Orissa High Court
Baikuntha Bihari Mohapatra vs State Of Orissa on 13 July, 2001
Equivalent citations: 2001CRILJ4151
Author: L. Mohapatra
Bench: L. Mohapatra
ORDER L. Mohapatra, J.
1. This application under Section 482, Cr. P.C. has been filed challenging the Judgment and order dated 11-6-2001 passed by the learned Additional Sessions Judge, Angul, in Criminal Revision No. 16 of 2001 dismissing the revision and confirming the order dated 7-6-2001 passed by the learned Sub-Divisional Judicial Magistrate, Angul, rejecting the prayer of the petitioner for release of the vehicle seized for offence committed under the provisions of the Wild Life (Protection) Act, 1972 ('the Act', for short).
2. The case of the prosecution is that on 15-5-2001 at night while performing night patrolling on Angul-Tikarapada PWD Road, the Divisional Forest Officer, Satkosia Wild Life Division, detected a white Tata Indica car bearing registratipn No. OR-02-R/2879 coming from Tikarapada area towards Angul. The car was intercepted and during search a fresh dead common Indian hare' was detected lying inside the dickey of the car. Accordingly the car was seized and a seizure list was prepared on the spot. On the very day FIR was also lodged against the accused persons alleging offences committed under Section 9 read with Section 39(1)(a) of the Act on the ground that Indian hare is a wild animal specified in Schedule IV of the Act. Petitioner who is the registered owner of the vehicle filed a petition on 29-5-2001 for release of the car in his favour. The said petition was rejected by the learned SDJM, Angul, by order dated 7-6-2001 on the ground that under the provisions of the Act after seizure, the car has become the property of the State and there is no provision for release of the seized ve-hicle under the Act. The said order was challenged before the learned Additional Sessions Judge, Angul, in a revision which was also dismissed on the ground that the vehicle having been seized by the Forest officials. Section 457 of the Code of Criminal Procedure is not applicable and under the Act no Court has the power to release the vehicle.
3. Learned counsel appearing for the petitioner challenges both the orders passed by the Courts below on two grounds :
(1) By mere seizure of a vehicle for commission of an offence under the Act the vehicle does not automatically become the property of the State. It is further urged that so long as it is not found by a competent Court of law that the vehicle was in fact utilised for commission of the offence, the vehicle does not become the property of the State.
(2) Once seizure of the vehicle is reported before the Magistrate, it is the Magistrate wo has the power to release it in exercise of power under Section 457, Cr. P.C.
4. Learned Additional Govt. Advocate relying on a decision of this Court, reported in (2000) 1 OLR 230; Satyabrata Majhi v. State of Orissa, argued that once a property is seized for offence committed under the provisions of the Act, it becomes the prop-erty of the State and therefore, the question of its release does not arise. Learned Additional Govt. Advocate, however does not seriously oppose the second ground of attack stating that it is covered by decisions of this Court.
5. Coming to the first question, it is necessary to refer to the relevant provisions of the Act. Section 9 of the Act prescribes that no person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under Sections 11 and 12. Common Indian hare is given in serial No. 4 of Schedule IV and as such, hunting of common Indian hare is prohibited under Section 9 of the Act. Section 39(1)(d) of the Act provides that every vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of the Act shall be the property of the State Government. This Court while analysing the said provision in the aforesaid decision referred to by the learned Additional Govt. Advocate held, that the power of releasing the seized vehicle has been expressly removed by omitting subsection (2) of Section 50 to ensure that the vehicle which has been seized should not be returned to the accused. This observation was made referring to Section 39(1)(d) of the Act.
Learned counsel appearing for the petitioner relies on a decision of the Full Bench of Jabalpur Bench of Madya Pradesh High Court, reported in (2000) 1 Jab LJ 304; Madhukar Rao v. State of M.P. In paragraphs 16 and 17 of the judgment the Full Bench observed as follows :
16. Strong reliance has been placed on behalf of the State on Clause (d) of Sub-section (1) of Section 39 of the Act. It is submitted that vehicle including properties mentioned therein which have been seized on the ground of having been used for committing the offence become the property of the State and therefore such property including vehicle cannot be released even by the Magistrate. It is submitted that other interpretation would frustrate the object of the Amendment Act whereby the power to grant interim release of the property allegedly used in commission of offence has been taken away. On the plain language used in Sub-clause (d) of Sub-section (1) of Section 39, we are unable to accept the interpretation placed and submission made on behalf of the State that every property seized merely on accusation or suspicion of commission of an offence under the Act would become property of the State. The language used in Sub-clause (d) of Sub-section (1) of Section 39 is 'Vehicle...that has been used for committing an offence and has been seized'. In order that the seized property may be treated as property of the State, there should be a finding by the competent Court that vehicle seized has been used for committing an offence. The seized vehicle or other property merely on the charge of commission of an offence cannot be declared to be the property of the State Government under Sub Clause (d) of Section 39(1). The power to seize a vehicle by an authority or officer under the Act is contained in Section 50(1)(c). The power of seizure can be exercised in respect of a property including a vehicle if it appears to the authority that an offence under the Act has been committed. The seizure of property or vehicle is effected on accusation or suspicion of commission of an offence. Under Sub-section (3-A) introduced by Amendment Act No. 44 of 1991 power has expressly been conferred on the specified Forest Authorities to grant interim release of any captive animal or wild animal seized in commission of an offence on a condition of executing a bond by the person concerned that the said animal shall be produced before the Magistrate having jurisdiction to try the offence. Such a power in respect of certain properties including vehicle existed in Sub-section (2) of Section 50 prior to its deletion under Amendment Act No. 44 of 1991. The omission of Sub-section (2) of Section 50 by amendment has necessary consequence of taking away power of the prescribed authorities under the Act to grant interim release of seized property including vehicle to the person claiming ownership to the same. The omission of Sub-section (2) of Section 50 cannot, however, be construed to hold that the power to grant interim release already available to an established Criminal Court, meaning the Magistrate under Section 452 of the Code of Criminal Procedure, has also been taken away. No such intention can be gathered from any of the provisions of the Act quoted above. We on the contrary, find a clear indication in them that the power of the Magistrate as a Criminal Court empowered to deal and to try the offence under the Act is not in any manner affected. Sub-section (4) of Section 50 requires that any person detained or things seized under Sub-section (1) of Section 50 shall forthwith be taken before a Magistrate to be dealt with according to law. It is not disputed on behalf of the State that by virtue of the provisions contained in subsection (2) of Section 4 of the Criminal Procedure Code any offence under the Act can be investigated, enquired into and tried under the Code. The Magistrate therefore, as a Criminal Court under the Code is empowered to try the offences and impose penalties and punishments provided by the Act on proving of commission of the offence under the Act.
