Saturday, December 9, 2023

Chhattisgarh High Court disposes of PIL alleging illegal transportation of domestic elephants from UP

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The Chhattisgarh High Court disposed of a Public Interest Litigation (PIL) filed alleging illegal transportation of domestic elephants from the State of Uttar Pradesh to the State of Chhattisgarh being used for begging.

Aditi Singhvi, counsel for the petitioner submits that on 08.07.2019 Forest Crime Case was registered by the respondent Forest Department in regard to the same.An offence under Sections 48A and 49C(6) of the Wild Life (Protection) Act, 1972 was registered against the private respondent. The Range Officer, Forest Range, Raipur investigated the matter and it was found that two elephants (one male and one female) were brought to Raipur since last 25 to 30 years and the said elephants were used for begging during various festivals. The Mahavats were unable to produce the documents relating to the ownership when the same were demanded by the Forest Department. After the offence was registered the said elephants were seized and it was found that the elephants belong to one Kewla Shankar Charitable Trust which is owned by the private respondent.

She further submits that at first it was intimated by the Mahavats that there were two female elephants, namely, Chanchal and Anarkali, however, during the investigation it was found that there was one male and one female elephant, namely Mithun and Anarkali respectively. The owner, private respondent produce the ownership certificate of the elephants. However, it was found that proper documentation relating to the male elephant was not available as the records had not been mutated after the male elephant was donated by one Mohammad Anwar to Kewla Shankar Charitable Trust. One of the elephants was blind.

Singhvi further submitted that after investigation it was concluded that the private respondents had violated the provisions of Sections 48A and 49C(6) of the Act of 1972. However, surprisingly instead of following the procedure provided under the Act of 1972, the respondent forest officials compromised the matter with the private respondents and fined them Rs. 25,000/- each, total Rs. 50,000/- and released the elephants on Supurdnama with condition that the private respondents will get the ownership documents rectified and will not enter the State of Chhattisgarh without permission.

It is further submitted by Singhvi that if an offence under Section 51 of the Act of 1972 is committed, cognizance can only be taken by the Court under Section 55 of the Act of 1972 and the Forest officials have a very limited power to compound the offences under Section 54 of the Act of 1972.

Singhvi also submits that Section 54 of the Act of 1972 very specifically provides that the State Government may empower the Chief Wild Life Warden or any officer of the rank not below the rank of below Deputy Conservator of Forest to accept a fine of not more than Rs. 25,000/- from any person against whom a reasonable suspicion exists that he has committed an offence against this Act, however the proviso to this Section very clearly provides that no offence for which a minimum period of imprisonment has been prescribed in Section 51 of the Act of 1972 shall be compounded.

Singhvi further submits that in the instant matter the subject matter of the violation of Section 48A of the Act of 1972 is a Schedule-I animal against which a minimum sentence of 03 years has been provided under Section 51 of the Act of 1972. The same cannot be compounded under Section 54 of the Act of 1972 as has been done by the Forest Officials herein. Furthermore, the wild animals seized could not have been released back on Supurdnama by the Range Officer as the power for the same lies with the Assistant Conservator of Forests.

On the other hand, H.S. Ahluwalia, learned Deputy Advocate General, appearing for respondents No. 1 to 5/State submits that a written complaint was received to the officer of Divisional Forest Officer, Raipur that two elephants are being used for begging within the town of Raipur. The forest staff reached the spot and prepared a seizure panchnama in which two Indian Elephants, one male and one female were taken into custody from Mahavat of the elephants named as Rinku Sonkar and Kamlesh Giri. Thereafter, detail enquiry was conducted and it was found that these two elephants were transported from the State of Uttar Pradesh to State of Chhattisgarh and query was made from the Mahavat regarding the ownership documents with respect to the elephants and the permission, if any granted for transportation of the elephants from State of Uttar Pradesh to State of Chhattisgarh. The ownership documents were seized which shows that the owners of the elephants were Kevar Shankar Tiwari and Mohammed Ahmad and the whole proceeding was conducted in front of the two independent witnesses, namely, Amit Singh and Sunil Saha of nearby locality. On the basis of search, seizure and enquiry conducted by the forest officials, it was found that there was clear violation of the Section 48A and 49C(6) of the Wild Life (Protection) Act, 1972 and preliminary offence report (POR) bearing registration number 6287/02 was registered against the Mahavat of the elephants.

Ahluwalia further submits that the respondent No. 5 (Range Officer, Forest Range Raipur) vide letter dated 29.07.2019 intimated to the Divisional Forest Officer (respondent No.3) about the result of preliminary enquiry conducted by him. In the said letter, the concerned officer has specifically mentioned that after considering relevant factors present in case, the elephants were handed over to the custody of their owners, after execution of affidavit on stamp paper of Rs.100/-, with surety amount in mode of bankers cheque .

It has been categorically mentioned in the said letter that the concerned officer has handed over the elephants on Supurdnama to the owners in front of two independent withnesses. He also submits that the offence registered is still pending against the Mahavats and the owners of the elephants. With respect to the said crime, the respondent No. 3 issued a letter dated 17.07.2019 to the Chief WildLife Warden, Lucknow, Uttar Pradesh to verify the ownership certificate which was seized during the preliminary enquiry. In reply to the letter dated 17.07.2019, the Principal Chief Conservator of Forest, Project Tiger, Lucknow, Uttar Pradesh vide letter dated 01.08.2019 informed to the respondent No. 3 that the ownership certificate is genuine and further, it has been mentioned that no permission was obtained under provision of Section 43 of the Act of 1972 by the accused persons.

Ahluwalia also submits that upon receiving the information from the authority of State of Uttar Pradesh, the respondent No. 3 vide letter dated 30.08.2019 directed the respondent No. 5 to proceed ahead against the accused persons. He further submits that the petitioner has wrongly interpreted the impugned order dated 15.07.2019 indicating that authority had compounded the offences instead of taking any action under Section 51 of the Act of 1972. The order dated 15.07.2019 merely reflects that security amount to be received from the accused persons under provision of Section 50 sub-section 3A of the Act of 1972. It is respectfully submitted that respondent No. 5 has initiated the Superdnama proceeding as per provisions of Section 50(3A) of the Act of 1972 on instruction received from superior authority Principal Chief Conservator of Forest, Wild Life and Divisional Forest Officer.

Ahluwalia further submits that the respondent No. 3 vide letters dated 26.10.2021 and 07.04.2023 directed the respondent No. 5 to intimate about the status of the proceedings initiated under the provision of the Act of 1972 against the private respondents. In similar manner, letters were issued by respondent No. 4 (Sub Divisional Forest Officer, Raipur) vide letters dated 04.02.2020 and 06.02.2023 to the respondent No. 5 directing to intimate about the status of the investigation for offences registered under the provisions of the Act of 1972. In reply to the letters, the concerned authority i.e. respondent No. 5 vide letter dated 15.06.2023 intimated that on 31.01.2023 notices were issued to the private respondents for appearing before the office with regard to the investigation of the offence registered under the provisions of the Act of 1972, but the private respondents till date did not turned up to the notice.

Considering the submissions made by the counsel for the parties, the Division Bench of Chief Justice Ramesh Sinha and Justice N.K. Chandravanshi directed the authority concerned to conclude the investigation within a period of six weeks from the date of receipt of copy of the order and thereafter to submit a report before the competent Court.

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