Science vs law

The Darjeeling district forest department, however, threw the rulebook at them, finding them guilty of biopiracy for commercial gain through violation of several sections of the Wildlife Protection Act and the Biological Diversity Act. After nearly three months of incarceration, on September 10, the Chief Judicial Magistrate of Darjeeling sentenced Kucera to three years8217; simple imprisonment under each Act, to run concurrently, and fined him Rs 60,000 while granting him bail. Svacha, however, was let off after being fined Rs 20,000.

The disparity in the sentences has surprised the Czech Ambassador and the entomologists. Following their release from the Darjeeling district jail, The Indian Express tracked them down to the Traveller8217;s Inn in Darjeeling town. Although relieved to be released from their incarceration, both were decidedly unenthusiastic about talking to the media.

While Kucera, 51, said he spoke very little English, Svacha, 52, said he found the entire fiasco to be 8220;absurd8221;. 8220;We don8217;t need to say anything, ask your Indian scientists. They are furious with the law. The Biodiversity Act is absurd as well, and so are the different sentences we have been handed for the same offence. As far as we were concerned, we were outside the boundaries of the Singalila National Park, and so we8217;ve not violated any laws. Consequently, we did not need any permits to collect specimens there. Grazing and tree-felling were going on there, which is not allowed in a National Park.8221;

The CJM court8217;s judgment noted that Svacha8217;s reputation as an entomologist of international repute and his educational qualifications were kept in mind while handing him a lighter conviction, said defence counsel Taranga Pandit. 8216;8216;We have one month to appeal against Kucera8217;s sentence in the Darjeeling District and Sessions Court. Till the appeal comes up for hearing, he has bail and he can8217;t leave Darjeeling. Svacha8217;s passport will be with the CJM8217;s court for one month, should the prosecution wish to appeal against the sentence.8217;8217;

The judgment also terms Svacha a 8216;8216;victim of circumstances8217;8217;. Utpal Nag, assistant wildlife warden wildlife 1 division who participated in the investigation, told The Indian Express the suspicion rested on Kucera. 8216;8216;Our findings indicate that this is Kucera8217;s third visit to the Singalila area since 1999. Each time, his passport number was different. At the time of his arrest, he had a working website which offered to send specimens by post. The website has shut down since then. On none of the occasions did he have the requisite permits.8217;8217;

8216;8216;It is quite unbelievable that someone visiting the country since nearly a decade doesn8217;t know English. How can it be possible that they8217;re unaware of the rules and regulations? We confiscated nearly 2,300 specimens of beetles, butterflies, moths in larva and pupa stages from them. Some were dead, some alive, some dormant. The same has been sent to the Zoological Survey of India in Kolkata. They8217;ve not managed to identify all the specimens, but they sent a list of those they could. One of them is an endangered species under Part II of Schedule II of the Wildlife Protection Act. They also had preservatives and food for the insects,8217;8217; added Nag.

Forest Ranger Arvinden Lepcha, who effected the arrest, said the Czechs had moved into the area on June 13. 8220;They stayed from June 13-16 at Hotel Goperna in Rimbick, around 50 km from Darjeeling town. They did not register with the hotel using their passports, as foreigners are required to do. According to the hotel owner, they said they8217;d complete the formalities at the time of checking out. On June 17, they moved up to higher-altitude areas bordering the National Park, where they collected specimens till June 21. Upon receiving intelligence of their activities, we located them at Hotel Goperna.8221;

Lepcha said the arrest took nearly two hours to effect. 8220;They were staying in room numbers 3 and 4 on the first floor. I went with four other wildlife officers. When we confronted them, Svacha looked nervous, and said he had no idea that he was violating laws. We also found that they had de-barked and drilled nearly 20 trees to collect specimens. The Silver Firs have been partially damaged. They had so many specimens it took us four days to sort them.8221;

However, a senior forestry department official, on condition of anonymity, said the boundaries between the revenue land area, forest area and protected area was not clearly demarcated and even intermingled at several spots.

