State of Kerala represented by Forest Range Officer, Pamba v. Thomas K.B.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939** **Crl.MC.No. 7472 of 2017 ()** **--------------------------CRMP 6534/2017 of JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNI CRIME NO. 5/2017 OF PAMPA FOREST RANGE OFFICE, PATHANAMTITTA** **-----------------** **PETITIONER :** **------------------** **THE STATE OF KERALA REPRESENTED BY THE FOREST RANGE OFFICER PAMBA** ## **BY ADV. PUBLIC PROSECUTOR** **RESPONDENT :** **--------------------** **THOMAS K.B S/O.BABU K.A, KAMBIYIL HOUSE, THUMARAMPARA, ERUMELY SOUTH VILLAGE, KANJIRAPILLY TALUK, PATHANAMTHITTA 686509** **BY ADV. SRI.MANU RAMACHANDRAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 7472 of 2017 () ------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **ANNEXURE AI: TRUE COPY OF THE CONFESSION STATEMENT THE FIRST ACCUSED MAHESH DATED 10.10.2017** **ANNEXURE AII: TRUE COPY OF THE CONFESSION STATEMENT OF THE SECOND ACCUSED RAJASEKHARAN, DATED 19.10.2017 ANNEXURE AIII: TRUE COPY OF THE CONFESSION STATEMENT OF THE THIRD ACCUSED SALVIN JOHN DATED 25.10.2017** **ANNEXURE AIV: TRUE COPY OF THE CMP NO. 6534/2017 ANNEXURE AV: TRUE COPY OF THE ORDER DATED 26.10.2017** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ CRL.M.C. Nos. 7472 & 8316 of 2017 ............................................................... Dated this the 29[th] day of November, 2017 ## **O R D E R** Is it mandatory on the part of the court to insist for bank guarantee or cash security for the value of the vehicle involved in an offence under the Wild Life Protection Act, 1972 to be released under Section 451 Cr.P.C., is the short question that arises for consideration in these matters? 2. The car belonged to the petitioner in Crl.M.P.No.6534 of 2017 in O.R.No.5/2017 of the Mukkuzhy Forest Station was allegedly involved in transporting elephant tusks. According to the petitioner in the Crl.M.P., who is the respondent herein, one of his friends wanted his car for family use for a day. He willingly parted with the car CRL.M.C.Nos. 7472 & 8316 of 2017 -: 2 :- and handed it over to his friend. The next day the car was returned. Subsequently, Forest Officials came to the house of the said petitioner and took away the car by stating that the person to whom the car was given had made use of the car for transporting elephant tusks. The car was seized on 12.10.2017. 3. The petitioner being the registered owner approached the court below with the said Crl.M.P., for getting the car released to his custody, pending conclusion of trial, under Section 451 Cr.P.C. The learned Magistrate heard the respondent herein as well as the petitioner and passed Annexure AV order, the operative portion of which is as follows: _“Hence, this application is allowed and the vehicle is released to the petitioner under Section 451 Cr.P.C. on his executing a bond for ₹4.5 lakhs each with two solvent sureties or each for the like sum on following conditions:_ CRL.M.C.Nos. 7472 & 8316 of 2017 -: 3 :- _1) The vehicle shall not be transferred or subjected to any material alteration during the pendency of the case._ _2) The investigating officer is at liberty to issue notice to the petitioner with the prior permission of the court to produce the vehicle before him as part of investigation in this case as and when required so._ _3) The vehicle shall be produced before court as and when directed so.”_ 4. The respondent in the Crl.M.P. was not satisfied with the said order, since no bank guarantee was insisted by the court or no cash security was ordered. Therefore, the Forest Range Officer, Pamba has come up with this Crl.M.C for getting the said order quashed. 5. Heard the learned Special Government Pleader for the petitioner and the learned counsel for the respondent. 6. The learned Special Government Pleader has CRL.M.C.Nos. 7472 & 8316 of 2017 -: 4 :- argued that the offences under the Wild Life Protection Act should also be treated in the same status as of forest offences. The learned Special Government Pleader has relied on the decision of the Apex Court in _**State of Karnataka v. K. Krishnan** [AIR 2000 SC_ 2729] wherein it was held that furnishing of bank guarantee should be the minimum requirement for the release of a vehicle which has to be confiscated as per the provisions of the Forest Act. It has been argued that the observations in the said judgment are applicable to the offences under the Wild Life Protection Act also. Further, the learned Government Pleader has relied on the decision of the Bombay High Court in State of _**Maharashtra v. Gajanan** [2002 KHC 2007]_ wherein it was held that a casual approach should not be there in ordering the release of the seized vehicles involved in the offences under the Wild Life Protection Act also. It was held therein that the said vehicles involved in the said offences should not be casually dealt with and normally that should not be CRL.M.C.Nos. 7472 & 8316 of 2017 -: 5 :- released when there is specific provisions for the forfeiture of such vehicles on confiscation. Only sparingly such vehicle can be released and in such case, stringent conditions should be imposed. The decision of the Rajasthan High Court in the above lines is also relied on. 7. _Per contra_ , the learned counsel for the respondent has pointed out that the decision in _**State of Karnataka**_ ( _supra_ ) is not applicable to the facts and circumstances of the present case, when the said decision was rendered on the basis of the Karnataka Forest Act, 1963. It has been pointed out that Section 63 of the Karnataka Forest Act, 1963 specifically prescribes the production of bank guarantee equal to the value of the seized tools, boats, vehicles, cattle etc. involved in any forest offence. It has been argued that it was on the basis of the said provision available in the Karnataka Forest Act, the decision in _**State of Karnataka**_ ( _supra)_ was rendered. 