Madhya Pradesh High Court
Sheikh Tausif vs State Of Madhya Pradesh And Anr. on 20 September, 2001
Equivalent citations: 2002CRILJ1562, 2002(1)MPHT61
JUDGMENT S.S. Saraf, J.
1. This petition under Section 482, Cr.PC has been directed against the order dated 4-7-2001 passed by the learned IIIrd Additional Sessions Judge, Chhindwara in Criminal Revision No. 82/2001 affirming the order dated 21-5-2001 passed by the learned Additional Chief Judicial Magistrate, Saunsar District Chhindwara in P.O.R. No. 8891/2001 rejecting an application filed under Section 457, Cr.PC for the release of the vehicle on Supurdnama.
2. A criminal case for offence under Sections 2, 9, 27, 29, 35(6), 43(3), 46(A), 51 and 52 of the Wild Life (Protection) Act and Sections 26 and 52 of the Indian Forest Act has been registered against Abdul Waheed Ansari and Babulal on the allegations that they were fishing in the reservoir of Pench National Park, Chhindwara. The fish so collected were being transported in the Jeep No. MP-28-C/0195 which was seized. It is alleged that the seized vehicle belongs to the petitioner. He, therefore, filed an application for release of the said vehicle on Supurdnama under Section 457 Cr.PC. The Additional Chief Judicial Magistrate, Saunsar by order dated 12-5-2001 rejected the application on the ground that under the provisions of Section 52C of the Indian Forest Act as amended by M.P. Act No. 25 of 1983 he has no jurisdiction to release the vehicle on Supurdnama as the forest officer has started proceedings for its confiscation under Section 52 of the Indian Forest Act as amended by the M.P. Act in its application to the State of Madhya Pradesh. Being aggrieved by the order passed by the learned Additional Chief Judicial Magistrate, Saunsar, the petitioner filed a revision petition before the Court of Sessions. The learned Illrd Additional Sessions Judge, Chhindwara by the impugned order, affirming the above order passed by the learned Additional Chief Judicial Magistrate dismissed the revision petition. The petitioner has, therefore, preferred the present petition invoking inherent jurisdiction of this Court.
3. It has been contended by Shri S.L. Kochar, learned counsel for the petitioner that the provisions of the Indian Forest Act as amended by the M.P. Act (for short the 'Forest Act') are not applicable in the present case as the provisions of Wild Life (Protection) Act, 1972 (for short the 'Act of 1972') are applicable because the alleged fishing was performed within the area of Pench National Park. He has, further contended that no offence under Sections 26 and 52 of the Forest Act is made out in the present case and therefore the provisions of Section 52 of the Forest Act do not attract. On the other hand Shri Anurag Choudhary, learned Government Advocate for the State has urged that the provisions of the Forest Act are equally applicable and therefore the impugned order is not liable to be quashed.
4. Before proceeding further, it would be useful to reproduce the relevant provisions of the 'Forest Act' and the 'Act of 1972'. The relevant provisions of the 'Forest Act' are as under :--
"2. Interpretation clause.-- ***** (1)***** (2)***** (3)***** (4) "forest-produce" includes-
*****
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey, and wax, and all other parts of produce of animals, and" "26. Acts prohibited in such forest.-- (1) Any person who-
*****
(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares; or
(j) in any area in which the Elephants' Preservation Act, 1879, is not force, kills or catches elephants in contravention of any rules so made; shall be punishable with imprisonment for a term which, may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to b paid."
"Section 52 as amended by M.P. Act.-- Seizure of property liable to confiscation and procedure therefor-- (1) When there is reason to believe a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicles, ropes, chains or any other article used in committing any such offence may be seized by any Forest Officer or Police Officer.
(2) Every officer ***** (3) Subject to Sub-section (5), where the authorised officer upon production before him of property seized or upon receipt of report about seizure, as the case may be, is satisfied that a forest offence has been committed in respect thereof, he may by order in writing and for reasons to be recorded confiscate forest produce so seized together with all tools, vehicles, boats, ropes, chains or any other article used in committing such offence. *** ****."
"52-C (as amended by M.P. Act) Bar to jurisdiction of Court etc. under certain circumstances.-- (i) On receipt of intimation under Sub-section (4) of Section 52 about initiation of proceedings for confiscation of property by the magistrate having jurisdiction to try the offence on account of which the seizure of property which is subject matter of confiscation, has been made, no Court, Tribunal or Authority (other than the authorised officer, Appellate Authority and Court of Sessions referred to in Sections 52, 52A and 52B) shall have jurisdiction to make orders with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated under Section 52, notwithstanding anything to the contrary contained in this Act, or any other law for the time being in force."
The relevant provisions of Wild Life (Protection) Act, 1972 are as under : -
"2. Definitions. -- In this Act, unless the context otherwise requires -
(36) "Wild animal" means any animal found wild in nature and includes any animal specified in Schedule I, Schedule II, Schedule III, Schedule IV or Schedule V, wherever found;
(37) "Wild life" includes any animal, bees, butterflies, Crustacea, fish and moths, and aquatic or land vegetation which forms part of any habitat;"
"29. Destruction, etc., in a sanctuary prohibited without a permit. -- No person shall destroy, exploit or remove any wild life from a sanctuary or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such sanctuary except under and in accordance with a permit granted by the Chief Wild Life Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction, exploitation or removal of wild life from the sanctuary is necessary for the improvement and better management of wild life therein, authorises the issue of such permit."