Assistant Public Prosecutor Govind Chettri, who appeared on behalf of the Government, said he was yet to get a copy of the judgment. 8220;Forest officials, on receipt of information about illegal wildlife hunting, confronted the Czechs who failed to produce requisite documents. On completion of inquiry, they were found to be violating Sections 9, 27, 29, 35, 39, 49, 49 b and 51 of the Wildlife Protection Act, and Section 3 of the National Biodiversity Act, punishable under Section 55. The court has found them guilty. Once we read the judgment copy, we will decide on appealing against the ruling.8221;

Interestingly, most of the support received by the Czechs, including an online campaign signed by nearly 1,000 scientists from all over the world, and submitted to the Prime Minister8217;s Office mentions only Svacha. Kucera remains unknown. According to Priyadarsanan Dharma Rajan, Fellow Scientist with the Ashoka Trust for Research in Ecology and the Environment ATREE in Bangalore, Kucera is more of an 8220;enthusiast8221; who 8220;collects insect specimens and sends them to taxonomists on demand8221;.

8220;Although I have never worked with Svacha, he emailed me saying Kucera has, as a supplier of specimen, nearly 100 species named after him as he has discovered them during his collection trips to various places. Svacha, however, is a renowned entomologist. He is known for his research on the long-horned beetle. That he is probably the only scientist in the world working on beetle larvae as well makes him unique,8221; he said.

A day after his release on September 8, Svacha wrote to Dharma Rajan, stating: 8220;We are of course disappointed, but the decision is so one-sided and ignoring facts and numerous lies and cheats of the foresters, that we strongly suspect it is a result of a behind-the-stage agreement 8212; the prosecutors are 8220;government8221; and cannot lose. By the way, the judge accepted even the accusations according to the Biodiversity Act, although, as you said, the foresters are not the appropriate party to employ it. He simply dismissed all objections by saying that formal imperfections cannot stand in the way of applying law. Thus, we suspect that at this stage we were bound to lose, whoever our lawyers would be. Let8217;s wait for the result of Wednesday8217;s written submission to the same court and same judge. Otherwise, of course, we will appeal.8221;

On September 13, in an email to Dharma Rajan, Dr Max Barclay, head curator Coleoptera of the Museum of Natural History, London, defended Kucera, saying 8220;I think that the court does not understand that there is such a thing as an innocent amateur enthusiast, who collects and studies insects not for a job, but just for the love of and interest in entomology. Amateur naturalists have for a long time made an important contribution to science famous examples include Charles Darwin, Alfred Russel Wallace, Jean-Henri Fabre, Gerald Durrell!. There are today many keen amateurs, especially in eastern Europe, where hobbies like this developed during the communist period when people were restricted in what they could do, but natural history hobbies were acceptable. I fear that because he is not paid to do entomology, the courts suspect he must be doing it for some 8216;sinister8217; reason.8221;

Wildlife Protection Actnbsp;

Sections 9, 27, 29, 35, 39, 49, 49 b and 51, under which both Czechs were charged, prohibit destruction, exploitation or removal of any wildlife including forest produce from a sanctuary except under and in accordance with a permit granted by the Chief Wildlife Warden.

The Act, however, provides for grazing or movement of livestock permitted under Clause d of the Section 33 for people living in and around the sanctuary. It also states that offences committed in relation to any animal specified in Schedule I or Part II of Schedule II shall be punishable with imprisonment of three-seven years and a fine not less than Rs 10,000. In addition, it states that all wildlife in sanctuaries is government property, and no person shall, without the previous permission in writing of the Chief Wildlife Warden or the authorised officer, acquire, possess, transfer to any person by way of gift, sale or otherwise, or destroy or damage such government property.

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Biological Diversity Act, 2002

After the Convention on Biological Diversity was adopted by the UN in June 1992, the contracting countries were required to integrate consideration of conservation and sustainable use of biological diversity into relevant legal procedures, programmes and policies. The Biological Diversity Act was passed by Parliament in 2002.

Section 3 states that anyone not a citizen of India or an NRI shall not without previous approval of the National Biodiversity Authority obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilisation or for bio-survey and bio-utilisation. Persons found contravening the provisions of Section 3, Section 4, or Section 6 shall be punishable with imprisonment upto five years, or with fine which may extend to Rs 10 lakh.

Who Are They?

8226;Dr Petr Svacha is currently a research worker with the Institute of Entomology, attached to the Department of Ecology and Conservation Biology. He has several published papers in German and English. His research interests are holometabolan larvae, coleoptera, insect phylogeny.

8226; Emil Kucera is said to be a forestry expert, and reportedly has several insect species named after him according to his associate Svacha. However, during communication with Indian scientists after the arrest of the duo, Svacha8217;s Institute director Jan Sula had said he had no idea of Kucera8217;s scientific and academic background or the nature of his work.