Drishtikon: Wildlife Crimes: Legal Framework

37 min readAug 22, 2022

The importance of wildlife is to be seen in the light of the constitutional mandate. (Protection) and improvement of the environment and safeguarding forests and wildlife are included in the Directive Principles of State Policy in the Constitution of India (Article 48 A). Article 51A (g) of the Constitution says that it is the Fundamental Duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Prevention of cruelty to animals, Forests and (Protection) of wild animals and birds are in the Concurrent List (List -III), Seventh Schedule under Article 246 of the Constitution of India.[1]

In India, international trade in flora and fauna is governed by Foreign Trade (Development Regulation) Act 1992, Foreign Trade Policy of Government of India and Customs Act, 1962, which provides the list of wildlife and wildlife products whose international trade is either permitted or prohibited. For species covered in the permitted category, it provides the procedure for import and export of permissible species of Wildlife and Wildlife products. Foreign trade policy has export or import policy providing species and the status of their export or import. Trade in wildlife and their derivatives as defined under WLPA is generally prohibited except as provided in the Act and subject to compliance with provisions of Foreign Trade Policy. India’s trade policies consider CITES-listed species in these policies as well.[2]

Trading of prohibited or restricted species in contravention of these acts will attract punishment under these Acts also.

MOEFCC AMNESTY SCHEME FOR DISCLOSURE OF ILLEGAL WILDLIFE

This amnesty scheme by the Government of India has been under the radar for being employed as a new tool for the exotic wildlife trade by the Wildlife Smugglers.

THE WILD LIFE (PROTECTION) ACT, 1972

50. Power of entry, search, arrest and detention. — (1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub- inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act, — (a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy or [trophy, uncured trophy, specified plant or part or derivative thereof] in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;

(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;

[(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him:

Provided that where a fisherman, residing within ten kilometres of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized.]

(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detainany person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.

[(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or [an Assistant Conservator of Forests] who, or whose subordinate, has seized any captive animal or wild animal under clause © of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.]

(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law [under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard].

(5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce under this section, shall be guilty of an offence against this Act.

[(6) Where any meat, uncured trophy, specified plant or part or derivative thereof is seized under the provisions of this section, the Assistant Director of Wild Life Preservation or any other officer of a gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer may arrange for the disposal of the same in such manner as may be prescribed.]

(7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance in the prevention or detection of an offence against this Act, or in apprehending persons charged with the violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of such person or persons to render such assistance.

[(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or [an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the powers, for purposes of making investigation into any offence against any provision of this Act —

(a) to issue a search warrant;

(b) to enforce the attendance of witnesses;

(d) to receive and record evidence.

(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.]

51. Penalties. — (1) Any person who [contravenes any provision of this Act 2 [(except Chapter VA and section 38J)]] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence 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 Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the 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 sub-section, the term of the 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.]

[(1A) Any person who contravenes any provisions of Chapter VA, 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 8 [ten thousand rupees].]

[(1B) Any person who contravenes the provisions of section 38J, 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 the case of a second or subsequent offence the term of imprisonment may extend to one year or the fine may extend to five thousand rupees.]

(2) When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy, [uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof] in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.

(3) Such cancellation of licence or permit or such forfeiture shall be in addition to any other punishment that may be awarded for such offence.

(4) Where any person is convicted of an offence against this Act, the Court may direct that the licence, if any, granted to such person under the Arms Act, 1959 (54 of 1959), for possession of any arm with which an offence against this Act has been committed, shall be cancelled and that such person shall not be eligible for a licence under the Arms Act, 1959, for a period of five years from the date of conviction.

[(5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a National Park or of an offence against any provision of Chapter VA unless such person is under eighteen years of age.]

[51A. Certain conditions to apply while granting bail. — When any person accused of, the commission of any offence relating to Schedule I or Part II of Schedule II or offences relating to hunting inside the boundaries of National Park or wild life sanctuary or altering the boundaries of such parks and sanctuaries, is arrested under the provisions of the Act, then notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) no such person who had been previously convicted of an offence under this Act shall, be released on bail unless —

(a) the Public Prosecutor has been given an opportunity of opposing the release on bail; and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.]

52. Attempts and abetment. — Whoever attempts to contravene, or abets the contravention of, any of the provisions of this Act or of any rule or order made thereunder shall be deemed to have contravened that provision or rule or order, as the case may be.

