Telangana High Court
Mohmmed Amzad Pasha vs State Of Telangana on 14 November, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CRIMINAL PETITION No.9077 OF 2023
O R D E R:
This Criminal Petition is filed by the petitioner-owner of the Maruti Eeco Motor Car bearing No.TS03FA0787 seeking release for his vehicle seized by the Forest Department in POR No.10/056 dated 25.06.2023 registered under Sections 2(05)(16)(37) read with Sections 9, 39(a) and 49(A) of The Wild Life (Protection) Act, 1972 (for short, 'the Act of 1972') by setting aside the order dated 16.08.2023 in Crl.M.P.No.186 of 2023 passed by the I Additional Judicial Magistrate of First Class, Bodhan.
2. Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor for the respondents.
3. The learned counsel for the petitioner submitted that as per the complaint, it was alleged that on 25.06.2023 at 11:30 A.M., during regular check of vehicles at Khandaon check post by the Police, the S.I. of Police stopped the Maruti Eeco Motor Car bearing No.TS3FA0787 coming from Maharashtra State and found 18 Indian Porcupines (Hystrix Indica) and informed the matter to the Forest Range Officer, Varni. The Forest Range Officer seized the vehicle along with 18 Indian Porcupines (Hystrix Indica) Dr.GRR,J Crl.P.No.9077_2023 2 and effected the arrest of two accused persons and registered a case vide POR No.10/056 dated 25.06.2023 and conducted panchanama.
3.1. He further submitted that the said vehicle was lying in the respondents' office premises. The vehicle was neither released nor deposited before the Court. The vehicle belonged to the petitioner. It was his only source of livelihood. If the vehicle was kept idle for a long time, the engine and other parts would be damaged and the petitioner would be put to further loss to repair those damages. He further submitted that the trial Court passed the order observing that as per Section 50(2) of the Act of 1972, the property seized while committing the offence should not be released. But, Section 50(2) of the Act of 1972 was omitted. As such, the said order was illegal and prayed for release of the vehicle. He further submitted that the petitioner was ready to give an undertaking to produce the vehicle as and when required by the Court on any of the conditions ordered by the Court.
4. The learned Assistant Public Prosecutor submitted that the power to release the vehicle had been expressly removed by omitting sub-
clause 2 of Section 50 of the Act in order to ensure that the seized vehicle should not be returned. The property that had been used for committing an offence and seized under the provision of the Wild Life (Protection) Act would become Government property. It was evident from the consequent changes Dr.GRR,J Crl.P.No.9077_2023 3 that had been made to Sections 39 and 50 of the Act to ensure that any property that was seized under the Act becomes Government property.
5. Perused the record. For a proper consideration of the question whether the vehicle seized under the Act of 1972 could be released for interim custody, it is necessary to read few relevant Sections of the Act.
6. Section 39 in Chapter V, 'Trade or Commerce in Wild animals, Animal articles and Trophies' reads as follows:
"39. Wild animals, etc., to be Government property:
(1) Every--
(a), (b), (c) x xxxxx
(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act, Shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government.
(2), (3)(a), (b), (c) x xxxxx"
7. Section 39(1)(d) of the Act of 1972 provides that every vehicle, vessel, weapon, trap or tool that had been used for committing an offence and had been seized under the provisions of the Act, shall be the property of the State Government and in certain situations, the property of the Central Government.
Dr.GRR,J Crl.P.No.9077_2023 4
8. Chapter VI deals with the prevention and detection of offences. Section 50 after its amendment by Act 44 of 1991 and Act 16 of 2003 to the extent it is relevant, reads as follows:
"50. Power of entry, search, arrest and detention.--
(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub- inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,--
(a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy or 3 [trophy, uncured trophy, specified plant or part or derivative thereof]in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;
(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;
(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him:
(2) .... Omitted by the Section 36 of the Wild Life (Protection) Amendment Act, 1991.
Dr.GRR,J Crl.P.No.9077_2023 5 (3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.
(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or an Assistant Conservator of Forests, who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.
(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard.
(5) to (9) xxxxx."
9. The Hon'ble Apex Court in State of Madhya Pradesh and Ors. Vs. Madhukar Rao 1 while considering whether any property including vehicle seized on accusation or suspicion of commission of offence under the Act of 1 (2008) 14 SCC 624 Dr.GRR,J Crl.P.No.9077_2023 6 1972 could be released by the Magistrate pending trial in accordance with Section 50(4) read with Section 451 of Cr.P.C. after extensively considering the statutory provisions approved the view of the Full Bench of the Madhya Pradesh High Court that deletion of sub-section (2) and its replacement by sub-section (3-A) in Section 50 of the 1972 Act had no effect on the powers of the Court to release the seized vehicle during the pendency of trial under the provisions of the Code. While dealing with Section 39(1)(d), the Court also approved the view of the Full Bench of the High Court that Section 39(1)(d) would come into play only after a court of competent jurisdiction found that accusation and allegations made against the accused were true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence.
