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TMI Blog2020 (8) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... t none of these animals come under the purview of the Wildlife (Protection) Act, 1972 because of which the Forest authorities themselves made the request to the Chief Judicial Magistrate, Cachar to hand over the investigation of the case to the Custom Department if deemed fit and proper. The forwarding report would clearly indicate that none of the seized animals come within the purview of the Wildlife (Protection) Act, 1972, in which event, the detention of the petitioners under the aforesaid Act would be prima facie not permissible. However, this Court is not making any observation as to the merit of the case at this stage as it is only for the purpose of considering the bail application on the basis of the aforesaid document, which is not disputed by the learned Special Public Prosecutor - this Court is also of the view that detention of the petitioners under the Wildlife (Protection) Act will not be proper as the petitioners cannot be said to have committed any offence under the Wildlife (Protection) Act, 1972. This Court has also noted that the Forest authority has mentioned the possibility of violation of the Customs Act, 1962 for which the Forest authorities also made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lodged on 29.07.2020 by the Range Forest Officer, Hawaithang Range, Dholai. 4. The case of the petitioners as can be seen from the seizure memo dated 29.07.2020 in brief is that one live Kangaroo, three nos. of live exotic tortoises, 6 nos. of live blue Macaws, 2 nos. of live exotic monkeys were seized while they were being transported by a truck of which the petitioner No.1 was the driver and petitioner No. 2 is the person who was accompanying the driver at the time of transportation of the said wild animals. 5. The case of the petitioners is that though the seized animals are exotic animals, yet they do not come under the purview of the Wildlife (Protection) Act, 1972 inasmuch as these are not prohibited animals for possession or transportation and as such, the detention of the petitioners on the ground of violation of the provisions of the said Act is per se, illegal inasmuch as no offence has been committed by them under the Wildlife (Protection) Act, 1972 or any other penal statute. 6. It has been also submitted by learned senior counsel for the petitioners that the fact that these seized animals do not come under the purview of the Wildlife (Protection) Act, 1972 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic Prosecutor submits that if the said document is really the photocopy of a certified copy, he cannot have any valid reason to doubt the authenticity of the same and resist the bail application inasmuch as the said document clearly mentions that the rescued and seized animals do not come under the purview of the Wildlife (Protection) Act, 1972. 10. Heard learned counsel for the parties and perused the materials on record. 11. As also submitted by learned senior counsel for the petitioners, any criminal investigation can be initiated only when an offence is committed under any penal provision of any statute in this country. It is in this context one has to examine as to whether the wild animals which had been rescued and seized by the Forest authorities from the petitioners fall within the category of prohibited animals to be in possession of under the Wildlife (Protection) Act, 1972 so as to endow jurisdiction to the authorities under the Act to initiate the proceeding against the present petitioners in connection with which they are presently lodged in the jail. As clearly mentioned in the forwarding letter dated 29.07.2020, the forest authorities themselves had admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arden authority, Guwahati for their proper health care facility, treatment as well as for safety of Six Macaws, Three Tortoise, One Kangaroo and Two exotic monkey on humanity ground (in good faith). But prior to this, at around 6.30 pm all the suspected person along with rescued live exotic species were taken to the Hon ble Chief Judicial Magistrate, Cachar, Silchar later to PI court, Silchar but unable to produce due to covid issues. Hence there was delay in producing the suspected person seizure report before the Hon ble CJM court, Cachar, Silchar. On 29th July 2020 night two suspected person were kept under the Range Officer Custody after coming from the Silchar. Therefore once again today on 30th July, 2020, the suspected persons were sent to the covid testing center for covid testing and will be produce before the Hon ble CJM, Cachar Silchar. This is for favour of your kind information and necessary onward action. Enclo: 1. Seizure report along with seizure list 2. Accused statement 3. Arrest Memo 4. Check Symptom COVID-19 (Dholai P.H.C.) 5. Veterinary Medical Officer Examination Report. 6. W.T/Message 7. Pachanama 8. Letter to the DFO, As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Wildlife (Protection) Act, 1972. 17. In aforesaid PIL, the petitioner therein had sought for a direction from the Court to be issued to the State authorities to include the exotic birds which come under the category CITES under the Wildlife (Protection) Act, 1972 for protection by making necessary amendments in the said Act. In that count it was observed by the Allahabad High Court that these exotic animals which fall under the category of CITES are not notified under Section 123 of the Customs Act, 1962 so as to render possession of these to be unlawful. As regards the prayer of the petitioner therein to bring these exotic animals within the purview of Wildlife (Protection) Act, 1972, it was declined by the Hon ble High Court as it is within the wisdom of the legislature as to whether to include these as protected animals or not under the Act. 18. In view of above, this Court is also of the opinion that if these exotic animals are not notified under Section 123 of the Customs Act, 1962, perhaps handing over the case to the Customs Department will not serve any purpose, as possession or transportation of these birds cannot be considered to be offence under the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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