Gauhati High Court
The State Of Assam vs Meghan Kumar on 20 October, 2022
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GAHC010107032021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./411/2021
1. The State of Assam,
Rep. by the Secretary to the Govt. of Assam,
Environment and Forest Department,
Dispur, Guwahati-6.
2. The Chief Wild Life Warden, Assam
Aranya Bhawan, Panjabari, Guwahati-781037.
3. The Divisional Forest Officer,
Doomdooma Division, Doomdooma, Tinsukia.
............Petitioners
VERSUS
Meghan Kumar,
Son of Ram Parvesh Rai,
Resident of Bakhtiarpur,
P.O. & P.S.- Bakhtiarpur, Dist- Patna, Bihar, Pin-803212.
..........Respondent
BEFORE
HON'BLE MR. JUSTICE AJIT BORTHAKUR
For the petitioners : Mr. D. Gogoi, Advocate
For the respondent : Mr. A. K. Gupta, Advocate
Date of hearing : 25.07.2022
Date of Judgment/Order : 20.10.2022
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JUDGMENT & ORDER
Heard Mr. D. Gogoi, learned counsel appearing for the petitioner as well as
Mr. A. K. Gupta, learned counsel appearing for the respondent.
2. By this petition under Section 482 Cr.P.C,. the petitioners have challenged
the order dated 30.06.2021, passed by the learned C.J.M., Tinsukia, in C.R.
Case No.22C/2021, whereby custody of the seized vehicle has been granted de-
hors the provisions of the Wildlife (Protection) Act, 1972 ('W.P. Act', for short)
and the Assam Forest Regulations, 1891 ('A.F.R.', for short).
3. The scanned copy of the case record, as called for, is placed before the
Court.
4. The petitioners' case precisely is that on 12.04.2021, Makum Police
Station, intercepted a truck bearing registration No. BR-01/GH-0435,
transporting two elephants from Arunachal Pradesh to Odisha. Thereafter, the
said truck along with the elephants and the respondent Meghan Kumar and
another namely, Barun Kumar, who were apprehended, were handed over to the
Assistant Conservator of Forests ('A.C.F' for short), Doomdooma Division and
then, the Divisional Forest Officer ('D.F.O.' for short), Doomdooma Division
directed the Range Forest Officer to verify the documents relating to the
aforesaid transportation of the elephants. Upon verification, the Range Forest
Officer found the following illegalities:-
a. No transit permit for transporting elephants outside the State;
b. No agreement/letter from the recipient organization to which the elephants
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were to be transported; and
c. No intimation letter from the concerned authorities of the Government of
Arunachal Pradesh to the concerned authorities of the Government of Assam
regarding inter-state transportation of elephants.
5. On receipt of the verification report and on the order of the DFO,
Doomdooma, the Range Forest Officer, Doomdooma seized the said two
elephants for violation of Sections 42/43/49B of the W.P. Act and under
Regulations 34/35/40/41 of the A.F.R. as well as the vehicle under Section 39 of
the W.P. Act. Immediately, thereafter, the aforesaid two accused persons were
arrested. In this connection, a complaint was filed and registered as C.R. Case
No. 22C/2021 before the Court of learned Chief Judicial Magistrate ('C.J.M.' for
short), Tinsukia.
6. It may be mentioned that in course of investigation, certain documents
were submitted by the accused, of which mention may be made of two
certificates of ownership dated 23.02.2018 in respect of the aforesaid two
elephants as well as a communication between the Chief Conservator of Forests
and Principal Chief Conservator of Forests dated 19.06.2019 by which the
proposal for transportation of the aforesaid two elephants were processed
indicating the same for religious purpose. In fact, in this regard, an NOC was
issued by the PCCF (Wildlife) & Chief Wildlife Warden, Odisha dated 30.12.2020
is also seized from the accused. As per the said NOC, it is surprising to note that
the elephants were shown to be transferred to one Rabindra Kumar Singh of
Odisha and there is no whisper about gift of the aforesaid elephants made for
religious purpose. Accordingly, on 04.02.2021 and 17.03.2021 necessary
permissions were issued by the PCCF (Wildlife) & Chief Wildlife Warden,
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Arunachal Pradesh for transportation of the aforesaid two elephants to Odisha
for religious purpose.
7. Thereafter, the respondent preferred a petition praying for zimma of the
seized truck bearing registration No. BR-01-GH-0435 vide petition No. 600/2021,
dated 03.05.2021 (Annexure-N), before the Court of learned C.J.M., Tinsukia in
C.R. Case No. 22C/2021, claiming himself as the driver/authorized person of one
Nitish Kumar, who is the registered owner of the vehicle and basically on the
grounds that the investigation in respect of the said seized vehicle was
completed and further, that the vehicle was exposed to open sky as it was lying
under the custody of the Range Forest Officer, Protection Range, Doomdooma.
8. Accordingly, the learned C.J.M., Tinsukia after hearing the parties, by
order, dated 30.06.2021, directed the Investigating Officer to hand over the
seized vehicle along with its documents to the zimma (interim custody) of the
respondent/petitioner, subject to conditions.
