High Court of KeralaSingle Judge2018-11-16Allowed

State of Kerala represented by Forest Range Officer, Kasaragod vs Kassim P M S/o Moideenkunhi K.M.

Case / Petition Number:Crl.MC.No.978 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-11-16
Court Decision / Holding: In the result, this Crl.M.C. stands allowed as above. Annexure-IV order stands modified. In addition to the conditions directed in Annexure-IV order, the respondent shall deposit an amount or furnish bank guarantee equivalent to the value of the said vehicle before the release of the vehicle to the interim custody of the respondent.
Final Disposition: Allowed

Parties to the Case

Appellants / Petitioners

State of Kerala represented by Forest Range Officer, Kasaragod

Respondents

Kassim P M S/o Moideenkunhi K.M., residing at Manzil, Koprabaazar, Mogral P.O., Kasaragod District - 671124

Legal Representation & Advocates

Counsels for Petitioners

• Sri Sandesh Raja, Special Public Prosecutor (Forest)

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous case (Crl.MC.978/2018) challenging an interim release order (Annexure-IV) in CMP 4068/2017 before the C.J.M., Kasaragod, concerning a vehicle seized in crime No.10/2017 by the Kasaragod Forest Range Office. The vehicle, KL 14 U 239, carried 11 turtles and 3 antlers of Indian Sambar deer, and was seized in a Wildlife Protection Act offence with proceedings under the Kerala Forest Act. The court below had allowed interim release without any deposit or bank guarantee. The State contends that, given the grave nature of offences under the Wild Life Protection Act, security should be demanded before releasing the vehicle; thus Annexure-IV requires modification. The State relies on precedents: Shihab v. State of Kerala (2016) (KHC) which held that Section 53 of the Kerala Forest Act permits release on bond, and Madhya Pradesh v. Madhukar Rao (2008) (KHC) to argue that amendments to Section 50 of the WPA do not oust Magistrate’s power under Section 451 Cr.P.C. However, the court notes Shihab’s ratio is not applicable here as Section 53 does not apply to WPA offences; distinguishes Thomas K.B. (2018) KLJ) where non-accused owner was released without deposit. The Court concludes that the vehicle must be released only after the respondent deposits an amount or furnishes bank guarantee equal to the vehicle’s value, in addition to Annexure-IV conditions, and allows the Crl.MC accordingly.

Provisions of Law Cited

Wildlife Protection Act, 1972 — Section 51Kerala Forest Act, 1961 — Section 27(1)(e)(iv)Cr.P.C. — Section 451Kerala Forest Act, 1961 — Section 53Wildlife Protection Act, 1972 — Section 50Wildlife Protection Act, 1972 — Section 39(1)(d)Wildlife Protection Act, 1972 — Sections 2(1), 2(2), 2(11), 2(14), 2(16), 2(33), 9, 39, 49, 50, 57, 58

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants state that the vehicle seized in Crime No.10/2017 in connection with offences under the Wild Life Protection Act, 1972 and the Kerala Forest Act, 1961, should not be released without security. Given the grave nature of these offences, the court below should have directed deposit or bank guarantee equivalent to the vehicle’s value prior to interim release. They rely on Shihab v. State of Kerala (2016) to argue the relevance of bond under Section 53 of the Kerala Forest Act and on Madhya Pradesh v. Madhukar Rao (2008) to emphasize that amendments to Section 50 of the WPA do not diminish the Magistrate’s power under Section 451 Cr.P.C. The ratio in Shihab is distinguished here as Section 53 does not apply to WPA offences. They also cite Thomas K.B. to show contrasting facts where release without deposit was allowed when the owner was not the accused. Therefore, Annexure-IV should be modified to require deposit or bank guarantee; the petition is to that extent allowed.

