According to Section 293 of the Cr.P.C., the reports
of certain Government Scientific Experts are per se
admissible, which have been specified therein. The office of
the Director, Wildlife Institute of India, is not specified
therein, but it can be specified by way of a notification by
the Central government under Section 293(4)(g) of the Cr.P.C.
No such notification has been placed on record to show that
the said Scientific Expert was specified by a notification as
an Expert within the provisions of Section 293 of the Cr.P.C.
Thus, the report in question Ext.PW-2/D was not per se
admissible, which cannot be relied upon to base conviction of
the respondent. No such copy of the notification was placed
on the record or shown during the course of arguments and as
such the said report cannot be relied upon to prove the guilt
of the respondent.
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
State of H.P. vs. Mohammod Aslam Wani
Dated : 13.7.2010
Coram: Mr.Justice V.K. Ahuja, Judge.
Cr.A. No. : 557 of 2003
This is an appeal filed by the appellant under
Section 378 of the Cr.P.C. against the judgment of the court
of learned Judicial Magistrate, Manali, District Kullu, H.P.,
dated 13.6.2003, vide which the respondent was acquitted of
the notice of accusation put to him for the offence
punishable under Section 51, proviso of the Wild Life
(Protection) Act, 1972.
This is an appeal filed by the appellant under
Section 378 of the Cr.P.C. against the judgment of the court
of learned Judicial Magistrate, Manali, District Kullu, H.P.,
dated 13.6.2003, vide which the respondent was acquitted of
the notice of accusation put to him for the offence
punishable under Section 51, proviso of the Wild Life
(Protection) Act, 1972.
2. Briefly stated the facts of the case are that
a secret information was received by the Wild Life Wing that
the respondent was involved in the sale of Shahtoosh shawls.
A raiding party was formed by Shri N.K. Thakur, Deputy
Director, Wild Life Preservation, New Delhi, consisting of
several Forest Officials. He went to the shop of the
respondent, introduced himself as a customer and asked for
Shahtoosh shawls. The respondent showed him three Shahtoosh
shawls and thereafter, the Incharge of the raiding party
signaled other members, who entered the shop and apprehended
the respondent who was trying to sell 3 Shahtoosh shawls.
These were taken in possession from the respondent after
completion of formalities in the presence of the raiding
party members. The Shahtoosh shawl is highly protected as
the same is made of Chiru and hunting of Chiru is an offence
under Section 9 of the Wild Life Protection Act, 1972. A
complaint was filed under the provisions of Wild Life
Protection Act, 1972 and the respondent was tried, as
detailed above, leading to his acquittal.
3. I have heard the learned counsel for the
parties and have gone through the record of the case.
4. The first point taken by the learned Assistant
Advocate General appearing for the appellant was that the
learned trial Court has considered minor contradictions as
major and accordingly not relied upon the evidence of the
prosecution witnesses, which approach of the learned trial
Court cannot be said to be correct. It has been pointed out
during the course of arguments that minor contradictions are
that the shawls were having the sticker of Kashmir Craft
Corporation, which is another shop situated nearby but the
raid was conducted in the shop of the respondent namely,
Kashmir Art Emporium. Thus, it was observed that since the
shawls were having stickers of different shop, these were not
recovered from the possession of the respondent. The learned
trial Court has discussed in detail this contradiction in the
stickers on the shawls and has not believed the prosecution
a secret information was received by the Wild Life Wing that
the respondent was involved in the sale of Shahtoosh shawls.
A raiding party was formed by Shri N.K. Thakur, Deputy
Director, Wild Life Preservation, New Delhi, consisting of
several Forest Officials. He went to the shop of the
respondent, introduced himself as a customer and asked for
Shahtoosh shawls. The respondent showed him three Shahtoosh
shawls and thereafter, the Incharge of the raiding party
signaled other members, who entered the shop and apprehended
the respondent who was trying to sell 3 Shahtoosh shawls.
