Crl.M.C. Nos. 81 & 83 of 2021, High Court of Kerala (Ernakulam)

_**Crl.MC.81 & 83/2021**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942** ## **Crl.MC.No.81 OF 2021(A)** **AGAINST THE ORDER/JUDGMENT IN CMP 22/2020 DATED 20-03-2020 OF JUDICIAL MAGISTRTE OF 1ST CLASS,ANDROTH** ## **PETITIONER/S:** **RANGE FOREST OFFICER (HQ) DEPARTMENT OF ENVIRONMENT AND FOREST, GOVT. OF INDIA U.T., LAKSHADWEEP AND KAVARATTI, REPRESENTED CENTRAL BUREAU OF INVESTIGATION.** **BY ADV. SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.** ## **RESPONDENT/S:** **MOHAMMED ALI, NELIYAMPURA HOUSE, KAVARATTI ISLAND, UT OF LAKSHADWEEP.** ## **OTHER PRESENT:** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.01.2021, ALONG WITH Crl.MC.83/2021(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**Crl.MC.81 & 83/2021**_ 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942** ## **Crl.MC.No.83 OF 2021(A)** **AGAINST THE ORDER/JUDGMENT IN CRMC 4431/2020 DATED 11-11-2020 OF JUDICIAL MAGISTRTE OF 1ST CLASS,ANDROTH** ## **PETITIONER/S:** **MOHAMMED ALI M.P. AGED 48 YEARS NELIYAMPURA HOUSE, KAVARATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/S:** - **1 THE UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031.** - **2 THE RANGE FOREST OFFICER(HQ) DEPARTMENT OF ENVIRONMENT AND FOREST, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP, PIN - 682555.** - **3 THE CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE SUPERINTENDENT OF POLICE, KATHRIKADAVU, KOCHI, PIN - 682016.** **R1-2 BY SHRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.01.2021, ALONG WITH Crl.MC.81/2021(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**Crl.MC.81 & 83/2021**_ 3 ## **V.G.ARUN, J.** ## **----------------------------------------------CRL.M.C.Nos.81 and 83 of 2021** ## **-----------------------------------------------** ## **Dated this the 11[th] day of January, 2021** ## **O R D E R** Petitioner in Crl.M.C.No.81 of 2021 is the owner of a fishing boat, registered at Lakshadweep. The boat was seized on 12.1.2020, as part of investigation in Forest Crime No.1 of 2020 registered at the Forest Range Office, Kavaratti. The crime was registered, and the petitioner's boat seized, during a combined operation by a team of officers from the Police, Fisheries and the Environment and Forest Departments, on the allegation that the boat was found to be carrying dead and live ‘Sea Cucumbers’, which is a prohibited item. The offences alleged are under Sections 9, 39(3)(a), 40, 42, 49(a) and 49(b) of the Wildlife Protection Act (for short, 'the Act') and Section 120 of the Indian Penal Code. 2. The petitioner approached the jurisdictional Magistrate Court seeking interim custody of his boat. By Annexure B order, the boat was directed to be released on interim custody, subject to certain _**Crl.MC.81 & 83/2021**_ 4 conditions. Petitioner complied with the conditions and thereupon, Annexure C order was issued, directing to release the boat. In the meantime the investigating officer filed a revision against Annexure B. By Annexure D order, the Sessions Court allowed the revision in part. The petitioners' claim for interim custody was upheld and additional conditions imposed for releasing the boat. 3. Aggrieved by Annexure D, the petitioner approached this Court in Crl.M.C.No.4431 of 2020 challenging Annexure D, primarily on the ground that the Sessions Court lacked jurisdiction to entertain the revision filed against an interlocutory order. This Court, after elaborate consideration of the legal issue involved, found the revision before the Sessions Court to be not maintainable and Annexure D order to be unsustainable. Consequently, Annexure D was set aside and the petitioner permitted to approach the Magistrate Court for implementation of Annexure B order. The contentions of the respondent against Annexure B was left open. The petitioner again approached the jurisdictional court seeking release of the boat and got Annexure F order issued, directing to release the boat forthwith. 4. Crl.M.C.No.83 of 2021 is filed seeking release of the boat, in implementation of Annexure B order of the Magistrate Court, Annexure E order of this Court and the consequential Annexure F order. Crl.M.C.No.81 of 2021 is filed by the Central Bureau of Investigation _**Crl.MC.81 & 83/2021**_ 5 which has taken over the investigation in Forest Crime No.1 of 2020, as directed by the Administrator, Union Territory of Lakshadweep. The challenge in Crl.M.C.No.81 of 2021 is against Annexure B order, by which the jurisdictional court had ordered release of the petitioner's boat. For the sake of convenience, the parties and documents are referred to, as described in Crl.M.C.No. 83 of 2021. 