(IN): Prosecution of Wildlife Offences

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* <http://www.kanglaonline.com/index.php?template=kshow & kid=1667>Prosecution

of Wildlife Offences in Manipur and the Wildlife (Protection) Act 1972*

*

By: Kh. Hitler Singh

 

India is among the seventeen mega-diverse countries supporting more than 70%

of the biological diversity on earth with less than 10% of the globe

surface. Three regions of India are in the three Biodiversity hotspots viz

(1) Western Ghat and Sri Lanka (2) Himalaya and (3) Indo-Burma Biodiversity

hotspots out of the world's thirty-four biodiversity hot spots. Thus Manipur

being in one of the biodiversity hot-spot; is being endowed with rare,

endemic, endangered and diverse wildlife. Many Schedule I and flagship

species of conservation value viz Sangai (Rucervus eldii eldii), Hoolock

gibbon (Bunopithecus hoolock/ Hylobates hoolock), Clouded leopard (Neofelis

nebulosa), Common Leopard (Panthera pardus), Golden Cat (Felis temmincki),

Leopard cat (Felis bengalensis), Mailand Serow (Naemorhedus

sumatraensis/Capricornis sumatraensis), and probably Royal Bengal Tiger

(Panthera tigris tigris) etc are found in Manipur. Among the avian-fauna,

state bird Nongin, Mrs Hume Barbacked pheasant (Syrmaticus humiae), Blyth

tragopan (Tragopan blythii), Great hornbill (Buceros bicornis),

Rufous-necked Hornbill (Acerros nipalensis) etc. which are resident birds

but on the verge of extinction are also found in Manipur. Many rare,

globally threatened/near threatened/vagrant migratory water birds, such as

Oriental white stork (Ciconia boyciana) GT/En Greater Spotted Eagle (Aquila

clanga) GT/Vu Eastern Imperial Eagle (Aquila heliaca) GT/Vu Baikal Teal

(Anas Formosa) GT/Vu Baer's pochard (Aytha baeri) GT Mandarin duck (Aix

galericulata) Va etc are also sheltering and breeding during winter in the

Loktak Lake and other wetlands of Manipur. In spite of nature's bountiful

gift of precious natural heritage to Manipur, to-day wildlife in Manipur is

depleting fast. The Major factors are the traditional customs and practice

of hunting, large scale shifting cultivation coupled with lack of awareness

of the common people and also lack of awareness of the provision of the

Wildlife (Protection) Act 1972 even among the frontline forest staff. Again

staffs are meager at Beat and Range office and area under their control is

too large, further they are not equipped with arms and more over the law and

order problems of the State is too complex; thus enforcement of this act is

a very big challenge. Further in spite of large Geographical area (about

76%) under Forests cover; Manipur is among the States having lowest

percentage of geographical area under National Park and Wildlife

Sanctuaries. Manipur has 0.18% of its Geographical area under National Park

against national average of 1.14% and 25.14% of Sikkim, 2.74% of Arunachal

Pradesh, 1.19% of Mizoram. In respect of Wildlife Sanctuary; Manipur has

1.76% of its Geographical area under this category of protected area against

the national average of 3.56% and 9.08% of Arunachal Pradesh, 5.76% of

Tripura, 3.74% of Sikkim and 3.66% of Mizoram. There are only two fully

declared P.A. viz Keibul Lamjao National Park and Yangoupokpi Lokchao

Wildlife Sanctuary. There are six proposed P.A. viz Shiroi N.P, Dzuko N.P,

Kailam W.L.S, Jiri Makru W.L.S, Zeilad W.L.S, and Bunning W.L.S. There is

urgent need of declaration of all the proposed P.A. into full fledged

National Parks and Wildlife Sanctuaries and enhanced budgetary support for

protection of wildlife therein.

