STATE OF KERALA Vs. ODIASE AUSTIN GOUBADIA

JUDGEMENT

(1.) THESE appeals arise out of the impugned common judgment dated 3.5.2014 of the Additional Sessions Court, Muvattupuzha, in Crl.Appeal No.565/2013 and Crl.Appeal No.558/2013 respectively. The aforementioned appeals on the file of the Sessions Court concerned arose out of the impugned judgment dated 23.10.2013 of the Judicial First Class Magistrate's Court No.1, Perumbavoor, in C.C.No.1420/2012, whereby the accused therein have been convicted of the offence under Sec.51(1) of the Wild Life (Protection) Act and have been ordered to undergo the sentence of three years imprisonment and a fine of rupees ten thousand each.

(2.) THE crux of the prosecution allegation is as follows: - PW -1 (one Sri.C.D.Jose) was working as the Superintendent of Air Intelligence of Cochin International Airport, Nedumbassery, Ernakulam district on 26.1.2012. That the two accused herein came to the domestic terminal of the said airport on 26.1.2012 for boarding the Jet Airways Flight to Chennai and when the trolley bag of A -1 (an Ecuadorian citizen) was put through the scanner, the authorities were suspicious about the contents of his bag and accordingly, the bag was opened and examined. When A -2 (a Nigerian citizen) noted that A -1 is intercepted by the Customs officials, A -2 immediately left the airport and proceeded to Chennai by train. Later A -2 was taken into custody by the Customs officials from Chennai on 27.1.2012 early morning and was brought to the Cochin International Airport, Nedumbassery, Ernakulam, on 28.1.2012 at 8 a.m. A -1's bag was examined as stated above whereupon it was found that it contained one black colour suit case and on opening the same, it was found it contained a black plastic wallet. When the plastic wallet was opened, it was found that there were 16 sachets made out of condoms containing a light cream coloured liquid and one among the 16 sachets was found broken. The Customs officials could not exactly identify the liquid, But PW -1 proceeded as if the contraband was some narcotic drug. Thereupon, PW -1 (Superintendent of the Air Intelligence Customs) contacted various Government departments including the Forest Department of the Government of Kerala in order to exactly ascertain about the nature of the contraband. A -1 was arrested and detained by PW -1 on 26.1.2012 at 6 p.m. Accordingly, the material objects were also detained by PW -1 on that day. On getting information from PW -1, the material objects containing the above said sachet and other objects were inspected by PW -2 (Divisional Forest Officer, Malayattur) after the latter had reached the office of PW -1 in the airport premises on 27.1.2012 for that purpose. According to the prosecution, PW -2 (Divisional Forest Officer) opined that the liquid contained in the sachets is snake venom, which is a prohibited article under the provisions of the Wile Life (Protection) Act, 1972. As stated above, on the next day, viz., 28.1.2012, 8 a.m, that A -2 was brought over to the Cochin Airport premises, after his arrest and interception at Chennai on 27.1.2012 early morning. PW -9 (Range Officer, Kalady, who is the investigating officer) went to the Cochin Airport on 28.1.2012, as instructed by her superior (PW -2 - DFO) and thereupon PW -9 (Range Officer) took possession of both the accused and the material objects and on her reaching back the Range office concerned, had registered a crime as O.R.No.1/2012 of Karakkad Forest Station, Ernakulam district, alleging offence punishable under Sec.51 of the Wild life (Protection) Act, 1972.

(3.) PW -9 completed the process of preparation of Ext.P -11 mahazar on 28.1.2012 at about 5 p.m. PW -9 produced A -1 and A -2 before the jurisdictional Magistrate on 28.1.2012 at around 11 p.m., along with the Form I report. A -1 and A -2 were thus remanded to custody on 28.1.2012. For further investigation, the custody of A -1 and A -2 were obtained from the court by PW -9 Range Officer and they were questioned. Samples from the 16 condoms including the broken one were taken by PW -9 (Range Officer) with the help of PW - 8 (Veterinary Surgeon). According to PW -8, the samples so taken were sealed. The samples were sent for analysis to the National Institute for Interdisciplinary Science and Technology, Thiruvananthapuram. The institute authorities reported that, to conduct analysis, they require known -samples of (known -reference samples) of snake venom. As per the sanction obtained from the Government of Kerala in terms of Ext.P -13 G.O. dated 31.3.2012, PW -9 and PW -2 obtained reference sample of snake venom from three variety of snakes, viz., cobra, king cobra and viper respectively from the Malampuzha Snake Park and were thus sent to the laboratory for analysis. After conducting analysis, Ext.P -14 report was issued by PW -10 on 19.7.2012 reporting that "the aforementioned results suggest that there is similarity between the seized thondi samples and the authentic snake venom samples provided by Karakkad Forest Station." Later, PW -12 (who is the successor in office of PW -9), in his capacity as the investigating officer, submitted the final report/charge sheet under Form II before the jurisdictional Magistrate's court concerned on 1.11.2012 for offences under Sec. 44 read with Sec.51(1) of the Wild Life (Protection) Act, 1972. The jurisdictional Magistrate took cognizance of the case as Calendar Case, C.C.No.1420 of 2012. The prosecution examined prosecution witnesses, PWs -1 to 12 and also marked prosecution documents as per Exts.P -1 and P -22. Material Objects, MOs 1 to 4 were also marked by the prosecution. The defence did not adduce any evidence. The case was heard and the trial court found the respondents guilty of the offences charged and convicted them and they were directed to undergo sentence of three years' rigorous imprisonment along with fine of rupees ten thousand and in the default thereof, they were ordered to undergo three months simple imprisonment. The lower appellate court, viz., the Sessions Court concerned, set aside the conviction and sentence and acquitted both the accused of the offences as per the aforementioned judgment dated 3.5.2014 in Crl.Appeal No.565/2013 and Crl.Appeal No.558/2013 respectively. It is aggrieved by the setting aside of the conviction and sentence imposed on the accused and the consequent acquittal ordered in favour of them, that the State of Kerala, through the prosecution agency concerned, has filed the instant Crl.Appeal No.673/2014 and Crl.Appeal No.605/2014 respectively pertaining to A -1 and A -2 respectively.