"Declaration of National Parks. -
***** (6) No person shall destroy, exploit or remove any wild life from a National Park or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such National Park except under and in accordance with a permit granted by the Chief Wild Life Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction, exploitation or removal of wild life from the National Park is necessary for the improvement and better management of wild life therein, authorises the issue of such permit."
"39. Wild animals etc., to be Government property. -- (1) Every -
(a) Wild animal, other than vermin, which is hunted under Section 11 or Sub-section ( 1 ) of Section 29 or Sub-section (6) of Section 35 or kept or [bred in captivity or hunted] in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed [***] by mistake; and
(b) animal article, trophy or uncrued trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed.
(c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;
(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."
5. Undoubtedly the fishing were performed within the area of Pench National Park. By Notification No. 5-15-82 (X) (2) dated 1-3-1983 published in Madhya Pradesh Rajpatra dated 17-6-1983 at page 835, the area has been declared as National Park by the State Government in exercise of the powers conferred by Section 35(1) of the Wild Life (Protection) Act, 1972.
6. In view of the above provisions of both the Acts, it is manifest that under Section 2 of the Forest Act, the fish has not been included in the definition of 'forest produce' though wild animals have been so included. In view of Clauses 36 and 37 of Section 2 of the Wild Life (Protection) Act, the fish is not 'wild animal' but 'wild life'. It is, therefore, abundantly clear that the fish cannot be included in the definition of 'forest produce' in the Forest Act.
7. The offence has allegedly been committed under Section 26 of the Forest Act as also under Sections 29 and 35(6) of the Act of 1972. Thus, the offence is punishable under Section 26 of the Forest Act as well as under Sections 29,35(6) and 51 of the Act of 1972.
8. It is also clear that Section 52 of the Forest Act in its application to the State of Madhya Pradesh has provided that if a forest offence has been committed in respect of any forest produce, such produce together with all tools etc. including vehicle can be seized by the forest officer. However, as pointed out above, the fish are not 'forest produce' and therefore, though the offence under Section 26 of the Forest Act appears to have been committed in the present case but since the fish are not 'forest produce', the provisions of Section 52 of the Forest Act do not attract and therefore the seizure of the said jeep cannot be construed under provisions of Section 52 of the Forest Act. Consequently the provisions of Section 52C of the Forest Act which bar the. jurisdiction of the Court, too, do not attract in the present case. Since the fish are wild life and the offence is also alleged to have been committed under Sections 29,35(6) and 51 of the Wild Life (Protection) Act, the provisions of Section 39 of the said Act of 1972 attract and therefore it can be construed that the said jeep was seized under Section 39 of the Act of 1972. It is also clear that the said jeep shall be the property of the State Government as per provisions of Section 39 of the Act of 1972.
9. It has been laid down by Full Bench of this Court in Madhukar Rao v. State of M.P. and others, 2000(2) M.P.H.T. 445 (DB) = 2000(1) JLJ 304, that any property including vehicle seized on accusation or suspicion of commission of an offence under the Act of 1972 can, on relevant grounds and circumstances, be released by the Magistrate pending trial in accordance with Section 50(4) read with Section 451 of the Code of Criminal Procedure, 1973. It has, further been held that mere seizure of any property including vehicle on the charge of commission of an offence would not make the property to be of the State Government under Section 39(1)(d) of the Act of 1972.
10. The result of the above discussion is that though the alleged offence is punishable under Section 26 of the Indian Forest Act and Sections 29, 35(6), 51 and other provisions of the Wild Life (Protection) Act, the provisions of Section 52 of the Forest Act do not attract as the fish are not forest produce and therefore the jeep can be construed to have been seized not under Section 52 of the Forest Act as applicable in the State of Madhya Pradesh but under Section 39(1)(d) of the Wild Life (Protection) Act, 1972. Consequently the Trial Court has jurisdiction to consider the application for the release of the vehicle on Supurdnama as per law laid down by Full Bench of this Court in Madhukar Rao's case (supra). It is, further made clear that the consideration of the application does not mean the grant of the application. The learned Magistrate should consider the relevant grounds, the facts, the circumstances and decide whether in the interest of justice the vehicle should be given in interim custody or Supurdnama as there could be a likelihood of its forfeiture to the State Government under Section 39(1)(d) of the Act of 1972.
11. For the reasons stated above, it is thus manifest that the learned Additional Chief Judicial Magistrate, Saunsar has jurisdiction to decide the application to release the vehicle on Supurdnama filed by the petitioner and since the learned Additional Chief Judicial Magistrate, Saunsar has not considered the application on merits, it is justified to quash theorders of the Courts below in exercise of inherent jurisdiction under Section 482, Cr.PC.
12. In view of above, the petition is allowed. The impugned order passed by the learned IIIrd Additional Sessions Judge, Chhindwara and the order passed by the learned Additional Chief Judicial Magistrate, Saunsar are quashed. It is directed that the learned Additional Chief Judicial Magistrate, Saunsar shall consider the application on merits in the light of the above discussion. The copy of the order be sent to the learned Additional Chief Judicial Magistrate, Saunsar.
13. Misc. Criminal Case allowed.