The Wildlife Protection Act 1972 amended up to 2006 is one of the most

stringent Act passed by the Indian Parliament to protect our fast vanishing

and dwindling wildlife in India but it alone cannot protect the wildlife

without the proactive actions from among the faithful and well aware

frontline Forest and Wildlife Officials who are the field level prosecuting

and law enforcing staff in case of Wildlife Act, enlightened and dutiful law

enforcing agencies of the Central and State Government and also well aware

General Public. The Forty-second Amendment of the constitution of India had

enshrined Article 48 A and Article 51 A (g) in our constitution for

protection of Forest, Wildlife and Environment. {Article 48A:-The State

shall endeavor to protect and improve the environment and to safeguard the

forest and wildlife of the country. Article 51 A (g):- It shall be the duty

of every citizen of India to protect and improve the natural environment

including forests, lakes, rivers and wildlife, and to have compassion for

living creatures.} Further the Central Civil Services (Conduct) Rules 1964

had been amended by G.I., Dept. of Per. & Trg., Notification No.

11013/4/93-Estt. (A), date the 12th July, 1995). {3-B Observance of

Government's policies; Every Government servant shall, at all times- (i) act

in accordance with the Government's policies regarding age of marriage,

preservation of environment, protection of wildlife and cultural heritage;}.

Thus every central government employee is liable to observe policies of

protection of wildlife and environment.

The people are aware now to some extent the severity and uniqueness of

Wildlife Act because of the recent verdict of The Chief Judicial Magistrate

of Jodhpur, Brijendra Kumar convicting Bollywood actor Salman Khan and co

accused Govardhan, in the second case of Chinkara (Gazella gazelle) hunting

under sections 51 and 52 of the Wildlife Protection Act on 10th April, 2006.

Salman Khan was sentenced to five year imprisonment with a fine of Rupees

twenty five thousand and while Govardhan with one year imprisonment and fine

of Rupees five thousand. Besides hunting for bush-meat another major

activities which deplete wildlife is the illegal trade and commerce of

wildlife articles. The Imphal- Moreh route (NH39) is becoming one of major

route for such activities. The wildlife articles such as elephant tusk,

rhino-horn, horns, antlers, shell, skins, bones musk pod, gall bladder of

bear and other body parts of wild animals are highly in demand in Myanmar,

Lao, China, Vietnam etc for use in Traditional (TCM), for

fabricating lucrative apparels for rich and high class peoples in these

countries { e.g. apparel made from tiger skin, musk scent from musk pod of

musk deer, article made from elephant tusk and satoosh shawl made from the

fur of Tibetan wild antelope (Chiru) (Panthelops hodgsoni)}. The people

settling around the Sanctuary or National Park or other class of forest are

in great need of cash. A few hundred rupees are very dear to them and middle

man can easily hook them to do hunting, trapping and poisoning to the

wildlife in the nearby forest. The volume and value of smuggling of wildlife

articles is just in the second position after smuggling of drug and

narcotics in the illegal trades at the International Market. (According to

Interpol, the trade in illegal wildlife product could be around $12 billion

a year globally). The Wildlife Act has been amended several times with more

and more stringent measures for protection of wildlife and to check the

illegal trade and commerce of wildlife product in the international market.

At present Prosecutions of Wildlife Offences in Manipur are few and far

between and most cases are of illegal trade and commerce of wildlife

products (These cases are mostly handed over by Assam Rifles to Forest

Department) in the Imphal Moreh NH-39. To deal with wildlife crimes and

illegal trade and commerce of wildlife articles, we have to be conversant

with some basic concept, terminologies and their inherent meaning and

hands-on identification knowledge of different wildlife articles whether

cured or uncured. Because of relative importance, some terminologies,

sections useful in prosecution of Offences are listed, discussed in brief.

Wildlife: - " wild life " includes any animal, aquatic or land vegetation

which forms part of any habitat. (Wild life thus includes mammals, birds,

fishes, plants, amphibians, reptiles, insects etc)

Hunting: - " hunting " with its grammatical variations and cognate

expressions, includes,-

(a) killing or poisoning of any wild animal or captive animal and every

attempt to do so;

(b) capturing, coursing, snaring, trapping, driving or baiting any wild or

captive animal and every attempt to do so;

© injuring or destroying or taking any part of the body of any such

animal, or in the case of wild birds or reptiles, damaging the eggs of such

birds or reptiles or disturbing the eggs or nests of such birds or reptiles.

