KABC010077932024 IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE (CCH-53) Dated this the 27th day of March, 2024 PRESENT Sri. B.G. Pramoda, B.A.L., LL.B., LII Addl. City Civil & Sessions Judge, Bangalore. Crl.Misc.No.2792 /2024 petitioners: 1. Sri.Muneer Basha S/o Mahaboob Basha, Aged about 37 years, R/at Dasanapura, Mayasandra, Anekal, Bengaluru – 562107.

2. Sri.Abdul Raheem S/o Abdul Rasheed, Aged about 36 years, R/at No.6, 8th Cross, Padarayanapura, Bengaluru.

(Accused No.1 and 2 in judicial custody) (By Sri.Sateesh T., Advocate) 2 Crl.Misc.No.2792/2024 -V/S- Respondent : State of Karnataka By Intelligence Officer, Directorate of Revenue Intelligence, Bengaluru Zonal Unit. (Represented by Learned Spl. Public Prosecutor)

ORDER

This petition is filed by the petitioners u/Sec.439 of Cr.P.C., praying to grant bail to them in Cr.No.22/2024 (F.No.DRI/BZU/S-IV/ENQ-21/INT-NIL)/2024 of Directorate of Revenue Intelligence for the offences punishable u/Sec.39, 40, 42A, 49A, 49B and 51 of Wild Life Protection Act 1972, pending on the file of learned Special Court for Economic Offences at Bengaluru.

2. It is stated in the petition that the respondent

Police have registered a case in Cr.No.22/2024 (F.No.DRI/BZU/S-IV/ENQ-21/INT-NIL)/2024 against the petitioners and others alleging the offences punishable u/Sec.39, 40, 42A, 49A, 49B and 51 of Wild Life Protection Act

1972. The respondent police during the course of investigation

of the case have arrested the petitioners on 05.03.2024 and 3 Crl.Misc.No.2792/2024 produced them before the learned Magistrate. The petitioners were remanded to judicial custody by Learned Magistrate. It is further stated in the petition that the petitioners are innocents and they have not involved in the commission of alleged offences. The petitioners have filed bail application before the trial court. The trial court has rejected their bail application vide order dated 12.03.2024 on flimsy grounds. The petitioners are hail from respectable family and have no bad antecedents or previous convict. The petitioners are collie and they are only bread earning member of their family. The petitioner No.1 is having old aged parents. The petitioners were not in physical possession of alleged contraband and police have arrested them on suspicion and falsely implicated them in the case. They are permanent resident of address mentioned in the cause title. The petitioners are ready to abide by any terms and conditions imposed by this court for their enlargement on bail and they are ready to furnish suitable surety for their appearance before the court. Hence, the petitioners have prayed to allow their petition.

3. The learned Special Public Prosecutor has filed

the objection to the petition by contending that the petition filed by the petitioners u/Sec.439 of Cr.P.C. is not maintainable. It 4 Crl.Misc.No.2792/2024 is further stated in the objection that the petitioners and co- accused were in frequent contact with each other and who have been held by respondent DRI redhandedly while they were making attempt for sale of 2 Ivory Tusks worth of Rs.2.5 crores. There lies a prima case against the petitioners. The petitioners were found in possession of 2 Ivory Tusks which are found under Part ‘A’ of Schedule 1 at Sl.No.83 of Wild Life Protection Act, 1972. It is further stated in the objection that the statements of both the petitioners were recorded and both have admitted the commission of the alleged offences by them. The alleged offences are Economic offences not only victimize individuals with pecuniary loss, but also have serious repercussions on the national economy. It is further stated in the objection that the investigation is not yet completed. Certain other persons who have abetted in the said offence are to be traced and interrogated. If the petitioners are enlarged on bail, they may escape the process of law, Scuttle the investigation and destroy the evidence. On these among other grounds, the learned Spl. Public Prosecutor has prayed to reject the petition filed by the petitioners.

4. Heard the arguments of learned Spl.Public Prosecutor

and learned counsel for the petitioners. The learned SPP has 5 Crl.Misc.No.2792/2024 filed his written arguments. Perused the petition, objection, written arguments, citations and other materials on record.

5. Having done so, the following points will arise for my

consideration: (1) Whether the petitioners have made out grounds for granting bail u/s.439 of Cr.P.C.? (2) What order?

