Neeraj Kumar @ Neeraj Kerketta v. The State
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR]
Present:
The Hon'ble Justice Biswaroop Chowdhury CRR/44/2024 IA No. CRAN/1/2024 Shri Neeraj Kumar @ Neeraj Kerketta
VERSUS
The State for the Petitioner:
Mr. D. IIango, Adv.
Mr. Sumit Karmakar, Adv.
for the Respondent:
Last Heard on: August 30, 2024 Judgment on: October 05, 2024 Biswaroop Chowdhury,J:
The petitioner before this Court is an accused in C.R. Case No.21 of 2013 before Learned Chief Judicial Magistrate at Port Blair, and is aggrieved by the order of Conviction dated 30th June 2022 passed by the Learned Chief Judicial Magistrate Port Blair and the order dated 18th June 2024 passed by Learned Sessions Judge Andaman and Nicobar Islands Port Blair in Criminal Appeal No- 04 of 2022 affirming the order of conviction passed by the Trial Court. The petitioner being aggrieved by the order of conviction passed by the Trial Court
and the order of affirmation by the Appeal Court has come up with the instant revisional application.
The case of the Defacto complainant before the Learned Trial Court may be summed up thus:
1. In the month of October 2012 the petitioner was residing at Ograbranj, South Andaman.
2. On 06/10/2012 at about 19.45 hours police control Room, Port Blair intimated over Phone to the Range Officer the Complainant herein about seizure of One Live Water Monitor Lizard from the possession of Shri Neeraj Kumar, son of Late John resident of Ograbranj and Shri Ajit Kujur, son of Late Lazarous residing at Manpur near Forest Comp South Andaman.
3. Immediately the matter was intimated to Divisional Forest Officer, South Andaman, and on his direction the complainant proceeded to CCS Port Blair on 07/10/2012 and prepared the handing over note as per the direction of the Divisional Forest Officer South Andaman, took over the seized one number of Live Water Monitor Lizard along with two accused persons and seizure memo.
4. The seized Water Monitor Lizard was brought to Range Officer, Goracharma, and the accused persons kept in lock up at C.C.S. Port Blair on 07/10/2012 the handing over note prepared as per the direction of the Divisional Forest Officer, South Andaman, who took
over the seized one number of Live Water Monitor Lizard alongwith two accused persons and seizure memo.
5. The seized water monitor lizard was taken to Zoological survey of India, and N, Regional Centre, Haddo, and the Officer in charge identified the seized wildlife article as Water Monitor Lizard.
6. The seizure intimation was filed in the Court on 8th October 2012 along with seizure memo in original, custody memo in original inspection memo in original injury report in original, FIR in original, handing over note, identification certificate of Water Monitor Lizard in original and Arrest report in original and produced the accused Shri Neeraj Kumar and accused Shri Ajit Kumar.
7. A Misc case was registered vide No. 108 of 2012 in the Learned Court. The seizure intimation filed in Court along with enclosure was treated as part of the complaint.
8. The seized one number Live Water Monitor Lizard was handed over to Deputy Director Biological Park, Chidiyatapu Port Blair on 8th October, 2012. The handing over note received from Range Officer, Biological Park in original was enclosed and treated as part of complaint.
9. Shri T.K. Mathew, Assistant Conservator of Forest was appointed as Enquiry Officer of the case Vide Divisional Forest Officer South Andaman Officer Order No. G/195 dated 12.11.2012 in partial modification of office Order No. G/167 dated 11-10-2012 in which
Shri PJ. Alexander, Assistant Conservator of Forest was appointed as Inquiry Officer but was not able to investigate the case because of proceeding on leave on medical ground.
10.
The Inquiry Officer Shri T.K. Mathew AC, has conducted inquiry and submitted the report vide No. ACF/SA/INQ/14 dated 06.12.2012. 11.
During the investigation the accused persons were arrested and enlarged on bail.
12.
Charge against the accused persons was framed under Section 51 of the Wild Life Protection Act 1972 for violation of Section 9 and 39 of Wild Life Protection Act 1972 to which the accused persons pleaded not guilty and claimed to be tried.
