Allahabad High Court
Laxmi Prabha Rakesh vs State Of U.P. And Another on 19 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 255
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 27.01.2020 Delivered on 19.02.2020 Court No. - 91 Case :- MATTERS UNDER ARTICLE 227 No. - 977 of 2019 Petitioner :- Laxmi Prabha Rakesh Respondent :- State of U.P. and Another Counsel for Petitioner :- Kamal Dev Rai,Rakesh Pande (Senior Adv.),Vishakha Pande Counsel for Respondent :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Rakesh Pande, Senior Advocate, assisted by Sri Kamal Dev Rai, on behalf of the petitioner and Sri Sudhir Kumar Pathak, learned A.G.A. alongwith Sri Rohit Pandey for the State.
2. The present petition has been filed by the petitioner with a prayer to set aside the impugned order dated 08.01.2019 passed by the learned Additional Sessions Judge, Court No.1, Allahabad in Criminal Revision No.388 of 2018 (Laxmi Prabha Rakesh Vs. State of U.P.) and order dated 04.12.2018 passed by the learned Judicial Magistrate, Court No.2, Allahabad in Case Crime No.316 of 2018 under Section 9 and 51 Wildlife Protection Act, 1972 (hereinafter referred as Act, 1972) P.S. Mutthiganj, District Allahabad (Annexure No.9 & 7).
3. Briefly facts of the present case are that on 06.11.2018 on information of an informer, police party intercepted a Safari Car bearing no. U.P. 70 D.C./0099 at Nani Bridge, Prayagraj. Five persons travelling in the car were arrested and a wild animal namely Pangolin was found in the car, accordingly an F.I.R. was lodged against five accused namely Ritesh Kumar, Nusrat Hussain, Harimohan Gupta, Akhilesh Shukla and Jai Prakash Sharma under Section 9 & 51 of the Act, 1972. The petitioner herein is owner of vehicle (Safari Car) which was confiscated. The petitioner approached the Court of Judicial Magistrate II, Allahabad by way of filing an application to release the said confiscated Safari Car.
4. The learned Judicial Magistrate, Room No.2, Allahabad vide impugned order dated 04.12.2018 rejected the application on the ground that under Section 52D of the Indian Forest Act, 1927 (hereinafter referred as Act, 1927) the Magistrate is not competent to release the confiscated vehicle under the Act, 1972. By way of present petition, the petitioner has challenged the impugned order dated 04.12.2018. Sri Rakesh Pande, learned Senior Counsel appearing on behalf of the petitioner submitted that the bar under Section 52D of the Act, 1927 would apply only in those cases where the forest produce was belonged to the State Government, even it is assumed that Pangolin alleged to have been recovered from the vehicle was a wild animal covered the under the definition of forest produce. He further submitted that it is not mentioned in the F.I.R. that the Pangolin a wild animal recovered from the vehicle in question was found in or brought from the forest. Learned Senior Counsel further submitted that the Pangolin does not fall under the definition of ''Forest Produce' as mentioned in the Section 2(4) (b) of the Act, 1927.
5. Opposing the submissions of the learned counsel for the petitioner, Sri Sudhir Kumar Pathak, the learned A.G.A. submitted that the Section 52D as amended in its application to the State of U.P. specifically states that the Authorized Officer under Section 52A or the State Government under Section 52B shall have jurisdiction, to the exclusion of every other officer, court, Tribunal or authority to make order with regard to the custody, possession, delivery, disposal or distribution of the property. Learned counsel for the State submitted that Pangolin is a ''wild animal', which falls under ''wild life'. The counsel further submitted that the definition of ''forest produce' as mentioned in the Section 2(4)(b)(iii) of the Act, 1927 includes wild animals also. Lastly, he submitted that there is no illegality in the impugned order and prayed that the petition be dismissed.
6. Heard the submissions of counsel for the respective parties, perused the record and also the written submission filed by the petitioner.
7. In order to decide the present controversy, firstly it has to be consider Section 52D of the Act, 1927 as applicable for the State of U.P. For reference Section 52D is reproduced hereinafter:-
"52.D Bar of jurisdiction in certain cases. - Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, whenever any forest-produce belonging to the State Government together with any tool, boat, vehicle, cattle, rope, chain or other article is seized under sub-section (1) of section 52, the authorised officer under section 52A or the State Government under section 52B shall have jurisdiction, to the exclusion of every other officer, court, Tribunal or authority, to make order with regard teethe custody, possession, delivery, disposal or distribution of the property."
[Vide Uttar Pradesh Act, 1 of 2001, sec.8.]
8. From the above, it is clear that in case of any forest produce belonging to the ''State Government' is seized together with ''vehicle', the jurisdiction regarding its custody, possession, delivery, disposal or distribution shall be with the Authorized Officer under Section 52A or to the State Government under Section 52B of the Act, 1927.