6. My findings on the above points are as under:

(1) Point No.1 .. In the Negative (2) Point No.2 .. As per final order for the following: R E A S O N S

7. Point No.1:- The respondent authority has

registered a case in Cr.No.22/2024 (F.No.DRI/BZU/S-IV/ENQ- 21/INT-NIL)/2024 against one Muneer Basha and 6 others alleging the commission of offences punishable u/Sec.39, 40, 42A, 49A, 49B and 51 of Wild Life Protection Act 1972, on the basis of complaint given by the Intelligence Officer, Directorate of Revenue Intelligence, Bengaluru zonal Unit. The petitioners have produced the certified copy of the application for remand, 6 Crl.Misc.No.2792/2024 certified copy of order sheet in Cr.No.22/24 pending on the file of learned Spl. Court for Economic Offences, Bengaluru and other documents. The petitioners are shown as accused No.1 and 2 in the remand application.

8. It is alleged in the remand application that, specific

intelligence was gathered that a gang is involved in the illegal trade of Elephant Tusks(Ivory) will be passing by HP Petrol bunk, Attibele, Raikote road, at around 11.00 a.m., on 05.03.2024 and they will be having contraband item in their possession. The intelligence also indicated that the gang will be travelling in an auto-rickshaw bearing registration No.KA- 01-AC-7040 for carrying out this trade of Elephant Tusks. Further, I.O has informed the mahazar witnesses about the information and requested them to witness the intended proceedings of seizure of elephant tusks. Thereafter, the team of DRI Officers and mahazar witnesses went near HP Petrol, Attibele, Rayakottai Road and kept a watch. At about 10.45 a.m., the said auto-rickshaw bearing registration No.KA-01- AC-7040 was identified at about 50 mts from the spot and the DRI officials surrounded the vehicle and found two persons namely the accused No.1 and 2, who were found in possession of the said contraband that is the Elephant Tusks 7 Crl.Misc.No.2792/2024 (2 no.s). During further enquiry of accused No.1 and 2, they revealed that there are five more persons who are a part of their team and also involved in smuggling of elephant tusks waiting inside a White Indica car bearing registration No.KA- 02-ME-9690 that is parked 500 mts away from the spot and they are doing surveillance for any incoming police vehicles. On the said information, the I.O. along with witnesses, the offenders interdicted and officers of DRI BZU proceeded towards the second vehicle and intercepted the vehicle along with five persons i.e. accused No.3 to 7. On being asked about any valid license for trade of elephant tusks and for possession of elephant tusks, the accused No.1 and 2 have stated that they does not have any license or valid legal documents for possessing or trading of elephant tusks. Hence, the respondent authority has seized two elephant tusks and auto-rickshaw bearing No.KA-01-AC-7040.

9. Thereafter, I.O. has arrested accused No.1 to 7

and produced them before the learned Judge of Spl. Court for Economic Offences, Bengaluru. The learned Judge has remanded the accused No.1 to 7 to judicial custody. Thereafter, the accused No.1, 2, 4 to 7 have filed bail 8 Crl.Misc.No.2792/2024 application before the trial court. The learned trial Judge vide order dated 12.03.2024 was pleased to dismiss the bail application filed by the present petitioners and other accused. Hence, the petitioners i.e. the accused No.1 and 2 have filed this petition being aggrieved by the order of the trial court by rejecting their bail application. The petitioners have contended that they are innocents and they have not committed the alleged offences and they have been falsely implicated in the case. The learned counsel for the petitioner has argued that the proceedings initiated against the petitioners itself is not maintainable. It is further argued that there are no eyewitnesses to the incident and the petitioners were not in physical possession of any contraband and they have been arrested on suspicion ground. The respondent authority has no power to file complaint against the petitioners and other accused.

10. The learned Spl. PP. on the other hand in the

written arguments has reiterated all the contentions taken by the respondent authority in the written arguments and hence, the entire contentions of learned SPP taken in the written 9 Crl.Misc.No.2792/2024 arguments are not reproduced herein to avoid repetition of facts.

