Hemanta Deka And Anr. vs The State Of Assam

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GAHC010137322018

2026:GAU-AS:15687
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./285/2018
HEMANTA DEKA AND ANR.
S/O NAREN DEKA, VILL. RAIPAT, P.S. KAMALPUR, DIST. KAMRUP (R), PIN
781380
2: CHANDAN DEKA
S/O DHANESWAR DEKA
VILL. TETELIA
P.S. HAJO
DIST. KAMRUP (R)
PIN 78110
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP, ASSAM.
2:TIKEN TALUKDAR (HAVILDER)
NOONMATI P.S.
GUWAHAT
Advocate for the Petitioner : MR A K DAS, MR. M J GOGOI
Advocate for the Respondent : PP, ASSAM FOR R-1 and 2,

BEFORE
HON’BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Advocates for the Petitioners: Mr.M.J. Gogoi

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Advocate for the Respondent:Mr. M.P. Goswami,Spl.P.P
Date on which judgment is reserved: 14.07.2026
Date of pronouncement of judgment :14.10.2026
Whether the pronouncement is of
the operative part of the judgment : N/A.

Whether the full judgment has been
pronounced : Yes


JUDGEMENT AND ORDER (CAV)
Factual Matrix :-
The petitioners in this case are Hemanta Deka and Chandan Deka and the
respondents are The State of Asam and Tiken Talukdar, arrayed as respondents
No. 1 and 2 respectively. Both the petitioners have filed this application as they
are aggrieved by the order dated 22.02.2018 passed by the learned Additional
Sessions Judge No. 3, Kamrup (M) at Guwahati, framing charges against the
petitioner under Section 51 of Wildlife (Protection) Act, 1972 (the Act of 1972
for short)in connection with in Sessions Case No. 173/2017 arising out of
Noonmati P.S. Case No. 500/2013. The petitioners have prayed to set aside and
quash the impugned order dated 22.02.2018. It is averred that vide the
impugned order, the learned Trial Court had erroneously framed the charge
under Section 51 of the Act of 1972. The Court hadvide order dated 01.06.2018
rejected the petition for modification/altercation of charges in Sessions Case No.
173/2017. A prayer was also made to set aside this order.

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2. The genesis of the case was that on 28.11.2013 at about 3.10 PM,on
receiving a specific information, Sri Tiken Talukdar, Havildar, as an In-Charge,
PAPA 15, conducted a naka checking at Carbon Gate, along with his staff.
During the checking, the investigating team had noticed one black coloured
pulsar 150 CC bearing registration No. AS-01 AX-08666, which was loitering in a
suspicious manner. They pursued this pulsar and stopped the vehicle and
checked the vehicle thoroughly. A live “Gecko” was recovered from the vehicle
and thus from the possession of the petitioners, Sri Hemanta Deka and Sri
Chandan Deka. Accordingly, SI N. Malakar seized the Gecko along with the
vehicle in presence of the available witnesses. The vehicle and other articles
along with the Gecko,were seized and brought to the Police Station for
necessary action.
3. After completion of investigation, a prima facie case was found against the
petitioners and charge sheet was submitted against them. Both the petitioners
appeared before the Trial Court and after hearing both the sides, charges were
framed under Section 51 of the Act of 1972 vide order dated 22.02.2018 and
both the petitioners abjured their guilt and claimed to be tried. Subsequently, on
01.06.2018, both the petitioners had filed a petition No. 889/2018 under Sub-
Section 1, 3 & 4 of Section 216 of the Code of Criminal Procedure,1973 (CrPC
for short) for modification and alteration of charges. This petition was rejected.
The petitioners are aggrieved by both the orders dated 22.02.2018 and
01.06.2018. The Court proceeded with trial and 9 (Nine) prosecution witnesses
were already examined and discharged. This case was fixed for evidence on
21.10.2019.

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Case of the Petitioners :-
4. Through the petition and through the argument, it is submitted on behalf
of the petitioners that the petitioners were delivery boys, working with Sikha
Gas Agency. One person, named, Pulin Gogoi, framed them. The person named
Pulin Gogoi, posing as an official of the Water Resources Department, Assam,
promised to provide them employment in the Water Resources Department,
Assam and asked for gratification of Rs.3,00,000/- (Rupees Three Lacs), which
was paid to him by the petitioners. When the petitioners proceeded for their
employment, they learnt that they were defrauded by Pulin Gogoi and his
associates as there was no person working in the Water Resources Department
answering to the description of Pulin Gogoi. When the accused/petitioners
demanded their money back, Pulin Gogoi, who called the petitioners to a Dhaba
to pay back their money, framed the petitioners. The petitioners were chatting
with Pulin Gogoi in the Dhaba when the Forest staff arrived and alleged the
petitioners of transporting Gecko. Thereby, it is submitted that owning to deep
rooted conspiracy against the petitioners, the false FIR was lodged against
them, and the order of framing of charges is liable to be set aside and quashed.
It is submitted that the Gecko was planted.
5. It is further submitted through the petition and the argument that the
elder brother of petitioner No. 1, Sri Ajit Deka, sensing a deep rooted
conspiracy, rushed to the Dispur Police Station and lodged an FIR, narrating the
entire events leading to the incident of arrest of the petitioner No. 1 and the
petitioner No. 2. This FIR was registered as Dispur P.S. Case No. 2514/2013
under Sections 120(B)/419/420/406 of the Indian Penal Code 1860 (IPC for
short).