Foreign Trade (Development Regulation) Act, 1992: Foreign Trade policy notified under this law.

Section 11(2): (2) Where any person makes or abets or attempts to make any export or import in contravention of any provision of this Act or any rules or orders made thereunder or the export and import policy, he shall be liable to a penalty not exceeding one thousand rupees or five times the value of the goods in respect of which any contravention is made or attempted to be made, whichever is more.

Customs Act, 1962

Section 112: (liability for import) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty 5[not exceeding the value of the goods or five thousand rupees], whichever is the greater;

Confiscation of such goods under Section 113.

Section 114: (liability for export) (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater.

Prevention of Money Laundering Act, 2002

Section 2

(u) “proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

[Explanation. — For the removal of doubts, it is hereby clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;

Section 3. Offence of money-laundering. — Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering.

Explanation. — For the removal of doubts, it is hereby clarified that, —

(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely: —

(a) concealment; or

(b) possession; or

(d) use; or

(e) projecting as untainted property; or

(f) claiming as untainted property,

in any manner whatsoever;

(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.

4. Punishment for money-laundering. — Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine 3:

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.

Schedule:

· Section 9 Hunting of wild animals.

· section 17A Contravention of provisions of section 17A relating to prohibition of picking, uprooting, etc., of specified plants.

· section 39 Contravention of provisions of section 39 relating to wild animals, etc., to be Government property.

· Contravention of provisions of section 44 relating to dealings in trophy and animal articles without licence prohibited

· Contravention of provisions of section 48 relating to purchase of animal, etc., by licensee.

· Contravention of provisions of section 49B relating to prohibition of dealings in trophies, animals articles, etc., derived from scheduled animals

Indian Penal Code, 1860

428. Mischief by killing or maiming animal of the value of ten rupees. — Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of the ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees. — Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

Prevention of Cruelty to Animals Act, 1960

11. Treating animals cruelly.―(1) If any person―

(a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated; or

© wilfully and unreasonably administers any injurious drug or injurious substance to 2 [any animal] or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by 2 [any animal]; or

(d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or

(e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or

(f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or

(k) offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment; or

(l) multilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; or

he shall be punishable, 4 [in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both].

Domestic agencies engaged in addressing wildlife crimes — Directorate of Wildlife Preservation (MoEFCC), Wildlife Crime Control Bureau, State Forest Departments, State Police, CBI, Customs, Department of Revenue Intelligence, Armed forces and paramilitary forces, Forensic departments (Central and State), Wildlife Institute of India, Botanical Survey of India, Zoological Survey of India, Central Marine Fisheries Research Institute.[3]

State Forest and Police Departments are the primary enforcement agencies with regards to wildlife crimes. Wildlife crimes are also investigated by Central Bureau of Investigation (CBI) with the permission of State Governments concerned. WCCB also takes up selected wildlife offences with trans-border ramifications for investigation. Import or export of wildlife articles/ derivatives are either restricted or prohibited under the EXIM Policy. Therefore, the Customs Department and the Directorate of Revenue Intelligence (DRI) also play significant role in the detection of wildlife offences at exit points. The border guarding agencies with prevention of smuggling mandate and CISF deployed at airports play also important role in prevention of wildlife smuggling. GRP, RPF and Postal authorities have role in combating smuggling through railways and posts especially postal parcels.[4]

Relevant provisions of WLPA (it prohibits various activities such as hunting, trade, purchase, possession, attempt, abetment, habitat destruction, causing fires, transportation, entering protected area, entering protected area with a weapon, etc.):

Section 2:

(16) “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;

(36) “wild animal” means any animal specified in Schedules I to IV and found wild in nature;

(37) “wild life” includes any animal, aquatic or land vegetation which forms part of any habitat;]

9. Prohibition of hunting. — No person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under section 11 and section 12.

11. Hunting of wild animals to be permitted in certain cases: Schedule I to IV species are protected wherever they are found. Schedule I species can be hunted only with permission of the Chief Wildlife Warden, if he is satisfied that any wild animal specified in Schedule has become dangerous to human life or is so disabled or diseased as to be beyond recovery. CWW should be satisfied that such animal cannot be captured, tranquilised or translocated.

Whereas hunting of Schedule II to IV species can be allowed by Chief Wildlife Warden or authorized officer, if he is satisfied that it has become dangerous to human life or to property (including standing crops on any land) or is so disabled or diseased as to be beyond recovery. The permit can be issued to any person to hunt 2[such animal or group of animals in a specified area or cause such animal or group of animals in that specified area to be hunted. Killing any species in contravention of this will be punishable.