These were taken in possession from the respondent after
completion of formalities in the presence of the raiding
party members. The Shahtoosh shawl is highly protected as
the same is made of Chiru and hunting of Chiru is an offence
under Section 9 of the Wild Life Protection Act, 1972. A
complaint was filed under the provisions of Wild Life
Protection Act, 1972 and the respondent was tried, as
detailed above, leading to his acquittal.
3. I have heard the learned counsel for the
parties and have gone through the record of the case.
4. The first point taken by the learned Assistant
Advocate General appearing for the appellant was that the
learned trial Court has considered minor contradictions as
major and accordingly not relied upon the evidence of the
prosecution witnesses, which approach of the learned trial
Court cannot be said to be correct. It has been pointed out
during the course of arguments that minor contradictions are
that the shawls were having the sticker of Kashmir Craft
Corporation, which is another shop situated nearby but the
raid was conducted in the shop of the respondent namely,
Kashmir Art Emporium. Thus, it was observed that since the
shawls were having stickers of different shop, these were not
recovered from the possession of the respondent. The learned
trial Court has discussed in detail this contradiction in the
stickers on the shawls and has not believed the prosecution
story, which approach cannot be said to be correct. The
possibility of the respondent keeping the shawls with the
stickers of other shop cannot be ruled out and the fact
remains that the shawls were recovered from his shop and,
therefore, the respondent cannot get any benefit out of this.
5. Another contradiction pointed out by the
learned trial Court was that it was not mentioned in the
complaint that the respondent had shown other shawls of
Pashmina to the Incharge of the raiding party, but when he
persisted to show other good variety of shawls, then three
Shahtoosh shawls were shown to him. It was not necessary to
mention this fact in the complaint by the Incharge of the
raiding party that the Shahtoosh shawls were shown by the
respondent on his persistence and the fact remains that he
was shown Shahtoosh shawls, which were taken in possession
according to the procedure. Such contradictions were minor
and had to be ignored and they do not affect the case of the
prosecution.
6. The main infirmity pointed out by the learned
counsel for the respondent during the course of arguments was
that there has been non-compliance of the provisions of
Section 100(4) of the Cr.P.C. in joining two or more
respectable witnesses of the locality in which place the
search is to be conducted. These provisions were reproduced
by the learned trial Court and it was clearly admitted by all
the three witnesses, namely, PW-1 B.D. Syal, PW-2 Rajeev
Sharma and PW-3 K.N. Thakur that the secret information was
received and their office is at a distance of 1/2 km. and on - 4 -
way, there were shops and persons were available, including
the office of the SDM and the Naggar Panchayat. However,
none was associated before conducting the raid in the shop of
the respondent. The provisions of Section 100(4) of the
Cr.P.C. are mandatory and in case an Investigating Officer is
unable to comply with these provisions, he has to offer a
satisfactory explanation and if the explanation so furnished
by him is found satisfactory, it can be said that there has
been compliance of the provisions of Section 100(4) of the
Cr.P.C. Neither any effort was made by the Investigating
Officer, the Incharge of the raiding party, or the other
members of the raiding party, to associate independent
witnesses, though available, nor any explanation was given in
regard to the non-compliance of the provisions of Section
100(4) of the Cr.P.C. It proves to be fatal since these
provisions were mandatory in nature and the non-compliance of
these provisions results in the acquittal of the respondent.
7. Another plea raised by the learned counsel for
the respondent during the course of arguments was that the
report of the expert in this case Ext.PW-2/D, which is of the
Director of Wildlife Institute of India, cannot be said to be
per se admissible under the provisions of Section 293 of the
Cr.P.C. According to Section 293 of the Cr.P.C., the reports
of certain Government Scientific Experts are per se
admissible, which have been specified therein. The office of
the Director, Wildlife Institute of India, is not specified
therein, but it can be specified by way of a notification by
the Central government under Section 293(4)(g) of the Cr.P.C. - 5 -
No such notification has been placed on record to show that
the said Scientific Expert was specified by a notification as
an Expert within the provisions of Section 293 of the Cr.P.C.
Thus, the report in question Ext.PW-2/D was not per se
admissible, which cannot be relied upon to base conviction of
the respondent. No such copy of the notification was placed
on the record or shown during the course of arguments and as
such the said report cannot be relied upon to prove the guilt
of the respondent.
