State Of Maharashtra vs Gajanan D. Jambhulkar
2001 Latest Caselaw 527 Bom

JUDGMENT

P.V. Hardas, J.

1. The present petition has been filed by the State of Maharashtra through the Assistant Wild Life Warden and Range Forest Officer, Ramtek, assailing before is the order dated 18-5-1998 passed by the Judicial Magistrate, First Class, Ramtek, on an application moved by the present respondent under Section 457 of the Code of Criminal Procedure seeking release of the motor vehicle bearing Registration No. MH-31-G-6648 on Supratnama. A reference to the facts relating to the passing of this order is necessary.

2. Within Ramtek range under the jurisdiction of the Assistant Wild Life Warden, Ramtek, village Kachurwahi is situated. This village being in the interior part, is not easily accessible and bridge over the canal has to be crossed for reaching it. Electric Water Pumbs have been installed by the villagers for lifting water from the canal for irrigation.

3. In April, 1998 there were series of thefts of electric motor pump sets and the villagers had become alert and were maintaining a vigil. On the night of 19th April, 1998, the present respondent, who is original accused No. 3, and the other accused involved in the crime, had gone to the said village Kachurwahi in a Jeep bearing registration No. MH-31-G-6648. In the said motor vehicle the respondent and the other accused were in possession of one .22 rifle, one 375 magnum gun and one revolver. They had also in their possession live cartridges, knife, etc. The respondent and the other accused were moving stealthily in the agricultural fields and were successful in killing one black buck. They had switched on the searchlight and were trying to locate another black buck and this had alerted the villagers who were keeping a vigil for the thieves who had stolen electric motor pump sets. One of the villagers rushed to the village for giving information that the presence of thieves had been noticed in the agricultural fields. A posse of vigilante villagers went towards the agricultural field but the respondent and the other accused filed in their jeep. The other villagers obstructed the passage of the jeep and the respondent and other accused, therefore, could not proceed further. The villagers found arms and ammunitions referred to above in the jeep and they also noticed a carcass of the black buck. The original co-accused along with the present respondent were given in the custody of the Police Patil who had enquired from them regarding their presence. The carcass of the black buck was taken out from the jeep and was kept in the courtyard of the Police Patil and after verification of the names of the respondent and the other accused, information was given on telephone to the Ramtek Police Station. The police came to the house of the Police Patil, arrested the respondent and the other accused, seized the jeep, the weapons and the carcass of the black buck. Offence was registered against the present respondent and the other accused punishable under Sections 9 and 39 of the Wild Life (Protection) Act, 1972 as well as under Section 52 of the Indian Forest Act and under Sections 3, 4/25 of the Arms Act vide Crime No. 3037/98.

4. The other steps taken by the Investigating Officer while investigating the said offences are not germane for deciding the present controversy and, therefore, we make no reference to those facts. Suffice it to say that present respondent, who owns the said vehicle i.e. the Mahindra Commander Jeep bearing Registration No. MH-31-G-6648 and who was at the relevant time employed as an Executive Engineer in the Nagpur Municipal Corporation, filed an application dated 14th May, 1998 before the learned J.M.F.C., Ramtek seeking release of the said vehicle on Supratnama. The learned Magistrate called for the report from the Ramtek Police and curiously no report or say was called from the authorities under the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Wild Life Protection Act' for the sake of brevity). Be that as it may, the learned Magistrate, by his order dated 18-5-1998, directed the release of the said vehicle to the respondent on the respondent executing a bond of Rs. Six Lacs and on the condition that the respondent does not change or alienate the said vehicle till the disposal of the trial. The learned Magistrate, while allowing the application filed by the respondent under Section 457, appears to have been greatly influenced by the fact that under the provisions of the Indian Forest Act a procedure is prescribed for confiscation of the vehicle involved in an offence under the Forest Act. The judgment cited by the counsel for the respondent before the learned Magistrate seems to have weighed heavily with him in allowing the application filed by the respondent. What was contended before the learned Magistrate was that, as per decision of this Court reported in Kamlesh v. State of Maharashtra 1997 Cri LJ 1399 a single Judge of this Court had taken a view that if the seizure of the property involved in the commission of the forest offence was not reported to the Authorised Officer, then the Criminal Court had the jurisdiction to order the release of the property of the vehicle involved in the offence. Therefore, the learned Magistrate observed that since no process of forfeiture had been initiated, the Magistrate felt that he had the necessary jurisdiction to release the said jeep pending conclusion of the trial.