Only Schedule V species (Vermin) can be hunted without permission. Govt can also add other wild animals (except those in Schedule I and Part II of Schedule II) as vermin for any area and period.

17A. Prohibition of picking, uprooting, etc. of specified plant: Save as otherwise provided in this Chapter, no person shall —

(a) wilfully pick, uproot, damage, destroy, acquire or collect any specified plant from any forest land and any area specified, by notification, by the Central Government;

(b) posses, 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.

Specified plants are those listed in Schedule VI of the Act. The Schedule VI of the Act lists all the six plants of Indian origin included in CITES appendices.

17C-17G prohibits cultivation, dealing, possession, purchase or acquisition of these plants with permission from CWW.

Schedule VI species are also protected wherever they are found.

38Y. Constitution of Tiger and other Endangered Species Crime Control Bureau. — The Central Government may, for the purposes of this Act, by order published in the Official Gazette, constitute a Tiger and other Endangered Species Crime Control Bureau to be known as the Wildlife Crime Control Bureau consisting of —

(a) the Director of Wildlife Preservation — Director ex officio;

(b) the Inspector-General of Police — Additional Director;

(d) the Deputy Inspector-General of Forests — Joint Director;

(e) the Additional Commissioner (Customs and Central Excise) — Joint Director; and

(f) such other officers as may be appointed from amongst the officers covered under sections 3 and 4 of this Act.

38Z. Powers and functions of the Wildlife Crime Control Bureau. — (1) Subject to the provisions of this Act, the Wildlife Crime Control Bureau shall take measures with respect to —

(i) collect and collate intelligence related to organized wildlife crime activities and to disseminate the same to State and other enforcement agencies for immediate action, so as to apprehend the criminals and to establish a centralised wildlife crime data bank;

(ii) co-ordination of actions by various officers, State Governments and other authorities in connection with the enforcement of the provisions of this Act, either directly or through regional and border units set up by the Bureau;

(iii) implementation of obligations under the various international Conventions and protocols that are in force at present or which may be ratified or acceded to by India in future;

(iv) assistance to concerned authorities in foreign countries and concerned international organisations to facilitate co-ordination and universal action for wildlife crime control;

(v) develop infrastructure and capacity building for scientific and professional investigation into wildlife crimes and assist State Governments to ensure success in prosecutions related to wildlife crimes;

(vi) advice the Government of India on issues relating to wildlife crimes having national and international ramifications, and suggest changes required in relevant policy and laws from time to time.

(2) The Wildlife Crime Control Bureau shall exercise —

(i) such powers as may be delegated to it under sub-section (1) of section 5, sub-sections (1) and (8) of section 50 and section 55 of this Act; and (ii) such other powers as may be prescribed.

39. Wild animals, etc., to be Government property. — (1) Every —

(a) wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or 1[bred in captivity or hunted] in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed 2*** or by mistake; and

(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed,

(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act.

shall be the property of the State Government, and, wheresuch animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government.

(2) Amy person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining such possession, make a report as to the obtaining of such possession to the, nearest police station or the authorised officer and shall, if so required, hand over such property to the officer-in-charge of such police station or such authorised officer, as the case may be.

(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer —

(a) acquire or keep in his possession, custody or control, or

(b) transfer to any person, whether by way of gift, sale or otherwise, or

Similarly, the Act disallows trade in all kinds of imported ivory, including that of the African elephants.

40. Declarations.

(2) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or 420 otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer.

(2A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wild Life (Protection) Amendment Act, 2002 (16 of 2003)acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance.

