Sameer Faisal, Abdul Gafoor & Abdul Latheef v. State of Kerala and The Assistant Wildlife Warden, Muthanga Range

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938** ## **Crl.MC.No. 7206 of 2016 () ---------------------------** **AGAINST THE ORDER/ IN CRMP 8321/2016 of J.M.F.C.I,SULTHANBATHERY DATED 01-09-2016 OR 4/2016 OF THOTTAMOOLA FOREST STATION.** ## **PETITIONERS/ACCUSED:** **---------------------** ## **1. SAMEER FAISAL** **S/O.ALI, AGED 48 YEARS, NELLENKARA HOUSE, KOOTTIL PO, MANKADA, MALAPPURAM DISTRICT.** ## **2. ABDUL GAFOOR** **AGED 41 YEARS, S/O.AYAMU, NELLENKARA HOUSE, KOOTTIL PO, MANKADA, MALAPPURAM DISTRICT.** ## **3. ABDUL LATHEEF** **AGED 40 YEARS, S/O.HYDER, KARIMBANA HOUSE, KOOTIL PO, MANKADA, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN SRI.JITHIN LUKOSE** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENRAKULAM-682031.** **2. THE ASSISTANT WILD LIFE WARDEN,MUTHANGA RANGE, MUTHANGA PO-673 126, WYNAD DISTRICT.** **BY SPL.GP(FOREST) SRI. SANDESH RAJA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7206 of 2016 ()** ## **---------------------------** ## **APPENDIX** **PETITIONERS' ANNEXURES:** **-----------------------** **ANNEXURE A1 : TRUE COPY OF THE FORM I IN OR 4/2016 OF THOTTAMOOLA FOREST STATION.** **ANNEXURE A2 : CERTIFIED COPY OF THE ORDER DATED 1-9-2016 IN CRL.M.P.NO.8321/2016 OF JFCM COURT I, SULTHAN BATHERY.** **RESPONDENTS' ANNEXURES: NIL -----------------------** ## **TRUE COPY** **P.A. TO JUDGE.** **kp** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 7206 of 2016 - - - - - - - - - - - - - - - - Dated 5[th] December, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioners herein are the accused Nos. 2 to 4 in O.R.No.4 of 2016 of Thottamoola Forest Station. The prosecution alleges that on 28.07.2016 at 3 a.m, the petitioners along with the other accused trespassed into the Chettyalathur Reserve Forest in a jeep, car, motor cycles etc carrying unlicensed gun and ammunition and attempted to hunt wild animals. - 2.When the accused were intercepted by the Forest Officials, three of the persons in the group took to their heels. As many as 7 persons were apprehended and the guns and vehicles were seized. Crime was registered alleging offences punishable under Sections 2(16), 2(26), 9, 27, - 31, 32, 39, 50, 51 and 57 of the Wild Life Protection Act, 1972. A separate crime was registered as Crime No. 734 Crl.M.C. No. 7206 of 2016 -2- of 2016 of the Sulthan Batheri Police Station for violation of Section 3 read with Section 25(1) (B-a) and 35 of the Arms Act. - 3.The 1[st] petitioner filed an application seeking interim release of the Mahindra Jeep bearing registration No. KL53 K 2415 along with the R.C.Book, Insurance Certificate and driving licence. Four mobile phones belonging to petitioners 2 and 3 and cash of about Rs.6,480/- were also seized for which separate application was filed. The said applications were dismissed by the learned Magistrate by Annexure A2 order . The same is under challenge. - 4.Heard the learned counsel appearing for the petitioners as well as the learned Special Government Pleader. - 5.The learned counsel asserted that the petitioners have nothing to do with the offence alleged. According to the learned counsel, they had merely gone to the resort at Wayanad for taking part in night jungle safari package. It Crl.M.C. No. 7206 of 2016 -3- is also submitted that no animals were hunted and no carcasses were found by the officers concerned. Referring to Section 39(1)(d) of the Wild Life Protection Act it is submitted that unless there is a categorical finding by a competent court of law about the use of the seized items for the commission of offence, the items will not vest in the Government. It is also submitted relying on the decision of the Apex Court in **Sunderbai Ambalal Desai v. State of Gujarat** [AIR 2003 SC 638] that the utility of the newly purchased jeep would diminish beyond redemption if the same is left exposed to sun and rain. Referring to Annexure A 3 order , it is submitted that the learned Magistrate had released the car bearing registration No KL – 11 – AV- 5956 seized in the same crime and the challenge raised by the State against the said order was repelled by the Revisional Court . Crl.M.C. No. 7206 of 2016 -4- 6.The learned Special Government Pleader strongly opposed the submissions and contended that the act committed by the petitioners are grave and if the vehicle is released, the same will be used for perpetrating similar acts. It is also submitted that extensive modifications have been made inside the vehicle for the purpose of enabling the petitioners to use the Jeep for nefarious purposes and this is an additional