Professional Documents
Culture Documents
The Wild Birds and Animals Protection Act No. VIII of 1912
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invaders of forest and wild life usually take care that their poaching techniques go unnoticed by others including wild animals. (Forest Range Officer v. Aboobacker, 1990 FLT 22 at 24(Ker)
Special Law Overrides the General Law !
under section 5 of CrPC Special Act overrides the General Act (Jethnal Vs. Heeralal , 1957 Raj LW 522 )
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animals, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental secuirity of the country
Definitions
Captive Animal- any animal which is specified in Schedule-I,II,III or IV, which is captured/ kept/bred in captivity. Protected Area- means a National Park, a sanctuary, a conservation reserve or a community reserve notified under sections 18, 35, 36A and 36C of the Act; Wildlife Vis a Vis Wild Animal under WLPA,1972
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Honorary
,Guidelines)
Wildlife
Wardens
CEL
case
such other officers and employees as may be necessary (Subordinate to the CWLW)
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appointment of Director of Wild Life Preservation under central government and CWLW under state govt. to perform his duties and exercise powers given under different provisions of the act.
Honble Supreme Court held that once an area has been declared as a sanctuary, entry into the area is restricted and regulated under Section 27 and 28 and subject to permission being granted by the Chief Wild Life Warden who has the powers to control, manage and maintain all sanctuaries under section 33.
(Essar Oil Ltd. Vs. H.U. Samiti, AIR 2004 SC 1834; 2004 (2) SCC 392 )
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Delegation of Powers
maintainable
The Honble Patna High Court observed that complaint was filed after obtaining sanction from the Divisional Forest Officer who was authorized to file the complaint. It may be relevant to mention here that sec.5(2) of the Wild Life (Protection) Act,1972 also gives power to the authorities concerned to delegate his powers to any of his subordinate officer
deem to be public servants within the meaning of section 21 of the Indian Penal Code.
Power to inspect records of licences under section 47 (b) of the Act; Powers of entry, search, seizure, and detention under section 50 for prevention and detection of offences
Honble SC directed that the concerned state / Union Territory shall take the necessary steps to appoint Honorary Wild Life Wardens for all the areas within a period of two months. (Centre for
Environmental Law Vs. Union of India and Others, I.A No. 2 in 12 W.P. (C) No. 337 of 1995 dated 7.11.1997)
Statutory body after the Wild Life (Protection) Amendment Act, 2002 ( Earlier IBWL) Even though SBWL were Statutory bodies.
Prime Minister is Chairperson and the Minister in-charge of Forests and Wild Life is Vice-Chairperson. Director WL Pres. Or ADG WL is Member Secy.
MPs, Secretaries, Directors of WII, ZSI, BSI, IVRI, NIO etc., Rep. (CWLW) of 10 states by rotation, 10 eminent conservationists, ecologists and environmentalists, 5 persons of NGOs etc. are members.
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Functions of NBWL
to promote the conservation and development of wild life and forests framing policies and advising the Govt for conservation of WL, Forests and controlling poaching and illegal trade of wild life. Recommend for mgmt of PAs. Carrying out or causing to be carried out impact assessment of various projects and activities on wild life or its habitat
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Vice-Chairperson, the Member-Secretary, and not more than ten members to be nominated by the Vice-Chairperson from amongst the members of the Board. Powers conferred by
By Act-Destruction in Pas, Commercial/ Residential accommodation for tourism inside PAs, Impact Assessment By Honble Supreme Court- FCA cases in PAs
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Seeks to make a parallel body to National Board for Wild Life at state level.
3 MLAs, 3 persons to represent NGOs organizations, ten eminent conservationists, ecologists and environmentalists at least 2 representatives of the Scheduled Tribes.
Secy. and Rep of Research Org. like ZSI, BSI, WII etc.
Chief Wild Life Warden, who shall be the Mem-Secy.
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to
Killing or poisoning of any wild animal or captive animal and every attempt to do so. 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.
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(a) CWLW may permit for hunting of Sch-I * animal dangerous to human life * disabled or diseased beyond recovery
tranquilised or translocated. #animal shall be kept in captivity unless the CWLW is satisfied that such animal cannot be rehabilitated in the wild and the reasons for the same are recorded in writing.
(b) CWLW or AO may permit Sch II, III or IV for (1)(a) reason and also for property (including crop).
#animal or group of animals in a specified area
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Case Study Killing of elephant on the ground that the animal had become dangerous to human life
adverse entry in ACR by the Minister for negligence of CWLW
Tribunal found; tusker had sustained some bullet injuries and in gradual process succumbed to the injuries. Based on the Expert opinion tusker would have died in any case dangerous to the life of a person to approach a wild tusker.
(Rabindranath Mohanty Vs. Govt. of India F.L.T. 1990 P. 268, 20 Central Administrative Tribunal, Cuttack Bench.)
