The authority of the Forest Guard to make search and seizure under section 50 of the Wildlife (Protection) Act, 1972, and the burden of proof on the prosecution to establish the nature of seized articles.

ORDER :

This Criminal Revision is directed against the judgment dated 19-8-2002 passed in Criminal Appeal No. 28/2002 whereby Ist Additional Sessions Judge, Seoni (M.P.) has upheld the judgment dated 20-2-2002 passed in Criminal Case No. 780/2001 whereby the applicant/accused has been convicted under section 51 of the Wild Life (Protection) Act, 1972 (for short 'The Act' 1972) and sentenced to undergo RI for 1 year with fine of Rs. 500/-, in default of payment of fine to undergo RI for 1 month.

2. The prosecution case, in short, is that on 19-9-1992, in West Khawasa Range, the applicant/accused-Bholaram was coming on his bicycle having a bag with him. A Forest Guard, on suspicion, stopped the applicant/accused-Bholaram and on search he was found in his possession 85 (14.900 kg.) pieces of Sambhar/Chital horns in the bag. The Forest Guard seized entire pieces of horns and prepared seizure panchnama on the spot. Thereafter he informed to the Deputy Ranger who, on his turn, verified the papers of seizure, prepared the complaint and the same has filed in the Court.

3. The applicant/accused was charged under section 51/52 of the Act 1972 in contravention of section 44 of the Act 1972. The charges were read over and explained to the applicant/accused. He abjured the guilt.

4. The prosecution examined as many as 4 witnesses. The applicant/accused denied all the allegations levelled against him in his examination under section 313 of the Code of Criminal Procedure, 1973 (for short the Code 1973) and pleaded innocence and falsely implicated. The applicant/accused did not examine any witnesses in his defence. After appreciating the evidence, produced by the prosecution, trial Court found guilty to applicant/accused under section 51 of the Act 1972 and sentenced thereto. Being aggrieved by the judgment of conviction and sentence he preferred Criminal Appeal No. 28/2002 before the Ist Additional Sessions Judge, Seoni which was also dismissed. Being aggrieved by the impugned judgment, finding and sentence this revision has been preferred mainly on the grounds that neither PW-4 Rafeeque (Forest Guard) had authority to make search of the applicant/accused, nor he had any authority to seize the animal article and prosecution has failed to prove that the seized articles were really pieces of the horns of Sambhar/Chital.

5. Learned counsel for the applicant/accused submitted that the alleged offence has not been proved, beyond reasonable doubt, against the applicant. The independent witnesses have not supported the prosecution case. The prosecution has failed to prove that the seized article were really the pieces of horns of Wild Animals. PW-4 Rafeeque (Forest Guard) does not come within the definition of Forest Officer under section 50 of the Act 1972 and had no authority to make search and seizure of the articles. In such circumstances learned counsel for the applicant submitted that the finding of guilt is erroneous which deserves to be set aside and applicant/accused is entitled for acquittal.

6. Per contra learned Panel Lawyer appearing on behalf of the respondent/State supported the impugned judgment and contended that the applicant/accused has rightly been convicted and sentenced, hence does not call for any interference.

7. Having heard learned counsel for the parties, perused the impugned judgment and the material available on the record, I will consider the points which are raised by the learned counsel for the applicant/accused.

8. The main grounds for considerations of this revision are that whether the Forest Guard had authority to make search and seizure under section 50 of the Act 1972 and another whether the prosecution has failed to prove that the seized articles were really pieces of the horns of Sambhar/Chital?

9. The first ground on which the impugned judgment has been challenged by learned counsel for the applicant/accused is that as per the document and evidence for the prosecution the search was conducted and the animal articles