5. Mr. M. P. Badar, learned Counsel appearing on behalf of the petitioner, has strenuously urged before us that the learned Magistrate had committed a serious error of law in applying the provisions of the Indian Forest Act. According to Mr. Badar, the learned Counsel for the petitioner, the learned Magistrate has not at all taken into consideration that the seizure of the vehicle was in pursuance to the offence committed under the Wild Life Protection Act. Under the said Act there is no procedure prescribed akin to the procedure under the Forest Act for confiscation of the vehicles involved in the commission of the offences, therefore, according to Mr. Badar, the impugned order dated 18-5-1998 displays a mechanical approach adopted by the learned Magistrate in ordering the release of the vehicle on Supratnama to the respondent. We have heard Mr. Nawab, learned Counsel appearing on behalf of the respondent. He did make a feeble attempt at supporting the order passed by the learned Magistrate and we may record our appreciation that he did concede that the provisions of the Forest Act would not be applicable for deciding the custody of the vehicle under the Wild Life Protection Act.

6. Section 2(14) of the Wild Life Protection Act defines "Government Property" to mean, any property referred to in Section 39 or Section 17H. Section 39 of the Wild Life Protection Act, and in particular Clause (d) of Section 39 lays down that, 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. Section 51 of the said Act deals with the forfeiture, amongst other things, of trap, tool, vehicle, vessel or weapon, used in the commission of the said offence. Section 51 of the Act also prescribes that a person found guilty of the offence shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to Twenty Five Thousand rupees or with both.

7. Section 9 of the Wild Life Protection Act prohibits hunting of wild animals specified in Schedules I, II, III and IV. Under Sections 11 and 12 of the said Act hunting of the wild animals in exceptional circumstances is permitted. Since we are not concerned for the present petition with the hunting of the wild animals, with the permission or licence, as is referred to in Sections 11 and 12, we do not propose to dilate on these two sections of the Wild Life Protection Act.

8. The offences under the Wild Life Protection Act are indeed serious. Protection of wild life is a fundamental duty of every citizen and the Act casts an obligation on every citizen to protect wild life. Entry at Item No. 2 of Part I of the First Schedule refers to Black Buck (antelope cervicapra). This is the black buck, an endangered specie which was alleged to have been killed by the present respondent and the other accused involved in the crime. The impugned order passed by the learned Magistrate, according to us, is not sustainable at all. The learned Magistrate has been influenced by the provisions of the Indian Forest Act which were not relevant to the commission of the offence under the Wild Life Protection Act. The Magistrate has been influenced by a decision of this Court which has no application for the offences under the Wild Life Protection Act.

9. Apart from this, we feel that the provision of the Wild Life Protection Act are required to be strictly complied with by the Courts for achieving the object for which the Act was enacted. Casual and liberal approach in the matter of releasing the seized property or the vehicle by the Courts which is subject to forfeiture at the conclusion of the trial, is uncalled for as the release of the vehicle, according to us, is likely to frustrate the provisions of the Act. Before the Courts allow the application of the accused for releasing the vehicle on Supratnama, the Courts have to give sound reasons which justify such release of the vehicle, to prima facie exclude the possibility of such vehicle being liable for forfeiture as per Section 51 of the Wild Life Protection Act at the conclusion of the trial. If the material prima facie does indicate involvement of the vehicle in the commission of the offence under the Wild Life Protection Act, the Magistrate would not be justified in ordering the release of the vehicle as the said vehicle would be liable for forfeiture at the conclusion of the trial. This, however, does not indicate or debar the Magistrate from releasing the vehicles alleged to be involved in the commission of offence under the Wild Life Protection Act if the material prima facie indicates that the vehicle in question is not involved in the offence under the Wild Life Protection Act. This examination of the material should be done carefully so as to obviate unwarranted or unjustified release of the vehicle in favour of the accused. According to us, a liberal approach in the matter of release of the vehicles would not only encourage but perpetuate the commission of more offences with respect of Wild Life. Perpetuating more offences in respect of wild life, if not protected, is bound to affect not just an environment but also human life. According to us, the Courts cannot turn a Nelson's eye and ignore the purpose for enacting the Wild Life Protection Act.

