JAYDEV KUNDU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) On 5/2/1992 the range Officer, West Bengal, Mahananda Wild Life Sanctuary, Sukna (O.P. No. 2 herein) seized a good number of captive animals including Hyena. Leopard etc. from the custody of the present petitioner, Jaydeb Kundu at a Mela at Surya Sen Masterda Park, Mahakalpalli, Siliguri under a seizure list prepared in presence of witnesses. The present petitioner and another person were also arrested as accused persons at that time under section 50 of the Wild Life (Protection) Act, 1972. The accused persons were then forwarded to the learned Sub-Divisional Judicial Magistrate, Silliguri. In the forwarding report which was submitted before the learned Magistrate while producing the accused persons it was stated inter alia by the Range Officer that the accused persons were arrested for committing offences under sections 9 and 39 of the Wild Life (protection) Act, 1972. It was also mentioned therein that the accused persons were operating zoo with the animals mentioned in the seizure list and they could not produce and valid documents in support of acquisition and possession of the animals. It was further stated therein that the necessary P.O.R. (Prosecution Report) would be submitted through the Divisional Forest Officer for trial in due course. Subsequently, on 19.2.1992 the Range Officer submitted an application before the learned Magistrate for considering the question of survival of the seized animals and for release of certain items in Mahananda Wild Life Sanctuary and for order of interim custody of the other seized animals at zoo and permanent rescue home and captive breeding center in order to protect the life of the animals. That application was opposed by tie present petitioner. But the learned Magistrate in his order-dated 31.3.1992 observed that the seized animals were government property under section 39. Considering the facts and circumstances and keeping in view the welfare of the wild animals, the learned Magistrate directed the animals to be given to the custody of the Forest Department and also directed the Warden, Wild Life, Sukna Division to do the needful in accordance with the rules for the safety and welfare of the wild animals after obtaining permission from the Chief Wild Life Warden, Government of West Bengal within 15 days from the date of his order and to submit a detailed report to that effect. Being aggrieved by these aid order the petitioner accused has filed this revisional application for quashing the said order as well as the entire proceedings of the Court below, being C.R. Case No. 32 of 1992.

(2.) Mr. Samaresh Banerjee representing the petitioner accused emphatically submitted that even according to the opposite party the petitioner was operating a zoo with the seized animals and that being so the petitioner has contravened no provision of the Wild Life (Protection) Act, 1972 and the seizure of the animals by the Range Officer of the Forest Department was wholly illegal and the entire proceedings should be quashed. He also submitted that the seized property as contained in section 2(14) of the said Act or in Section 39. On the other hand, Mr. Nure Alam Choudhary, the learned Public Prosecutor appearing for the opposite parties submitted that even apart from the particular sections of the wild life (Protection) Act, 1972 as mentioned in the forwarding report submitted to the Court below by the Range Officer while producing the accused persons the petitioner has also contravened certain other provisions of the said Act for which also he is liable to be tried and punished. Here it may be mentioned that the Wild Life (Protection) Act, 1972 suffered extensive amendment by the amending Act, 1991 which came into force on 2nd October, 1991, but certain provisions of that Amending Act, of Course, came into force on a subsequent date. Such as, section 26 of the said Amending Act, namely, the Wild Life (protection) Amendment Act, 1991 (44 of 1991) came into force on the 4th day of February, 1992 in virtue of notification S.O. 112(E) dated the 3rd February, 1992. By the said section 26 of the Amending Act a new chapter, namely, Chapter IV A containing sections 38A to 38Z has been insured in the principal Act. As we have already noted in the forwarding report dated 5/2/1992, the range Officer out two sections of the Wild Life (Protection) Act, 1972 being Sections 9 and 39 which were allegedly violated by the petitioner. Section 9 relates to prohibition and restriction in respect of hunting of wild animals. Hunting has been defined in section 2(16) of the Act as follows: 2(16). Hunting with its grammatical variations and cognate expression, includes (a) Capturing, killing poisoning, snaring and trapping of any wild animals and every attempt to do so, (b) driving any wild animal for any of the purposes specified in Sub-clause (a), injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles.

(3.) The allegation in the forwarding report is that the petitioner was operating zoo with the animals and or demand he could not produce any valid documents in support of acquisition and possession of the animals. The charge of hunting under section 9 requires it to be shown that the petitioner captured any wild animal or did any other thing as mentioned in section 2(16) of the Act in respect of any kind of wild animals mentioned in section 9 in contravention of the provisions of that section. The next section of the Wild Life (Protection) Act, 1972 mentioned in the forwarding report is section 39 of the said Act. Under clause (a) of sub-section (1) of Section 39 which is primarily relevant for our purpose every wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or bred in captivity in contravention of any provisions of this Act or any rule or order made there under or found dead, or killed without a licence or by mistake shall be Government property. The learned Magistrate, it may be mentioned here, brought in section 39(1) (b) but that must be a mistake for 39(1)(a) because clause (b) relates only to animal article, trophy, uncured trophy or meat derived from any wild animal and therefore that clause is not attracted in the present case. It has been argued by Mr. Banerjee that with a view to claiming the wild animal as Government property under section 39(1) (a) on the ground that the same has been kept in captivity as is the allegation here it must be shown in terms of the provisions of the section itself that the concerned wild animal has been kept in captivity in contravention of any provision of this Act or any rule or order made there under. He argued that mere keeping of any wild animal in captivity will not make the animal Government property unless the same was kept in captivity in contravention of any provision of the act or any rule or order made there under. He further argued that in this case there has been no contravention of any such provision by the petitioner in keeping the concerned animals in captivity and therefore these animals cannot be Government property. Sub-section (2) of Section 39, it has been submitted by Mr. Nure Alam Choudhury on behalf of the opposite parties, imposes an obligation upon the person who obtains Possession of Government property and requires the person to report to the nearest police station or the authorised Officer within 48 hours of obtaining such possession. He also referred to sub-section (3) of section 39 which provides inter-alia that no person shall without the previous permission in writing of the appropriate authority acquire or keep in his possession, custody or control or transfer to any person whether by way of gift, sale or otherwise such Government property. As against that Mr. Banerjee argued that the subsections (2) and (3) of section 39 are attracted only when the animals are Government property and not otherwise. He argued that since it could not be shown that the petitioner had kept the concerned animals in captivity in contravention of any provision of the Act or rule or order made there under, there is no question of claiming the concerned animals as Government property under section 39 (1) (a) and that being so nothing in clauses (2) and (3) of the said section will apply to this case inasmuch as those clauses apply only when the concerned animals are Government property and not otherwise.