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Rafique Ramzan Ali Vs. A.A. Jalgaonkar and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 264 of 1983
Judge
Reported in1985(1)BomCR47; (1984)86BOMLR347
Acts Wild Life (Protection) Act, 1972 - Sections 2(2), 39(3), 40(2), 42, 44(1), 44(2), 49 and 51
AppellantRafique Ramzan Ali
RespondentA.A. Jalgaonkar and Another
Excerpt:
.....or the evidence did not disclose any offence whatsoever as there was not a clue as to whether articles seized were made of skins of the species of lizards and snakes specified in any of the several schedules of act 53 of 1972.;(ii) that the accused never intended by his plea of guilty to admit more than that the facts alleged against him were true and on the facts before the court no offence had been made out and the plea of guilty must be held to be immaterial. ;emperor v. murarji raghunath gujarati (1919) 21 bom. l.r. 753 followed. - - that since the prosecution failed to establish this fact, the prosecution must fail. that no particulars whatsoever have been afforded as to what articles were seized, or which were the subject-matter of the charge, nor have any particulars been..........protected species. that in this matter the prosecution could only proceed on the basis that the articles seized were made of skins of lizards and snakes of the species protected by the act arid the petitioner had thereby committed an offence; yet neither the complainant nor the evidence led had spelt out any offence. that this being the position, no charge could have been framed. that the petitioner's plea of 'guilty' would, therefore, be of no relevance whatsoever, for the petitioner could never have been convicted on the material placed before the court. that in the result, the order was liable to be set aside and the petitioner discharged.4. mr. vakil contended that all that the complaint sets out is that respondent no. 1 went to the shop of the petitioner on the 5th of august 1981.....
Judgment:
ORDER

1. Being aggrieved by an order and judgment dated the 13th of April 1983 in Case No. 34/S of 1982, on the file of the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, convicting and sentencing the petitioner for offences under Sections 39(3), 40(2), 42, 44(1), 44(2), 49 read with Section 51 of the Wild Life (Protection) Act, 1972, the petitioner has preferred the present Revision.

2. It is the prosecution case that the petitioner carries on business in the firm name and style of 'Jooti' at Hotel Sea-Rock, Bandra. That on the 4th of August 1981 the petitioner was found exhibiting for sale articles made of lizard and snake skins. Hence on the 5th of August 1981 respondent No. 1 accompanied by one M. A. Bonda, Assistant Conservator of Forests, raided the said shop. At this time they were accompanied by two panchas. During the course of this raid certain articles came to be seized and a panchnama was drawn up. The petitioner was questioned and he is said to have made a statement admitting his guilt. This statement was reduced to writing. That a complaint was then filed in the Court of the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay. This complaint came to be numbered as Case No. 34/S of 1982. In this complaint the petitioner was charged for having committed various offences under the Wild Life (Protection) Act, 1972. The complaint was proceeded with and evidence of Respondent No. 1 and one of the panchas came to be recorded. On the basis of this evidence, the learned Magistrate proceeded to frame a charge. On the charge being framed, the accused pleaded 'guilty'. By his order and judgment dated the 13th of April 1983 the learned Magistrate convicted the petitioner on various counts, and sentenced him. The petitioner has hence preferred this Revision. The Revision is resisted by Respondent No. 2.

3. At the hearing of this matter, Mr. Vakil, the learned Counsel for the petitioner, urged that the Wild Life (Protection) Act, 1972, was designed to afford protection to certain species of wild life as were from time to time included in the various Schedules of the Act. That there were about 2500 different types of lizards and over 3000 types of snakes. That the Act did not extend to all types of lizards or snakes but only to those species of lizard or snakes specified in the Schedule. That the Act provides that it was an offence to deal in skins or articles made out of skins of such protected species. That in this matter the prosecution could only proceed on the basis that the articles seized were made of skins of lizards and snakes of the species protected by the Act arid the Petitioner had thereby committed an offence; yet neither the complainant nor the evidence led had spelt out any offence. That this being the position, no charge could have been framed. That the petitioner's plea of 'guilty' would, therefore, be of no relevance whatsoever, for the petitioner could never have been convicted on the material placed before the Court. That in the result, the order was liable to be set aside and the petitioner discharged.

4. Mr. Vakil contended that all that the complaint sets out is that Respondent No. 1 went to the shop of the Petitioner on the 5th of August 1981 and seized certain articles said to be made of lizard and snake skin. That the complaint shows that he then asked the petitioner to produce a dealer's licence for dealing in articles or such documents as required to be kept under the Wild Life (Protection) Act, 1972, and the petitioner was unable to produce this. That it is in view of this that the petitioner was charged with having committed offences under Section 51 read with Section 39(3), Sections 51 read with Section 40(1), Section 51 read with Section 40(2), Section 51 read with Section 44, Section 51 read with Section 44(1), Section 51 read with Section 44(2), and Section 51 read with Section 49 of the said Act. That nowhere in the complaint has it been stated that the articles seized were made out of the skins of lizards or snakes such as were specified in any of the Schedules I, II, III, IV, or V or were otherwise covered by the Act, and if the complaint did not make out this case, then ex facie no offence was disclosed and no further proceedings could lie nor could any subsequent proceedings continue, much less would the question of the petitioner putting in a plea of guilty or otherwise arise.

5. Mr. Vakil argued that at the trial one Ali Akbar Jalwankar (P.W. 1) had given evidence. That in this evidence there is no mention whatsoever that the articles seized were or are made of skin of such lizards or snakes the species whereof have been enumerated in any one of the several schedules. That as earlier stated by him, there were over 2500 species of lizards and over 3000 species of snakes a position borne out by the Encyclopaedia Britannica and if this be so, it was incumbent on the prosecution to lead evidence to show that the articles seized were made up of the skins of such lizards and snakes such as were specified in one or the other Schedules of the said Act. That since the prosecution failed to establish this fact, the prosecution must fail.

