Crl.M.C. Nos. 7589 of 2019 & 7596 of 2019 (G/H) in the High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **Crl.MC.No.7589 OF 2019(G)** **THE ORDER IN CMP 6932/2019 DATED 25.10.2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),PUNALUR** **O.R.NO.3/2019 OF Ezhamkulam Forest Station , Kollam** ## **PETITIONER:** **STATE REPRESENTED BY THE RANGE FOREST OFFICER ANCHAL RANGE EZHAMKULAM STATION** **SRI SANDESH RAJA-SPL GP FOREST** ## **RESPONDENT:** **AJEEM A. S/O. ABDUL RASHEED, KALLUVETTANKUZHY VEEDU, PUTHUSSERRIMUKKU, KARAVARAM VILLAGE, KALLAMBALAM , KARAVARAM P.O PIN 695 605** **R1 BY ADV. SRI.J.R.PREM NAVAZ** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0212-2019, ALONG WITH Crl.MC.7596/2019(H), THE COURT ON 06-01-2020 PASSED THE FOLLOWING:** Crl.M.C.Nos.7589/2019 & 2 7596/2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **Crl.MC.No.7596 OF 2019(H)** **THE ORDER IN CMP 6893/2019 DATED 25.10.2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),PUNALUR O.R.NO.3/2019 OF Ezhamkulam Forest Station , Kollam** ## **PETITIONER:** **STATE REPRESENTED BY THE RANGE FOREST OFFICER, ANCHAL RANGE, EZHAMKULAM STATION,** ## **SRI SANDESH RAJA-SPL GP FOREST** ## **RESPONDENT:** ## **SINDHU** **W/O. SUNIL KUMAR,KAVUVILA VEEDU, KEEZHATTINGAL VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695304.** **R1 BY ADV. SRI.P.ANOOP (MULAVANA)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-12-2019, ALONG WITH Crl.MC.7589/2019(G), THE COURT ON 06-01-2020 PASSED THE FOLLOWING:** Crl.M.C.Nos.7589/2019 & 3 7596/2019 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.Nos.7589 of 2019 & 7596 of 2019 ------------------------------------------Dated this the 6[th] day of January, 2020 ## **O R D E R** A snake by name 'Erix johnii', which belongs to the family 'boidae' and which is classified as a wild animal under Schedule IV of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Act') was seized by the Forest Range Officer, Anchal. A case was registered as O.R.No.3/2019 of the Ezhamkulam Forest Station in the matter. The snake was seized, while four persons, two men and two women, were engaged in the trading of the snake in a house. The aforesaid four persons, who are accused 1 to 4, were arrested from the spot by the Forest Range Officer. 2. The interrogation of the accused revealed that the snake was kept and transported in the cars bearing Reg.Nos.KL16L 2831 and KL-16K 5122. The Forest Range Officer also seized Crl.M.C.Nos.7589/2019 & 4 7596/2019 the aforesaid cars. 3. The third accused filed an application under Section 451 Cr.P.C before the Judicial First Class Magistrate-II (Forest Offences), Punalur for releasing the car bearing Reg.No.KL-16K 5122 to his interim custody. The first accused filed an application under Section 451 Cr.P.C before the same court for releasing the car KL-16L 2831 to her interim custody. Both the aforesaid applications were allowed by the learned Magistrate on the condition that they shall execute a bond for Rs.5,00,000/- and Rs.3,00,000/- respectively and also on the condition that they shall not alienate or dispose of the vehicle or make any alteration to it and they shall produce the vehicle as and when directed by the court. The State has filed these petitions under Section 482 Cr.P.C challenging the orders passed by the learned Magistrate granting interim custody of the aforesaid vehicles to the aforesaid persons. 4. Heard learned Special Public Prosecutor (Forest) and also the learned counsel for the respondent in the two petitions. 5. Learned Special Public Prosecutor contended that, Crl.M.C.Nos.7589/2019 & 5 7596/2019 though the Magistrate has got ample power under Section 451 Cr.P.C to release the vehicles to the interim custody of proper persons, the Magistrate has to exercise his discretion properly. Learned Special Public Prosecutor would contend that the vehicles seized under the provisions of the Act cannot be released in a casual and mechanical manner. Learned Special Public Prosecutor further contended that the learned Magistrate has passed the orders releasing the cars to the interim custody of the accused in the case without properly considering the objections raised by the Forest Range Officer. 6. _Per contra_ , learned counsel who appeared for the respondent in the two petitions, contended that the learned Magistrate has exercised the discretion in the proper manner especially in view of the directions given by the Apex Court in the decision in **Sunderbhai Ambalal Desai v. State of Gujarat : AIR 2003 SC 638** and this Court may not interfere with the orders passed by the learned Magistrate. 7. Section 39(1)(d) of the Act provides that every vehicle, vessel, weapon, trap or tool used for committing an Crl.M.C.Nos.7589/2019 & 6 7596/2019 offence and has been seized under the provisions of the Act shall be the property of the State Government. It is further provided that when an animal is hunted in a sanctuary or National Park, any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government. 