Contentions of Respondents

The respondent was arrested with contraband in the vehicle in question and is an accused. The respondent contends that the lower court’s order releasing the vehicle without security is permissible under the applicable statutes and that deposit or bank guarantee is unwarranted. They rely on the proposition that Section 53 of the Kerala Forest Act is not applicable to the case, and invoke precedents that permit release on bond or without deposit when the owner is not the accused (as in Thomas K.B.). They argue for adherence to the lower court’s order or a more lenient approach pending further proceedings.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Shihab vs. State of Kerala and another	2016 (4) KHC 183	Distinguished	Ratio not applicable to the present WPA context since Section 53 of the Kerala Forest Act is not invoked for WPA offences.
State of Madhya Pradesh and others v. Madhukar Rao	2008 (1) KHC 706	Positive	Apex Court held that Section 50 WPA amendments do not affect Magistrate’s power to order interim release under Section 451 Cr.P.C.; 39(1)(d) applies after a finding of fact.
State of Kerala v. Thomas K.B.	2018 (1) KLJ 213	Distinguished	Thomas involved a non-accused owner; not applicable where the respondent is accused.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** ## **Crl.MC.No. 978 of 2018** **AGAINST THE ORDER/JUDGMENT IN CMP 4068/2017 of C.J.M.,KASARAGOD DATED 20-01-2018** **CRIME NO. 10/2017 OF Kasaragod Forest Range Office, Kasargod** **PETITIONER/S:** **STATE OF KERALA REPRESENTED BY FOREST RANGE OFFICER,KASARGODE. BY SRI SANDESH RAJA, SPL. G.P. FOREST** **RESPONDENT/S:** **KASSIM P M S/O. MOIDEENKUNHI K.M, RESIDING AT MANZIL,KOPRABAZAR, MOGRAL P.O., KASARADODE DISTRICT - 671 124.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 978 of 2018** -2- ## **O R D E R** The respondent is the owner of the vehicle bearing Reg.No.KL 14 U 239, which was seized by the Forest Range Officer in connection with crime No.O.R.10 of 2017 of Kasaragod Forest Range registered for various offences under the Wild Life Protection Act, 1972 punishable under Section 51 of the said Act and Section 27(1)(e)(iv) of the Kerala Forest Act 1961. 2. The respondent filed C.M.P. No.4068 of 2017 under Section 451 Cr.P.C. before the court below praying for releasing the above said vehicle to the interim custody of the respondent. 3. The prosecution allegation is that on 13.10.2017 at about 4 p.m., the respondent and the other accused were ## **Crl.MC.No. 978 of 2018** -3- arrested during the course of transportation of 11 numbers of turtles and 3 antlers of Indian Sambar deer in the above said vehicle. 4. The above C.M.P. was allowed by the court below as per Annexure - IV order. The court below did not direct the respondent to deposit any amount or furnish bank guarantee for releasing the vehicle to the interim custody of the respondent. Since the court below did not direct the respondent to deposit any amount or furnish bank guarantee, the petitioner filed this Crl.M.C. praying for setting aside Annexure-IV order. ## 5. Heard. 6. The learned special Public Prosecutor has submitted that since the offences alleged against the ## **Crl.MC.No. 978 of 2018** -4- respondent are very grave offences, the court below was not justified in releasing the vehicle to the interim custody of the respondent without directing the respondent to deposit the amount or furnish bank guarantee equivalent to the value of the vehicle. 7. The Apex Court in Shihab etc. v. State of Kerala and another [2016 (4) KHC 183] held that Section 53 of the Kerala Forest Act empowers the Forest officer to release seized property on the execution by the owner thereof a bond for the production of the property so released. In the said case, the Apex Court set aside the direction to deposit the cash security and ordered to release the vehicle on accepting the bond. 8. The Apex Court in State of Madhya Pradesh and ## **Crl.MC.No. 978 of 2018** -5- others v. Madhukar Rao [2008 (1) KHC 706] held that the provisions of Section 50 of the Wild Life Protection Act and the amendments made thereunder do not in any way affect the Magistrate's power to make an order for the interim release of the vehicle under Section 451 of the Code. It was further held by the Apex Court in Madhukar Rao (supra) that the provisions of Section 39(1)(d) of the Act would come into play only after a Court of competent jurisdiction entering into a finding that the accusation and the allegations made against the accused are true and the seized article is, as a matter of fact, used in the commission of the offence. Whether the bank guarantee or deposit had to be insisted upon for releasing the vehicle involved in an offence under the Wild Life Protection Act was considered ## **Crl.MC.No. 978 of 2018** -6- by a learned Single Judge of this Court in State of Kerala v. Thomas K.B. [2018 (1) KLJ 213]. The court in Thomas (supra) directed the release of the vehicle without furnishing bank guarantee or deposit as the owner therein was not the accused in the crime. In this case, the respondent is an accused in the crime. The respondent was also arrested from the spot along with the contraband. The offences alleged include the offences under Sections 2(1) 2(2), 2(11), 2(14), 2(16), 2(33), 9, 39, 49, 50, 57 and 58 of the Wild Life Protection Act, punishable under Section 51 of the said Act. It is true that Section 27(1)(e)(iv) of the Kerala Forest Act is also included in the section of offences. Since the vehicle was seized in the course of allegedly committing offences under the Wild Life ## **Crl.MC.No. 978 of 2018** -7- Protection Act, Section 53 of the Kerala Forest Act is not applicable to the case in hand. Therefore, the ratio in Shihab (supra) has no application to the facts of the case in hand. This being the situation, the court below ought to have directed the respondent to deposit the amount or furnish bank guarantee equivalent to the value of the vehicle before releasing the vehicle to the interim custody of the respondent, particularly when the respondent himself was stated to have been arrested with the contraband in the vehicle. In view of the above reasons, Annexure-IV order requires modification. Thus, in addition to the conditions directed in Annexure-IV order, the respondent shall also deposit amount or furnish bank guarantee equivalent to the value of the said vehicle before the release of the vehicle to ## **Crl.MC.No. 978 of 2018** the interim custody of the respondent. To the above extent, Annexure - IV order stands modified. In the result, this Crl.M.C. stands allowed as above. Dated this the 16[th] day of November 2018. **sd B. SUDHEENDRA KUMAR, JUDGE** dl/ // True copy // PA to Judge **Crl.MC.No. 978 of 2018** -9- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE FORM A1 OF OR NO.**| |---|---| ||**10/2017.**| |**ANNEXURE A2**|**TRUE COPY OF THE REPORT PUBLISHED IN**| ||**MATHRUBHUMI PAPERS.**| |**ANNEXURE A3**|**TRUE COPY OF THE CRLMP NO. 4068/17 IN OR**| ||**NO. 10/2017.**| |**ANNEXURE AIV**|**TRUE COPY OF THE ORDER DATED 20.1.2018**| ||**IN CRL.M.P. 4068 OF 2017**| **PETITIONER'S/S EXHIBITS: NIL**