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1986 Supreme(Cal) 126
CALCUTTA HIGH COURT
SHAMSUDDIN AHMED, J.
CHIEF WILD LIFE WARDEN, ANDAMAN & NICOBAR ISLAND
VERSUS
N. K. JOSHI
Criminal Revns. Nos.510 and 1221 of 1985,
Decided On : 24 -3 -1986
The definition of uncured trophy in section 2(32) of the Wild Life Protection Act, 1972 includes the whole or any part of any captive animal or wild animal, other than vermin, which has not undergone a process of taxidermy and includes a freshly killed wild animal. Ambergris is a solid substance formed in the intestine of the sperm whale. It is not clear whether Ambergris is a part of the body of the sperm whale or a product of the whale. The Court held that it was necessary to adduce evidence to determine whether Ambergris is an uncured trophy.
Headnote:
WILD LIFE PROTECTION ACT, 1972 - SECTION 2(31), 2(32), 451, 452, 457, 50(4) - AMBERGRIS - WHETHER AMBERGRIS IS AN UNCURED TROPHY - CONCESSION MADE BY THE LEARNED A.P.P. - WHETHER BINDING ON THE PETITIONER - RETURN OF SEIZED AMBERGRIS - WHETHER SECTIONS 451, 452 AND 457 OF THE CR. P.C. HAVE APPLICATION - INTERPRETATION AND APPLICATION.
Fact of the Case:
In this case, a piece of Ambergris, a solid substance formed in the intestine of the sperm whale, was seized by the Chief Wild Life Warden. The owner of the Ambergris filed an application for its return, claiming that it was not an uncured trophy as defined in the Wild Life Protection Act, 1972. The Magistrate ordered the return of the Ambergris to the owner, relying on the concession made by the learned A.P.P. that Ambergris cannot be said to be an uncured trophy. The Chief Wild Life Warden and a Range Officer filed revision applications challenging the Magistrate's order.
Finding of the Court:
The High Court held that the concession made by the learned A.P.P. was not binding on the petitioner and that the Magistrate erred in relying on it to come to a finding that Ambergris is not an uncured trophy. The Court also held that the Magistrate should have postponed the issuance of summons and enquired into the case himself to decide whether or not there was sufficient ground for proceeding.
Issues: 1. Whether Ambergris is an uncured trophy as defined in the Wild Life Protection Act, 1972? 2. Whether the concession made by the learned A.P.P. is binding on the petitioner? 3. Whether sections 451, 452 and 457 of the Cr. P.C. have application in this case?
Ratio Decidendi: 1. The definition of uncured trophy in section 2(32) of the Act includes the whole or any part of any captive animal or wild animal, other than vermin, which has not undergone a process of taxidermy and includes a freshly killed wild animal. Ambergris is a solid substance formed in the intestine of the sperm whale. It is not clear whether Ambergris is a part of the body of the sperm whale or a product of the whale. The Court held that it was necessary to adduce evidence to determine whether Ambergris is an uncured trophy. 2. The Court held that the concession made by the learned A.P.P. was not based on a thorough knowledge of the subject and that it was not binding on the petitioner. 3. The Court held that sections 451, 452 and 457 of the Cr. P.C. have no application in this case as the Magistrate ultimately passed the order for return of the Ambergris to the O.P. in terms of the provision of section 50(4) of the Wild Life Protection Act.
Final Decision: The High Court set aside the Magistrate's order dismissing the petition of complaint and sent the petition back to the Magistrate for proceedings according to law. The Court also directed the Magistrate to postpone the issuance of summons and enquire into the case himself to decide whether or not there was sufficient ground for proceeding.
1. These two applications are directed in matter concerning a piece of Ambergris, which is a solid substance formed in the intestine of the sperm whale. In . Revisional Application No. 510/85 the petitioner Chief Wild Life Warden has challenged order dt. 22-2.85 and 8-3-85 passed by the learned C.J.M., Port Blair in Misc. Case No. 3/1985. This Misc. case arose out of an application filed by the O.P. for return of a piece of Ambergris seized by the Officers of the Chief Wild Life Warden. It was alleged in the said application that in the year 1976 the Ambergris in question was seized by police from the possession of one Suresh Chandra Barui u/s. 102 of the Cr. P.C. Police ultimately submitted a report praying for return of the seized article to the person from whom it was seized. Suresh Chandra Barui sold this article to the applicant O.P. on 7-6-1976. Thereafter by amendment of the Wild Life Protection Act, 1972 whale was treated as a wild life and the provision of the said Act was made applicable to it. On 7-4-83 the applicant O.P. filed an application to the Chief Wild Life Warden with a prayer for issue of ownership certificate in favour of the applicant O.P. but instead of issuing the same certificate the officer under the said Warden seized the said Ambergris. After hearing both the parties the learned Magistrate concluded by the impugned order on the basis of submission made by Mr. Khanna learned Senior A.P.P. that the said Ambergris cannot be said to be uncured trophy as defined in section 2 (32) of the said Act. Accordingly he ordered return of the said seized article to the O.P. by order dt. 22-2-85. By another order dt. 8-3-85 the learned Magistrate granted stay of operation of the said order until 1-4-1985. Against this order this application has been moved. The other Revisional application is filed by one K. Abdul Rahman, Range Officer, Wild Life Division Haddo. He filed a complaint before the learned Chief Judicial Magistrate on 4-4-85 alleging violation of section 40 of the said Act which is punishable u/s. 51 of the Act. In the complaint it was alleged that the O.P. on 7-4-83 applied to the Chief Wild Life-Warden for granting permission for transporting this piece of Ambergris from Port Blair to main land. It was also stated that Ambergris was found in the body of sperm whale which have been included in Schedule I of the Wild Life Protection Act. In terms of the said Ambergris being an uncured trophy it is required (Sic) a declaration within 30 days from the commencement of the said Act and such violation is punishable under the Act. The O.P. has been filed to make the declaration this prosecution was lodged on the basis of the complaint filed (Sic). On this petition the learned C.J.M. considering the complaint found that in para 3 of the petition of complaint was stated that Ambergris is a substance which is spit out by Sperm whale and on the basis of this statement as well as concession made by Mr. Khanna the learned Senior A.P.P. in Misc. Case No. 3/1985 came to the finding that the Ambergris would not be said to be uncured trophy. Accordingly he dismissed the complaint u/s. 203 of the Cr. P.C. By another order dt. 6-4-85 the learned C.J.M., considered the question of the return of the Ambergris to the O.P. He found that the Ambergris in question has been produced before him u/s. 50(4) of the Wilt Life Protection Act. Accordingly he is competent to pass an order on this. Learned Magistrate referred to his earlier order in Misc. Case No. 3/85 and directed return of the seized Ambergris to the O.P. on his furnishing bond of Rs. 70,000/- for restoring the property to the Court after the order for return is modified or set aside on appeal and revision and ultimately he accepted the bond furnished and directed making over of the Ambergris to O.P. Mr. N.K. Joshi. These orders have been challenged in this Revisional Application.
2. Mr. B.R. Ghoshal, appearing for the petitioner in both the cases has mainly