Meat: - " meat " includes blood, bones, sinew, eggs, shell or carapace, fat

and flesh with a without skin, whether raw or cooked, of any wild animal or

captive animal, other than vermin.

Trophy: - " trophy " means the whole or any part of any captive animal or wild

animal, other than vermin, whether artificial or natural and includes

(a) rugs, skins, and specimens of such animals mounted in whole or in part

through a process of taxidermy, and

(b) antler, bone carapace, shell, horn, rhinoceros horn, hair feather, nail,

tooth, tusk, musk, eggs nests and honeycomb.

Uncured trophy: - " uncured trophy " means the whole or any part of any

captive animal, other than vermin, which has not undergone a process of

taxidermy, and includes freshly killed wild animal ambergris, musk and other

animal products.

National Park:- Under Section 35 (1) any State Government may declare an

area as National Park whenever it appears to the State Government that an

area, whether within a sanctuary or not, is, by reason of its ecological,

faunal, floral, geomorphological, or zoological association or importance,

needed to be constituted as a National Park for the purpose of protecting,

propagating or developing wildlife therein or its environment, it may , by

notification, declare its intention to constitute such area as a National

Park. (National Parks in India correspond to Category II Protected Area of

IUCN).

Sanctuary:-Under Section 18(1) the State Government may, by notification,

declare its intention to constitute any area other than area comprised

within any reserve forests or the territorial waters as a sanctuary if it

considers that such area is of adequate ecological, faunal, floral,

geomorphological, natural or zoological significance, for the purpose of

protecting, propagating or developing wildlife or its environment. (Wildlife

Sanctuaries in India correspond to Category IV Protected Area of IUCN)

Conservation Reserve:- Under Section 36A(1)' inserted by amendment of WPA in

2003, the State Government may, after having consultations with the local

communities, declare any area owned by the Government, particularly the area

adjacent to National Parks and Sanctuaries and those areas which link one

protected area with another, as a conservation reserve for protecting

landscapes, seascapes, flora and fauna and their habitat. (Conservation

Reserve of India Correspond to Category V P.A. of IUCN). However the State

has not yet declared any Conservation Reserve in Manipur.

Community Reserve:- Under Section 36C(1), inserted by amendment of WPA in

2003, the State Government may, where the community or an individual has

volunteered to conserve wildlife and its habitat, declare any private or

community land not comprise within a National Park, Sanctuary or a

conservation reserve, as a community reserve for protecting fauna, flora and

traditional or cultural conservation values and practices. (Community

Reserve of India Correspond to Category VI P.A. of IUCN). However the State

has also not yet declared any Community Reserve in Manipur

Section 38 empowers Central Government to declare areas as Sanctuary or

National Park. As " 17A - Forests " and " 17B - Protection of wild animals and

birds " are inserted by the constitution(42nd Amendment) Act, 1976 in the

concurrent list, the centre and state government are both responsible for

legislation of law, act and rules for development, protection of the same.

In case of repugnancy between a Union and a State law relating to the same

subject in a concurrent list, the former prevails.

Power to Forest Officers, Police Officers and Magistrate under WPA 1972.

1. Power of entry, search, arrest and detention are vested to all Forest

Officer starting from Forest Guard of Forest Department. In case of Police

Officer; the above power are vested to all the Police Officer not below the

rank of sub-inspector under section 50 (1).

2. Power to execute custody bond of wild animal or captive animal seized

under the above section to any person is vested to Forest Officer of rank

not inferior to that of an Assistant Director of Wildlife Preservation or an

Assistant Conservator of Forest under section 50(3A).

3. Power for disposal; of any meat, uncured trophy, specified plant or part

or derivative thereof seized under Section 50 is vested to the assistant of Wildlife Preservation or any other officer of a gazetted rank

authorized by him in this behalf or the chief Wildlife Warden or the

authorized Officer under Section 50(6).

4. Power (a) to issue a search warrant; (b) to enforce the attendance of

witness; © to compel the discovery and production of documents and

materials objects; and (d) to receive and record evidence is vested to any

officer not below the rank of an Assistant Director Wildlife Preservation or

an officer not below the rank of Assistant Conservator of Forests authorized

by the State Governments Section 50 (8).

