Interim Order 19

Order Details: COPY OF ORDER
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IN THE COURT OF SH. SUDHANSHU KAUSHIK
SPECIAL JUDGE (P C ACT) (C B I)-11
ROUSE AVENUE COURT COMPLEX, DELHI
CC No. 54/23
CBI Vs. J. R. International & Anr.
RC No. 2202021E-0010
CNR No. DLCT11-000199-2024
CENTRAL BUREAU OF INVESTIGATION
V E R S U S
1. M/s J.R. INTERNATIONAL
506, Dohil Chambers,
46, Nehru Place, New Delhi
Through:
Proprietor,
Ms. Pramod Jaiin W/o Sh. Ashok Jaiin
2. BHHANU JAIIN
S/o Ms. Pramod Jaiin
Proprietor
M/s J.R. International
506, Dohil Chambers,
46, Nehru Place, New Delhi
Date of filing of complaint : 06.01.2022
Arguments concluded on : 19.12.2024
Date of Order : 21.12.2024
Appearance
For Prosecution: Sh. Avanish Kumar Chand, Ld. P.P. for the CBI.
For accused persons : Sh. Vikas Walia, Counsel for A-1 M/s J.R. International
represented by Ms. Pramod Jain, Proprietor.
Sh. Rahul Tyagi, Counsel for A-2 Bhhanu Jaiin.
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O R D E R
1. The present complaint under Section 55 of the Wildlife
Protection Act, 1972 has been filed against two persons; (i) M/s
J.R. International, a sole proprietorship concern, through its
Proprietor Ms. Pramod Jain; and (ii) Bhhanu Jaiin, son of Ms.
Pramod Jain on the allegations that they entered into a criminal
conspiracy for procuring and selling shawls containing guard hair
of Tibetan Antelope (Pantholops hodgsonii), which is a
Scheduled animal listed in Schedule-I of the Wildlife Protection
Act, 1972 (hereinafter referred to as ‘WPA’).
2. It is the case of prosecution that A-1 M/s J.R. International,
a sole proprietorship firm (hereinafter referred to as ‘the firm’)
was engaged in the business of trading in shawls and its office
was situated at Premises No. 506, Dohil Chambers, 46 Nehru
Place, New Delhi. The firm booked an export consignment of
shawls for being exported to United Arab Emirates through
shipping bill no. 3253579 dated 04.04.2019. Since, the export
consignment contained shawls, therefore, the same was marked to
an official of Wildlife Crime Control Bureau for carrying out the
inspection and issuing a ‘No Objection Certificate’ (NOC). The
official of Wildlife Crime Control Bureau carried out the
inspection and suspected that amongst the consignment, sixty
(60) shawls were containing guard hair of Tibetan Antelope
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(Pantholops hodgsonii), an animal listed under Schedule-I of
WPA. On his advice, the suspected shawls were segregated and
sent for examination to Wildlife Institute of India, Dehradun,
which confirmed that the shawls were containing the guard hair
of Tibetan Antelope. Subsequently, on the request of A-2, the
shawls were sent for re-testing to Zoological Survey of India,
Kolkata, which carried out the microscopic hair structure
examination and confirmed the findings given by Wildlife
Institute of India. In these circumstances, all the sixty (60) shawls
were confiscated and the matter was sent to Wildlife Crime
Control Bureau for initiating necessary action under the WPA.
The Wildlife Crime Control Bureau, vide letter dated.
17.09.2021, requested the Deputy Commissioner, Export Shed,
Customs, New Delhi to hand over the prohibited articles to the
Central Bureau of Investigation (CBI). Subsequently, a complaint
dated 28.10.2021 was made by Sh. Arvind Kumar Meena,
Deputy Commissioner, Export Shed, Customs, New Delhi and a
case bearing RC No. 2202021-E0010 dated 17.11.2021 was
registered under Section 120B of Indian Penal Code (hereinafter
referred to as ‘IPC’) and Section 40, 49, 49B read with Section
Section 51 and 58 of WPA.
