Telangana High Court
Banavath Bujji vs The State Of Telangana on 1 February, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.5211 of 2022
ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner, wherein, the following prayer is made.
"...to issue an order or direction more particularly one in the nature of writ of mandamus declaring that the action of the respondent No.3 & 4 in not releasing the petitioner's JCB bearing Reg.No.TS-05-FC-4861 (Engine Number H00238958) seized in P.O.R.No.17/19/2011-12 dated 07-01-2022, inspite of the readiness of the petitioner to furnish the third party surety, as being illegal, arbitrary and unjust, and consequently direct the respondent Nos.3 & 4 herein to release the vehicle, and to grant such other relief as this Hon'ble Court deems fit and proper in the circumstances of the case."
2. Heard the learned counsel for the petitioner, learned Government Pleader for Forests appearing for the respondents and perused the record.
3. The learned counsel for the petitioner would submit that the JCB bearing Reg. No.TS 05 FC 4861 belonging to the petitioner was seized by the respondent-authorities on 06.01.2022 in Reserve Forest area, Compt.No.129, Bollaram beat of Bollaram Section, Nidgul RF alleging illegal trespass into Reserve Forest area Clearance of Jungle growth near Rekulagada Village. A case in Preliminary Offence Report (POR) No.17/19/2011-12 dated 07.01.2022 of Nagarjunasagar Division, was registered for the offences under Sections 20(1)(c)(ii)(iii)(vii)(ix) & (x) of A.P. Forest Act, 1967, Sections 27, 29 and 51(1) of Wild Life (Protection) Act, 1972. It is further submitted that there is every likelihood of the 2 subject vehicle being damaged on account of keeping it idle and exposing to sun and sky and ultimately, prayed to allow the Writ Petition, as prayed for.
4. On the other hand, learned Government Pleader for Forests would submit that in terms of Section 39 (1)(d) of the Wild Life (Protection) Act, 1972, the subject vehicle is liable for confiscation and the power to release the subject vehicle lies with the Magistrate having jurisdiction of the subject criminal case. Therefore, it is not appropriate to this Court to concede the prayer of the petitioner and ultimately, prayed to dismiss the Writ Petition. The learned Government Pleader, in support of his submissions, placed reliance on the decision of the Honourable Apex Court in State of M.P. and others v. Madhukar Rao1.
5. Under these circumstances, it is appropriate to refer to the decision of the Honourable Apex Court in Madhukar Rao's case (supra), wherein, in paragraph No.21, it is held as follows:
"21. Learned Counsel submitted that Section 39(1)(d) of the Act made the articles seized under Section 50(1)(c) of the Act as Government property and, therefore, there was no question of their release. The submission was carefully considered by the Full Bench of the High Court and on an examination of the various provisions of the Act it was held that the provision of Section 39(1)(d) would come into play only after a Court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence. Any attempt to operationalise Article 39(1)(d) of the Act merely on the basis of seizure and accusations/allegations levelled by the departmental authorities would bring it into conflict 1 2008 (2) ALD 63 (SC) 3 with the constitutional provisions and would render it unconstitutional and invalid. In our opinion, the High Court has taken a perfectly correct view and the provisions of Section 39(1)(d) cannot be used against exercise of the Magisterial power to release the vehicle during pendency of the trial."
6. In view of the aforesaid decision of the Honourable Apex Court, the power to release the subject vehicle lies with the Magistrate concerned. Under these circumstances, it is left open to the petitioner to work out the remedies, in terms of the decision rendered by the Honourable Apex Court in Madhukar Rao's case (supra), before the Magistrate concerned.
7. With the above observation, the Writ Petition is disposed of.
Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
____________________ Dr. SHAMEEM AKTHER, J Date: 01.02.2022 scs