5. Power to compound offences may be vested to the Director of Wildlife

Preservation or any officer not below the rank of Assistant Director of

Wildlife Preservation by the Central Government and in case of a State

Government to the Chief Wildlife Warden or any officer of a rank not below

the rank of a Deputy Conservator Of Forests, to accept from any person

against whom a reasonable suspicion exists that he has committed an offence

against this Act, payment of a sum of money by way of composition of the

offence which such person is suspected to have committed under Section 54

(1).

6. Power to grant bail of any person committing any offence relating to

Schedule animal and to forfeit to the State Government or Central Government

any vehicle, vessel, trap, tool or weapon used in the commission of an

offence are vested to the Court trying the Wildlife Offence Case under

Section 51 (2).

7. Power to Remove Encroachment (Section 34 A) is vested to any officer not

below the rank of an Assistant Conservator of Forests to (a) evict any

person from a sanctuary or National Park, who unauthorisedly occupies

Government land in contravention of the provisions of this Act; (b) remove

any unauthorized structures, buildings, or constructions erected on any

Government land within any sanctuary or National Park and all the things,

tools and effects belonging to such person shall be confiscated, by an order

of an officer not below the rank of the Deputy Conservator of Forests.

 

Categories of Wildlife Offences: - The wildlife offences can be broadly

classified into Compoundable offences and non-compoundable offences.

Compoundable offence: - The wildlife offence for which no minimum period of

imprisonment has been prescribed under Section 51 of wildlife Protection Act

1972 is compoundable offences. But under Section 51, the offender on

conviction can be punished with imprisonment for a term which may extend to

three years or with fine which may extend to twenty five thousand rupees or

with both.

Non-compoundable offence:- The Wildlife offence which relates to Schedule

animal (Schedule I animals, Part II of Schedule II animals) or meat of any

such animal or animal article, trophy, or uncured trophy derived from such

animal or animal article or where offence relates to hunting in a Sanctuary

or a National Park or altering the boundaries of a Sanctuary or National

Park or wildlife offence committed for the second time shall be

non-compoundable offence and liable to produce any person detained, or

things seized under section 50 before a Magistrate to be dealt with

according to law under intimation to the Chief Wildlife Warden or the

officer authorized by him in this regard under Section 50 (4). On conviction

under this category the accused is liable to be punished with imprisonment

for a term which shall not be less than three years but may extend to seven

years and also with fine which shall not be less than ten thousand rupees.

First Information Report: - Under Section 50 (4) occurrence of wildlife

offence is to be brought to the notice of Higher Authority including Hon'ble

Magistrate. Thus a detailed Report regarding the accused, parentage,

address, type of offence, section violated, wildlife species involved and

class of Schedule with zoological or botanical name, Quantities of the

articles and detailed series of occurrence of the event are to be reported

in details and also with a prayer to the magistrate or the higher authority

for an order of the maximum level of penalty to be imposed to the accused on

conviction. If there is any informant or complainant, detailed of informant

with signature or thump impression is to be furnished in the FIR. The FIR

will be signed by a Prosecuting Forest Officer with full name and

Designation.

 

Some Important Sections of Wildlife Protection Act 1972 (amended up to 2006)

which are frequently referred in the FIR and also frequently violated by the

Wildlife Offenders.

Section 9:- Prohibition of hunting (No person shall hunt any wild animal

specified in Schedule I, II, III and IV except as provided under Section 11

and Section 12.)

Section 17A:- Prohibition of picking, uprooting etc of specified plants. (

No person shall (a) willfully pick, uproot, damage, destroy, acquire or

collect any specified plant from any forest land and are specified, by

notification, by the central Government,

(b) possess, sell, offer for sale, or transfer by way of gift or otherwise,

or transport any specified plant, whether alive or dead, or part or

derivative thereof: Provided that nothing in this section shall prevent a

member of a scheduled tribe, subject to the provisions of Chapter IV, from

picking, collecting or possessing in the district he resides any specified

plant or part or derivative thereof for his bona fide personal use.)

