession of prohibited wildlife, constituting an offence under the Act, and that he was rightly convicted and sentenced.

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17. It is also submitted that for the offence that has been proved against him, the petitioner was imposed with a relatively lenient sentence. It is also

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submitted by the learned prosecution that the “HUDU” Birds belongs to a family of owls and that it is commonly considered to be belonging to the family of “Red Indian Horn Owl”.

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18. I have perused the relevant materials, the petition, the impugned judgments and the pertinent areas of the case record, received in original for adjudication of this revision. I have also considered the rival submissions addressed at the Bar.

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19. It may be mentioned herein that Section 9 of the Act prohibits hunting of wildlife enumerated in Schedule I to Schedule IV of the Act. Section 51(1) of the Act provides for various penalties for contravention of the provisions of the Act. The relevant provision of Section 51(1) has already been narrated above earlier.

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20. Out of the 2 (two) prosecution witnesses examined, it cannot be said from the testimony of PW-2 that he has witnessed the alleged seizure of the endangered “HUDU” birds from the residence of the petitioner, as he has clearly stated in his testimony about the PW-1/informant coming with the accused to the police station. However, it also emerges from his cross-examination that he saw the two birds in the police station as brought by the informant along with the accused and PW-2 seized the said birds from the informant in the police station.

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21. As pointed out by the learned Special P.P, the relevant provisions of the wildlife rules enacted by the State of Assam empower a Range Officer, amongst

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others, as one of the authorized persons. Therefore, in my considered opinion, there is no infirmity in the prosecution case on that count.

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22. As regards, the evidence regarding the seizure of the “HUDU” birds within the ambit of revisional jurisdiction, I do not find much scope for disagreement with the appreciation of evidence of PW-1, who is also the informant in the case. From his testimony, it emerges and is reasonably proved that the alleged “HUDU” birds were recovered from the house of the petitioner. However, as already mentioned earlier, the search operation was carried out by the informant/PW-1 along with staff, but surprisingly, no other person was examined as a witness. I also do not find any independent witnesses regarding the seizure. Nevertheless, the testimony of PW-1 on its own accord has legs to stand on in my considered view.

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23. Under the scheme of the Wildlife Act, possession or hunting of one of the enlisted wildlife is prohibited and constitutes a criminal offence. The prohibited wildlife is mentioned in the schedules to the Act.

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24. Upon perusing the schedules, I could not find any listing of any wildlife by the name “HUDU”. It may be mentioned herein that the chart listing the wildlife indicates both the common names and the scientific names.

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25. To successfully prosecute a person for committing a wildlife offence of this nature, it would be essential for the prosecution to prove the fact that the accused person was in possession etc. of wildlife listed [common names and the scientific names] in the Schedules thereby, making possession of the same, an offence under the Act. The proof of the same would be a foundational fact that

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the prosecution would be required to prove in a wildlife offence of this nature. Therefore, without proving this foundational fact, there would be a serious infirmity in the prosecution case, which might even lead to the failure of the prosecution case.

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26. The aforesaid foundational fact of the seized wildlife, being one of the listed wildlife in the Schedule to the Act, has to be proved by the prosecution by acceptable evidence during the trial.

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27. In this regard, reference may be made to a decision of the Hon’ble Apex Court in the case of Titty @ George Kurian Vs Deputy Range Forest Officer, (2021) 1 SCC 812 . In the said case, discrepancy was found between the name which was given to the seized wildlife vis-a-vis the listed wildlife of the Schedule, that the seized wildlife was supposed to be. The said discrepancy was found to be unacceptable and the quashing of the proceedings by the High Court was upheld by the Hon’ble Apex Court.

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28. The relevant paragraphs may be reproduced herein below:

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Section 9 of the 1972 Act, prohibits hunting of any wild animal under Schedules I, II, III and IV except as provided under Sections 11 and 12. Sections 11 and 12 are the provisions where hunting is permitted by the permission of Chief Wildlife Warden. In case a person hunts any of the wild animals which are included in Schedules I to IV, it becomes an offence inviting the penalty under Section 51 of the 1972 Act.

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A perusal of the letter given by the veterinary surgeon as extracted above indicates that the veterinary surgeon has identified the turtle as “Indian Flapshell (Lissemys punctata)” whereas the turtle which is included in Part II of Schedule I to the 1972 Act, is “Indian Soft Shell Turtle (Lissemys punctata punctata)”. Lissemys punctata is a species of which Lissemys punctata punctata is infra species. Although Lissemys punctata is included in Part II of Schedule I to 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 wildlife offences.

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29. In the instant case, though I have not found any infirmity in the authority of the informant in conducting the operation and I also do not find much infirmity in the testimony of PW-1/informant - however, as regards the foundational fact that “HUDU” was one of the listed wildlife in the Schedule to attract wildlife offence, the prosecution has not adduced evidence.

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30. From the reading of the trial court’s judgment, I find that the learned trial court on this point has just mentioned/held that “HUDU” birds belong to a species of owls and also referred to some newspaper reports that said variety of

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owls is endangered.

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31. It may be mentioned herein that newspaper reports could be in the nature of hearsay evidence unless, perhaps, the concerned person who made the report is examined in person. In any case, in a criminal prosecution where the standard of proof is so high, satisfaction on such a foundational fact cannot be recorded merely on reference to newspaper reports, in my considered view.

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32. Therefore, though not much infirmity has been found with regard to other aspects of the prosecution case, the recording of the foundational facts by the learned courts below suffers from infirmity and error of law. The basic linkage between the identity of the seized wildlife and the same being one of the enlisted wildlife in the Schedule of the Act has not been proved in any manner by evidence.

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33. In this context, both the learned courts below committed an error of law and facts in accepting the linkage without its proof by evidence. Accordingly, in the given facts and circumstances and in the backdrop of the above discussion, I come to the considered finding that the conviction recorded by the learned courts below suffered from a basic error of law and fact and would require interference in this criminal revision, failing which there would be miscarriage of justice.

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34. Consequently, the criminal revision is allowed and the impugned judgment and order dated 21.05.2013, passed by learned Additional Sessions Judge No.1, Kamrup, Guwahati in Criminal Appeal No.100/2012, affirming the conviction and sentence recorded by the learned SDJM(S), II, Kamrup(M) in G.R

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Case No. 624/2008 vide judgment and order dated 03.08.2012 - is hereby set

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aside and quashed .

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35. Resultantly, the petitioner/convict stands acquitted.

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36. Send back the trial court records.

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37. Accordingly, the criminal revision petition stands allowed and disposed of on the aforesaid terms.