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6. Two accused Banikanta Medhi and Kartik Bhuyan were arrested in
connection with this case. The call data records also reveal that SI Nilamani
Malakar and the earlier named person Pulin Gogoi were in constant contact with
these two accused persons, revealing his involvement in deep rooted conspiracy
and transporting Gecko and other such protected wild animals, or wild life.
7. Against the police personnel, the State Police Accountability Commission
was also apprised and a complaint was registered as SPAC Case No. 56/2014
against the police personnel, SI Nilamani Malakar, and Inspector K.C.
Rajbongshi. Annexure-4 is the photocopy of the SPAC Case No. 56/2014.
8. It is further submitted that during the pendency of criminal case against
the petitioners, the petitioners got hold of a very important document, which
could be a turning point to the case at hand. The Union Ministry of Environment
and Forest issued a Notification dated 06.12.2013, which was subsequently
published in the Gazette of India on 12.12.2013 incorporating Tokay Gecko
(Gekko Gecko) in the Schedule IV of the Act of 1972 as entry 15-A as a
protected species. Projecting these facts, it is further submitted that the alleged
incident relating to Noonmati P.S. Case No. 500/2013 had taken place on
29.11.2013, which was 12 days prior to the Gazette notification dated
12.12.2013. So, the notification dated 12.12.2013 could not have had a
retrospective effect to have empowered the police and the Court to implicate
the petitioners under Section 51 of the Act of 1972.
9. Citing the above-mentioned notification marked as Annexure-7 of the
petition, the petitioners filed a petition being petition No. 889/2018 before the
learned Court for alteration/modification of the charge framed under Section 51
of the Act of 1972, but the Court rejected the petition by recording that the
seized animal is a protected animal prohibited from capturing or hunting, as per

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the Act of 1972. This order impugned by the petitioners is marked as Annexure-
8.
10. the learnedcounsel for the petitioners has assailed the cognizance taken
by the Chief Judicial Magistrate as this order was passed after the order of the
SPAC. Basically, the petitioners are aggrieved by the order dated 01.06.2018
passed by the learned Trial Court, rejecting the petition for
modification/alteration of charges in connection with Sessions Case No.
173/2017.

Submissions on behalf of the Respondent:-
11. The learnedcounsel appearing for the Forest has not disputed the
Notification dated 12.12.2013, which is marked as Annexure-7 of the revision
petition.The Notification published in the Gazette of India on December, 12,
2013 clearly reveals that “Tokay gecko (Gekko gecko)”got included in Schedule-
IV (b) of the Act of 1972, after entry 15-A, meaning thereby the hunting or
transportation of Tokaygecko was banned by the Act. The learned Special PP for
the Wildlife has thus not disputed that only after 12.12.2013, the hunting,
transportation or gaming of Tokay gecko has become illegal. The learned Special
PP for the Wildlife has also not disputed the fact that there is no retrospective
effect. Thus, earlier the hunting, gaming, and transportation of Tokay Gecko
was not banned by the Act of 1972.
12. Heard Mr. A.K. Das and Mr. M.J. Gogoi, learned counsel, representing the
petitioners and B. Sarma, Special PP, Wildlife.
Conclusion :-

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13. Not much elaboration is needed in this case. It is apparent that a
statutory notification becomes valid and enforceable on or after its publication in
the official Gazette. The Gazette Notification was on 12.12.2013 and the law
operates from 12.12.2013.
th
14. It can be thus held that before 06 December, 2013, possession or trade
of a Tokay Gecko did not attract penalties under the Wildlife Protection Act. On
or after December6, 2013, the species became protected, making hunting,
trade, or possession without authorization an offence punishable under the Act.
As the Notification was published on 12.12.2013, the law came into force with
effect from 12.12.2013.Executive notifications issued under statutory powers are
inherently prospective unless the parent Act explicitly grants the power to
legislate retrospectively. Section 61 of the Act of 1972 does not empower the
Central Government to amend schedules with retrospective criminal effect.
Thus, capturing, possessing, or trading of Tokay Gecko earlier,was not an
offence under the Act of 1972.Therefore, any action or possession that occurred
before December 6, 2013 cannot be prosecuted. This fact has indeed not been
disputed by the Special PP for Wildlife.
15. In view of the foregoing discussions, it is thereby held that the offence
occurred on 28.11.2013, prior to the Gazette Notification.The order dated
01.06.2018 passed by the Trial Court in connection with Sessions Case No.
173/2017, rejecting the Petition No.889/2018 under Sections 1, 3&4 of Section
216 of CrPC, can be set aside. Therefore, the order dated 01.06.2018 passed by
the Trial Court in connection with Sessions Case No. 173/2017 is set aside. The
petition with prayer for alteration/modification of charges, being petition No.
889/2018 can be considered afresh by the Trial Court.

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16. This case is therefore remanded back to the Trial Court and the petitioner
may file a fresh petition for alteration/modification of charges or the earlier
petition No. 889/2018 may be decided afresh by the Trial Court.
17. In terms of the above observation, this petition stands disposed of.
18. Send back the original records of the Trial Court.
19. Interim order, if any, stands vacated.




JUDGE

Comparing Assistant