13.
The prosecution during the course of trial examined six witnesses. Upon completion of trial the Learned Trial Court had convicted the accused persons for committing offence punishable under Section 51 of Wild Life Protection Act 1972.
14.
The accused persons were sentenced to undergo simple imprisonment for a period of three years alongwith fine of Rs. 10,000 in default to suffer further simple imprisonment for one month. 15.
The accused persons being aggrieved by the Order of conviction passed by the Learned Trial Court preferred an appeal before the Learned Sessions Judge Port Blair being Criminal Appeal No-04 of 2022.
16.
By Judgment dated 18th June 2024 the Learned Appellate Court was pleased to dismiss the Appeal preferred by the accused persons by affirming the order of Learned Trial Court. One of the accused person viz Ajit Khujur died during pendency of Appeal. The petitioner being aggrieved by the Order of Learned Trial Court and order of Learned Appellate Court has come up with the instant revisional application.
It is the contention of the petitioner that the Learned Trial Court and Learned Appellate Court ought to have considered that the evidence led by the prosecution in the Trial Court would clearly show that the mandatory statutory procedure that is to be followed has not been complied by the complainant/PW-4 and is clear from the depositions of the prosecution witnesses and is violative of statutory provisions and as such vitiates the entire prosecution case. It is further contended by the petitioner that both the Learned Trial Court and Appellate Court ought to have considered that P.W-4, the complainant and P.W-5 the I.O of the case did not prepare the site plan/sketch map of the place of occurrence, it was merely by way of guessing without visiting place of occurrence or spot. It creates doubt about prosecution story alleging that the accused persons were found with seized alamats one Live Water Monitor Lizard at the spot. It creates doubt upon seizure officer with regard to making seizure memo on the spot or detaining the accused persons from the spot.
It is also contended that both the Trial Court and the Appellate Court ought to have considered that the Ograbranj Government School is situated at a busy place, where all the heavyvehicles and public vehicles of other inter islands as well as of that locality crossing continuously towards it and many houses of people are there near the vicinity but no independent witnesses were examined at any stage of the proceedings.
It is contended that both the Trial Court and Appellate Court erred in not considering that without prior permission of the Court the Police Officer has no power to handover the detained accused person and seized alamat property as once the property is seized by the seizing officer it is a property of the court. It is further contended that both the Learned Courts ought to have considered that the police as well as forest officials have not complied the mandatory procedure of law under Section 50 Sub-section 4 of the Wild Life Protection Act 1972 which vitiate the entire proceedings and create doubt on the prosecution story. It is also contended that the seizure witness which is police constable P.W-3 Mohammed Haneefa has given major contradictory evidence against the version of P.W-1 who is the seizing officer and P.W.
3 deposed in his examination in chief that there was two plastic bags and two live water lizards was seized in his presence and he put his signature on the alleged seizure memo but as per the exhibited 1/2 seizure memo prepared by the seizing officer P.W-1 shows one live water lizard which created doubt on the prosecution story that the seizure witnesses have signed the seizure memo in the PS CCA and not on the spot.
Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party, perused the petition filed and materials on record. Mr. Illango Learned Advocate for the petitioner submits that the evidence of the prosecution had several inconsistencies thus the Learned Trial Court was not justified in convicting the petitioner. Learned Advocate further submits that the discrepancies regarding the timing of seizure and its intimation is not considered by the Trial Court and the Appellate Court which are as follows:
a) Timing in seizure memo has been reflected as 23.45 Hours on 06.10.2012.
b) Timing in respect of receipt of information regarding seizure from the Police Officer of PS, CCS by the Forest Ranger is reflected as at 19.45 Hours on 06.10.2012 which is unbelievable.
c) PW. 1 who was heading the raiding team has stated that he has left the police station on 06.10.2012 at about 21.30 Hours. If that be the position then information passing to the Forest Ranger prior to the seizure is not believable.
d) P.W.4 in his examination in Chief has stated that he got the information regarding seizure of Water Monitor Lizard from the Police Control room at about 06.45 P.M on 06.10.2012 whereas the seizure was affected at 11.45 P.M.
