Criminal Appeal

 

IN THE COURT OF THE SESSIONS JUDGE AT DARJEELING

 

CRIMINAL APPEAL NO.         OF 2008

 

 

IN THE MATTER OF AN APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE;

 

AND

 

IN THE MATTER OF AN APPEAL FROM THE JUDGMENT OF SENTENCE AND CONVICTION PASSED BY THE LD. CHIEF JUDICIAL MAGISTRATE IN C.R.CASE 48 OF 2008

 

AND

 

IN THE MATTER OF:

 

EMIL KUCERA, Son of Emil Kucera

NA VYHLIDCE 566/111

39201 SOBESLAV, CZECH REPUBLIC, at present residing at P.O.P.S. and Dist. Darjeeling.

 

                              ...APPELLANT;

 

1] ARBINDEN LEPCHA, FOREST RANGER

SINGALILA NORTH RANGE, WILG LIFE DIVISION

P0.O. AND DIST. DARJEELING.

 

2] STATE OF WEST BENGAL

 

                              ...RESPONDENTS.

 

 

The humble Memorandum of Appeal most respectfully sheweth:

 

1. That the appellant along with another Czech citizen in Darjeeling, Petr Svacha, were arrested on 22 June 2008 by the Respondent No. 1 on an allegation that he had received some secret information that the appellant was staying at Goparma Hotel near Singalila National Park and was collecting wildlife articles ilegally. Subsequent thereto the Respondent No. 1 raided the said Hotel and found the appellant along with the other person and recovered wildlife articles along with instruments. It was further alleged that as the arrested failed to produce any legal ownership certificate in support of their possession of wildlife articles, seizure lists were prepared under Section 50 of the Wildlife Protection Act and thereafter the appellant along with another were arrested for alleged commission of offences under various provisions of the Wildlife Protection Act punishable under Section 51 of the Act and that thereafter the appellant was brought to the office of the Assistant Divisional Forest Officer, Wildlife Division I where interrogation was conducted and thereafter the petitioner was forwarded to the Ld. Court below.

 

2. That the appellant was released on bail by the Ld. Court below after considerable detention and thereafter prosecution report was filed by the Respondent No. 1 and trial ensued and during the course of trial 5 witnesses were examined on behalf of the prosecution to substantiate the charges.

 

3. That on conclusion of the trial the Ld. Court below by its Judgment dated 10 September 2008 was pleased to convict one of the accused Dr. Petr Svacha under Section 51 of the Wildlife Protection Act to pay a fine of Rs. 10,000/- and also to pay a fine of Rs. 10,000/- for violation of Section 55 of the Biological Diversity Act which the accused had duly paid and was released from the aforementioned case.

 

4. That the Ld. Court below was however pleased to convict and sentence the appellant to s.i. for 3 years and with a fine of Rs. 10,000/- for violation of Section 51 of the Wildlife Protection Act i.d. s.i. for 3 months and also to sentence for 3 years s.i. along with a fine of Rs. 50,000/- for the offences under Section 55 of the Biological Diversity Act and i.d. s.i. for 3 months and both the sentences were to run concurrently.

 

5. That on application being filed by the appellant under Section 389 of the Code of Criminal Procedure the Ld. Court was however pleased to release the petitioner on bail for preferring an appeal before this Ld. Court within the statutory period.

 

6. That the petitioner being aggrieved begs to prefer the present appeal sad set forth on the following amongst other grounds:

 

 

GROUNDS

 

1. For that the order of the sentence and conviction passed by the ld. Court is bad in law and factor and is liable to be set aside.

 

2. For that the ld. Court below failed to appreciate the evidence on record on proper perspective and as such the Judgment is impugned and not sustainable in law.

 

3. For that the ld. Court below also misinterpreted the legal principles applicable in the matter.

 

4. For that the ld. Court below was wrong in awarding different punishment to the appellant against all norms and principles of equity, fair play and natural justice. The difference based on profession is discriminative toward the appellant. The statement of the ld. Court that the other person is a "victim of circumstances" is incomprehensible.

 

5. For that the ld. Court below failed to appreciate the evidence of the raiding party to the effect that after the move of articles from Room 3 to Room 4 belonging to the accused without any label signed by the witnesses, the articles became a common hotchpotch and no specific guilt could be attributed to the appellant.

 

6. For that evidence of witnesses adduced are all contradictory and the time and place of seizure is surrounded in suspicion in as much as within the period of time the alleged seizure could not have been made. Pages 2 and 3 of both seizure lists were created additionally in Darjeeling (based on the origial seizure lists prepared a the Goparma Hotel). Two protected species, the butterfly Delias sanaca and the beetle Amara brucei, were purposefully inserted into that list without our knowledge and Respondent No. 1 would be unable to identify those species (Amara brucei in particular can be identified only by a specialist). This fact was confirmed during the trial. The appellant never collected the butterfly Delias sanaca (all butterflies have been identified by the Zoological Survey of India in Calcutta and Delias sanaca is not listed). Based on that cheat the appellant was held in judicial custody for more than a month.