44. Dealings in trophy and animal articles without licence prohibited. — (1) Subject to the provisions of Chapter VA, no person shall, except under and in accordance with, a licence granted under sub-section (4)] —

(a) commence or carry on the business as —

(i) a manufacturer of or dealer In, any animal article; or

(ii) a taxidermist; or

(iii) a dealer in trophy or uncured trophy; or

(iv) a dealer In captive animals; or

(v) a dealer In meat; or

(b) cook or serve meat In any eating-house:

48. Purchase of animals, etc., by licensee. — No licensee under this Chapter shall —

(a) keep in his control, custody or possession, —

(i) any animal, animal article, trophy or uncured trophy in respect of which a declaration under the provisions of sub-section (2) of section 44 has to be made but has not been made;

(ii) any animal or animal article, trophy, uncured trophy or meat which has not been lawfully acquired under the provisions of this Act or any rule or order made thereunder;

(b) (i) capture any wild animal, or

(ii) acquire, receive keep in his control, custody or possession, or sell, offer for sale or transport, any captive animal specified in Schedule I or Part II of Schedule II or any animal article trophy, uncured trophy or meat derived therefrom or serve such meat, or put under a process of taxidermy or make animal article containing part or whole of such animal, except in accordance with such rules as may be made under this Act;

49. Purchase of captive animal, etc., by a person other than a licensee. — No person shall purchase, receive or acquire any captive animal, wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this Act.

Chapter VA: Restriction on trade or commerce in trophies, animal articles, etc. derived from certain animals

49A. Definitions. — In this Chapter, —

(a) “Scheduled animal” means an animal specified for the time being in Schedule I or Part II of Schedule II;

(b) “Scheduled animal article” means an article made from any Scheduled animal and includes an article or object in which the whole or any part of such animal 4[has been used but does not include tail feather of peacook, an article or trophy made therefrom and snake venom or its derivative.]

49B. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals. — (1) Subject to the other provisions of this Section, on and after the specified date, no person shall —

(a) commence or carry on the business as —

(i) a manufacturer of, or dealer in, scheduled animal articles; or

2[ia) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]

(ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or

(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or

(iv) a dealer in any captive animals being scheduled animals; or

(v) a dealer in meat derived from any scheduled animal; or

(b) cook or serve meat derived from any scheduled animal in any eating-house.

50. Power of entry, search, arrest and detention:

(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub- inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act, —

(a) require any person to produce for inspection any captive animal, wild animal, animal article, meat, trophy or 3[trophy, uncured trophy, specified plant or part or derivative thereof]in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;

(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him:

(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.

(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard.

(5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce under this section, shall be guilty of an offence against this Act.

(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or 8[an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the powers, for purposes of making investigation into any offence against any provision of this Act —

(a) to issue a search warrant;

(b) to enforce the attendance of witnesses;

(d) to receive and record evidence.

(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.

[WLPA is not a complete code and does not lay down detailed guidelines for investigation of wildlife offences. Any forest officer may conduct investigation of such offences. Section 50(8) provides for special powers of officers, not that only they are authorized to investigate such offences. The SC in CBI v. Motilal (2001) has held that Police and CBI also have powers to investigate such offences.][5]

51. Penalties. — (1) Any person who contravenes any provision of this Act except Chapter VA[6] and section 38J[7] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence 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 Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the 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:

(1A) Any person who contravenes any provisions of Chapter VA, 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.

(1B) Any person who contravenes the provisions of section 38J, 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 the case of a second or subsequent offence the term of imprisonment may extend to one year or the fine may extend to five thousand rupees.

(1C) 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.

(2) When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy,10[uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof]in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled. [THIS FORFEITURE DIFFERENT FROM CHAPTER VIA]

(5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a National Park or of an offence against any provision of Chapter VA unless such person is under eighteen years of age.

[offence against Schedule I / Part II of Schedule II species (anywhere); hunting of any species in NP/WS; altering boundary of NP/WS; Chapter VA (trading or commerce of said Scheduled species; offence in core area of a tiger reserve, hunting in tiger reserve, altering its boundaries — 3 to 7 years;

38J — upto 6 months;

Other provisions — upto 3 years]

51A. Certain conditions to apply while granting bail. — When any person accused of, the commission of any offence relating to Schedule I or Part II of Schedule II or offences relating to hunting inside the boundaries of National Park or wild life sanctuary or altering the boundaries of such parks and sanctuaries, is arrested under the provisions of the Act, then notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) no such person who had been previously convicted of an offence under this Act shall, be released on bail unless —

(a) the Public Prosecutor has been given an opportunity of opposing the release on bail; and

54. Power to compound offence. — (1) The Central Government may, by notification, empower the Director of Wild Life Preservation or any other officer not below the rank of Assistant Director of Wild Life Preservation and in the case of a State Government in the similar manner, empower the Chief Wild Life 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.

(2) On payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person.

(3) The officer compounding any offence may order the cancellation of any licence or permit granted under this Act to the offender, or if not empowered to do so, may approach an officer so empowered, for the cancellation of such licence or permit.