Plants in Schedule VI The word and, in the phrase any forest land
and any area specified, by notification in section 17A should be read as or- (World Wide Fund for Nature Vs. Union of India in WPC No. 4719/93 , Delhi HC , 20.07.2005.)
Protected Areas
(ii) No Destruction No person shall destroy, exploit or remove any Wild Life including forest produce or destroy or damage or divert the habitat of any wild animal or divert, stop or enhance the flow of water into or outside WLS w/o permit of CWLW
SBWL in case of WLS and NBWL for N.P. that such activity is necessary for the improvement and better management of wild life
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(iv) Ban on use of injurious substances (v) Prohibition of entry into sanctuary with weapon (vi) for immunisation of livestock within five km of WLS/N.P (vii) Registration of arms with CWLW in case of existing and prior approval in case of new licence within 10 KM. under Arms Act, 1959(54 of 1959 )
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(sec 33)
# no construction of commercial tourist lodges, hotels, zoos and safari parks shall be undertaken inside a sanctuary except with the prior approval of the National Board
4. Regulate, control or prohibit, in keeping with the interests of wildlife, the grazing or movement of livestock
# In case of WLS only
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Case Law:
management of the protected areas are not barred by the order dated 14.02.2000-25-11-2005
(a) Habitat Improvement Activities (b) Fire protection measures (c) Management of wet grassland habitat (d) Communication and protection measures (e) Anti poaching initiatives
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De-notification NP/WLS
(The Centre for Environmental Law (CEL), WWF Vs. Union of India and others WPC No. 337 of 1995, SC)
No de reservation of forest/Sanctuaries/National Parks without prior approval of Supreme Court (order dated
# Supreme Court has divested the Central government (in respect to forests) and the State Legislature (in respect to National Parks and Sanctuaries) of all powers of de reservation / de notification.
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Central Zoo Authority mainly responsible for recognition / de recognition of Zoos monitoring of the management of zoos specifying the minimum standards and veterinary care of the animals kept in a zoo
#The MemberSecretary of Central Zoo Authority is empowered under section 55 to file a complaint against violation of the provision of the chapter IV-A.
looking at the pathetic state in which some of the zoos are maintained, we hereby direct that no state government or union territory shall set up a new zoo without getting clearance from the Central Zoo Authority and orders from this Court Navin M. Raheja
vs Union of India and Ors, W.P.(C) No. 47 of 1998 (Supreme 28 Court) order dated 20.11.2000
(Sec 39)
wild animal, other than vermin, which is hunted under Sec. 11 or sec.29 or sub-sec (6) of sec 35 or kept or bred in captivity or hunted in Contravention of the Act. animal article, trophy or uncured trophy or meat derived
ivory imported into India and an article made from such ivory vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provision of this Act. 29
so long as the competent Court does not find that the vehicle had been used for the purpose of the commission of the offence , the vehicle does not become the property of the state government (Bai Kuntha Bihari Mohapatra Vs. state of Orissa 2001 Cr. L.J. 4151 (Ori))
Confiscation is a quasi judicial process meant for the speedy disposal of the all tools etc. unlike the judicial process of prosecution which intends to punish the 30 offender (DFO Vs. Sudhakar Rao 1986 SC )
(1) Declare captive animals, articles, trophies, skins,musk, rhino horn in respect of Sch-I & Sch- II (II)
(2)No person to acquire, sell, transfer, transport Sch animal/ prod. (permission of CWLW/ AO) (2A) except by inheritance elephant Doesnt apply to live
Regulation of transfer of animal etc.(Sec43) No transfer by sale in respect of captive animal/ article/trophy/uncured trophy with ownership certificate.
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Act of dealing in the trophies by the appellant without licence is punishable (Pyarelal, Appellant Vs. The State (Delhi Admn.) Criminal Appeal No. 622 of 1988, AIR 1995 Supreme Court 1159)
The accused is guilty of illegal possession, custody and
control of the animal articles unless and until he disproves the same (Sansar Chand Vs. State 1994 (28) DRJ 281; 1 (1994) AD 13)
Prohibition of dealing in trophies, animal articles under
section 49B applies to mammoth ivory also. ( M/S Ivory Traders & Manufacturers Association and others Vs. Union of India and Others. AIR 1997 )
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Entry,
by
The forest officer can give only the captive animal or wild animals and not vehicle for custody (Ayyub Vs.
State of Rajasthan, 2003 CRI. L. J. 2954)
front
of
Officers apart from Police Officer are given specific powers for the purpose of prevention and detection of offence under act- (Moti Lal Vs. Central Bureau of
Investigation (CBI) and Others , Supreme Court , 2002 CRI. L.J. 2060). 33
Investigation
Wildlife Laws in India
Who can Investigate under WPA ? ACF or AO officer under section 50(1).
Powers given to certain officer under sec. 50(1) for this purpose.. Though, officer of the rank, ACF and above are given special powers
search warrant, enforce attendance, record evidence by ACF -50(8). receive &
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 presence of the accused person-50(9). #Inserted by amendment Act 44 of 1991.