3. The prosecution’s case proceeds further that on registration
of the case, searches were carried out on 18.11.2021 at the office
and the godown of the firm as well as at the residence of the sole
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proprietor which led to the recovery of incriminating documents
and five (5) other similar shawls containing guard hair of Tibetan
Antelope. One (1) such shawl was recovered from the office while
four (4) shawls were recovered from the godown of the firm
situated at Premises No. 502, Dohil Chambers, 46 Nehru Place,
New Delhi. Necessary investigation was carried out and the
relevant documents were collected. Investigation revealed that the
firm used to purchase the shawls from its supplier (M/s Mahua
Shawls) at Srinagar but the recovered shawls were not supplied by
the said supplier. It has been alleged that these shawls were
procured by the accused persons from some other source which
remained untraced. The investigation further revealed that A-2
was managing and controlling the entire business of the firm. He
was solely dealing with the suppliers and placing all the purchase
orders. The suppliers were generating the bills on his directions
and the payments were also being processed by him only.
Statements of witnesses including those of the suppliers and the
custom officials were recorded and the other evidence was
collected. The five (5) shawls recovered from the office and the
warehouse of the firm were also sent for examination to Wildlife
Institute of India, Dehradun, which returned a similar finding that
those shawls were also containing guard hair of Tibetan
Antelope.
4. In the abovementioned background, the present criminal
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complaint was filed before the court of Chief Metropolitan
Magistrate, Rouse Avenue District Courts, who assigned it to the
court of Additional Chief Metropolitan Magistrate-02, Rouse
Avenue District Courts. Vide order dated 18.04.2022, Ld.
Additional Chief Metropolitan Magistrate-02 Rouse Avenue
Court Complex, took cognizance and summoned both the
accused persons. On the basis of the predicate offences under the
WPA, a case was registered under Prevention of Money
Laundering Act (hereinafter referred to as ‘PMLA’). During the
course of trial, Directorate of Enforcement (DoE) moved an
application under Section 44(1)(c) of PMLA before Ld.
Additional Chief Metropolitan Magistrate-02, Rouse Avenue
Court Complex, mentioning that the PMLA matter stands
committed to this court being a Special Judge (PMLA). The said
application was allowed and the matter was placed before the
Principal District & Sessions Judge-cum-Special Judge (PC Act),
CBI, who assigned the same to this court vide order dated
01.03.2024.
5. The trail proceeded and the testimonies of the witnesses
were recorded. The list of witnesses filed along with the
complaint contained the names of thirty five (35) prosecution
witnesses. Prosecution examined only six (6) witnesses in pre-
charge evidence; (i) PW-1 Dr. C. Venkatraman, Scientist-E,
Marine Biology Centre, Chennai; (ii) PW-2 Sh. Arvind Kumar
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Meena, Deputy Commissioner, Customs; (iii) PW-3 Sh. C.P.
Sharma, Senior Technical Officer, Wildlife Genetic Cell, Wildlife
Institution of India, Dehradun; (iv) PW-4 Sh. Sanjay Dubey,
Additional Superintendent of Police, Anti-Corruption, CBI,
Jaipur, Rajasthan; (v) PW-5 Sh. Yashwant Singh, Inspector,
Police, CBI; and (vi) PW-6 Sh. Rajesh Kumar, Inspector, Air
Cargo Commission, Export Shed, Custom House, IGI Airport,
New Delhi. Thereafter, pre-charge evidence was closed and the
matter was fixed for arguments on the point of charge.
6. Arguments were heard.
7. Counsel for the accused persons prayed for the discharge of
both the accused persons mentioning that the evidence produced
by the prosecution is insufficient to frame charges under the
WPA. He contended that the criteria for framing of charge differs
substantially in a case instituted otherwise than on police report
than a case instituted on a police report, He mentioned that in
complaint cases, the court cannot frame the charges unless it
arrives at a finding that the evidence produced by the prosecution
at the pre-charge stage, if remained un-rebutted, would warrant
the conviction of the accused. He argued that the scrutiny at the
stage of charge is much higher in a complaint case than a case
instituted on a police report. He mentioned that on applying this
criteria, it becomes evident that charges can not be framed either
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against A-1 or A-2. These common arguments were advanced on
behalf of both the accused persons. Besides this, Counsel also
advanced separate arguments on behalf of A-1 and A-2.