5. Learned counsel for the petitioner contended that the jurisdictional Court having issued Annexure B order on 20.3.2020, directing release of the petitioner's boat and this Court having made it clear that the petitioner is free to approach Magistrate Court for immediate implementation of the order, there is absolutely no justification in refusing to release the boat. It is submitted that fishing is the only means of livelihood of the petitioner and the deliberate delay in releasing the boat is causing substantial prejudice and hardship to him. The boat being supposed to the vagaries of nature, is getting ruined and its engine is getting damaged due to non-user for a long period. 6. The learned Standing Counsel for the CBI contended that, in view of Section 39(1)(d) of the Wildlife Protection Act, the boat has become the property of the Government and that, ‘Sea Cucumber’ being an item listed under Schedule I Part IV-C of the Act, the learned Magistrate could not have granted interim custody of the boat to the _**Crl.MC.81 & 83/2021**_ 6 petitioner. It is submitted that though the initial investigation was conducted by the Forest Department, later the Lakshadweep Administrator decided to entrust investigation with the CBI, since it was suspected that the Sea Cucumber was being collected by local fishermen and thereafter transferred to larger vessels as part of international trade. It is contended that the conditions imposed in Annexure B order are not sufficient to ensure production of the boat as and when required. 7. In reply, the learned counsel for the petitioner placed reliance on the decisions in _**Mathew v. Range Officer**_ [2004(2) KLT 865] and _**State of Kerala v. Thomas K.B**_ [2018(1) KLJ 213] to contend that, till it is established that the boat was used for commission of the offence, the boat will not become the property of the Government and the jurisdictional Magistrate can pass order regarding interim custody. According to the learned counsel, the sole reason behind filing Crl.M.C.No.81 of 2021 is to delay release of the boat in spite of Annexures B, E and F orders. 8. The facts reveal that Annexure B was subjected to challenge before the Sessions Court, resulting in Annexure D order. A perusal of Annexure D order shows that it was passed after hearing the CBI Prosecutor. The contention based on Section 39(1)(d), though raised before the Sessions Court, was found against the prosecution. But, _**Crl.MC.81 & 83/2021**_ 7 Annexure D order was not challenged by the CBI. Further, in Annexure E order this Court permitted the petitioner to move the Magistrate Court seeking immediate release of his boat. 9. Since this Court left open the contentions against Annexure B, the challenge against that order is liable to be considered on merits. Section 39(1)(d), which is the basis on which the order is challenged, is to the effect that every vehicle, vessel, weapon, trap or tool that has been used for committing an offence and seized under the provisions of the Act shall be the property of the Government. Therefore, it is evident that for becoming the property of the Government, the vehicle, vessel, weapon or tool should have been used for committing the offence. Interpreting this provision, this Court has held in _**Mathew**_ and _**Thomas K.B**_ that the conclusion of the vehicle, vessel, weapon, trap or tool having been used for committing the offence can be reached only after trial of the case. It was also held that Magistrate Courts are not denuded of the power to release the articles on interim custody. I am in respectful agreement with the said decisions. Further, in my considered opinion, release of the boat on interim custody will not have any adverse impact on the investigation. For the reasons above mentioned, Crl.M.C.No.81 of 2021 is dismissed and Crl.M.C.No.83 of 2021 is allowed. The respondents therein are directed to release the petitioner's boat. The terms of the _**Crl.MC.81 & 83/2021**_ 8 direction contained in Annexure B and F, within one week of production of a copy of this order. **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**Crl.MC.81 & 83/2021**_ 9 ## **APPENDIX OF Crl.MC 81/2021** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **THE CERTIFIED COPY OF THE ORDER IN CRL.MP NO.22/2020 DATED 20.3.2020 OF JFCM COURT, ANDROTH.** ## **ANNEXURE B** **THE CERTIFIED COPY OF THE ORDER IN CRL.M.P.NO.67/2020 IN CRL.M.P.NO.22/2020 DATED 9.12.2020 OF JFCM COURT, ANDROTH** _**Crl.MC.81 & 83/2021**_ 10 ## **APPENDIX OF Crl.MC 83/2021** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE FISHING BOAT OF THE PETITIONER DATED 03.09.2015.** **ANNEXURE B TRUE COPY OF THE ORDER IN CR.M.P NO.22/2020 DATED 20.03.2020 OF THE J.F.C.M, ANDROTT. ANNEXURE C TRUE COPY OF THE ORDER DATED 27.05.2020 IN CR.M.P NO.22/2020 OF THE J.F.C.M, ANDROTT. ANNEXURE D TRUE COPY OF THE ORDER DATED 30.09.2020 IN CRL.R.P NO.4/2020 OF THE COURT OF SESSION, KAVARATTI. ANNEXURE E TRUE COPY OF THE ORDER DATED 11.11.2020 IN CRL.M.C NO.4431/2020 OF THIS HON'BLE COURT. ANNEXURE F TRUE COPY OF THE ORDER OF THE J.F.C.M. ANDROTT IN CRL.M.P. NO.67/2020 DATED 09.12.2020.**