Learned Advocate further submits that there is a discrepancy in giving the description of the numbers of Water Monitor Lizards, which are as follows:- a) Seizure memo reflects that one Water Monitor Lizard was seized in a gunny bag from the possession of the accused Neeraz Kumar and Ajit Kujur.
b) PW-3 who is the witness to the seizure and who has put his signature in seizure memo and had participated in the raiding team alongwith police officers on 06.10.2012 has stated that two plastic bags were seized, inside the said bags two live Water Monitor Lizards was kept. c) The range Officer at the time of giving the information regarding the seizure of Water Monitor Lizard has informed the Court that three numbers of live suspected water lizards were required to be handed over to the Deputy Director of Chidiyatapu Biological Park Chidiyatapu.
Learned Advocate also submits that the following discrepancies were found during the evidence of P.W.1 and P.W.3 with regard to the packets in which the alleged Water Monitor Lizard was found, which are as follows: a) P.W. 1 has stated that one number of Water Monitor Lizard was kept in the gunny bag.
b) P.W. 3 has stated that two numbers of Water Monitor Lizards were kept in two plastic bags instead of gunny bags.
Learned Advocate further submits that there were no seal or signature of any of the witnesses over the seized gunny bag or over the envelop. Learned Advocated also submits that the non-production of Malkhana Register by the prosecution or non-examination of Malkhana In-charge to establish the fact that seized articles were kept in the Police Malkhana from 06.10.2012 until 08.10.2012 is fatal for the prosecution.
Learned Advocate submits that the prosecution has failed to give any reason for not producing the Water Monitor Lizard before the Court as the said Water Monitor, Lizard must have been identified through the witness. In this regard the copy of the letter addressed by the DFO to the Assistant Director, Biological Park, Childiyatapu on 8.10.2012 clearly reflects that the Water Monitor Lizard should be released in enclosure after putting a specific identification mark, it was further directed the said one number of Water Monitor Lizard will have to be produced in Court during proceedings of this case. The zoological report does not contain the details of the case pertaining to which the report was forwarded.
Non-examination of the person who has taken the alleged Water Monitor Lizard to the zoological survey of India and brought it back from zoological survey of India is fatal for the case of prosecution and non-production of the General Dairy regarding the receipts of information and deposit of seized articles is also fatal for the prosecution.
because the seizure has been shown from two accused whereas the length of the Water Monitor Lizard is shown as 60 centimetre and the total length is 140 centimeters that means the length of the tail is around 80 centimitres. Thus the actual possession of Water Monitor Lizard becomes doubtful from the accused. The Deputy Director Biological Park, Chidiyatapu was not examined which is a major flaw and this person could have stated with regard to the fate of the said alleged Water Monitor Lizard. The Seized wild animal was never brought before the Court for the purpose of identification. The above said discrepancies are major discrepancies which cannot be brushed aside as all the witnesses are from the department ie. police officials and Forest Officials.
Learned Advocate for the respondent submits that prosecution witnesses have been able to prove the charge against the accused persons. Learned Advocate further submits that the prosecution witnesses have specifically stated the allegations and the contradictions if any are minor. Learned Advocate also submits that the signature of the accused persons in the seizure list shows their involvement in the offences. Learned Advocate submits that when conviction is affirmed by appellate Court the scope of revision is limited.
Before entering into the merits of the case at the very outset it is necessary to consider the maintainability of this revisional application as raised by the Learned Advocate for the respondent.
In order to decide the point of maintainability it is necessary to consider the provisions contained in Section 397 and 401 of the Code of Civil Procedure Corresponding to Section 438 and 442 of Bharatiya Nagarik Suraksha Sonhita 2023.