8. The net result of the above discussion is that
the final findings recorded by the learned trial Court
leading to the acquittal of the respondent cannot be said to
be perverse calling for an interference by this Court.
9. In view of the above discussion, I accordingly
hold that there is no merit in the appeal filed by the
appellant, which stands dismissed. The bail bonds furnished
by the respondent shall stand discharged.
July 13, 2010. (V.K. Ahuja),
(TILAK) Judge
possibility of the respondent keeping the shawls with the
stickers of other shop cannot be ruled out and the fact
remains that the shawls were recovered from his shop and,
therefore, the respondent cannot get any benefit out of this.
5. Another contradiction pointed out by the
learned trial Court was that it was not mentioned in the
complaint that the respondent had shown other shawls of
Pashmina to the Incharge of the raiding party, but when he
persisted to show other good variety of shawls, then three
Shahtoosh shawls were shown to him. It was not necessary to
mention this fact in the complaint by the Incharge of the
raiding party that the Shahtoosh shawls were shown by the
respondent on his persistence and the fact remains that he
was shown Shahtoosh shawls, which were taken in possession
according to the procedure. Such contradictions were minor
and had to be ignored and they do not affect the case of the
prosecution.
6. The main infirmity pointed out by the learned
counsel for the respondent during the course of arguments was
that there has been non-compliance of the provisions of
Section 100(4) of the Cr.P.C. in joining two or more
respectable witnesses of the locality in which place the
search is to be conducted. These provisions were reproduced
by the learned trial Court and it was clearly admitted by all
the three witnesses, namely, PW-1 B.D. Syal, PW-2 Rajeev
Sharma and PW-3 K.N. Thakur that the secret information was
received and their office is at a distance of 1/2 km. and on - 4 -
way, there were shops and persons were available, including
the office of the SDM and the Naggar Panchayat. However,
none was associated before conducting the raid in the shop of
the respondent. The provisions of Section 100(4) of the
Cr.P.C. are mandatory and in case an Investigating Officer is
unable to comply with these provisions, he has to offer a
satisfactory explanation and if the explanation so furnished
by him is found satisfactory, it can be said that there has
been compliance of the provisions of Section 100(4) of the
Cr.P.C. Neither any effort was made by the Investigating
Officer, the Incharge of the raiding party, or the other
members of the raiding party, to associate independent
witnesses, though available, nor any explanation was given in
regard to the non-compliance of the provisions of Section
100(4) of the Cr.P.C. It proves to be fatal since these
provisions were mandatory in nature and the non-compliance of
these provisions results in the acquittal of the respondent.
7. Another plea raised by the learned counsel for
the respondent during the course of arguments was that the
report of the expert in this case Ext.PW-2/D, which is of the
Director of Wildlife Institute of India, cannot be said to be
per se admissible under the provisions of Section 293 of the
Cr.P.C. According to Section 293 of the Cr.P.C., the reports
of certain Government Scientific Experts are per se
admissible, which have been specified therein. The office of
the Director, Wildlife Institute of India, is not specified
therein, but it can be specified by way of a notification by
the Central government under Section 293(4)(g) of the Cr.P.C. - 5 -
No such notification has been placed on record to show that
the said Scientific Expert was specified by a notification as
an Expert within the provisions of Section 293 of the Cr.P.C.
Thus, the report in question Ext.PW-2/D was not per se
admissible, which cannot be relied upon to base conviction of
the respondent. No such copy of the notification was placed
on the record or shown during the course of arguments and as
such the said report cannot be relied upon to prove the guilt
of the respondent.
8. The net result of the above discussion is that
the final findings recorded by the learned trial Court
leading to the acquittal of the respondent cannot be said to
be perverse calling for an interference by this Court.
9. In view of the above discussion, I accordingly
hold that there is no merit in the appeal filed by the
appellant, which stands dismissed. The bail bonds furnished
by the respondent shall stand discharged.
July 13, 2010. (V.K. Ahuja),
(TILAK) Judge
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