10. Therefore, according to us, when any vehicle is seized on the allegation that it was used for committing the offence under the Wild Life Protection Act, the same should not normally be returned to the party seeking its release till the culmination of the criminal proceeedings in respect of the offence if the material so collected prima facie discloses involvement of the vehicle in respect of commission of the offence under the Wild Life Protection Act. If for any exceptional reason the Court feels that the vehicle is not prima facie involved in respect of the commission of the offence under the Wild Life Protection Act, the Court should impose stringent conditions while ordering its release so that at the conclusion of the trial, if forfeiture is to be ordered, the vehicle is available in the same condition in which it was seized casual approach in ordering the release of the seized vehicles has to be seriously deprecated as such casual approach has resulted in frustrating the very object for which statute was enacted.

11. A fervent plea was made before us that as three years have passed since the release of the vehicle and apparently there were no complaints of either misuse of the vehicle or of having breached the condition of the bond, this Court need not deprive the respondent of the possession of the vehicle. But the other side of the picture has been clearly etched by Mr. Badar by pleading before us that the Courts cannot turn a Nelson's eye to the stark realities of having the objects of enacting the Statute being frustrated. Passage of time would neither clothe an otherwise illegal order with a cloak of legality nor would it stamp an illegal order with correctness. Upholding such an order, according to us, is impossible in the present circumstances, as not only the learned Magistrate has foiled to apply his mind to the provisions of the Wild Life Protection Act, but has allowed himself to be misled by the arguments which were not germane for deciding the case. This is a case where the petitioner contends that the jeep was especially designed having a certain cavity built in the Jeep to conceal and carry the weapons, which we have referred to above. The concealment of the weapons and the surreptitious manner in which they were carried in the forest would only be for the purpose of hunting wild animals. The material so far placed before us does prima facie indicate that the jeep was involved in the commission of offences under the Wild Life Protection Act. therefore, according to us, passage of time would not deter us from quashing the order and ordering the seizure of the vehicle.

12. At this stage Mr. Nawab, appearing for the respondents, submits that he would hand over the custody of the jeep and would produce it before the learned Judicial Magistrate, First Class, Ramtek, within a week from today we agree to grant him time as we appreciate the gesture of the learned Counsel for the respondent, though made to obviate the implementation of coercive method of seizure of the motor vehicle i.e. the jeep involved in the offence.

13. We have, therefore, no hesitation in allowing the present writ petit ion filed by the petitioner. We allow the petition and quash and set aside the impugned order dated 18-5-1998 and direct the respondent to deliver possession of the jeep by surrendering the same before the learned Judicial Magistrate, First Class, Ramtek, after giving notice to the petitioner within one week from today. We further direct the learned Judicial Magistrate, First Class, Ramtek to deliver possession and custody of the jeep to the petitioner, who shall be entitled to its custody till the conclusion of the trial. Needless to say that the learned Magistrate shall pass appropriate order regarding the disposal of the motor vehicle at the conclusion of the trial keeping in mind the provisions of the Code of Criminal Procedure and the Wild Life (Protection) Act. In the event the respondent does not surrender the vehicle within a week from today, the learned Magistrate would be at liberty to take such steps in accordance with law for seizure of the said jeep.

At this stage learned Counsel for the respondent, Shri Nawab, states that charge-sheet in the present case has been filed by the police and the case is fixed for framing of the charge before the learned J.M.F.C, Ramtek. The learned Counsel for the respondent, therefore, requests that the learned Magistrate be directed to expeditiously decide the case. We are in agreement with the submission advanced by the' learned Counsel for the respondent as we feel that offences under the Wild Life (Protection) Act and the Forest Act need to be dealt with expeditiously and on priority basis. Passage of time is likely to result in miscarriage of justice. Mr. Badar, on behalf of the petitioner, submits that the Forest Department has independently registered crime against respondent and co-accused, being vested with powers of investigation and prosecution of the offenders under the Wild Life (Protection) Act. He, therefore, states that the petitioner intends to file a complaint under the provisions of the Wild Life (Protection) Act. It is needless to mention that in the event the petitioner files such a complaint, the learned Magistrate shall hear and decide both the cases together. We, therefore, direct the learned Magistrate to decide the case expeditiously and as far as possible within six months from the production of the copy of this judgment.

The learned Magistrate should not be influenced by our observations touching the merits of the matter as they are prima facie in nature and restricted to the decision of the petition and the learned Magistrate shall decide the case on its own merits.

Learned Counsel for the respondent Shri Nawab states that Criminal Application No. 356 of 2001 filed under Section 340 of the Code of Criminal Procedure is not being pressed by him for the present. We, therefore, dismiss that application as not pressed.

In the result rule is made absolute in the above terms with no order as to costs.