As the provisions contained in Section 401 and 397 of the Code of Criminal Procedure are retained in Sections 442 and 438 of Bharatiya Nagarik Suraksha Sanhita 2023 and the fact the alleged offence was committed prior to commencement of Bharatiya Nagarik Suraksha Sanhita 2023, provisions of Code of Criminal Procedure is followed in this case. Section 397 of Code of Criminal Procedure provides as follows:
1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Section 401 of code of Criminal Procedure provides as follows:
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307, and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under the Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. In the instant matter although points of law were raised and considered by the Appellate Court but the fact that the petitioner has suffered conviction and a sentence of three years it is necessary in the interest of justice to peruse the evidence adduced and the materials on record before the Trial Court. Thus this application is required to be heard.
Now with regard to the first submission made by the Learned Advocate for the petitioner that the discrepancies in the timings of seizure and its intimation is not considered by the Trial Court and Appellate Court this Court upon considering the evidence and the facts of the case is of the view that it is not fatal to the prosecution case.
With regard to the second submission advanced by Learned Advocate for the Petitioner that seizure memo reflects that one Water Monitor Lizard was seized in a gunny bag from the possession of accused Neeraj Kumar and Ajit Kumar on the other hand P.W. 3 who is the witness to the seizure and has put his signature in seizure memo and had participated in the raiding team along with police officers on 06/10/2012 has stated that two plastic bags were seized
inside the said bags two live Water Monitor Lizards were kept. Again the Range Officer at the time of giving the information regarding the seizure of Water Monitor Lizard has informed the Court that three numbers of live suspected water lizards were required to be handed over to the Deputy Director of Chidiyatapu Biological Park Chidiyatapu. Thus these 3 contradictions are relevant to consider the genuineness of the prosecution case. Moreover from the deposition of P.W-1 and P.W.-2 there appears contradiction. P.W-1 and P.W-2 in their examination in chief have stated that when they proceeded to the place of occurrence and were waiting they found two persons proceeding towards them with a gunny bag in their hand. However P.W.
3 in his examination in Chief has stated that he accompanied SI PMK Kumar and a Police team went to Ograbraj School after getting an information regarding water lizard. He further stated that two persons were sitting in the School compound with two plastic bags and inside the said bags two live water lizards were kept. There is a big difference between two persons coming to a particular place and two persons sitting in a particular place. This is a major contradiction and it cannot be ignored.
With regard to the submission that there were no seal or signature of any of the witnesses over the seized gunny bag or over the envelop and it raises the possibility tampering with seized articles in the absence of the seal, such submission has some substance. Learned Advocate has also relied upon the decision of the Hon'ble Supreme Court in the case of Amarjit Singh Alias
Babbu Vs State of Aunjab reported in 1995 supp(3) SCC-217 where the Hon'ble Supreme Court observed as follows;
'5. According to the learned counsel though this weapon was seized on 27-61990 but was tested by PW 4 only on 28-8-1990 i.e after about 2 months and there is absolutely no explanation for the delay in testing the weapon. The second infirmity pointed out by the learned counsel is that PW 3 after seizing the weapon never sealed the weapon at the spot. The third infirmity pointed out is that the Sub-Inspector of Police instead of sealing the weapon handed over it to one Chhabra Chunilal who had not been examined and who according to PW 3 used to visit the police station. The fourth infirmity is that Exs. P-2 and P-3 admittedly have not been sent to the armoury.
6. After going through the evidence and the records, we see much force in the submissions made by the learned counsel. Leave apart the recovery, the evidence is not inspiring confidence that the material objects Exs P-1 to 3 were recovered in the manner as spoken to by the PWs.
7. The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-
sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW 4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver.' With regard to the submission of Learned Advocate for the petitioner that the non-production of Malkhana Register by the prosecution or nonexamination of Malkhana In-charge to establish the fact that seized articles were kept in the police Malkhana from 06-10-2012 until 08-10-2012 this Court is of the view that to support the case of the prosecution Malkhana Register ought to have been produced and Malkhana-in-charge ought to have been examined.
