State of Kerala v Abdul Razak K.A

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935** ## **Crl.MC.No. 3142 of 2012 (C)** **--------------------------------------[AGAINST THE ORDER DATED 08/08/2012 IN C.M.P.NO.2941/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD]** **...........** **PETITIONER/ RESPONDENT:** **-----------------------------------------** **STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER, KASARAGOD RANGE, KASARAGOD DIVISION.** **BY SPL. GOVT. PLEADER (FOREST) SRI. M.P. MADHAVANKUTTY.** **RESPONDENT/PETITIONER:** **-----------------------------------------** **ABDUL RAZAK K.A, S/O.ABDUL RAHIMAN, FIROZ MANZIL, NEAR SHALIMAR HOTEL, THAYALANGADY, KASARAGOD.** **BY ADV. SRI.P.K.MUHAMMED.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.3142/2012- C:** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEXURE – I: ORDER PASED BY THE CHIEF JUDICIAL MAGISTRATE COURT, KASARGOD IN C.M.P.NO.2941/2012 DTD. 08/08/2012.** **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## P.D.RAJAN, J. .................................... Crl.M.C.No.3142 of 2012 ............................................... Dated this the 4[th] day of March, 2014 O R D E R The petitioner herein, who is the Forest Range Officer, Kasargode/respondent in CMP No.2941 of 2012 in OR No.9 of 2012 before the Chief Judicial Magistrate Court, Kasargod approached this Court to quash Annexure-1 order issued by invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 2.The allegation is that on 31.05.2012, the Sub Inspector of Police, Kumbala and his team were taking night patrolling duty within the jurisdiction. At that time, they inspected a Santro car bearing Reg.No.KL-14G-9309 and found that five persons were sitting inside the car. During inspection they found meat and skin of porcupine and hare, which was kept in a bag inside the car. They also seized a gun, seven catridges, a knife, three torches and a headlight from the car. The police registered crime No.315 of 2012 of Kumbala Police Station under Sections 2(14), 2(16), 2(20), 2(33), 2(36), 2(37), 9, 34, 39, 50, 56 & 57 of the Wildlife (Protection) Act, 1972 and under Crl.M.C.No.3142 of 2012 2 Section 20 of the Arms Act. After registering the above crime, the case was transferred to the Forest Range Officer, Kasargode, where they registered as O.R.No.9 of 2012 and proceeded with further investigation. In the circumstance, the respondent, who is the owner of the vehicle approached the Chief Judicial Magistrate Court, and obtained Annexure-1 order. Hence, the petitioner/State, represented by the Forest Range Officer, Kasargode approached before this Court to invoke inherent jurisdiction. 3.Adv.M.P.Madhavankutty, learned Special Government Pleader appearing for the petitioner submitted that, Annexure-1 order is highly illegal and arbitrary without appreciating the gravity of the offence. It is also submitted that the alleged vehicle involved in the aforesaid crime was released by imposing minor conditions. According to section 39 of the Wildlife (Protection) Act, the vehicle, vessel, weapon, trap or tool that has been used for committing an offence have Crl.M.C.No.3142 of 2012 3 been seized under the act shall be the property of the State Government. While exercising jurisdiction under Section 451 of Cr.P.C., the learned Magistrate lightly discharged his duty and imposed conditions, the decision of Apex court in State of K arnataka v. K.Krishnan [(2000) 7 SCC 80] was not considered. Hence, Annexure-1 needs to be quashed. 4.The learned counsel appearing for the respondent strongly opposed the above contentions and contended that there is no illegality in Annexure-1 order and it was passed after considering the power of the learned Magistrate under Section 451 of Cr.P.C. The owner of the vehicle was not an accused in the above case and the learned Magistrate released the vehicle during the pendency of the trial, after considering the nature of offence. The Apex court in State of M.P. v. Madhukar Rao [2008 (2) KLT 105 (SC)] held that the condition imposed under Section 50 did not restrict the power of learned Magistrate under Section 451 of the Code. Crl.M.C.No.3142 of 2012 4 Therefore, no interference is necessary in Annexure-1 order. 5.Now the question that arises for consideration is whether this is a fit case to invoke jurisdiction under Section 482 of Cr.P.C., to quash Annexure-1 order. According to Section 50 of the Wildlife Protection Act, the Director or any other authorised officer or the Chief Wild Life Warden or any authorised officer or any forest officer or any police officer not below the rank of a subinspector, may, if he has reasonable grounds for believing that any person has committed offence under the Act, he has the power to seize all things mentioned under Section 50, to take those in his custody. Accordingly, during the inspection of the vehicle, the Sub Inspector of Police of Kumbala detected meat and skin of porcupine and hare which are wild animals included in Schedule IV of the Wildlife (Protection) Act, and also seized the other articles in the vehicle. Section 39(1)(d) of the act reads as follows : Crl.M.C.No.3142 of 2012 5 39. Wild animals, etc., to be Government property-(1) (d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act] shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat [derived from such animal, or any vehicle, vessel, weapon, trap or tool used in such hunting] shall be the property of the Central Government. 6.As per Section 39(1)(d) of the act, it is clearly mentioned that the seized articles shall be the property of the Government. The trial is not yet commenced. Therefore, the learned Magistrate applied/exercised his discretion in passing Annexure-1 order. While passing Annexure-1 order, the learned Magistrate has not considered the decision rendered by the Apex court in State of Karnataka v. K.Krishnan 2000 KHC 1315/(2000) 7 SC 80) held in paragraph No.7, which is extracted below : 7. Learned counsel appearing for the appellant State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed Crl.M.C.No.3142 of 2012 6 for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the authorized officer or the appellate authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattle, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the appellate authority from passing appropriate orders under te circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect mother earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is 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 all the proceedings in respect of such offence, including confiscatory proceedings, if Crl.M.C.No.3142 of 2012 7 any. Nonetheless, if for any exceptional reasons a court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come. 7.It is crystal clear that, while exercising jurisdiction under Section 451 of Cr.P.C, the learned Magistrate has to follow the condition mentioned in the above decision. But, in Annexure-1, it was directed to release the vehicle on executing a bond for `2,00,000/-. I am of the view that the aforesaid direction is insufficient. The direction of the Apex Court was that furnishing a bank guarantee should be the minimum condition. The learned counsel appearing for the respondent relied on the decision of Madhukar Rao's case (cited supra) in paragraph Nos.11, 12, 13 & 16 discussed the powers of the learned Magistrate. The Apex court has not considered the nature of the security. In the absence of such direction, the earlier direction is relevant to that point. Therefore, Crl.M.C.No.3142 of 2012 8 it is better to invoke inherent jurisdiction under Section 482 Cr.P.C. In the above facts and circumstances, Annexure-I is quashed and Chief Judicial Magistrate Court, Kasargode is directed to re-consider Annexure-1 within '30 days' from the date of receipt of a copy of this order. The Crl.M.C. is disposed of accordingly. sd/(P.D.RAJAN, JUDGE) AMV/