9. The aforesaid impugned zimma (interim custody) order reads as
hereinunder (relevant portion):-
"30.06.2021
.............
This Court is of the considered view that unnecessarily keeping the said
vehicle stationary would not serve any purpose, rather in light of the documents
submitted by the petitioner side, the said vehicle (truck) can be released in
favour of the said petitioner in interim with certain conditions and the I.O.
inspite of keeping the said vehicle and also do photography and videography of
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the said vehicle (if so desired) prior to such handing over the interim
custody/'Zimma' of the said vehicle to the petitioner/accused.
Hence, considering the above discussions and observations, the I.O. is
hereby directed to hand over the said vehicle (Truck) bearing Regn. No. BR-01-
GH-0435 along with its documents and in its intact form to the said
petitioner/accused Meghal Kumar on execution of a 'Zimma-nama' of Rs.
1,00,000/- (Rupees One Lakh only) with the following conditions:
1. That he shall not sale, transfer or dispose the said vehicle without
obtaining prior permission from the Court; and
2. That he shall produce the vehicle as and when required in connection
with the instant case before the I.O. or the Court.
Inform the I.O. accordingly to duly comply with the above observations
and directions and release the said vehicle in favour of the said
petitioner/accused in the manner as directed above and after completing all
legal formalities as required for the purpose of investigation including
panchnama, photography, videography, etc. (if so desired).
Also the petitioner/accused shall fully co-operate with the I.O. during the
entire process for getting the 'Zimma' of the said vehicle.
Moreover, considering the apprehension raised regarding the vehicle being
not intact by the petitioner side and which is disputed on the other side by the
I.O., this Court also hereby directs the I.O. that prior to handing over the
possession of the said vehicle and its documents to the petitioner/accused, the
I.O. shall see to it that the petitioner/accused receives the vehicle in an intact
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form in the manner and in the shape as was the vehicle when it was seized and
shall allow the petitioner/accused to arrive at such satisfaction prior to receiving
said vehicle. The I.O. shall thereafter submit compliance report on the next date
fixed after completing all formalities."
10. Mr. D. Gogoi, learned counsel appearing on behalf of Mr. P.N. Goswami,
learned Addl. Advocate General, Assam, appearing for the petitioners,
submitted, inter-alia, that the investigation reveals that the seized vehicle was
used for commercial transaction of captive animal (elephant), which is expressly
barred under Section 43 of the W.P. Act. Mr. Gogoi further submitted that the
power for forfeiture of any such captive animal is vested on the State
Government under Section 51 (2) of the aforesaid Act and, as such, giving
custody of the vehicle prior to conclusion of trial makes the contemplated
exercise of statutory power of forfeiture of the vehicle redundant. It has been
submitted that the learned C.J.M., Tinsukia while passing the impugned order of
interim custody of the seized vehicle overlooked the implication of Sections 39
and 50 of the W.P. Act, 1972. Mr. Gogoi emphatically submitted that the seized
vehicle has been in the safe custody of the petitioners/State and the same is
required for the purpose of ongoing investigation.
11. Per contra, Mr. A. K. Gupta, learned counsel appearing for the respondent,
submitted that the vehicle in question was seized by the Forest Department on
12.04.2021 and since then, it has been lying at an open space under the
custody of the Range Forest Officer and as a result, it has been constantly
exposed to wear and tear. Therefore, Mr. Gupta submitted that as the trial of the
case is yet to commence, the confiscation proceeding, if contemplated, will
bring more damage to the vehicle by that time. Mr. Gupta, as such, submitted
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that no interference in the impugned order of custody granted in favour of the
respondent is called for.
12. I have given due consideration to the above submissions made by the
learned counsel of both sides and perused the case record.
13. A perusal of the above impugned order shows that the learned C.J.M.,
Tinsukia, on consideration of the fact that unnecessarily keeping the seized
vehicle, which has been in stationary mode for a long period, would not serve
any purpose and, therefore, in the light of the documents submitted by the
petitioner/respondent herein, may be released in his interim custody subject to
certain commonly inserted conditions.
14. A perusal of the case record reveals that the Investigating Officer/Range
Forest Officer, Protection Range, Doomdooma, submitted a complaint under
Sections 39/42/43/44/49B/52 of the W.P. Act, 1972 read with Section 51B of the
Wildlife (Protection) (Assam Amendment) Act, 2009 against the respondent and
two others vide order, dated 06.12.2021, passed by the learned C.J.M., Tinsukia.
Accordingly, on being satisfied with the prima facie materials on record, by
order, dated 18.12.2021, took cognizance of the aforesaid offences and issued
summons to the accused persons. It may be noted here that a Range Forest
Officer is competent to file complaint under Section 55 of the W.P. Act as
amended by the Wildlife (Protection) (Assam Amendment) Act, 2009 and that
elephant is a schedule-1 animal under the W.P. Act.
15. There is no dispute that the respondent was the driver of the seized truck
and the registered owner of the aforesaid vehicle (truck) is one Nitish Kumar.
