Bombay High Court
Omprakash Madhukar Gotmare vs The State Of Maharashtra Thr Forest ... on 28 March, 2025
2025:BHC-NAG:3818
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.75 OF 2025
PETITIONER : Omprakash S/o Madhukar Gotmare,
Aged about 27 years, Occ - Private, R/o
Kurkheda, Tah-Kurkheda, District -
Gadchiroli.
..VERSUS..
RESPONDENTS : State of Maharashtra,
Through Forest Range Officer, South Umred
Nagpur.
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Mr A. Y. Sharma, Advocate for Petitioner.
Mr N. R. Rode, APP for Respondent/State.
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CORAM : M. W. CHANDWANI, J.
DATED : 28th MARCH, 2025.
ORAL JUDGMENT
1. By this writ petition, the petitioner challenges the order dated
19.07.2024 passed below Exhibit - 1 by the learned Judicial Magistrate
First Class, Bhiwapur, thereby rejecting the application of the petitioner
for releasing the vehicle i.e. Bolero Pick Up having registration
No.MH-33/T-2568 on Supratanama. The learned Additional Sessions
Judge-1, Nagpur, by its judgment and order dated 14.11.2024 passed in
Criminal Revision Application No.180 of 2024 confirmed the order of
the learned Trial Court.
2. It is not necessary to go into the matrix of the case in detail.
Suffice to say that the petitioner is the owner of the alleged Bolero Pick
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Up vehicle. The driver of the said vehicle was prosecuted for transporting
wild pigs and therefore, offences under Sections 9, 39, 49(A) and 51 of
the Wild Life (Protection) Act, 1972 (hereinafter referred to as, "the Act
of 1972") were registered. The chargesheet came to be filed. The
petitioner moved an application for releasing the vehicle on supratnama.
The learned Trial Court as well as the learned Revisional Court held that
the vehicle is liable to be confiscated under Section 52 of the Indian
Forest Act, 1927 and therefore, it cannot be released. The contention is
that the confiscation proceedings have not been initiated by the Assistant
Conservator of Forest and therefore, the Revisional Court erred in
holding that the Magistrate has no power to release the vehicle on
supratnama. Therefore, the order impugned does not sustain.
3. Per contra, the learned Additional Public Prosecutor for the
respondent/State submitted that it is not the Forest Act but the provisions
of the Wild Life (Protection) Act that will be applicable since the offence
is registered under the Act of 1972. He drew my attention to Section
39(1)(d) of the Act of 1972 which provides that any vehicle used in the
commission of an offence under the Act shall be the property of the
Government. Further, the provision under Section 51(2) provides that
when any person is convicted in any offence against this Act, the vehicle
used in alleged crime will be forfeited to the State Government.
Therefore, the argument that until the confiscation proceedings are not
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initiated by the concerned Authority, the Magistrate has power to release
the vehicle is not applicable in cases of seizure of the vehicles under the
Act of 1972.
4. With the able assistance of the learned counsel for the
petitioner as well as the learned A.P.P. for the respondent/State, I have
gone through Section 39(1)(d) of the Act of 1972, which is reproduced
as under :
"39. Wild animals, etc., to be Government Property -
(1) Every -
(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."
5. Even Section 51(2) of the Act of 1972 contemplates forfeiture
of the vehicle by the Government upon conviction. Apart from this, the
Hon'ble Supreme Court in the case of State of Madhya Pradesh and
Others vs. Madhukar Rao, (2008) 14 SCC 624, relied upon by the
learned counsel for the petitioner, has held in para 19 of the decision as
under :
"19. We find that the Full Bench of the High Court has correctly
taken the view that the deletion of sub-section (2) and its
replacement by sub-section (3-A) in Section 50 of the Act had no
effect on the powers of the Magistrate to release the seized vehicle
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during the pendency of trial under the provisions of the Code. The
effect of deletion of sub-section (2) and its replacement by sub-
section (3-A) may be summed up thus: as long as, sub-section (2)
of Section 50 was on the Statute Book the Magistrate would not
entertain a prayer for interim release of a seized vehicle etc. until
an application for release was made before the departmental
authorities as provided in that sub-section. Further, in case the
prayer for interim release was rejected by the departmental
authority the findings or observations made in its order would
receive due consideration and would carry a lot of weight before
the Magistrate while considering the prayer for interim release of
the vehicle. But now that sub-section (2) of Section 50 stands
deleted, an aggrieved person has no option but to approach the
Magistrate directly for interim release of the seized vehicle."
Thereafter, the Supreme Court in paragraphs 22 and 23 of the
same decision has held as under:
"22. We have, therefore, no doubt that the provisions of Section
50 of the Act and the amendments made thereunder do not in any
way affect the Magistrate's power to make an order of interim
release of the vehicle under Section 451 of the Code.
23. Learned counsel submitted that Section 39(1)(d) of the Act
made the articles seized under Section 50(1)(c) of the Act as
government property and, therefore, there was no question of their
release. The submission was carefully considered by the Full Bench
of the High Court and on an examination of the various provisions
of the Act it was held that the provision of Section 39(1)(d) would
come into play only after a court of competent jurisdiction found
the accusation and the allegations made against the accused as true
and recorded the finding that the seized article was, as a matter of
fact, used in the commission of offence. Any attempt to
operationalise Section 39(1)(d) of the Act merely on the basis of
seizure and accusations/allegations levelled by the departmental
authorities would bring it into conflict with the constitutional
provisions and would render it unconstitutional and invalid. In our
opinion, the High Court has taken a perfectly correct view and the
provisions of Section 39(1)(d) cannot be used against exercise of
the Magisterial power to release the vehicle during pendency of
the trial."
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6. In view of the law enunciated by the Supreme Court,
particularly post-amendment to Section 50 of the Act of 1972, it is the
Magistrate who has the power to release the vehicle seized in crime
alleging commencement of offence under the Act of 1972 pending trial.
More particularly, since there is no provision under the Wild Life
(Protection) Act, 1972 empowering any Authority to confiscate the
vehicle. Rather, here, only upon conviction by the Magistrate will the
vehicle become property of the Central Government. In view of this, the
finding recorded by the Trial Court relying on the provisions of the
Forest Act does not stand to reason and is required to be set aside. The
petition deserves to be allowed. Hence, I proceed to pass the following
order :
(i) The criminal writ petition is allowed.
(ii) The impugned order dated 19.07.2024 passed below Exhibit
- 1 in Criminal M. A. No.66 of 2024 by the learned Judicial Magistrate
First Class, Bhiwapur and the impugned judgment and order dated
14.11.2024 passed in Criminal Revision Application No.180 of 2024 by
the learned Additional Sessions Judge-1, Nagpur, are hereby quashed and
set aside.
(iii) Pending the trial, the vehicle i.e. Bolero Pick Up having
registration No.MH-33/T-2568 seized in Forest Crime
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No.04857/121402/2024 shall be handed over to the petitioner on
executing supratnama bond of Rs.10,00,000/- subject to the condition
that the petitioner shall not dispose of or alter the nature of the vehicle.
(iv) The Authority shall take photographs, prepare a detailed
panchanama regarding the vehicle's condition and produce it as and
when directed.
7. The Criminal writ petition stands disposed of accordingly.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 09/04/2025 19:00:49