(4) The sum of money accepted or agreed to be accepted as composition under sub-section (1) shall, in no case, exceed the sum of twenty-five thousand rupees:

Provided that no offence, for which a minimum period of imprisonment has been prescribed in section 51, shall be compounded.

55. Cognizance of offences. — No court shall take cognizance of any offence against this Act on the complaint[8] of any person other than —

(a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or

3[(aa) the Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IVA; or]

4[(ab) Member-Secretary, Tiger Conservation Authority; or

(ac) Director of the concerned tiger reserve; or]

(b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government5[subject to such conditions as may be specified by that Government]; or

(bb) the officer-in-charge of the zoo in respect of violation of provisions of section 38J; or]

© any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the State Government or the officer authorised as aforesaid.]

56. Operation of other laws not barred. — Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for any act or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act: Provided that no person shall be punished twice for the same offence.

57. Presumption to be made in certain cases. — Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, 1[trophy, uncured trophy, specified plant, or part or derivative thereof]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 such captive animal, animal article, meat, 1[trophy, uncured trophy, specified plant, or part or derivative thereof.

CHAPTER VI A

FORFEITURE OF PROPERTY DERIVED FROM ILLEGAL HUNTING AND TRADE

58A. Application. — The provisions of this Chapter shall apply only to the following persons, namely: —

(a) every person who has been convicted of an offence punishable under this Act with imprisonment for a term of three years or more;

(b) every associate of a person referred to in clause (a);

(c) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time previously held by a person referred to in clause (a) or clause (b) unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.

58B. Definitions. —

(b) “associate” in relation to a person whose property is liable to be forfeited under this Chapter, includes —

(i) any individual who had been or is managing the affairs or keeping the accounts of such person;

(ii) any association of persons, body of individuals, partnership firm or private company within the meaning of the Companies Act, 1956 (1 of 1956) of which such person had been or is a member, partner or director;

(iii) any individual who had been or is a member, partner or director of an association of persons, body of individuals, partnership firm or private company referred to in sub-clause (ii) at any time when such person had been or is a member, partner or director of such association, body, partnership firm or private company;

(iv) any person, who had been or is managing the affairs, or keeping the accounts of any association of persons, body of individuals, partnership firm or private company referred to in sub-clause (iii);

(v) the trustee of any trust, where, —

(1) the trust has been created by such person; or

(2) the value of the assets contributed by such person (including the value of the assets, if any, contributed by him earlier) to the trust amounts on the date on which contribution is made, to not less than twenty per cent.of the value of the assets of the trust on that date;

(vi) where the competent authority, for reasons to be recorded in writing, considers that any properties of such person are held on his behalf by any other person, such other person;

(g) “illegally acquired property” in relation to any person to whom this Chapter applies, means, —

(i) any property acquired by such person, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to illegal hunting and trade of wild life and its products and derivatives;

(ii) any property acquired by such person, for a consideration or by any means, wholly or partly traceable to any property referred to in sub-clause (i) or the income or earning from such property, and includes —

(A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration;

(B) any property acquired by such person, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom;

(h) “property” means property and assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets, derived from the illegal hunting and trade of wild life and its products;

58C. Prohibition of holding illegally acquired property. — (1) From the date of commencement of this Chapter, it shall not be lawful for any person to whom this Chapter applies to hold any illegally acquired property either by himself or through any other person on his behalf.

(2) Where any person holds such property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the State Government concerned in accordance with the provisions of this Chapter:

Provided that no property shall be forfeited under this Chapter if such property was acquired by a person to whom this Act applies before a period of six years from the date on which he was charged for an offence relating to illegal hunting and trade of wild life and its products

58E. Identifying illegally acquired property. — (1) An officer not below the rank of Deputy Inspector General of Police duly authorised by the Central Government or as the case may be, the State Government, shall, on receipt of a complaint from the competent authority[9] about any person having illegally acquired property, proceed to take all steps necessary for tracing and identifying any property illegally acquired by such person.

(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or financial institution or any other relevant step as may be necessary.

(3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions or guidelines as the competent authority may make or issue in this behalf.

58F. Seizure or freezing of illegally acquired property. — (1) Where any officer conducting an inquiry or investigation under section 58E has reason to believe that any property in relation to which such inquiry or investigation is being conducted is an illegally acquired property and such property is likely to be concealed, transferred[10] or dealt with in any manner which may result in frustrating any proceeding relating to forfeiture of such property under this Chapter, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, or of the competent authority and a copy of such order shall be served on the person concerned:

Provided that a copy of such an order shall be sent to the competent authority within forty-eight hours of its being made.