Section 27:-Restriction on entry in Sanctuary/ National Park{(1) No person

other than,-(a) a public servant on duty; (b) a person who has been

permitted by the Chief Wildlife warden or the authorized officer to reside

within the limits of the sanctuary/ National Park.© a person who has right

over immovable property within the limits of the sanctuary/ National

Park;(d) a person passing through the sanctuary along a public highway, and

(e) the dependents of the person referred to in CL,.(a),(b),or ©. shall

enter or reside in the Sanctuary/National Park, except under and in

accordance with the conditions of a permit granted under section 28.

Section 29 :-Destruction etc in a Sanctuary/National Park prohibited without

a permit.

Section 30 :-Causing Fire in Wildlife Sanctuary/National Park prohibited.

Section 31:-Prohibition of entry into Sanctuary/National Park with weapon.

Section 32:- Ban on use of injurious substances in Wildlife

Sanctuary/National Park.

Section 35 (5):- No alteration of boundaries of a National Park by the State

Government shall be made except on the recommendation of National Board of

Wildlife and Hon'ble Supreme Court of India. (Thus any State Government

Department or Central Government Agencies should take prior permission or

Forest Clearance from the Hon'ble Supreme Court and National Board of

Wildlife if they require to use Sanctuary or National Park Area for

Construction of their Establishment, camps, office buildings or any Kind of

Development Project inside these Protected Areas. Further recognition of new

tax paying hill village inside the National Park and Sanctuaries will amount

to violation of this Act.)

Section 35 (6) No person shall destroy, exploit or remove any wild life

including forest produce from National Park.

Section 40 (2):- No person shall, after the commencement of this Act,

acquire, receive, keep in his control, custody or possession, sell, offer

for sale, or otherwise transfer or transport any animal specified in

Schedule I or Part II of Schedule II, any uncured trophy or meat derived

from such animal, or the salted or dried skin of such animal or the musk of

a deer or the horn of a rhinoceros, except with the previous permission in

writing of the chief Wildlife warden or the authorized officer.

Section 44:- Dealings in trophy and animal articles without license

prohibited.

Section 48A:-Restriction on transportation of Wild life.

Section 49B:- Prohibition of dealings in trophies, animal articles etc

derived from Scheduled animal.

 

Some of the Penalties against the violation of WPA 1972,(Section 51).

(1) Any person who contravenes any provision of the Wildlife Protection Act

(except Chapter V-A and section 38) or any rule or order made there under or

who commits a breach of any of the condition of any license or permit

granted under this Act, shall be guilty of an offence against this Act, and

shall, on conviction, be punishable with imprisonment for a term which may

extend to three years or with fine which may extend to twenty five thousand

rupees or with both.

Provided that where the offence committed is in relation to any animal

specified in Scheduled I or Part II of Sch.II or meat of such animal or

animal article, trophy, or uncured trophy derived from such animal or where

offence relates to hunting in a sanctuary or a National Park, or altering

the boundaries of a sanctuary or a National Park, such offence shall be

punishable with imprisonment for a term which shall not be less than three

years but may extend to seven years and also with fine which shall not be

less than ten thousand Rupees.

Provided further that in the case of a second or subsequent offence of the

nature mentioned in this subsection, the term of imprisonment shall not be

less than three years but may extend to seven years and also with fine which

shall not be less than twenty-five thousand rupees.

(IA) Any person who contravenes any provisions of Chapter V-A, shall be

punishable with imprisonment for a term which shall not be less than three

years but which may extend to seven years and also with fine which shall not

be less than ten thousand rupees.

(IB) Any person who contravenes the provisions of Section 38 shall be

punishable with imprisonment for a term which may extend to six months or

with fine which may extend to two thousand rupees, or with both.

Provided that in case of second or subsequent offence the term of

imprisonment may extend to one year or the fine may extend to five thousand

rupees.

(IC) any person, who commits an offence in relation to the core area of a

tiger reserve or where the offence relate to hunting in the tiger reserve or

altering the boundaries of the tiger reserve, such offence shall be

punishable on first conviction with imprisonment for a term which shall not

be less than three years but may extend to seven years, and also with fine

which shall not be less than fifty thousand rupees but may extend to two

lakh rupees; and in the event of a second or subsequent conviction with

imprisonment for a term of not less than seven years and also with fine

which shall not be less than five lakh rupees but may extend to fifty lakh

rupees.