8. Section 50(1)(c) of the Act states that, an authorised officer or any forest officer, who has reasonable grounds for believing that any person has committed an offence against the Act, has the power to seize any trap, tool, vehicle, vessel or weapon used for committing such offence under the Act. Section 50(4) of the Act provides that, any person detained, or things seized under such power shall forthwith be taken before the Magistrate to be dealt with according to law. 9. In **State of U.P v. Lalloo Singh : (2007) 7 SCC 334** , the Supreme Court has considered the scope of the provisions contained in Sections 39 and 50 of the Act and it has been held as follows: _“Clause (d) of sub-section (1) of Section 39 deals with a situation when any vehicle, vessel, weapon, trap or tool has been used for committing_ Crl.M.C.Nos.7589/2019 & 7 7596/2019 _an offence and has been seized under the provisions of the Act. The twin conditions are that the vehicle etc. must have been used for committing an offence and has been seized. Mere seizure of the property without any material to show that the same has been used for committing an offence does not make the seized property, the property of the Government. At this juncture, it is also to be noted that under sub-section (1) of Section 50 action can be taken if the concerned official has reasonable grounds for believing that any person has committed an offence under the Act. In other words, there has to be a reasonable ground for belief that an offence has been committed. When any person is detained or things seized are taken before the magistrate, he has the power to deal with the same “in accordance with law.”_ ## The Supreme Court has further held as follows: _“There is a significant addition in sub-section_ _(4) by Act 16 of 2003 i.e. requirement of intimation to the Chief Wild Life Warden or the officer authorized in this regard as to the action to be taken by the Magistrate when the seized property is taken before a Magistrate. A combined reading of the omitted sub-section (2) and the substituted sub-section (3A) of the Section 50_ Crl.M.C.Nos.7589/2019 & 7596/2019 8 _makes the position clear that prior to the omission, the officials under the Act had the power to direct release of the seized article. Under sub-section (1), the power for giving temporary custody subject to the condition that the same shall be produced if and when required by the magistrate is indicative of the fact that the Magistrate can pass appropriate orders in respect of the purported seized property which is taken before him. While dealing with an application for temporary release of custody, there cannot be a complete adjudication of the issues involved as the same is a matter for trial.”_ (emphasis supplied). The Supreme Court had proceeded to hold as follows: _“While dealing with the application the Magistrate has to take into account the statutory mandate that the seized property becomes the property of the State Government when the same has been used for commission of an offence under the Act and has been seized._ _It appears that insertion in sub-section (4) relating to the intimation to the Chief Wild Life officer or the officer authorized by him is intended to give concerned official an opportunity of placing relevant materials on record before the Magistrate_ Crl.M.C.Nos.7589/2019 & 9 7596/2019 _passes any order relating to release or custody. In appropriate cases on consideration of materials placed before him, prayer for such release or custody can be rejected._ _It is to be noted that under sub-section (1) of Section 50 for the purpose of entry, seizure, arrest and detention the official has to form the belief on reasonable grounds that the person has committed an offence under the Act. The Magistrate is, therefore, required to consider these aspects while dealing with the application as noted above. It cannot be a routine exercise.”_ (emphasis supplied). 10. In **State of M.P v. Madhukar Rao : (2008) 14 SCC 624** also, the Supreme Court had occasion to consider the scope of Sections 39 and 50 of the Act. It has been held by the Apex Court that the Magistrate has power under Section 451 Cr.P.C to make an order for interim release of the vehicle. 11. In the instant cases, in the order passed by the learned Magistrate releasing the car KL-16K 5122 to the interim custody of the third accused, it is stated that the vehicle was seized from the aforesaid accused and he is a person who had purchased the vehicle from the registered owner and that the Crl.M.C.Nos.7589/2019 & 10 7596/2019 registered owner had no objection to release the vehicle to the third accused and also that further keeping the vehicle in the custody of the court would cause deterioration of its value. Learned Magistrate released the vehicle to the interim custody of the third accused for the aforesaid reasons. 