(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made.

58H. Notice of forfeiture of property. — (1) If having regard to the value of the properties held by any person to whom this Chapter applies, either by himself or through any other person on his behalf, his known sources of income, earnings or assets, and any other information or material available to it as a result of a report from any officer making an investigation under section 58E or otherwise, the competent authority for reasons to be recorded in writing believes that all or any of such properties are illegally acquired properties, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to show cause why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the State Government under this Chapter and in support of his case indicate the sources of his income, earnings or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars

58-I. Forfeiture of property in certain cases. — (1) The competent authority may, after considering the explanation, if any, to the show cause notice issued under section 58H, and the materials available before it and after giving to the person affected and in a case where the person affected holds any property specified in the notice through any other person, to such other person, also a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are illegally acquired properties:

(3) Where the competent authority records a finding under this section to the effect that any property is illegally acquired property, it shall declare that such property shall, subject to the provisions of this Chapter stand forfeited to the State Government free from all encumbrances.

(4) In case the person affected establishes that the property specified in the notice issued under section 58H is not an illegally acquired property and therefore not liable to be forfeited under the Act, the said notice shall be withdrawn and the property shall be released forthwith.

58J. Burden of proof. — In any proceedings under this Chapter, the burden of proving that any property specified in the notice served under section 58H is not illegally acquired property shall be on the person affected.

58K. Fine in lieu of forfeiture. — (1) Where the competent authority makes a declaration that any property stands forfeited to the State Government under section 58-I and it is a case where the source of only a part of the illegally acquired property has not been proved to the satisfaction of the competent authority, it shall make an order giving option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part.

Upon such payment, forfeiture should be revoked and property shall be released.

58M. Certain transfers to be null and void. — Where after the making of an order under sub-section (1) of section 58F or the issue of a notice under section 58H or under section 58L, any property referred to in the said order or notice is transferred by any mode whatsoever, such transfer shall, for the purposes of the proceedings under this Chapter, be ignored and if such property is subsequently forfeited to the State Government under section 58-I, then, the transfer of such property shall be deemed to be null and void.

Appellate Tribunal for Forfeited Property and Appeals provision — before the Govt constituted authority.[11]

Bar of court’s jurisdiction on these orders — no appeal or injunction.[12]

58Y.Punishment for acquiring property in relation to which proceedings have been taken under this Chapter. — Any person who knowingly acquires, by any mode whatsoever, any property in relation to which proceedings are pending under this Chapter shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to fifty thousand rupees.

References

[1] WCCB wildlife crime investigation manual, para 1.2.

[2] http://wccb.gov.in/WriteReadData/userfiles/file/Trade%20Facilitation/Legal%20framework%20ITC%20HS(1).pdf — done

[3] WWF wildlife law handbook, pg.

[4] WCCB wildlife crime investigation manual, para 1.9.

[5] WWF — handbook wildlife law enforcement India — Pg. 60–61.

[6] Prohibition on trading in Schedule I or Part II of Schedule II animals.

[7] Teasing in a zoo

[8] Under Section 190 of CRPC. No fixed format of this complaint, but it should provide details like official or person filing the complaint, details of accused, details of the offence, species involved in the offence, nature of wildlife offence, supporting evidences, statement of accused/witnesses, seizure report, investigation report, forensic reports.

[9] 58D. Competent authority. — The State Government may, by order published in the Official Gazette, authorise any officer not below the rank of Chief Conservator of Forests to perform the functions of the competent authority under this Chapter in respect of such persons or classes of persons as the State Government may, direct.

[10] Explanation. — For the purposes of this section, “transfer of property” means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes —

(a) the creation of a trust in property;

(b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property;

(c) the exercise of a power of appointment, of property vested in any person not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and

(d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person.

[11] Section 58N and 58O.

[12] Section 58Q.

About the Author

Abhishek Kumar, NCPEDP-Javed Abidi Fellow on Disability, The author can be reached at: abhishek.ncpedp@gmail.com
Himanshu, Advocate. The author can be reached at: himanshu.zenithlegal@gmail.com

Drishtikon: Wildlife Crimes: Legal Framework

Written by The Sangyan

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