7.1 It was mentioned on behalf of A-1 that she was only a
proprietor of the firm for namesake and the entire business was
being managed and controlled by A-2. Counsel has argued that
the complaint contains the conclusion drawn by the investigating
agency and it can be seen from the same that A-1 was not
controlling or managing the affairs of the proprietorship concern.
He contended that no criminal liability can be fastened on A-1
merely on the ground that she is the sole proprietor of the firm.
He mentioned that A-1 has been wrongly arraigned as an accused
on the basis of the provisions of Section 58 of WPA. He
contended that the provisions of Section 58 of WPA are
applicable only to companies, partnership firms and other
association of individuals. He argued that the term ‘firm’
mentioned in Section 58 of WPA does not include a sole
proprietorship firm. He mentioned that A-1 cannot be held
vicariously liable by invoking the provisions of the Section 58 of
WPA. He mentioned that there is no evidence to invoke the
principle of joint liability for roping in A-1 as an accused in the
present matter. He contended that A-1 is more than 70 years of
age and she was not controlling and managing the affairs of the
firm. He mentioned that the prosecution has failed to discharge its
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initial burden for bringing out a prima facie case against A-1. He
has prayed that A-1 may be discharged. Written submissions were
also filed on behalf of A-1. In order to support the contentions,
Counsel has place reliance on the decisions in the matters of
Raghu Lakshmi Narayanan Vs. Fine Tubes 2007 (5) SCC 103,
Mainpal Vs. State of Haryana 2010 (10) SCC 130 and Dilawar
Kurane Vs. State of Maharashtra 2002 (2) SCC 135, Om
Prakash Vs. State of Rajasthan 2010 (88) AIC 261, Abhimanyu
Sahu Vs. State of Orissa Neutral Citation 2010 (94) A IC 889,
Ashok Transport Agency Vs. Awadhesh Kumar & Ors. (1998)
SCC 567, Dulichand Lakshminarayan Vs. The Commissioner
of Income Tax, Nagpur AIR 1965 SC 354 and Naushad Vs.
State of Kerala 2000 (2) CRC (Criminal) 573.
7.2 It has been argued on behalf of A-2 that the evidence is
insufficient to show that he was in conscious possession of
prohibited shawls. Counsel has argued that mere possession of
the banned animal article would not make the accused liable
unless there is evidence to show that the possession was
conscious. He mentioned that various other persons were having
access to the godown of the firm from where the banned shawls
were recovered and in such circumstances, A-2 cannot be held
liable. He has argued that A-2 does not fall under the definition of
a ‘dealer’ as provided under the WPA. He mentioned that the
alleged export consignment was recovered from the possession of
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the custom authorities and not from the possession of A-2. He
mentioned that the shawls kept lying with the custom authorities
for a considerable period of time and no explanation has been
tendered for the delay in sending the same for examination to the
Laboratory. He contended that the evidence placed on record is
weak and the prosecution has also failed to demonstrate that the
chain of custody was properly maintained and it remained
unbroken. He has argued that the evidence is insufficient to frame
charges against A-2. He has prayed for the discharge of A-2.
8. On the other hand, the Ld. PP for CBI has argued that there
is sufficient evidence to show the involvement of both the accused
persons. He mentioned that A-1 is the sole proprietor of the firm
and she cannot escape liability by pleading that she was not
controlling and managing the affairs of the firm. He argued that at
this stage, only a prima facie view needs to be taken and detailed
screening of evidence is not warranted. He mentioned that there
is overwhelming evidence to show that A-2 was in conscious
possession of the recovered shawls. He argued that the statements
of witnesses and the documents placed on record leave no scope
for doubt that A-2 was managing and controlling the affairs of the
firm. He has argued that there is sufficient evidence to frame
charges against both the accused persons.