6. Mr. Vakil argued that the panchnama has of course been put in, but this can only establish the fact of what was seized at the time of the raid and no more and cannot advance the prosecution case any further.

7. Mr. Vakil further added that during the course of the evidence of Ali Akbar Jalwankar a statement said to have been made by the petitioner to the Assistant Conservator of Forests was admitted. That this statement only shows that the petitioner admitted two facts : (1) That be was in possession of the articles that were seized from him, and (2) that he did not have any documents issued under the provisions of the Wild Life (Protection) Act, 1972. But this statement can never mean that the Petitioner accepted the position that the articles seized from him required any certification or permission from the Wild Life Protection Authorities or that the articles were made up of skins of lizards and snakes covered under one, or the other Schedules. That this too cannot assist the prosecution in any manner whatsoever.

8. Mr. Vakil argued that on this basis no charge could have been framed and the accused ought to have been discharged.

9. Mr. Vakil further urged that in so far as the charge is concerned, this too admits of several infirmities. Firstly, a reading of the charge shows that all that had been referred to therein is that the petitioner had displayed for sale lizard and snake skin articles without declaring the same to the Chief Wild Life Wardan. That no particulars whatsoever have been afforded as to what articles were seized, or which were the subject-matter of the charge, nor have any particulars been given as to the species of the lizards or snakes of which the articles are said to have been made, or for that matter no clue whatsoever has been afforded as to whether these articles referred to in the charge were made of any of those species specified in any of the Schedules of the Wild Life (Protection) Act, 1972. That the charges being defective, the plea of guilt of the accused would be immaterial and of no consequence whatsoever and the conviction must hence fail.

10. Mr. Vakil argued that looking to all this, the fact that the accused has pleaded 'guilty' in this case can only be a matter of prejudice. That in any event in this background it cannot be said that he admits the facts, for no relevant facts spelling out any offence have been set forth at any stage, and the Court was and is entitled to discard the plea.

11. In support of his contention he relied upon a decision in the case of Emperor v. Murarji Raghunath Gujarati 21 Born LR 763 : 20 Cri LJ 681. In the said case the accused was charged with misappropriation. He pleaded guilty and was convicted. He came in revision. Dealing with this case the learned Judge observed :

'First I will deal with the plea of guilty. I feel perfectly certain in my own mind that the accused never intended by his plea of guilty to admit more than that the facts alleged against him were true. Whether on those facts he ought to be held to have committed the offence of cheating is really a question of law, as to which the plea of the accused must be considered immaterial. Magistrates sometimes make mistakes of this kind. They think that because an accused person admits the facts, therefore he admits that he has committed the offence with which he is charged. This is one of those cases in which the admission of the facts does not amount to an admission of the offence. Therefore I shall proceed to deal with the case as if there were no plea of guilty.'

Mr. Vakil submitted that a position more or less similar to that case arose in this case and the plea of guilt must now fail.

12. Mrs. Keluskar, the learned Public Prosecutor for Respondent No. 2-State, contended that in the charge the learned Magistrate had referred to animal articles, that the word 'animal article' was defined in Section 2(2) of the said Act and a reading of this must make it clear that word 'animal article' covers article made only of those species of 'animals' specified in the Schedules. That, therefore, there was no magic in contending that no particulars were afforded. That coupled with this was the admission of the accused himself which has gone on record, and in view of this, the question of setting aside the conviction cannot arise.

13. Considering the rival contentions, it may be stated that the complaint ex facie does not disclose any offence whatsoever inasmuch as there is not a clue as to whether articles seized were made of skins of the species of lizards or snakes specified in any of the several Schedules. The matter ought to have ended there. In so far as the evidence is concerned, here again one finds the same lacuna and unless the prosecution went further to establish that the articles seized were made of skins of those species specified in one or the other of the several schedules, the question of there being an offence cannot arise. Furthermore, as pointed out by Mr. Vakil, the so called confessional statement does not 'assist' the prosecution. Mr. Vakil is, therefore, right in his submission that the charge ought not to have been framed and the accused ought to have been discharged.

14. But apart from this assuming that charge was correctly framed, the admission by the Petitioner-accused can only extend to the factual part incorporated in the charge, viz., that certain articles were seized from him and that he did not have or possess any certificates or documents issued by the authorities under the Wild Life (Protection) Act, 1972. But this cannot mean that the Petitioner-accused admitted that the articles that were seized from him did require such documents as specified under the Wiled Life (Protection) Act, 1972. This could have only arisen provided the charge went further to state that the skins used in the said articles seized were of the species of lizards or snakes mentioned in the schedules. Bearing in mind the observations made in the case cited by Mr. Vakil and looking to the nature of the complaint and the texture of the evidence led in this case, it is apparent that the Petitioner never intended by his plea of guilty to admit more than the facts alleged against him were true. On the facts before the Court no offence has been made out, and the plea of guilty must be held to be immaterial in these circumstances.

15. I may here only observe that the provisions of the Wild Life (Protection) Act, 1972, have been designed to prevent discrimination and commercial exploitation of rare species of animals and reptiles, and prosecutions need to be undertaken and conducted in all seriousness. In this matter, however, right from the complaint till the completion of the evidence the approach of the prosecution has been casual inasmuch as the prosecution has failed to adduce any evidence that the articles seized were made up of skins of such lizards or snakes as were enumerated in one or the other Schedules.

16. In the result, the conviction and sentence is set aside. The charge quashed and the Petitioner-accused discharged. Rule made absolute. Fine paid, if any, is ordered to be refunded. Bail bond to stand cancelled. The articles to be returned to the Petitioner-accused.

17. Revision allowed.


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