Sulendra Singh And Another vs State Of Uttarakhand

Ravindra Maithani, J

Mr. Girish Chandra Lakhchaura, Advocate, for the applicant and Ms. Manisha Rana Singh, Deputy Advocate General for the State.

Heard.

The applicants - Sulendra Singh and Manish Kumar, who are in custody in FIR/complaint no. 15/2019, for the offences punishable under Sections 2, 9, 39, 50 and 51 of the Wild Life (Protection) Act, 1972 (for short "the Act"), registered at Police Station - Kaladhungi, District - Nainital have sought their release on bail.

The facts have been revealed in the bail rejection order and the applicants have also filed copy of the memo of taking meat of Chital and some articles into custody by the forest officers. According to it, on 28th July, 2019, upon the information having been received, applicant Manish Kumar was caught when he was cooking meat of Chital. When interrogated, the applicant Manish Kumar revealed that applicant Sulendra Singh gave him the meat. Thereafter from the possession of the applicant Sulendra Singh also, meat of chital was recovered. The recovery memo records that the applicants confessed their guilt.

Learned counsel for the applicants would argue that there is no evidence against the applicants; it is yet not established that the meat recovered was that of chital; there is no independent witness and it is a case fit for bail.

The Court put a question to learned counsel for the State as to under what provision of the Act, the applicants have been arrested. Learned counsel for the State would submit that the arrest can be made under Section 50 of the Act. Reference has been made to Section 50(1)(c ) and Section 50 (3) of the Act. These Sections are as hereunder:

"50. Power of entry, search, arrest and detention.- (1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorized by him in this behalf or the Chief Wild Life Warden or the authorized officer or any Forest Officer or any Police Officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,-

(a)............

(b)............

(c). seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him.

(2)..................

(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him."

(emphasis supplied)

A perusal of the above provisions make it clear that the power of arrest is not absolute. It is a conditional under Section 50(1) (c), the condition is that "unless the arresting officer is satisfied that the offender will appear and answer any charge which may be preferred against him, the arrest shall be made" and Section 50 (3) says "unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him."

Simply, because an offence has been committed under the Act, arrest is not permissible. Arrest can be made under Section 50(1)(c) and 50 (3) of the Act only under certain conditions as stated, hereinbefore.

Long ago, in the case of Joginder Kumar vs. State of U.P. and others, (1994) 4 SCC 260, the Hon'ble Supreme Court held that a person is not liable to arrest merely on the suspicion of a complicity in an offence.............................. Except in heinous offence, an arrest must be avoided if a police officer has issued a notice to a person to attend the Station House and not to leave the station without permission would do.

In the year 2009, Section 41-A of the Code of Criminal Procedure, 1973 has been introduced to meet such contingency when arrest may be avoided. Section 50 of the Act also had a mechanism for avoid arrest. The recovery memo in the instant case does not record that any such satisfaction of the arresting officer was arrived at while arresting the applicants. Both the applicants are local villagers; the provision of Section 50(1)(c) and 50(3) of the Act have not been complied with in the instant case while arresting the applicants.

Meat was being cooked when the applicants were arrested. How could the police officer ascertained by just looking the meat that it belonged to a chital. Report has yet to be received. The applicants are in custody for more than three months.

Having considered all the facts and attending factors in the case, this Court is of the view that both the applicants are liable to be enlarged on bail.

The bail application is allowed. Let the applicants, namely, Sulendra Singh and Manish Kumar be released on bail, on their each executing a personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the court concerned.

It is made clear that any observation made by this Court is only for the purpose of deciding the present bail application and the same shall not be taken into consideration at all in any other proceedings.