9. I have perused the record including the statements of
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witnesses as well as the documents relied upon by the prosecution
in the light of the respective arguments.
10. It has been argued on behalf of the accused persons that
the criteria for evaluating the material on record for the purpose
of framing of charge differs in a case registered on police report
from a complaint case registered otherwise than on police report.
Counsel for the accused persons has contended that this fact is
borne out from the language of Sections 227, 228, 240 and 245 of
Cr. P.C. He has argued that the extent of scrutiny of evidence that
is required to be conducted before framing a charge in a case
registered otherwise than on police report is much higher than the
case registered on a police report. He has contended that in order
to frame a charge in the cases instituted otherwise than on a
police report, the court has to arrive at a finding that the evidence
produced by the prosecution, if remains un-rebutted, would result
in conviction of the accused or otherwise, the accused needs to be
discharged.
11. I have gone through the relevant provisions of law. The
present matter falls under the category of a case instituted
otherwise than of police report. The proceedings were triggered
by a complaint under Section 55 of WPA filed before the Chief
Metropolitan Magistrate, Rouse Avenue Court Complex, New
Delhi. The matter was subsequently assigned to this court in
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terms of Section 44(1)(c) of PMLA as the trial under PMLA was
going on before this court. Section 41(1)(c) of PMLA provides
that once the trial of the schedule offence is committed to the
Special Court, it shall on receipt of the case, proceed to deal with
the case from the stage at which it was committed. Section 41(d)
of PMLA mandates that in such like cases, the Special Court
while trying the schedule offence or the offence of money
laundering shall hold trial in accordance with the provision of the
Code of Criminal Procedure as applicable to a trial before a
Court of Sessions. Thus, it can be seen that in the circumstances,
where the case relating to schedule offence is committed to a
Special Court, it shall proceed to deal with the same from the
stage it was committed and hold the trial in accordance with the
procedure prescribed under Code of Criminal Procedure as
applicable to a trial before a Court of Sessions.
12. Record reveals that the present matter was received at the
stage of pre-charge evidence and the procedure prescribed under
Code of Criminal Procedure pertaining to the cases instituted
otherwise on police report was followed by the Ld. Predecessor.
In cases instituted otherwise than on police report, the procedure
of trial has been prescribed under Sections 244 to 247 of Cr. P.C.
which is different from the procedure prescribed in respect of the
cases instituted on a police report. In cases instituted on police
report, Section 239 of Cr.P.C deals with the aspect of discharge
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while Section 240 of Cr.P.C provides for the framing of the
charge. In cases instituted otherwise than on a police report,
Section 245 of Cr.P.C describes the situation wherein an accused
can be discharged. On the other hand, in trial before a Court of
Session, Section 227 proves the considerations on which an
accused may be discharged while Section 228 Cr.P.C describes
the criterion for framing of Charge. The difference between the
language of the provisions of Sections 227, 239, and 245 of
Cr.P.C was evaluated by the Supreme Court of India in the matter
of R.S. Nayak Vs. A.R. Antulay 1984 AIR 684 wherein, it was
observed as under:-
“The Code contemplates discharge of the accused
by the Court of Sessions under section 227 in a case
triable by it; cases instituted upon a police report
are covered by section 239 and cases instituted
otherwise than on police report are dealt with in
section 245. The three sections contain some what
different provisions in regard to discharge of the
accused. Under section 227, the trial Judge is
required to discharge the accused if he 'considers
that there is not sufficient ground for proceeding
against the accused.' Obligation to discharge the
accused under section 239 arises when "the
Magistrate considers the charge against the
accused to be groundless." The power to discharge
is exercisable under section 245(1) when "the
Magistrate considers, for reasons to be recorded,
that no case against the accused has been made out
which, if unrebutted, would warrant his
conviction..." It is a fact that section 227 and 239
provide for discharge being ordered before the
recording of evidence and the consideration as to
whether charge has to be framed or not is required
to be made on the basis of the record of the case,
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including documents and oral hearing of the
accused and the prosecution or the police report,
the documents sent along with it and examination
of the accused and after affording an opportunity to
the two parties to be heard. The stage for discharge
under section 245, on the other hand, is reached
only after the evidence referred to in section 244
has been taken. Not-withstanding this difference in
the position there is no scope for doubt that the
stage at which the Magistrate is required to
consider the question of framing of charge under
section 245(1) is a preliminary one and the test of
"prima facie" case has to be applied. In spite of
the difference in the language of the three
sections, the legal position is that if the trial Court
is satisfied that a prima facie case is made out,
charge has to be framed.”
