The Offence of Illegal Possession under the Wildlife (Protection) Act, 1972

The Offence of Illegal Possession under the Wildlife (Protection) Act, 1972

Wildlife trafficking is the fourth largest transnational crime after arms, drugs, and human trafficking as per United Nations Office on Drugs and Crime. When it comes to South Asia, India is considered as the source country for the wild species and its body parts. The World WISE database shows 1000 to 62,000 seizures reported by India from 2004 to 2015. The Wildlife (Protection Act), 1972 is the primary legislation that protects the species listed under Schedule I to IV of the Act. 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.

While talking about the offence of illegal possession of wild animals, if a person is found in control or custody or ownership of species listed in Schedule I and Part II Schedule II then they shall be punishable with 3-7 years of imprisonment and a fine of at least 10,000 Rupees under section 51(1) of the Act. Also, in case of possession of Part I Schedule II, Schedule III, and Schedule IV species, the person can be imprisoned with a term of up to 3 years and/ or with a fine of up to 25,000 Rupees. However, they can be penalised if they fail to produce Certificate of Ownership, permits or licenses.

It has been observed that the enforcement agencies across India have a common tendency to only charge the accused person(s) with the offence of hunting under section 9 of the Act, despite the fact that in most of the cases the offence of illegal possession also takes place as a consequence to or as a part of hunting. For example, if an accused boils a live pangolin to remove its scales, he not only commits the offence of hunting, but he also has the custody and possession of it. Another example could be, if a tiger skin was recovered from the house of the accused, he will be charged for the offence of illegal possession under the Act. However, it will depend upon the facts and evidence whether he has hunted it himself or not. In the case of Rekhchand vs. State of Madhya Pradesh [2008 (4) MPHT 464], the court held that by merely finding a person in possession of a leather of wild animal, it cannot be presumed that he has hunted or killed the animal, especially in the absence of the evidence corroborating the same. Had the accused also been charged with the offence of illegal possession along with hunting, the court would have held him guilty. In order to prove the offence of illegal possession the burden of proof is upon the accused as per section 57 of the Act and no such strong evidence is required to convince the court. Hence, it is highly recommended for the enforcement agencies, especially the state forest departments to invoke the provision of the illegal possession (under section 39(3) r/w 57) in addition to the offence of hunting.

To sum up, it is important to understand that whenever accused persons violate any law(s), they end up committing multiple offences in furtherance of the illegal action(s). Therefore, the facts of a case should be analysed carefully by the enforcement agencies so that all the relevant sections are invoked and no room is left for the acquittal of the accused.

“Once I was coming back to the village from the farm around 7 in the evening. I was riding my scooter through the coconut grove when suddenly, four bears appeared in front of me. I shone the light on them because they close their eyes if there is a flash of light and can’t see. So as soon as I flashed the light, two of the bears ran one way and the other two ran the opposite way. So you see they didn’t pounce on me, they went and hid. But then few second later they realized I was human and they all stood with their hands up like this. Then I had to gather some courage; I pushed the accelerator and whizzed past.”

Such narratives provided great insight into the way people understand and perceive bears in the landscape. They exhibited the extent of people’s familiarity with bears and indicated that people believed that they have knowledge about the bear’s behavior, daily routines and residence. This belief could create a sense of predictability about the bear and therefore help people in functioning from day to day without constant high levels of anxiety about being in danger, as they co-exist with the bear.

One of the interviewees narrated that the bear came about because a newlywed woman who turned herself through magic into a bear to reveal her magical skills to her husband, was unable to turn herself back into human form and therefore wanders around in the shape of a bear. Across the community, the anatomy of the bear was often considered comparable to the anatomy of the human beings. Many interviewees observed the similarity in many different body parts of the humans and bears, one of them also exclaimed at the similarity of internal organs after he witnessed a postmortem of a bear. Interestingly in this landscape, the pronoun ‘he’ or ‘she’ was used to refer to bears instead of the pronoun ‘it’. These factors can be used to deduce that the bears in this landscape are anthropomorphized to a substantial extent. Though anthropomorphism is generally looked down upon in the academic world, it is increasingly being recognized, especially in zoos, as a factor that contributes to the engagement of people in other animals.

Another interviewee attributed the actions of the bear to its hormonal bodily condition and suggested that the attacks of bears on humans were acts of sensual fulfillment such as hugging and kissing. In conjunction, there was also a prevalent myth in the landscape about bears kidnapping human beings. In such ways the people of Bodganahalli are not only granting the bear a self, a history and life cycle, but are also granting it needs/ sexual needs that it has the urge to fulfill. Though not ‘scientifically accurate’, these stories reveal a willingness to think about a circumstance from the vantage point of another being. They also portray the bears as having agency and choosing to act as they do rather than as passive, instinct-driven creatures who are permanently doomed to behave in a specific way. Ascribing agency to the animal perhaps allows for the active negotiation of space between human and non-human species and establish shared spaces that can accommodate humans and other animals.

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