11. I have perused the impugned order of the trial

court dated 12.03.2024. The trial court in the impugned order has observed that the offences alleged against the accused No.1 and 2 is serious in nature as they were found transporting two elephant tusks by concealing the same in auto-rickshaw bearing registration No.KA-01-AC-7040. It is also observed by learned magistrate that the other accused persons having indulged in the surveillance as to arrival of police very much amounts to abatement and conspiracy in commission of offence by accused No.1 and 2. The trial court has observed that there are prima faice materials and reasonable grounds regarding the involvement of accused in commission of alleged offences. The trial court has also observed that the gravity of offence being that of against the wile life which is very much affects the ecology of the country and poses the threat to the flora and fauna and causing grave imbalance to the environment. On the aforesaid grounds, the learned trial judge has rejected the bail application filed by the petitioners. 10 Crl.Misc.No.2792/2024

12. Even though the offences alleged against the

petitioners are not exclusively punishable with death of imprisonment for life and even though the minimum punishment for commission of alleged offence is three years and which may extend to seven years and fine of not less than Rs.25,000/-, the offences alleged against the petitioners are serious in nature as observed by the learned trial judge. The present petitioners are found in possession of two elephant tusks and the said two elephant tusks along with one auto- rickshaw in which the petitioners were transporting the said two elephant tusks were seized by the I.O. by conducting mahazar.

13. The seized elephant tusks are covered under

part-A schedule-1 at serial No.83 of Wild Life Protection Act,

1972. As per Sec.39(c) of Wild Life Protection Act, ivory

imported into India and an article made from such ivory in respect of which any offence against this act or any rule or order made their under shall be the property of the government. The present petitioners have been apprehended redhandedly with two elephant tusks. u/Sec.57 of the Wild Life Protection Act, 1972, “ Where, in any prosecution for an 11 Crl.Misc.No.2792/2024 offence against this Act, it is established that a person is in possession, custody or control of any [wild animal, captive animal], animal article, meat, trophy, uncured trophy, specified plant, or part or derivative thereof it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such [wild animal, captive animal], animal article, meat trophy, uncured trophy, specified plant, or part or derivative thereof [or scheduled specimen].

14. Thus from the Sec.57 of Wild Life Protection Act,

it is clear that if any person is having the articles as stated in the said section, shall be presumed that he is having unlawful possession of the same, until contrary is proved. Heavy burden is upon the accused to prove that they came in possession of the said articles by lawful means. The accused have to prove their innocence during trial and the petitioners have to prove during the course of trial that they have acquired the possession of two elephant tusks by lawful means. Unless the petitioners proves the same during the trial, presumption under Sec.57 of the Wild Life Protection Act is in favour of the prosecution. Hence. I am of the opinion that 12 Crl.Misc.No.2792/2024 there is prima facie case against the petitioners to prove that they were in possession of two elephant tusks at the time of seizure of the same from them. Along with the petition, the petitioners have not produced any documents prima facie to show that their possession of two elephant tusks is by lawful means.

15. The investigation of the case is not yet completed.

If the petitioners were enlarged on bail, there is possibility of petitioners absconding or fleeing from justice. Further there is possibility that the petitioners may destroy the evidence and they may threatened the prosecution witnesses. Further there is also possibility of petitioners creating documents in their favour to rebut the presumption u/Sec.57 of Wild Life Protection Act. The various grounds urged by the petitioners in the petition are to be considered only on merits of the case. As it is rightly pointed out by learned magistrate, the alleged offence is having serious ramification on the entire wild life of the country. The accused No.4 to 7 were enlarged on bail by this court only on the ground that they were not in possession of any contraband and no seizure of elephant tusks was made from their possession. But two elephant tusks were seized from the possession of the present petitioners. As such, only 13 Crl.Misc.No.2792/2024 on the ground that the accused No.4 to 7 were granted bail by this court, the petitioners cannot be enlarged on bail for the reasons stated above. By considering the nature and gravity of the allegations made against the petitioners and by considering the other facts and circumstances as discussed above, I am of the opinion that the discretion of this court cannot be exercised in favour of the petitioners for enlarging them on bail. Whether the petitioners have been falsely implicated in the case or not and whether the authority who has lodged complaint against the petitioner has got power or not has to be adjudicated only on merits of the case. Under these facts and circumstances, I am of the opinion that the trial court has rightly rejected the bail application filed by the petitioners. As such, I do not find any grounds to interfere with the said order of the trial court. I am of the opinion that the petitioners cannot be enlarged on bail by exercising power u/Sec.439 of Cr.P.C. As such, the petition filed by the petitioners is deserves to be dismissed. Accordingly, I answer point No.1 in the Negative.

16. Point No.2:- In view of my findings on point No.1,

I proceed to pass the following: 14 Crl.Misc.No.2792/2024 O R D E R The petition filed by the petitioners/Accused No.1 and 2 u/Sec.439 of Cr.P.C., is hereby dismissed. (Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 27th day of March, 2024). (B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bengaluru. 15 Crl.Misc.No.2792/2024