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Supreme Court of India
Titty Alias George Kurian vs The Deputy Range Forest Officer on 9 December, 2020Author: Ashok Bhushan
Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRL.) NO. 593 OF 2018
IN
CRIMINAL APPEAL NO.758 OF 2018
TITTY ALIAS GEORGE KURIAN …PETITIONER(S)
VERSUS
THE DEPUTY RANGE FOREST OFFICER …RESPONDENT(S)
J U D G M E N T
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.
2. 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.
Signature Not Verified
3.
Digitally signed by
Rachna
Date: 2020.12.09
This appeal has been filed against the judgment
16:50:26 IST
Reason:
dated 16.11.2017 of the Kerala High Court by which the
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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.
4. 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
Shell”, the scientific name is “Lissemys Punctata”. The
Court on 27.07.2016 directed the Turtle to be freed.
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5. 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.
6. 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
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under trial and the High Court committed error in
allowing the application under Section 482 Cr.P.C.
7. 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.
8. We have considered the submissions of the learned
counsel for the parties and have perused the records.
9. The following reasons have been given by the High
Court for allowing the Criminal M.C. of the respondent:
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“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.”
10. 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
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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 Punctata” and
therefore it is certified.
26-07-2016
Erumely”
11. The Veterinary Surgeon identified the Turtle as
‘Indian Flap Shell’ and the scientific name “Lissemy’s
Punctata”. Item No.8, Schedule I Part II is to the
following effect:
“8. Indian Soft-shelled Turtle (Lissemys
punctata punctata).”
12. 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
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Schedule I to IV, it becomes an offence inviting the
penalty under Section 51 of the Act, 1972.
13. 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.
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14. 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.
……………….J.
( ASHOK BHUSHAN )
……………….J.
( INDU MALHOTRA )
NEW DELHI;
DECEMBER 09, 2020.
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