CALCUTTA HIGH COURT
Gitesh Ranjan Bhattacharjee, J.
Jaydev Kundu - Petitioner
versus
State of West Bengal & Ors. - Respondents
Criminal Revision No. 32 of 1992
Decided on 22.7.1992

IMPORTANT POINT
The fact that a person is found in possession or custody or control of captive animals, even if he is operating a zoo, raises a presumption u/s. 57 of the Wild Life (Protection) Act, that he is in unlawful possession, custody or control of the same unless such person rebuts the presumption by furnishing necessary proof of lawful possession or acquisition of the same.

Headnote:(1) Wild life (Protection) Act, 1972 - Sections 9, 39, 49 and 57 - Seizure of captive animals from the custody of the petitioner - Failure to produce on demand any valid document in support of acquisition and possession of the animals - Presumption u/s. 57 that the petitioner was in unlawful possession, custody or control of the captive animals - Mere fact that he is operating a zoo not to mean that he acquired or purchased the animals from a dealer or from any authorised person or from another zoo.

       Held: If we take a comprehensive view of some of the relevant provisions of the Act relating to purchase acquisition or transfer etc. of any wild or captive animal as the provisions stood at the time when the petitioner might have acquired the seized animals before the 1991 amendment. We will find that although in view of sub-section (3) a zoo was exempted from the provisions of sub

       sections (1) and (2) of section 40 regarding declaration or permission as required there under, yet section 49 would have application independent of the provisions of section 40. While section 40(2) debars acquisition of any specified animal without prior written permission of the Chief Wild Life Warden or the authorised officer. Section 49 debars acquisition of any such animal from any source other than a dealer or a person authorised to sell or otherwise transfer the same. According to section 2(11), "dealer" means any person who carries on the business of buying and selling any captive animal etc. Under section 44(1) one can not carry on the business as a dealer in captive animal without a licence granted for the purpose under the said section. Under section 49 one cannot purchase or acquire any captive or wild animal as mentioned therein except from a dealer or a person authorised to sell or otherwise transfer the same. A transaction between zoos and public museums regarding such animal was however exempted-from the requirement of section 49 in view of the proviso thereto as it stood before the 1991 amendment. Therefore any purchase or acquisition of any such animal can be made either from a licensed dealer or an authorised seller, but a zoo however could acquire any animal through any transaction from another zoo. The question whether the petitioner in this case acquired the seized animals from any licensed dealer or authorised seller in accordance with the main provision provision of section 49 or his acquisition was in virtue of any transaction between two zoos under the protection of the proviso to that section as was operating at that time is indeed a matter for consideration in this connection. (para 7)

       Further held: The fact that a person is found in possession or custody or control of captive animals, even if he is operating a zoo, raises a presumption under section 57 that he is in unlawful possession, custody or control of the same unless such person rebuts the presumption by furnishing necessary proof of lawful possession or acquisition of the same. Even for a zoo the manner of acquisition of any captive or wild animal must be lawful and must conform to the requirement of section 49 or the proviso to section 49. In the present case, at least at this stage the petitioner has not been able to produce anything in support of his lawful acquisition of the animals within the protection of section 49 including the proviso thereto as was applicable at the relevant time. The petitioner also has not been able to come forward with any consistent case about the manner and time of acquisition of the concerned animals. Therefore prima facie the presumption of section 57 operates in the field and if there is presumption under the said section that the petitioner's possession of the animals was unlawful then section 39 also will be attracted. (para 9)

       (ii) Interpretation of Statutes - Wild Life (Protection) Act, 1972 - Section 2(10) - Commencement of the act, in relation to any provision of the act means the commencement of that provision in the concerned state. (Para 5)

       Result: Revision dismissed, forest officials to file proper complaint in court within reasonable time if they intend to do so.