factor, that may be taken into account to deny the relief sought for. The mobile phones have been sent to the cyber expert for analysis and in that view of the matter, the release of the same cannot be considered at this stage is the submission. - 7.I have considered the rival submissions and have gone through the materials on record. The allegation is that the petitioner took part in a night safari and their host was carrying illegally procured country guns. However though specific allegations have been raised against the owner of Crl.M.C. No. 7206 of 2016 -5- the resort, in so far as the petitioners are concerned, the allegations are presently in the realm of suspicion. Whether the petitioners had gone to the resort for the purpose of hunting or for recreational purposes can be ascertained only after evidence is taken in the regard. 8.A three Judge Bench of the Apex Court in **Indian Handicrafts Emporium and Others V Union of India and Others (** AIR 2003 SC 3240 ) had occasion to deal with Section 39 of the Wild Life Protection Act and it was held as follows:- The question as to whether an offence under the Act has been committed or not at that stage cannot be determined. Such a determination furthermore cannot be left for adjudication at the hands of the executive authority. As and when a seizure is made and the trader is prosecuted for alleged commission of an offence having regard to Sub-S.7 of S.49C of the Act; adjudication therefor must be made by a competent court of law having jurisdiction in this behalf. Before a person is convicted a Court has to arrive at the finding that the accused has committed an offence wherefore a Crl.M.C. No. 7206 of 2016 -6- full - fledged criminal trial would be necessary. In absence of such criminal trial and offence having been found committed, S.39 may not have any application. In that view of the matter it is evident that the properties do not stand vested in the Government in terms thereof. Thus it is pellucid that merely because an offence was committed would not mean that the conveyance or the articles would vest with the Government. 9.In that view of the matter, the question is whether until then the vehicle, which was recently purchased should be left to ruin. In **Sunderbhai Ambalal Desai** ( supra), it was held by the Apex Court that, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. Sweeping directions were issued in **General** Crl.M.C. No. 7206 of 2016 -7- **Insurance Council V State of A.** P 2010 ( 6) SCC 768 as well. Furthermore the Apex Court in **Shihab etc . V State of Kerala and Another** (2016(4) KHC 183 (SC) had considered question of release of vehicles seized in connection with Forest offenses and in that case the vehicle was ordered to be released subject to conditions. 10.Coming back to the facts of the instant case, in so far as the mobile phones are concerned the petitioners will be at liberty to file application seeking release after the analysis of the mobile phones are completed at the Forensic Science Lab. 11.The cash seized from the possession of the petitioners 2 and 3 can be released to the person, who in the opinion of the Court, is lawfully entitled to claim after preparing a detailed Mahazer of the currency notes with their numbers or denomination as the case may be. The photographs of the currency notes can be taken and the person entitled Crl.M.C. No. 7206 of 2016 -8- can also be directed to execute a security bond. The photograph can be used at the stage of trial as well. 12.With regard to the vehicle seized, the documents as well as the vehicle shall be released to its registered owner subject to the following conditions. i. The learned Magistrate shall take steps to assess the value of the vehicle by a competent officer of the Motor Vehicles Department. ii. Thereafter, the petitioner shall submit bank guarantee for the value for the vehicle as determined above iii. The petitioner shall also undertake before the learned Magistrate that the alterations made in the vehicle will be removed within 2 weeks from the date of release of the vehicle. Within that period, the vehicle shall be produced before the Assistant Wild Life Warden, Muthanga Range who shall verify whether the illegal alterations have been removed. iv.The release of the vehicle shall be subject to Crl.M.C. No. 7206 of 2016 -9- production of the vehicle, if the same is required at a later stage . v.The vehicle shall not be used for commission of any similar crime. iv. The Learned Magistrate will be at liberty to incorporate additional conditions for release of vehicle is the same is found warranted. The petition is disposed off. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-5.12.16