13. It may be noted that neither at the stage of Section 227 Cr.
P.C nor at the stage of Section 245 of Cr. P.C, the entire evidence
is to be marshalled like it is done at the conclusion of trial and
only a prima facie view of the case is to be considered. It has
been held by the Supreme Court of India in the matter of Sajjan
Kumar Vs. C.B.I (2010) 9 SCC 368 that at the time of framing of
charge, the court has to look at all the material placed before it
and determine whether a prima facie case is made out or not and
the court is not required to consider the evidentiary value of the
evidence as any question of admissibility or reliability of
evidence is a matter of trial.
14. It was observed by the Supreme Court of India in the
matter of Asim Shariff Vs. National Investigation Agency
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(2019) 7 SCC 148 that at the stage of framing of charge, the Trial
Court is not expected to hold a mini trial for the purpose of
marshalling the evidence on record. The relevant observations
are as under:
“18. Taking note of the exposition of law on the
subject laid down by this Court, it is settled that the
Judge while considering the question of framing
charge under Section 227 CrPC in sessions cases
(which is akin to Section 239 CrPC pertaining to
warrant cases) has the undoubted power to sift and
weigh the evidence for the limited purpose of
finding out whether or not a prima-facie case
against the accused has been made out; where the
material placed before the Court discloses grave
suspicion against the accused which has not been
properly explained, the Court will be fully justified
in framing the charge; by and large if two views
are possible and one of them giving rise to
suspicion only, as distinguished from grave
suspicion against the accused, the trial Judge will
be justified in discharging him. It is thus clear that
while examining the discharge application filed
under Section 227 Cr.P.C, it is expected from the
trial Judge to exercise its judicial mind out or not.
It is true that in such proceedings, the Court is not
supposed to hold a mini trial by marshalling the
evidence on record.”
15. Further, it has been held by the Supreme Court of India in
the matter of Bhawna Bai v. Ghanshyam (2020) 2 SCC 217 as
under:
"13. ...At the time of framing the charges, only
prima facie case is to be seen; whether case is
beyond reasonable doubt, is not to be seen at this
stage. At the stage of framing the charge, the court
has to see if there is sufficient ground for
proceeding against the accused. While evaluating
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the materials, strict standard of proof is not
required; only prima facie case against the accused
is to be seen.”
16. In view of the position of law laid down in the above said
judicial pronouncements, it is a settled proposition that at the
stage of charge, it is only to be seen that a prima facie case is
made out against the accused. The court, at this stage, need not
delve into the realm as to whether the case of the prosecution can
be proved beyond reasonable doubt. The pivotal criteria of
framing of charge is to assess if there exist sufficient grounds to
proceed against the accused by framing of charges. For that,
simply a prima facie view of the matter is to be considered.
