Titty Alias George Kurian vs Deputy Range Forest Officer

Ashok Bhushan, J

We have heard Shri Abhilash M.R., learned counsel appearing for the petitioner and Shri Nishe Rajen Shonker, learned counsel for the respondent.

We find sufficient ground to review the judgment dated 16.05.2018. The order of this Court dated 16.05.2018 is recalled. The review petition is

allowed.

This appeal has been filed against the judgment dated 16.11.2017 of the Kerala High Court by which the High Court has allowed Criminal M.C.

No.2720 of 2017 filed by the respondent by quashing proceedings in C.C. No.706 of 2016. The Deputy Range Forest Officer aggrieved by judgment

of the High Court has come up in this appeal.

The facts of the case briefly are:

On 25.07.2016 from the respondent, Titty alias George Kurian a Turtle was seized by Rani Forest Flying Squared Range Staff at Karumbanakulam.

The offence under Section 2, 9, 39A, 49A and 51 of the Wild Life (Protection) Act, 1972 was registered. A charge-sheet was submitted by the Forest

Officer. After seizure of the Turtle, the same was sent for identification to Veterinary Surgeon who by its letter dated 26.07.2016 identified the Turtle

on inspection as “Indian Flap Shellâ€​, the scientific name is “Lissemys Punctataâ€​. The Court on 27.07.2016 directed the Turtle to be freed.

The respondent-accused filed an application before the High Court for quashing the criminal proceedings. It was submitted before the High Court

that Indian Flap Shell Turtle which was seized was not found included in Schedule I of Part II of the Wild Life (Protection) Act, 1972, hence, such

possession of the Turtle of that species will not invite the offences alleged against the accused. The High Court being satisfied that Turtle seized was

not that species of Turtle which is included in Part II of Schedule I of the Act, 1972, allowed the application and quashed the criminal proceedings.

Aggrieved by the judgment of the High Court this appeal has been filed by the Deputy Range Forest Officer.

Learned counsel for the appellant contends that whether Indian Soft-shelled Turtle (Lissemys punctata punctata) and Indian Flap Shell Turtle

(Lissemys puntata) are two different species or part of single species or a subspecies of the latter are matters of expert evidence and ought to have

been decided only under trial and the High Court committed error in allowing the application under Section 482 Cr.P.C.

Learned counsel for the respondent supporting the order of the High Court contends that when the Turtle seized does not find mention in the

Schedule of the Wild Life (Protection) Act, 1972, there is no occasion for registering any offence, and the registration of offences has rightly been

quashed by the High Court with which no interference is called for. He further submits that Turtle was seized on 25.07.2016 and was freed on

27.07.2016 and being not available for further examination the report of the Veterinary Surgeon is only material to look into and scientific name which

was given by the Veterinary Surgeon does not find place in the Schedule of the Act, 1972.

We have considered the submissions of the learned counsel for the parties and have perused the records.

The following reasons have been given by the High Court for allowing the Criminal M.C. of the respondent:

“4. On a perusal of Part II of Schedule I of the Act, it seems that Item No.8 is Indian Soft Shell Turtle (Lissemys Punctata Punctata). The

certificate issued by the Senior Veterinary Surgeon to the Range Officer, Erumely in this case shows that the Turtle seized in this case is Indian Flap

Shell Turtle (Lissemys Punctata). The above said Schedule does not contain the species named Indian Flap Shell Turtle. When the Turtle in question is

not one belongs to Indian Soft Shell Turtle, the capture or its possession cannot be treated as an offence within the meaning of the Wild Life

Protection Act. Matters being so, all further proceedings in C.C.No.706/2016 of the Judicial First Class Magistrate’s Court-II, Kanjirappally,

based on OR No.5/2016 of the Erumely Forest Range as against the petitioner are liable to be quashed.â€​

After seizure of the Turtle on 25.07.2016 on next day the reference was made by the Deputy Range Officer to Veterinary Surgeon for

identification of the Turtle. The Veterinary Surgeon after inspection wrote a letter on 26.07.2016 to the Range Officer to the following effect:

“From,

Dr. Anil Kumar T Senior Veterinary Surgeon B.V. Sc & A.H. Veterinary Hospital Reg. No.1329, Erumely.

To

Range Officer Erumely,

Erumely.

Subject: Species identification

Reference: Deputy Range Officer on 26.07.2016.

As per the above reference on 26.07.2016 a turtle belonging to a turtle family was brought for identification, and on inspection it is found that the turtle

is Indian Flap Shel and the scientific name is “Lissemy’s Punctataâ€​ and therefore it is certified.

26-07-2016

Erumelyâ€​

The Veterinary Surgeon identified the Turtle as ‘Indian Flap Shell’ and the scientific name “Lissemy’s Punctataâ€. Item No.8,

Schedule I Part II is to the following effect:

“8. Indian Soft-shelled Turtle (Lissemys punctata punctata).â€​

Section 9 of the Act, 1972 prohibits hunting of any wild animal under Schedule I, II, III and IV except as provided under Sections 11 and 12.

Sections 11 and 12 are the provisions where hunting is permitted by the permission of Chief Wild Life Warden. In case a person hunts any of the wild

animals which are included in Schedule I to IV, it becomes an offence inviting the penalty under Section 51 of the Act, 1972.

A perusal of the letter given by the Veterinary Surgeon as extracted above indicates that Veterinary Surgeon has identified the Turtle as ‘Indian

Flap Shell (Lissemy’s Punctata)’ whereas the Turtle which is included in Part II of Schedule I of the Act, 1972 is “Indian Soft-shelled

Turtle (Lissemys punctata punctata).†Lissemys punctata is a species of which Lissemys punctata is infraspecies. Although Lissemys punctata is

included in Part II of Schedule I of the Act, however, the Turtle which has been seized is not that which is included in Part II of Schedule I. In the

facts of the present case, on the face of it, the Turtle seized is not included in Schedule I Part II and the Turtle having already been freed on the

second day of its seizure, the High Court did not commit any error in quashing the criminal proceedings registered for Wild Life offences.

We do not find good ground to interfere with the order of the High Court by which the High Court has exercised its jurisdiction under Section 482

Cr.P.C. On the facts of the present case, the appeal is dismissed.