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The Supreme Court held that S.50 of the Wild Life Act
is not complete Code and, therefore, CBI would also have jurisdiction to investigate the offences under the said Act. (Moti Lal Vs. CBI, SC, 2002 CRI. L.J. 2060)
Confessional statement before Forest Officer admissible in court under Evidence Act 1872 and embargo contained in Sections 25 and 30 is not applicable as Forest Officer is not police Officer. (Forest Range Officer Vs. Aboobacker, Kerla HC )
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Whether there is conflict or dichotomy in provisions of sub-section 39(1) (d) and section 51 (2) of the Act ?
If the seizure of a property was enough to declare it as the property of the government, there was no necessity to provide under sub-section (2) of section 51 that on proof of commission of the offence, the properties including vehicle, vessel, or weapon used in the commission of offence would be forfeited to the state government. [Madhukar Rao Vs. State of M.P (2000) 1 Jab LJ 304]
When owner of the property or the offender himself is not available for prosecution !!!
A situation can be envisaged where the offence is proved to have been committed but the owner of the property or the offender himself is not available for prosecution. In that situation by virtue of clause (d) of section 39 of the Act the property would become the property of the state without any requirement of passing an order of forfeiture in a trial by the criminal court in accordance with subsection (2) of section 51 of the Act.
Director/AO, CWLW/AO (DCF & above) accept money by way of composition of offence (sec. 54) not to exceed Rs. 25000 for sec. 54(1) . minimum imprisonment u/s 51(1) not to be compounded.
District Forest Officer has been empowered to compound the offences under Section 54 (M.Muthuramalingam Vs. DFO,Dindigul, CRI.L.J, 420(Madras)
if the offence has been compounded by an enforcement agency under the provisions of the Act, without there being any trial either in the departmental proceedings or in the criminal proceedings the vehicle, rifles etc. cannot be forfeited and all the seized articles which are not the government property should be released.
(J.K. Johnson & others Vs. Principal Chief Conservator of Forests, Hyderabad, 2006 CRI. L.J.1480 )
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If the offence has been compounded without there being any trial either in the departmental proceedings or in the criminal proceedings the vehicle, rifles etc. cannot be forfeited:
The Hon'ble Andhra Pradesh High Court held that unless the case is tried and the accused are convicted by the criminal court, there is no possibility of confiscating the seized goods under section 39(1) (d) of the Act. There cannot be any automatic presumption to treat the seized goods as government property unless there is trial and conviction in the criminal proceedings or in the departmental proceedings conducted by the authorities. The only procedure contemplated under section 51(2) of the Act is that when any person is convicted of an offence against this Act, the court trying the offence may order for forfeiture of the vehicle, vessel, weapon, trap or tool that has been used in connection of the said offence to the state. Admittedly, there is no trial or conviction that has been made in the instant case. The respondents have liberally compounded the offence. Since the offence has been compounded without there being any trial either in the departmental proceedings or in the criminal proceedings, the said vehicle and rifles cannot be forfeited.
(J. K. Johnson & others Vs. Principal Chief Conservator of Forests, Hyderabad, 2006 CRI. L.J.1480).
(Sec.55)
Director/AO, Mem. Secy CZA & NTCA, Dir. Of a TR. , CWLW/AO, Person who has given notice < 60 days Challan filed by a Station House Officer is not sufficient and a regular complaint should be filed as provided by Section 55 (Ashwini Kumar Bhardwaj Vs, State of Rajasthan,
CBI (authorized officers of Delhi Special Police Establishment not below the rank of Deputy Superintendent of Police) is entitled to file a criminal complaint against accused (Moti Lal Vs. CBI , SC, 2002 CRI. L.J. 2060)
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An ACF can
evict any person from a sanctuary or National Park.
remove any unauthorized structures, buildings, or constructions erected on any Government land within any sanctuary or National Park . Confiscation by an order of DCF
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Approve Tiger Action Plan / Future plans Assess aspects of Sustainable Ecology
Building
Ensure Ecologically sustainable Use of
Corridors
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Protection
Coservation
of Tiger ,Co-predators and prey animals within the Tiger range states
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Core
Areas-
Inviolate for Tiger Conservation. On the basis of scientific and objective criterion ??? (800-1000 Km)
Inviolate Areas/ Critical Wild Life Habitats under Tribal Act also- to exclude rights.
Guidelines by Tribal Ministry. ( Act commenced from 31 dec.2007) Expert Committee Under WPA or FRA ??
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Core
Areas-
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Facilitate ecological ,socio-economic,cultural dev. Of T.R Promote Eco-Tourism Creating and Maintaining Assets Solicit tech., fin., social., legal, support
Penalties [51(1C)]
Offence related to hunting in T.R.
Altering boundaries of T.R. Imprisonment 3-7 yrs & fine 50T-2 Lacs. On Subsequent Conviction Not <than 7 Yrs.& fine 5 Lac.-50 Lac.
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Thanks
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