 

Restriction to the Enforcing agencies

Section 53; - Punishment for wrongful seizure. - If any person, exercising

powers under this Act, vexatiously and unnecessarily seizes the property of

any other person on the pretence of seizing it for the reasons mentioned in

sec.50, shall, on conviction, be punishable with imprisonment for a term

which may extend to six months, or with fine which may extend to five

hundred rupees, or with both.( This provision is provided to check misuse of

the Act by the prosecuting officials)

 

Immunity to the Public Servants

Section 60;- Protection of action taken in good faith. (1) No suit,

prosecution, or other legal proceeding shall lie against any officer or

other employee of the Central Government or the State Government for

anything which is in good faith done or intended to be done under this Act.

(2) No suit or other legal proceeding shall lie against the Central

Government or the State Government or any of its officers or other

employees, for any damage caused or likely to be caused by anything which is

in good faith done or intended to be done under this Act. (3) No suit or

other legal proceeding shall lie against the Authority referred to in

Chapter IV-A and its chairperson, member, member secretary, officers and

other employee for anything which is in good faith done or intended to be

done under this Act. (Section 60 is protecting the prosecuting officials if

the Act is implemented genuinely and in good faith.)

 

Reward to Persons

Section 60 A: - (i) When a court imposes a sentence of fine or a sentence of

which fine forms apart, the court may when passing judgment order that the

regard be paid to a person who renders assistance in the detection of the

offence or the apprehension of the offenders out of the proceeds of fine not

exceeding fifty percent of such fine.

(2) When a case is compounded under Section 54, the officer compounding may

order reward to be paid to a person who renders assistance in the detection

of the offence or the apprehension of the offenders out of the sum of money

accepted by way of composition not exceeding fifty per cent of such money.

(So every person helping the enforcing agencies is encouraged by providing

provisions of reward to the informer or witness of wildlife cases.)

 

Conclusion:- The above provisions are highlighted so as to convey the core

message of Wild Life (Protection) Act 1972 (as amended upto 2006) for mas

awareness but these are not the exhaustive provisions and elaborate

interpretation of this Act. In this article, it is also tried to appeal the

transporters and drivers especially in the Imphal -Moreh sector of NH 39 not

to transport any kind of Wildlife articles as it might landed them into

troubles of detention of the vehicle, court trials, even confiscation of

their vehicle by the Government which they might had transported knowingly

or not. It is further earnestly appealed to all the citizens of Manipur to

please help in conserving the fast vanishing and dwindling wildlife of the

State by providing concrete information of commission of Wildlife Offences

such as killing, trapping, snaring, poisoning, baiting, netting of wildlife,

illegal trade and commerce of wildlife produce, encroachment inside the

Wildlife Sanctuary and National Park etc to the nearest Forest Office or to

any law enforcing agencies in the State.

 

Reference:

(i) The Wild Life (Protection) Act 1972 (as amended upto 2006) published by

Wildlife Trust of India, New Delhi and Nataraj Publishers- Dehradun

(ii) A Conspectus of mammals included under the schedule I of WPA 1972 of

Wildlife Preservation Eastern Region, Kolkata.)

(iii) A Field Guide to birds of India by Krys Kazmierczak illustrated by Ber

van Perlo.

(iv) Hand Book on Indian wetlands Birds by Arun Kumar, J,P.Sati, P.C. Tak

and J,R, B. Alfred.

(v) Introduction to the Constitution of India by Durga Das Basu.

(vi) The Constitution of India by P. Muthuswamy.

(vii) The Central Civil Services (Conduct) Rules 1964 by Muthuswamy & Brinda

(viii) Different websites such as Biodiversity.com, P.A. Network of India by

Rodgers & Panwar, Reuters.com, Wkipedia.com, Wildlife Trust of India news.cometc.

 

(The views and interpretations expressed in this article are writer's own

and not that of Government. The writer would like to thank Shri L. Joykumar

Singh. DCF/ Park & Sanctuary Division, Sanjenthong, Imphal for his kind

encouragement and valuable suggestions.)

*

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