17. Coming to the facts of the present case. The case of the
prosecution, as disclosed in the complaint, is that A-1 and A-2
acquired shawls containing guard hair of Tibetan Antelope and
tried to export the same to United Arab Emirates. The guard hair
of Tibetan Antelope (Pantholops hodgsonii) falls under the
category of a ‘Scheduled animal article’ as Tibetan Antelope is an
animal specified under Schedule-I of WPA. It is the prosecution’s
case that A-1 is the sole proprietor of the firm under whose name
the export consignment was booked whereas A-2 is the son of
sole proprietor. It has been alleged in the complaint that A-2 is
managing and controlling the affairs of the firm. The matter came
to light when the Custom Authorities became suspicious in
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respect of an export consignment containing 280 shawls and sent
the same for inspection to Wildlife Criminal Control Bureau. The
Wildlife Inspector inspected the consignment and suspected that
60 pieces of shawls, in one of the boxes of the consignment, were
containing the guard hair of Tibetan Antelope. The suspected
shawls were sent for examination to Wildlife Institute of India,
Dehradun, which confirmed the presence of the guard hair of
Tibetan Antelope. Subsequently, the lab analysis report of
Zoological Survey of India, Kolkata reconfirmed the fact that the
shawls were containing guard hair of Tibetan Antelope.
18. The allegations against the accused are that they entered
into a criminal conspiracy and committed offences punishable
under Sections 40, 49, 49B and 58 of WPA. It can be seen that
Section 40 (2A) of WPA declares that after the commencement of
the WPA, no person other than a person having a certificate of
ownership shall acquire, receive, keep in his control, custody or
possession of any captive animal, animal article, trophy or
uncured trophy specified in Schedule-I of WPA except by way of
inheritance. Section 2(2) of WPA defines ‘animal article’ and
states that it means an article made from any captive animal or
wild animal other than vermin and includes an article or object in
which the whole or any part of such animal has been used.
Section 2(11) of WPA provides the definition of a ‘dealer’ and
states that a dealer in relation to any captive animal and animal
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article means a person who carries on the business of buying and
selling any such animal or article and includes a person who
undertakes business in any single transaction.
19. Further, Section 49 of WPA puts restriction on the
purchase of any wild animal or any animal article. It prescribes
that no person shall purchase, receive or acquire any captive
animal, wild animal or animal article otherwise than from a
dealer or from a person authorised to sell the same under WPA.
Section 49A(a) of WPA defines ‘Scheduled Animal’ as an animal
specified for the time being in Schedule-I of WPA. Section
49A(b) of WPA defines ‘Schedule Animal Article’ as an article
made from any scheduled animal and includes an article or object
in which the whole or any part of such animal has been used.
Section 49B of WPA puts prohibition on dealing in trophies and
animal articles derived from the scheduled animals. Section 51 of
WPA prescribes penalties for a person committing breach of the
conditions imposed under the Act and states that in case, an
offence is committed in relation to any animal or animal article
specified in Schedule-I, the punishment by way of imprisonment
shall not be less than 3 years but may extend to 7 years with fine
which shall not be less than 25,000/- rupees.
20. It can be further seen that Section 57 of WPA provides for
a presumption to be raised against a person who is found in
possession or custody or control of any animal article. It provides
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that wherein it is established in a prosecution for an offence under
WPA that a person is in possession, custody or control of any
animal article, it shall be presumed until the contrary is proved,
the burden of proving which shall lie on the accused, that such
person is in unlawful possession, custody or control of an animal
article. Thus, it can be seen that this Section provides for a
reverse burden of proof, in case, it is established that a person is
found in possession or custody or control of a captive animal or
animal article. Of course, the possession has to be a conscious
possession.
21. Coming back to the facts of the present case. It is the case
of prosecution itself that the entire business of the firm was being
managed and controlled by A-2. It has been stated in the
complaint that although, A-1 was the proprietor of the firm but it
was A-2, who was managing and controlling the business affairs
of the firm. He used to make the purchases of shawls from
various vendors and carry out the sales to different buyers.
Prosecution has further disclosed that various documents were
recovered during the search carried out at the office of the firm
and those documents also confirmed that A-2 was the whole sole
in-charge of the business of the firm and he was using a mobile
connection bearing no. 9818183755. Prosecution has further
disclosed that A-1 has also submitted a reply dated 31.11.2021
submitting that she had authorized her son to manage and control
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the business of the firm and the shawls, which were being
exported, were also purchased by him only. These averments are
contained in paras-13, 14 and 23 of the complaint. PW-4 Sh.
