Crl.M.C.No.2231/2017 & 2601/2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939** **Crl.MC.No. 2231 of 2017 () ---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CRMP 970/2017 of J.M.F.C.-III,THRISSUR** **PETITIONER(S)/ACCUSED: ---------------------** **A.A. ALI, PROPRIETOR, FATHIMA INDUSTRIES, S/O.ABDUL GHADER, ANTETH HOUSE, KALADI VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, REPRESENTED BY POWER OFG ATTORNEY KOCHUNNY, S/O.MARAKKAR, POOVATHUMVEETIL HOUSE, PERINGALA KARA, KUNNATHUNAD VILLAGE, MUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.BIJU .C. ABRAHAM** **RESPONDENT(S)/STATE: --------------------** **THE STATE OF KERALA, REPRESENTED BY THE ASSISTANT WILD LIFE WARDEN, PEECHI-VAZHANI FOREST WILD LIFE DEPARTMENT THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R BY PUBLIC PROSECUTOR SRI.SANDESH RAJA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 4- 04-2017, ALONG WITH CRL.M.C. NO.2601/2017 THE COURT ON 12/4/2017 PASSED THE FOLLOWING:** **Crl.MC.No. 2231 of 2017 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE A1 CERTIFIED COPY OF THE ORDER DATED 20.2.2017 IN CRL.M.P.NO.970/2017 IN OR NO.4/2016 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE III, THRISSUR.** **RESPONDENT(S)' EXHIBITS ----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.2231 & 2601 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 12[th ] day of April, 2017 ## **O R D E R** The petitioner herein is the owner of a Hitachi excavator which was seized in connection with OR No.4/2016 alleging that the accused trespassed into the forest land near the national highway and demolished a Government building and attempted to make unauthorised construction for the purpose of National Highway Department. Claiming that the value of the vehicle gets deteriorated, an application under section 451 Cr.P.C.was preferred before the trial court. The learned Magistrate, by order in Crl.M.P.No.970/2017 in OR No.4/2016, allowed the application subject to conditions. The petitioner is aggrieved by condition No.6, by which he was directed to produce fixed deposit/bank guarantee for the value to be assessed by the PWD Mechanic Division, Chalakkudy. This portion of the order is under challenge in Crl.M.C.No.2231/2017. 2. The order granting release of vehicle is under challenge at the instance of the Forest Department in Crl.M.C.No.2601/2017. 3. Heard the learned counsel for the petitioner and the Crl.M.C.No.2231 &2601/2017 2 learned Special Government Pleader for Forest. 4. The contention of the learned Special Government Pleader for Forest was that, in the light of the serious allegations raised against the accused and the fact that offences involved breach of the provisions of the Kerala Forest Act coupled with those of Wild Life Protection Act, the court was not justified in releasing the vehicle. It was contended that, the accused had trespassed into the Peechi Vazhani Wild Life Sanctuary and demolished the Government building and attempted to construct unauthorised construction therein for the purpose of National Highway Development. 5. On the other hand, the contention of the learned counsel for the petitioner was that, the petitioner was engaged for the purpose of construction of the National Highway and they did not not trespass into the Wild Life Sanctuary which is stated to be abutting the National Highway. It was also stated that, if the excavator is kept idle, its value will get deteriorated and the same will become useless. 6. Learned Special Government Pleader attacked the impugned order with the aid of the various decisions. It was contended that, a casual approach while ordering release of the vehicle involved in the forest offences and those under the Wild Life Protection Act should not be permitted. Learned counsel referred to the decision of the Hon'ble Supreme Court in Crl.M.C.No.2231 &2601/2017 3 ## **Divisional Forest Officer and Another v. G.V.Sudhakar Rao** **and Others (1985 KHC 750)** wherein the Supreme Court considered the question whether the High Court was justified in staying the confiscation proceedings under the Andra Pradesh Forest Act invoking section 482 Cr.P.C. The court held that the High Court cannot stay the confiscation proceedings. The need for taking stringent view while dealing with the forest offences including release of the vehicle and other equipments used for commission of offences was reiterated by the Supreme Court. 7. This view was reiterated by the Supreme Court in **State of Karnataka v. K.Krishnan (2000 KHC 1315).** It was held that provisions under the Forest Act were required to be strictly complied with and followed for achieving the object for which the Act was enacted. Liberal approach in the matter of release of seized forest products and vehicles used in the commission of forest offences was uncalled for. However, in exceptional circumstances, if the court is inclined to release the vehicle during the pendency of the case for valid reason, furnishing a bank guarantee should be the minimum condition. 