Learned Advocate relies upon the decision of the Hon'ble Supreme Court in the case of Mohd Hasan Vs State reported in 2000 criLJ. 1510. The Hon'ble Supreme Court in the said case observed as follows: '5. There is yet another staggering circumstance against the prosecution which has shaken the foundation of the prosecution to an irreparable extent. Inspector Raja Ram Yadav (PW-1) deposed that immediately after recovery of the contraband, he came to the spot and took the sealed packets along with CFSL form in his custody and deposited them in the Police Mal Khana. Head Constable Sehdev Singh (PW-2) testified that the said articles along with CFSL form were deposited in the MalKhana vide entry in the Mal Khana Register (Ex.
PW-2/A). Surprisingly, the Register (Ex. PW-2/A) shows that the contraband along with "CRCL Form" was sent to the CFSL, Chandigarh. It needs to be highlighted that in the entry (Ex.PW-2/A) proved from the Mal Khana Register, there is no mention that either the CFSL form has been deposited or the same has been sent to the CFSL Chandigarh along with the sampled contraband. Thus, on this point, the evidences of Raja Ram Yadav (PW-1) and Head Constable Sehdev Singh (PW-2) stands falsified by the said entry (Ex. PW-2/A) in the Mal Khana Register. Even the report of the Chemical Examiner (Ex. PW.7/E) does not mention that any CFSL form along with the sealed packet was received in the office of the CFSL.
It was incumbent upon the prosecution to prove that not only the seized contraband was duly sealed and was duly deposited in the police Mal Khana unhampered but it was also necessary to prove that the sampled contraband which had been duly sealed on the spot remained intact till it reached the office of the CFSL. Further it was necessary to prove that the CFSL form containing the specimen seals which was duly filled at the spot at the time of taking of the sample also remained intact till it reached the office of the CFSL. In the instant case, there is not an iota of evidence to show as to where the CFSL form containing the specimen seals had remained till the sampled contraband was examined by the Chemical examiner. Thus, the vital link between the contraband seized and the report of the Chemical Examiner (Ex. PW.
7/E) was missing in the case.
analysis. Needless to add that the provisions of the Act are so stringent that it cast a duty on the prosecution to rule out any possibility of tampering of the sample and false implication of the accused. It must be borne in mind that severer the punishment, greater care has to be taken to see all the safeguards provided in a statute are scrupulously followed. The learned Additional Sessions Judge did not take notice of the aforesaid infirmities in the prosecution case and unjustifiably accepted the prosecution evidence. Consequently, the impugned order of conviction and sentence cannot be sustained in law.'
The letter addressed by DFO to the Assistant Director Biological Park Childiyatapy no 8/10/2012 also does not state the case number with regard to which report is sought for. Thus it is not clear which lizard was send. However with regard to the submission of the Learned Advocate for the petitioner that the lizard seized was not produced in Court this Court is of the view that it is not always required as considerable period passed from the date of alleged offence and date of evidence. Moreover animals should be kept in the place where it can live properly and grow up in a natural way. It is not reasonable to bring out animals from its natural place of living. With regard to the submission that the Deputy Director Biological Park Chidyatopu was not examined which is a flaw in the prosecution such submission has some substance as filing of a document without examining its maker is not a strong piece of evidence.
Lastly the case of the prosecution that two persons were carrying a gunny bag it is clear that it is not necessary for two persons to carry one gunny bag with live monitor water lizard of 140 centimeters length. It was definitely being carried by one person if we believe the other allegations of the prosecution are true. But the prosecution did not specify who was carrying the bag. Thus the case of the prosecution is not transparent. In the facts and circumstances mentioned hereinabove this Court is of the view that the prosecution has not been able prove the charge against the petitioner/accused person beyond reasonable doubt.
Thus the petitioner/accused person is entitled to an order of acquittal. Hence this Revisional Application stands allowed. Judgment dated 30th June 2022 passed by Learned Chief Judicial Magistrate South Andaman District Port Blair in C.R. Case No. 21 of 2013 and Judgment dated 18th June 2024 passed by Learned Sessions Judge Andaman and Nicobar Island in Criminal Appeal No. 04 of 2022 are set aside. Petitioner/accused Neeraj Kumar @ Neeraj Kerketta is acquitted of the charge, and is discharged from his bail bond. This Revisional Application stands disposed.
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Biswaroop Chowdhury, J.)