Sanjay Dubey has deposed in cross-examination that the findings
contained in these paras were given by him after going through
the evidence collected during investigation.
22. It is noticed that in order to implead A-1 and A-2, the
prosecution has relied on the provisions of Section 58 of WPA
but the reliance is misplaced as the provisions of the said Section
are applicable only to the offences committed by a company
including a firm (partnership) or other association of individuals.
The provisions of Section 58 of WPA reads as under:-
“58. Offences by companies. -
(1) Where an offence against this Act has been
committed by a company, every person who at the
time the offence was committed was in charge of
and was responsible to, the company for the
conduct of the business of the company as well as
the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against
and punished accordingly:Provided that nothing
contained in this sub-section shall render any such
person liable to any punishment, if he proves that
the offence was committed without his knowledge or
that he exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1), where an offence against this Act has
been committed by a company and it is proved that
the offence has been committed with the consent or
connivance of or is attributable to any neglect on
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the part of, any director, manager, secretary or
other officer of the company, such director,
manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be
liable to be proceeded against and punished
accordingly.
Explanation. - For the purposes of this section,-
(a) "company" means any body corporate and
includes a firm or other association of individuals;
and
(b) "director", in relation to a firm, means a partner
in the firm.”
23. Thus, it can be seen that the provision of Section 58 of
WPA are applicable to a company and the persons who were in-
charge of and responsible to the company for the conduct of the
business of the company. This provision imposes a vicarious
liability on the directors and other officials of the company who
were found to be managing the affairs of the company at the time
when the alleged offence is committed under WPA. It provides
that in such situation, not only the company but the persons in-
charge of, and responsible for the conduct of the business of the
company shall also be liable along with the company to be
punished for the alleged offence. The provisions of this Section
cannot, by any stretch of imagination, be made applicable to a
sole proprietorship firm. In case of a sole proprietorship firm, the
question of vicarious liability does not arise and for making a
person liable, it must be shown that he has committed or
participated in committing the alleged offence under WPA. No
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criminal liability can fastened on a person merely on the ground
that he is the Sole Proprietor of a firm, more particularly, when
there no evidence to show his involvement and there is evidence
to show that some other individual was running the business and
controlling the affairs of the firm. There is no vicarious liability
in criminal law unless the statute takes that also within its fold. It
can be seen that prosecution has assigned no role to A-1 apart
from the fact that she is the sole proprietor of the firm. In fact, A-
1 has been given a clean chit by the prosecuting agency itself,
which concluded after conducting thorough investigation that she
had no role to play in the entire transaction and the affairs of the
firm were being handled and managed by her son A-2.
24. There is overwhelming material on record to demonstrate
that the business of the firm was being managed and controlled
by A-2. I have perused the testimonies of witnesses produced by
the prosecution as well as the statements of other witnesses filed
along with the complaint. The statements of these witnesses, read
in the light of the documents placed on record, prima facie
substantiate the case of prosecution that A-2 was managing and
controlling the affairs of the firm. It has been stated that amongst
the documents collected during the course of investigation,
investigating agency collected documents wherein A-2 is shown
as the CEO of the firm and his mobile number was also
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mentioned therein. These documents demonstrate that A-2 was
managing and controlling the affairs of the firm. The shawls
forming the part of export consignment were shown to have been
purchased by A-2 from a partnership firm named M/s Mahua
Shawls. The prosecution has placed on record the statement of
Muzammil Yusuf Khan, a partner of M/s Mahua Shawls,
Srinagar. He disclosed in his statement that all the purchases were
made by A-2. He mentioned that it was A-2 who used to place
purchase orders and clear the payments of the bills. He
mentioned that he used to generate the bills as per the directions
of A-2. He disclosed that in fact, he did not know who was the
proprietor of the firm and the business dealing was done
throughout by A-2. He disclosed that A-2 used to place orders by
making phone calls from his mobile number 9818183755 as well
as through whatsapp messages. He mentioned that on one
occasion, on 28.09.2020, A-2 sent him a whatsapp message
enquiring about shahtoosh shawl, to which he replied that he does
not deal in banned products. He stated that on a subsequent
message, A-2 asked him to arrange such shawls but he again
replied in negative. The printout of the whatsapp chats have been
placed on record and the alleged chats stand reflected therein.