17. If the interpretation, as has been sought to be put on behalf of the State on Clause (d) of Sub-section (1) of Section 39, is accepted, every property mentioned therein including a vehicle seized merely on accusation or suspicion would become property of the State and that would be the result even though in the trial ultimately the Mag-istrate finds that no offence has been committed and acquits the accused. In our considered opinion the property seized under Section 50 of the Act from an alleged offender cannot become property of the State under Clause (d) of Section 39(1) unless there is a trial and a finding reached by the competent Court that the property was used for committing an offence under the Act. If the seizure of a property was enough to declare it as the property of the Government, there was no necessity to provide under Sub-section (2) of Section 51 that on proof of commission of the offence, the properties including vehicle, vessel, or weapon used in the commission of offence would be forfeited to the State Government. We do not find dichotomy or conflict in the provisions of Section 39(1)(d) and Section 51(2) of the Act. Properties including vessel can be seized on accusation of commission of an offence under the Act and if the offender is available and is arrested, on proof of his guilt, the property seized from him and used in commission of the offence is liable to forfeiture to the State under Section 51(2) of the Act. Similarly every property seized and is held to have been used for committing an offence by competent Court, whether the offender is available or not for punishment, would be declared to be the property of the State by virtue of the provisions contained under Section 39(1)(d) of the Act. We find that Section 39 contained in Chapter V is sort of a residuary provision to make all properties seized and found to be used in commission of an offence as properties of the State Government irrespective of the fact whether they are liable to forfeiture at the conclusion of the trial under Sub-section (2) of Section 51 of the Act. A situation can be envisaged where the offence is proved to have been committed but the owner of the property or the offender himself. If is not available for prosecution. In that situation by virtue of Cause (d) of Section 39 of the Act the property would become the property of the State without any requirement of passing an or -der of forfeiture in a trial by the criminal Court in accordance with Sub-section (2) of Section 51 of the Act.
6. The language used in Section 39 also makes it clear that only when it is found that a vehicle has been used for committing an offence and has been seized under the provisions of the Act, the same shall be the property of the State Government. At this stage It can only be said that an allegation has been made that the vehicle was used for commission of the offence. So long as a competent Court of law does not find that the vehicle had In fact been used for the purpose of commission of the offence, the vehicle does not become the property of the State Government. There is no finding till date by a competent Court of law that the vehicle had been used for commission of the offence under the Act and the materials existing on record only indicate that an allegation has been made by the prosecution that the vehicle was used for commission of the offence. Though this Court has decided in the case of Satyabrata Madjhi 2000 (1) OLR 230 (supra) that after seizure of a vehicle for commission of the offence under the Act, it becomes the property of the State Government, In view of the reasonings given by the Full Court of Jataalpur Bench of Madhya Pradesh High Court, I am of the view that the Full Bench has laid down the correct proposition of law. I, therefore, do not find any bar for the Court to release the property, since it has not been found by a competent Court of law that the vehicle had been used for commission of an offence under the Act.
7. So far as the power of the Magistrate is concerned there is no dispute that though the vehicle was seized by the Forest officials, the seizure was reported to the Magistrate and a case has been initiated for commission of the alleged offence in the Court of the learned SDJM, Angul, I, therefore, do not find any reason to agree with the revisional Court that the learned Magistrate had no Jurisdiction to entertain an application under Section 457, Cr. P.C. This Court In a case decided in respect of an offence committed under the Forest Act has already decided that once seizure is reported to the Magistrate or once the vehicle used for commission of the offence under the Forest Act is produced before the Magistrate, it is the Magistrate who has the power to release the vehicle or the property seized. Reference in this regard may be made the decision of this Court in Sudhahshu Kumar Das v. State of Orissa, (2000) 19 OCR 63. I am, therefore, of the view that the Magistrate has jurisdiction to entertain the application under Section 457, Cr. P.C. and release the vehicle If he thinks just and proper. The same view has also been taken by the Full Bench of Jabalpur Bench of Madhya Pradesh High Court in the judgment referred to above.
8. I, therefore, allow the application and direct that the vehicle in question, i.e. Tata Indica car bearing registration No. OR-02/ R/2879 be released in favour of the petitioner on furnishing cash security of Rs. 30,000/- (rupees thirty thousand) and property security of Rs. 1,00,000/- (Rupees one lakh), subject to further condition that as and when it is required, the vehicle shall be produced before the learned Magistrate.