9. It is to further consider that what is ''forest produce'. ''Forest produce' is defined in Section 2(4) of the Act, 1927. For reference the same is reproduced hereinafter:-
"2(4) "forest-produce" includes
(a) the following whether found in, or brought from, a forest or not, that is to say- timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, [kuth] and myrabolams, and
(b) the following when found in, or brought from a forest, that is to say-
(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees,
(ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and
(iv) peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries);
10. From the above mentioned definition of forest produce, it also includes wild animals which is mentioned in Section 2(4)(b)(iii) of the Act, 1927. Now it has to denominate whether the ''Pangolin' is a wild animal or not? The wild animal is defined under Section 3(36) of the Act, 1972 that "wild animal means any animal specified in Schedule I to IV and found wild in nature." At the Serial No.28 of the Schedule I of the Act, 1972, Pangolin (Manis crassicaudata) is mentioned, therefore the Pangolin is a wild animal and as such it is also a forest produce, therefore, the seized vehicle in which the said wild animal was recovered is also belonged to State Government and as such the bar of jurisdiction as provided in Section 52D of the Act, 1927 applies in the facts and circumstances of the present case.
11. This issue is recently considered by the Apex Court in the case of State of Madhya Pradesh Vs. Uday Singh and connected matters which is reported in 2019 SCC online SC 420. The relevant Paragraph Nos.35 & 36 are reproduced as hereinafter:-
"35. Our analysis of the amendments brought by MP Act 25 of 1983 to the Indian Forest Act 1927 leads to the conclusion that specific provisions have been made for the seizure and confiscation of forest produce and of tools, boats, vehicles and articles used in the commission of offences. Upon a seizure under Section 52(1), the officer effecting the seizure has to either produce the property before the Authorised Officer or to make a report of the seizure under sub-section (2) of Section 52. Upon being satisfied that a forest offence has been committed, the Authorised Officer is empowered, for reasons to be recorded, to confiscate the forest produce together with the tools, vehicles, boats and articles used in its commission. Before confiscating any property under sub-section (3), the Authorised Officer is required to send an intimation of the initiation of the proceedings for the confiscation of the property to the Magistrate having jurisdiction to try the offence. Where it is intended to immediately launch a criminal proceeding, a report of the seizure is made to the Magistrate having jurisdiction to try the offence. The order of confiscation under Section 52(3) is subject to an appeal under Section 52-A and a revision under Section 52-B. Subsection (5) of Section 52-B imparts finality to the order of the Court of Sessions in revision notwithstanding anything contained to the contrary in the CrPC and provides that it shall not be called into question before any court. Section 52-C stipulates that on the receipt of an intimation by the Magistrate under sub-section (4) of Section 52, no court, tribunal or authority, other than an Authorised Officer, an Appellate Authority or Court of Sessions (under Sections 52, 52-A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub-section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Indian Forest Act 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State government for directing the immediate release of a property seized under Section 52, as provided in Section 61. Hence, upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted. The scheme contained in the amendments enacted to the Indian Forest Act 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 of the CrPC, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction under Section 451 of the CrPC was not available to the Magistrate, once the Authorised Officer initiated confiscation proceedings.
36. The Madhya Pradesh amendments to the Indian Forest Act 1927 are infused with a salutary public purpose. Protection of forests against depredation is a constitutionally mandated goal exemplified by Article 48A28 of the Directive Principles and the Fundamental Duty of every citizen incorporated in Article 51A(g)29. By isolating the confiscation of forest produce and the instruments utilised for the commission of an offence from criminal trials, the legislature intended to ensure that confiscation is an effective deterrent. The absence of effective deterrence was considered by the Legislature to be a deficiency in the legal regime. The state amendment has sought to overcome that deficiency by imposing stringent deterrents against activities which threaten the pristine existence of forests in Madhya Pradesh. As an effective tool for protecting and preserving environment, these provisions must receive a purposive interpretation. For, it is only when the interpretation of law keeps pace with the object of the Legislature that the grave evils which pose a danger to our natural environment can be suppressed. The avarice of humankind through the ages has resulted in an alarming depletion of the natural environment. The consequences of climate change are bearing down on every day of our existence. Statutory interpretation must remain eternally vigilant to the daily assaults on the environment."
12. The Section 52D of U.P. Act 1 of 2001 to the Act, 1927 as applicable in State of U.P. is similar to the Section 52C of M.P. Act (25 of 1983) of the Act, 1927. Therefore, facts of the present case are squarely cover with the facts of the case State of M.P. Vs. Uday Singh (supra) and therefore, jurisdiction under Section 451 Cr.P.C. is not available to the Magistrate and therefore the learned Magistrate has rightly rejected the application of the petitioner on the ground of jurisdiction.
13. In view of the above discussion there is no illegality in the impugned order, therefore, the relief sought in present petition is liable to be rejected and accordingly rejected. However, this order will not come in the way, in case the petitioner approaches the concerned authority as provided under Section 52D of the Act, 1927 as applicable for the State of U.P. and the same will be considered in accordance with law.
14. In view of the above, this petition is finally disposed of.
Order Date :- 19.02.2020 Ashok Gupta (Saurabh Shyam Shamshery,J.)