The statement of this witness also provides support to the
prosecution’s case that A-2 was managing and controlling the
affairs of the firm. The argument of the defence counsel that A-1
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does not fall under the category of ‘a dealer’ does not hold
ground as it can be seen that a person who undertakes business
even in a single transaction can also be categorized as a dealer.
25. There is evidence to indicate that the export consignment
was booked on behalf of the firm by A-2. The 60 shawls
containing the guard hair of Tibetan Antelope, seized by the
Customs Authorities, were part of the said consignment. There is
evidence to indicate that during the search carried out at the
office and warehouse of the firm, 5 other pieces of shawls,
suspected to be containing the guard hair of Tibetan Antelope
were recovered by the investigating agency. The report of the
Wildlife Institute of India, Dehradun confirmed that the seized
shawls were containing the guard hair of Tibetan Antelope, which
is a scheduled animal article. This fact was reconfirmed in the
subsequent report of Zoological Survey of India, Kolkata. PW-3
Sh. C.P. Sharma, Senior Technical Officer, Wildlife Institute of
India, Dehradun and PW-1 Dr. C. Venkat Raman, Scientist,
Zoological Survey of India, Kolkata, have supported the opinion
given by them in their respective reports Ex.PW1/A and
Ex.PW3/B. In these circumstances, the foundational facts for
raising the presumption provided under Section 57 of WPA stand
established.
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26. As mentioned in preceding paras, it is the settled
proposition that at this stage, a detailed screening of evidence is
not called for and only a prima facie view needs to be taken.
There is material on record to indicate that the schedule animal
article was recovered from the consignment of the firm. The
expert opinion has confirmed that the seized shawls were
containing guard hair of Tibetan Antelope, which is specified as a
‘schedule animal’ at serial number 4 in the Schedule-I of WPA.
At this stage, this court cannot examine the nicety of the evidence
and hold a full fledged trial as only a prima facie view is required
to be taken. I am of the considered opinion that the evidence,
read in the light of the presumption provided under Section 57 of
WPA, leads to an inescapable conclusion that there are sufficient
grounds to prima facie indicate that A-2 committed an offence
punishable under Sections 40, 49 and 49B read with Section 51
of WPA. However, no case is made out against A-1. In order to
rope in A-1, prosecution has invoked the provision of Section
120B of IPC on the ground that she entered into a criminal
conspiracy with A-2 but there is no material to demonstrate the
angle of conspiracy. Nothing has come on record to draw an
inference that A-1 had entered into a criminal conspiracy with A-
2 for committing the alleged offence. On the contrary, there is
material to indicate that although, A-1 was the sole proprietor of
the firm but the entire business was being run, managed and
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controlled by A-2. I am of the considered opinion that even if the
entire evidence produced by the prosecution is taken at its face
value, still, no case is made out which would warrant the
conviction of A-1 for the offences punishable under WPA. There
is no sufficient ground for proceeding further against A-1.
Accordingly, A-1 stands discharged and charges under Sections
40, 49, 49B read with Section 51 of WPA be framed against A-2.
Formal charges be framed accordingly.
27. It is clarified that the findings in this order are only to
ascertain if a prima facie case is made out against the accused
persons and there are sufficient grounds to proceed against them.
The findings should not be taken as a final view either on the
merits of the case or the the evidentiary value of the evidence as
at this stage, this court need not delve into the realm as to
whether the case of the prosecution can be proved beyond
reasonable doubt.
(Sudhanshu Kaushik)
Special Judge, (PC Act)/ CBI-11,
Rouse Avenue Courts, Delhi
21.12.2024
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