Further, there is no dispute that the seized truck was used in the commission of
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the alleged offences under the W.P. Act, 1972 and A.F.R. Section 39(1)(d) of the
aforesaid Act, inter-alia, provides that any vehicle used in commission of any
offence under the Act shall be the property of the State Government. Therefore,
such seized vehicle, having been prima facie found by the learned C.J.M.,
Tinsukia that it was used in the commission of the offence, the same cannot be
released even in interim custody pending trial of the case. Section 51(2) of the
W.P. Act provides provision of forfeiture of, inter alia, the seized vehicle used in
the commission of the offence(s) to the State Government, after the accused is
found guilty in trial of the case and, as such, release of such vehicle in interim
custody would certainly make the aforesaid statutory forfeiture provision wholly
frustrated.
16. As held in State of Karnataka -Vs- K.A. Kunchindammed , reported in
(2002) 9 SCC 90, the non-obstante clause in the relevant provisions give
overriding effect to the provisions in the Act over other statutes and laws. As
such, the general power vested in the Magistrate for dealing with interim
custody/release of the seized materials under Criminal Procedure Code has to
give way. Similarly, in State of West Bengal & Ors -Vs- Sujit Kumar Rana,
reported in AIR 2004 SC 1851, the Hon'ble Supreme Court held that the vehicle
seized for committing forest offence is normally not to be released to the party
till culmination of all proceedings in respect of the forest offence as the
particular approach in the matter would perpetuate commission of more
offences with respect to the forest.
17. In State of Madya Pradesh -Vs- Uday Singh , reported in (2020) 12 SCC
733, the Hon'ble Supreme Court held as hereinbelow extracted-
"29. Our analysis of the amendments brought by MP Act 25 of 1983 to
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the Indian Forest Act 1927 leads to the conclusion that specific provisions
have been made for the seizure and confiscation of forest produce and of
tools, boats, vehicles and articles used in the commission of offences.
29.1. Upon a seizure under Section 52(1), the officer effecting the
seizure has to either produce the property 27 Writ Petition No 18818 of
2017 decided on 15 February 2018 before the Authorized Officer or to
make a report of the seizure under sub-section (2) of Section 52. Upon
being satisfied that a forest offence has been committed, the Authorized
Officer is empowered, for reasons to be recorded, to confiscate the forest
produce together with the tools, vehicles, boats and articles used in its
commission. Before confiscating any property under sub-section (3), the
Authorized Officer is required to send an intimation of the initiation of the
proceedings for the confiscation of the property to the Magistrate having
jurisdiction to try the offence.
29.2. Where it is intended to immediately launch a criminal proceeding,
a report of the seizure is made to the Magistrate having jurisdiction to try
the offence. The order of confiscation under Section 52(3) is subject to an
appeal under Section 52-A and a revision under Section 52-B. Sub- section
(5) of Section 52-B imparts finality to the order of the Court of Sessions in
revision notwithstanding anything contained to the contrary in the CrPC
and provides that it shall not be called into question before any court.
29.3. Section 52-C stipulates that on the receipt of an intimation by the
Magistrate under sub-section (4) of Section 52, no court, tribunal or
authority, other than an Authorized Officer, an Appellate Authority or Court
of Sessions (under Sections 52, 52-A and 52-B) shall have jurisdiction to
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pass orders with regard to possession, delivery, disposal or distribution of
the property in regard to which confiscation proceedings have been
initiated. Sub-section (1) of Section 52-C has a non obstante provision
which operates notwithstanding anything to the contrary contained in the
Indian Forest Act 1927 or in any other law for the time being in force. The
only saving is in respect of an officer duly empowered by the State
government for directing the immediate release of a property seized
under Section 52, as provided in Section 61. Hence, upon the receipt of
an intimation by the Magistrate of the initiation of confiscation
proceedings under sub-section (4)(a) of Section 52, the bar of jurisdiction
under sub-section (1) of Section 52-C is clearly attracted.
29.4. The scheme contained in the amendments enacted to the Indian
Forest Act 1927 in relation to the State of Madhya Pradesh, makes it
abundantly clear that the direction which was issued by the High Court in
the present case, in a petition under Section 482 of the CrPC, to the
Magistrate to direct the interim release of the vehicle, which had been
seized, was contrary to law. The jurisdiction under Section 451 of the
CrPC was not available to the Magistrate, once the Authorized Officer
initiated confiscation proceedings. "
18. Therefore, having heard the learned counsel of both sides and the
material available on the case record and further, applying the ratios of the
judgments rendered by the Hon'ble Supreme Court in the judgments referred to
above, this Court is of the opinion that the impugned order, passed by the
learned C.J.M., Tinsukia, being not consistent with the provisions contained in
the special statute namely, W.P. Act, the same is liable to be set aside and
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quashed.
19. Accordingly, the petition stands allowed setting aside/quashing the
impugned order, dated 30.06.2021, passed by the learned C.J.M., Tinsukia in
C.R. Case No. 22C/2021, whereby interim custody of the seized vehicle, bearing
registration No. BR-01-GH-0435, has been granted to the respondent.
The criminal petition stands disposed of.
JUDGE
Comparing Assistant