8. It has also been argued that the Apex Court in CRL.M.C.Nos. 7472 & 8316 of 2017 -: 6 :- _**Shihab etc. v. State of Kerala and another** [2016(4) KHC 183]_ has considered the impact of Section 53 of the Kerala Forest Act, 1961 which says that any bank guarantee or cash security is not being insisted upon for passing an order for the release of tools, vehicles etc. involved in forest offences. After considering the said provisions, the Apex Court has held that any bank guarantee or cash security need not be imposed for the release of the said vehicles. The decision rendered by this Court insisting bank guarantee or cash security has been overruled by the Apex Court and the vehicle in question in that case was ordered to be released on execution of bonds for the value of the vehicles. 9. The learned counsel for the respondent has relied on the decision in _**State of M.P. & others v. Madhukar Rao** [2008(2) KLT 105]_ wherein it was held that a Judicial Magistrate of the First Class has power to release a vehicle involved in an offence under the Wild Life Protection CRL.M.C.Nos. 7472 & 8316 of 2017 -: 7 :- Act, under Section 451 Cr.P.C. Of course, there is no quarrel to the said proposition. This Court, in the decision reported in _**Mathew v. Range Officer** [2004 (2) KLT 865]_ held that in the case of an offence under the Wild Life Protection Act, 1972, the vehicles seized does not become the property of the Government at the time of seizure; whereas, it becomes the property of the Government only on conviction. 10. The provisions relating to forfeiture in the Wild Life Protection Act is not _pari materia_ to the provisions contained under Section 61A of the Kerala Forest Act. On going through the decision in _**State of Karnataka** (supra)_ it seems that the decision was rendered by the Supreme Court in the said lines on the basis of Section 63 of the Karnataka Forest Act by which bank guarantee has to be insisted upon for the release of the vehicles involved in Forest offences in Karnataka. There is no identical provision _pari materia_ to Section 63 of the Karnataka Forest Act in the CRL.M.C.Nos. 7472 & 8316 of 2017 -: 8 :- Kerala Forest Act. The provision available is Section 53 in the Kerala Forest Act, does not deal with any bank guarantee or cash security. What has been insisted under Section 53 is the execution of bonds. Therefore, the present position as per the decision in _**Shihab etc.** (supra)_ is that even in forest offences, the courts are not powerless to release the vehicle without insisting the production of bank guarantee or cash security. 11. Unlike in the case of offences under the Wild Life Protection Act, the property becomes the property of the Government at the time of the seizure itself in the case of forest offences and that is why confiscation proceedings are prescribed under Section 61A of the Forest Act. At the same time, any identical provision is not incorporated in the Wild Life Protection Act. Section 51(4) of the Wild Life Protection Act prescribes forfeiture of such properties involved in offences under the Wild Life Protection Act on conviction only. Therefore, till then, that property does not become the CRL.M.C.Nos. 7472 & 8316 of 2017 -: 9 :- property of the Government. Only on conviction, the said property assumes the status of the property of the Government. 12. As per the decision in _**Shihab etc.(** supra)_ the Apex Court has substantially watered down the dictum in _**State of Karnataka** (supra)_ even in the cases of forest offences. When the provisions relating to confiscation as contained in the Kerala Forest Act are not available in Wild Life Protection Act, 1972, it cannot be said that stringent conditions should always be insisted upon for the release of vehicles involved in such offences, under Section 451 Cr.P.C. Here, in this particular case, it has been pointed out that the owner of the car, the respondent herein, is not so far arraigned as an accused in the case. He is altogether a third party. According to him, his car was taken by his friend by representing that it was for family purpose. In such case, the conditions imposed by the court below through Annexure AV is more than sufficient for the release of the vehicle to CRL.M.C.Nos. 7472 & 8316 of 2017 -: 10 :- the respondent under Section 451 Cr.P.C. Matters being so, there is absolutely nothing to interfere with Annexure AV order. Hence, Crl.M.C. No.7472 of 2017 is only to be dismissed, and I do so. In the result, Crl.M.C. No.7472 of 2017 is dismissed. In view of the decision in Crl.M.C. No.7472 of 2017, Crl.M.C.No.8316 of 2017 is closed. The petitioner in Crl.M.P.No.6534 of 2017 shall forthwith comply with Annexure AV order. This Court has ordered the petitioner to comply with Annexure AV order passed by the learned Magistrate in that case. When this Court has ordered the release of the vehicle forthwith, Annexure AV and AVI orders have become unnecessary. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // ## P.S. to Judge.