 

7. For that the ld. Court below failed to consider that the appellant had no protected (scheduled) species in his possession and therefore cannot be charged according to Section 9 of the Wildlife Protection Act.

 

8. For that the ld. Court below did not consider properly the evidence of prosecution and acted on mere conjectures and surmises. There is no evidence that the appellant entered the Singalila National Park and therefore Section 27 of he WPA cannot apply. The testimony of P.W. 2 that the appellant repeatedly visited the NP is without value because the witness had o way of knowing that. During the entire stay in the Srikhola Village the appellant and his companion did not see any NP boundary markings. It is the duty of the park management to make the boundaries clearly marked (including information such as prohibition of entry) at least on the main roads. Absurdly, he appellant is sued exactly by the people who in such case grossly neglected their duties.

 

9. For that the ld. Court below did not consider properly that there is also no evidence that the appellant collected insects inside the Singalila NP. Therefore Sections 29 ad 35(6) of the WPA cannot apply.

 

10. For that the ld. Court below did not consider the appellant's sworn statement before the commencement of the trial that twenty blank A-4 papers were signed by him upon the request of the complainants purportedly for affixing labels to the seized material. The ld. Court below considered the complaint about those sheets "a baseless aferthough". However, we informed about them our embassy immediaely after ur detainment in the judicial custody and we complained about heir existence in he court session on 21 July 2008 before the CJM N. Dey (this was also reported in media - e.g., the Telegraph 22 July 2008).

 

11. The "confessions" were prepared additionally on the blank signed sheets mentioned under (10). The appellant never signed that text. It is clear from several places in the document that it was falsified. The "confession" was signed by Mr. Utpal Kumar Nag (P.W. No. 3) who is therefore responsible for it.

 

12. For that the ld. Court below ignored the principles of law by admitting Photostat copies placed by the prosecution and as such the judgment is impugned.

 

13. For that the ld. Court below also failed to consider the established legal principle that the entire trial would be vitiated if the complainant is entrusted with investigation.

 

14. For that the ld. Court below also failed to consider the mandatory provisions of the Biological Diversity Act, 2002 in as much as no document was produced by the prosecution authorizing them to file the complaint under Section 61 of the said Act and thus that the decision of the Court to permit charges according to that Act was unlawful.

 

15. For that the ld. Court below failed to properly appreciate the document purportedly fled from a web site without producing any additional proper admissible evidence in as much as any photostat copy can be manufactured for oblique purposes and is not admissible in evidence. Even if admitted, this document does not contain anything about selling beetles and there is no other evidence of insect trading by the appellant. Suggestions that "the large amount of collected material indicate insect trading" are irrelevant - larger series of each species are necessary for evaluating the species' individual variability and exchange of insects is widespread among entomologists. Thus, the appellant cannot be charged according to Section 49 and 49B of the WPA concerning trade of wild animals.

 

16. For the ld. Court below also ignored he fact tha the appellant did not confess and relied on evidence not admissible in law and fact.

 

17. For that the ld. Court below accepted accusation of the appellant of "abetting Petr Svacha in committing crimes" according to Section 52 of the WPA. This is inexplicable and unsubstantiated as there is no evidence who abetted who and the entire accusation is irrelevant. Moreover, the falsified "confession" of P. Svacha, referred to on p. 37 of the Judgment, says just the opposite - that P. Svacha helped the appellant to identify insects.

 

18. For that the ld. Court ought to have held that the alleged articles not being properly sealed and labelled, as is required mandatorily by law, the same have no evidentiary value.

 

19. For that the ld. Court below acted wrongly in accepting the Photostat copies of notification purported to have been issued by the authority of the Government in absence of proper proof in the matter as is required by law.

 

 

20. For that the ld. Court below accepted as evidence photographs taken by our cameras, which, however, were confused and so the photographs made by P. Svacha were ascribed to he appellant and vice versa. This can be recognized from the original electronic files in connection with the camera type.

 

21. For that the ld. Court ought to have held that marking Exhibit is no proof of documents and the documents adduced by the prosecution suffer from severe legal infirmities.

 

22. For that the ld. Court below erred in law and fact by shifting the onus on the appellant although for all purposes the prosecution was not able to prove their case beyond all reasonable doubts.

 

23. For that the ld. Court should have held that the prosecution has miserably failed to establish the charges to warrant a finding of guilt against the appellant.

 

24. For that the appellant will urge other grounds at the time of hearing of the appeal.

 

 

The appellant prays that the Ld. Court be pleased to admit the appeal and call for the records of C.R.Case 47 of 2008 of the Court of the Chief Judicial Magistrate, Darjeeling and after hearing be pleased to set aside the Judgment impugned herein and any other order as the Ld. Court may seem fit be passed and for this the appellant shall pray.

 

 

Dated:

 

 

..................................

        [Appellant]

 

 

 

 

....................................

        [Advocate]