10. The Hon'ble Apex Court in Principal Chief Conservator of Forests Vs. J.K. Johnson and Ors. 2 agreed with the view of the Court in State of Madhya Pradesh and Ors. Vs. Madhukar Rao(1 supra) that on the basis of seizure and mere accusations/allegations, Section 39(1)(d) of the Act of 1972 could not be allowed to operate and if it was done, it would be hit by the Constitutional provisions.
2Criminal Appeal No.2534 of 2011 dated 17.10.2011 Dr.GRR,J Crl.P.No.9077_2023 7
11. However, the Hon'ble Apex Court in The State of Madhya Pradesh Vs. Uday Singh 3 and other batch matters held that:
"23 This leaves the Court to deal with a judgment rendered in 2008 by a two judge Bench of this Court in State of MP v Madhukar Rao. The issue in that case was whether upon the seizure of a vehicle or vessel under Section 50(1)(c) of the Wildlife Protection Act, 1972, the Magistrate has no power to direct its release under Section 451 of the Cr.P.C. during the pendency of a trial. Significantly, in that case the provisions of the Wildlife Protection Act 1972 did not contain provisions analogous to the MP amendments to the Forest Act or for that matter those contained in the state laws noticed in Sudhakar Rao, Kunchindammed, Sujit Kumar Rana and Kallo Bai. Section 50 empowered the Director or the Chief Wildlife Warden, Forest Officer, Authorised Officer or Police Officer, if they had reasonable grounds for believing that any person has committed an offence under the Act, to seize a captive or wild animal, animal article, meat, trophy etc. together with tools, vehicles, vessels or weapons used for the commission of the offence. Under sub section (2) of Section 50, prior to its amendment in October 1991 4, the Assistant Director or Wildlife Warden was empowered to release inter alia, a vehicle, vessel or weapon subject to a bond. This provision was deleted in 1991 and was substituted by a provision for handing over custody of a captive animal or wild animal which was seized, subject to the execution of a bond for production before a Magistrate of a competent jurisdiction. In view of the more limited power of release post amendment, it was urged that Section 50 provided a comprehensive scheme and it was not open to the Magistrate to direct interim release of a vehicle seized under Section 50. This submission was rejected by the Court, which held that Section 50 and other provisions in Chapter VI of the 3 Criminal Appeal No.524 of 2019 reported on 26.03.2019 4 "(2) Any officer of a rank not inferior to that of an Assistant Director of Wild Life preservation of Wild Life Warden, who, or whose subordinate has seized any trap, tool, vehicle, vessel or weapon under clause (c) of subsection (1), may release the same on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made."
Dr.GRR,J Crl.P.No.9077_2023 8 Wildlife Protection Act 1972 did not exclude the application of the provisions of the CrPC. The decision in Kunchindammed was distinguished on the ground that it dealt with the provisions of the Karnataka Forest Act 1963 whereas the provisions contained in the Wildlife Protection Act were materially different. Consequently, it was held that the provisions of Section 50 did not affect the Magistrate's power to order interim release of a vehicle under Section 451 of the CrPC. The decision in Madhukar Rao involved legislation which had provisions distinct from the special provisions contained in the state amendment to the Forest Act enacted in relation to Madhya Pradesh. Indeed, the Court noted the distinction when it dealt with the earlier decision in Kunchindammed which arose in the context of the Karnataka Forest Act 1963.
26. 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 Dr.GRR,J Crl.P.No.9077_2023 9 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 Cr.P.C., 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 Cr.P.C. was not available to the Magistrate, once the Authorised Officer initiated confiscation proceedings."
12. As seen from the facts of this case, no intimation was given by the Authorised Officer to the Court with regard to the seizure of the property or any steps taken by them for confiscation. As observed by the Hon'ble Apex Court in the above-mentioned case, protection of forests against depredation was a constitutionally mandated goal exemplified by Article 48A Dr.GRR,J Crl.P.No.9077_2023 10 of the Directive Principles and the Fundamental Duty of every citizen incorporated in Article 51A(g). 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 and the state amendment has sought to overcome that deficiency by imposing stringent deterrents against activities which threaten the pristine existence of forests. As an effective tool for protecting and preserving environment, these provisions must receive a purposive interpretation.
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 could be suppressed. The avarice of humankind through the ages had resulted in an alarming depletion of the natural environment.
Considering the observations of the Hon'ble Apex Court in the above case, it is considered fit to dismiss this petition.
13. Accordingly, the criminal petition is dismissed. However, the respondents authorities are directed to expedite the proceedings with regard to the seizure of the above vehicle.
Dr.GRR,J Crl.P.No.9077_2023 11 Pending miscellaneous applications, if any, shall stand closed.
_____________________ DR.G. RADHA RANI, J Date:14.11.2023 ss