8. This view was followed by the Supreme Court in **Section Forestor v. Mansur Ali Khan (2004 KHC 293)** while dealing with a case under the Kerala Forest Act. It was a case wherein, the vehicle was ordered to be released on a ground that it was in the custody of the officers for more than one year and there was no Crl.M.C.No.2231 &2601/2017 4 likelihood of the immediate disposal of the case. It was held to be not a sufficient ground for ordering the release of the vehicle. In ## **State of U.P.and Another v. Lalloo Singh (2007 KHC 3848),** the Supreme Court reiterated that strict view in the case of release of the vehicle involved in offence under the Wild Life (Protection) Act was essential. 9. This trend of the Supreme Court seems to have been followed by various High Courts in subsequent decisions. ## 10. **In State of Maharashtra v. Gajanan D.Jambhulkar** **(2002 KHC 2007)** , the Division Bench of the Bombay High Court held that a casual approach in ordering release of the seized vehicle resulted in frustrating the very object of the statute. After evaluating the various other decisions, the Division Bench concluded that, strict view in the case of the release of the vehicle was called for. 11. The Madhya Pradesh High Court in **Vikramaditya Singh v. State of M.P. ( 2015 KHC 2141),** reiterated that liberal approach towards release of vehicles or implements involved in forest offences should not be adopted by the Courts and the same should not normally be returned to a party till the culmination of the proceedings in respect of such offence, including confiscatory proceedings, except in exceptional cases . 12. In **Ayyub v. State of Rajasthan (2003 KHC 2601),** Rajasthan High Court held that, the main object of the Wild Life Crl.M.C.No.2231 &2601/2017 5 (Protection) Act, 1972 is to preserve and protect wild animals, birds and plants and any liberal approach with respect to the property seized which is liable to confiscation, is uncalled and the same is likely to frustrate the provisions of the Act. 13. In **Divisional Forest Officer v. Abid @ Abid Mohammed(2012 (3) KHC 712)** , a Single Bench of this Court had held that vehicle seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of the proceedings. However, in exceptional cases, on furnishing bank guarantee, vehicle can be released. 14. A perusal of the above judgments, clearly show that almost all the decisions virtually followed the decision of the Supreme Court in State of Karnataka v. K.Krishnan (cited supra). In an identical case, under the Protection of River Banks and Regulation of Removal of Sand Act,2001, the Full Bench of this court in **Shan C.T.v.State of Kerala and Others (2010 (3) KHC 333)** had relied on the above proposition and held that the vehicle involved in commission of crime can be released on furnishing a bank guarantee. 15. On the other hand, learned counsel for the owner of the vehicle relied on the recent decision reported in **Shihab v. State of Kerala (2016 (2) KLD 366 (SC)** to contend that the direction to insist for bank guarantee or cash deposit has no statutory Crl.M.C.No.2231 &2601/2017 6 backing. The Hon'ble Supreme Court in that decision took a different view from that taken by the Supreme Court earlier. 16. In the case at hand, the only allegation is that, the accused had trespassed into the forest land abutting the national highway and committed demolition. Admittedly, the vehicle was engaged in the work related to National Highway. Whether the forest land was well demarcated and whether there was an intentional trespass are matters of evidence. The Court below on appreciation of the entire facts, had decided to release the vehicle. It is seen that the court has also imposed condition No.3, directing the petitioner to execute a bond for a sum of Rs.40,00,000/- with two solvent sureties for the like sum each. In the light of the above condition, it sufficiently takes care of prompt production of the vehicle. Further, in the light of latest binding precedent in Shihab's case (supra),I feel that the direction in clause 6 is redundant and need not be insisted. Vehicle can be released on complying with all other conditions. In the light of the above proposition of law laid down by the Hon'ble Supreme Court in Shihab's Case, I feel that the Crl.M.C.at the instance of the Forest Department is not legally sustainable in the facts and circumstances of the case, though I appreciate the concern of the Forest Department that in the cases of offence under the Forest Act and those involving Wild Life Protection Act, a stern view is called for. Crl.M.C.No.2231 &2601/2017 7 Crl.M.C. No.2231/2017 is allowed in part as above. Crl.M.C.2601/2017 is dismissed. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.