12. In the order passed by the learned Magistrate releasing the vehicle KL-16L 2831 to the interim custody of the first accused, it is stated that the first accused is the registered owner of the vehicle and that further keeping the vehicle in the custody of the court will only cause deterioration of its value. Learned Magistrate released the vehicle to the interim custody of the first accused for the aforesaid reasons. 13. The Forest Range Officer concerned had filed objection to both applications raising various grounds. I find force in the contention of the learned Special Public Prosecutor that the learned Magistrate did not consider any of the objections raised by the Forest Range Officer against the releasing of the vehicles to the interim custody of the accused. The learned Magistrate has granted interim custody of the vehicles to the accused only Crl.M.C.Nos.7589/2019 & 11 7596/2019 for the reason that further keeping of the vehicles in the custody of the court will cause deterioration to the value of the vehicles. Of course, it is certainly one of the factors to be taken into account while granting interim custody of a vehicle. It is the spirit of the decision of the Supreme Court in **Sunderbhai** (supra). But, while dealing with applications filed under Section 451 Cr.P.C for releasing the vehicles, which have been seized under the special statutes like Wild Life Protection Act, Forest Act etc., the Magistrates have also to take into consideration other factors also as indicated by the Supreme Court in **Lalloo Singh** (supra). They have to consider and dispose of such applications not in a routine manner but after taking into consideration the objections raised by the investigating officer or the Forest Officer or the Wild Life Protection Officer concerned. In the instant cases, the learned Magistrate has passed orders releasing the vehicles to the interim custody of the accused in a routine manner without taking into consideration any of the objections raised by the Forest Range Officer. 14. In the aforesaid circumstances, I find that it is only Crl.M.C.Nos.7589/2019 & 12 7596/2019 proper to remit the applications filed under Section 451 Cr.P.C by the respondent/accused in the two petitions for fresh consideration by the learned Magistrate in the light of the decision of the Supreme Court in **Lalloo Singh** (supra). 15. Consequently, the petitions are allowed. The orders passed by the learned Magistrate granting interim custody of the vehicles to the accused, which are impugned in these Crl.M.Cs, are set aside. The applications, Crl.M.P.Nos.6932/2019 and 6893/2019 filed in O.R.No.3/2019 of the Ezhamkulam Forest Station, for granting interim custody of the vehicles, are remitted to the learned Magistrate for fresh consideration and disposal in accordance with law. Learned Magistrate shall dispose of the aforesaid applications afresh within a period of two weeks from the date of production of a certified copy of this order before the court. It is made clear that this Court has not made any findings with regard to the merits of the claim made by the applicants for getting interim custody of the vehicles. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** ## **jsr** Crl.M.C.Nos.7589/2019 & 13 7596/2019 ## **APPENDIX OF Crl.MC 7589/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **A COPY OF THE FOREST OFFENCE IN OR NO. 3/2019 OF EZHUMKULAM FOREST STATION** - **ANNEXURE-A2 A COPY OF THE MAHAZAR IN OR NO.3/2019 OF EZHUMKULAM FOREST STATION** - **ANNEXURE A3 A COPY OF PETITION UNDER SECTION 451 OF CR.P.C BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES), PUNALUR** - **ANNEXURE A4** - **A COPY OF THE OBJECTION IN THE FORM OF REPORT FILED BY THE PETITIONER IN CMP NO. 6932/2019** - **ANNEXURE A5 A TRUE COPY OF THE ORDER DATED 25-102019 IN C.M.P NO. 6932/19 IN O.R NO. 3/2019 OF EZHAMKULAM FOREST STATION OF JUDICIAL FIRST CLASS MAGISTRATE-II (FOREST OFFENCES) PUNALUR.** **ANNEXURE A6 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE DFO DATED 04.11.2019** **ANNEXURE A7 TRUE COPY OF THE OFFICE MEMORANDUM DATED 06.11.2019** RESPONDENT'S EXHIBITS: NIL ## **APPENDIX OF Crl.MC 7596/2019** **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **A COPY OF THE FOREST OFFENCE IN OR NO.3/2019 OF EZHUMKULAM FOREST STATION.** **ANNEXURE A2 A COPY OF THE MAHAZARIN OF EZHUMKULAM FOREST STATION.** **ANNEXURE A3** **A COPY OF THE OBJECTION IN THE FORM OF REPORT FILED BY THE PETITIONER IN CMP NO.6893/2019.** **ANNEXURE A4** **A CERTIFIED COPY OF THE ORDER DATED 25.10.2019 IN C.M.P.NO.6893/19 IN O.R. NO.3/2019 OF EZHAMKULAM FOREST STATION OF JUDICIAL FIRST CLASS MAGISTRATE-II(FOREST OFFENCES) PUNALUR.** RESPONDENT'S EXHIBITS: NIL TRUE COPY PS TO JUDGE