Kerala High Court
Range Forest Officer (Hq) vs Mohammed Ali on 11 January, 2021
Crl.MC.81 & 83/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
Crl.MC.No.81 OF 2021(A)
AGAINST THE ORDER/JUDGMENT IN CMP 22/2020 DATED 20-03-2020 OF
JUDICIAL MAGISTRTE OF 1ST CLASS,ANDROTH
PETITIONER/S:
RANGE FOREST OFFICER (HQ)
DEPARTMENT OF ENVIRONMENT AND FOREST, GOVT. OF
INDIA U.T., LAKSHADWEEP AND KAVARATTI, REPRESENTED
CENTRAL BUREAU OF INVESTIGATION.
BY ADV. SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P.
FOR C.B.I.
RESPONDENT/S:
MOHAMMED ALI,
NELIYAMPURA HOUSE, KAVARATTI ISLAND, UT OF
LAKSHADWEEP.
OTHER PRESENT:
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
11.01.2021, ALONG WITH Crl.MC.83/2021(A), THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.MC.81 & 83/2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
Crl.MC.No.83 OF 2021(A)
AGAINST THE ORDER/JUDGMENT IN CRMC 4431/2020 DATED 11-11-2020 OF
JUDICIAL MAGISTRTE OF 1ST CLASS,ANDROTH
PETITIONER/S:
MOHAMMED ALI M.P.
AGED 48 YEARS
NELIYAMPURA HOUSE, KAVARATTI ISLAND, UNION
TERRITORY OF LAKSHADWEEP.
BY ADV. SRI.BABU S. NAIR
RESPONDENT/S:
1 THE UNION TERRITORY OF LAKSHADWEEP
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031.
2 THE RANGE FOREST OFFICER(HQ)
DEPARTMENT OF ENVIRONMENT AND FOREST, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP, PIN - 682555.
3 THE CENTRAL BUREAU OF INVESTIGATION,
REPRESENTED BY THE SUPERINTENDENT OF POLICE,
KATHRIKADAVU, KOCHI, PIN - 682016.
R1-2 BY SHRI.MANU.S, SCGC, ADMINISTRATION OF THE
UNION TERRITORY OF LAKSHADWEEP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
11.01.2021, ALONG WITH Crl.MC.81/2021(A), THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.MC.81 & 83/2021 3
V.G.ARUN, J.
-----------------------------------------------
CRL.M.C.Nos.81 and 83 of 2021
-----------------------------------------------
Dated this the 11th day of January, 2021
ORDER
Petitioner in Crl.M.C.No.81 of 2021 is the owner of a fishing boat,
registered at Lakshadweep. The boat was seized on 12.1.2020, as part
of investigation in Forest Crime No.1 of 2020 registered at the Forest
Range Office, Kavaratti. The crime was registered, and the petitioner's
boat seized, during a combined operation by a team of officers from
the Police, Fisheries and the Environment and Forest Departments, on
the allegation that the boat was found to be carrying dead and live
'Sea Cucumbers', which is a prohibited item. The offences alleged are
under Sections 9, 39(3)(a), 40, 42, 49(a) and 49(b) of the Wildlife
Protection Act (for short, 'the Act') and Section 120 of the Indian Penal
Code.
2. The petitioner approached the jurisdictional Magistrate Court
seeking interim custody of his boat. By Annexure B order, the boat was
directed to be released on interim custody, subject to certain
conditions. Petitioner complied with the conditions and thereupon,
Annexure C order was issued, directing to release the boat. In the
meantime the investigating officer filed a revision against Annexure B.
By Annexure D order, the Sessions Court allowed the revision in part.
The petitioners' claim for interim custody was upheld and additional
conditions imposed for releasing the boat.
3. Aggrieved by Annexure D, the petitioner approached this Court
in Crl.M.C.No.4431 of 2020 challenging Annexure D, primarily on the
ground that the Sessions Court lacked jurisdiction to entertain the
revision filed against an interlocutory order. This Court, after elaborate
consideration of the legal issue involved, found the revision before the
Sessions Court to be not maintainable and Annexure D order to be
unsustainable. Consequently, Annexure D was set aside and the
petitioner permitted to approach the Magistrate Court for
implementation of Annexure B order. The contentions of the
respondent against Annexure B was left open. The petitioner again
approached the jurisdictional court seeking release of the boat and got
Annexure F order issued, directing to release the boat forthwith.
4. Crl.M.C.No.83 of 2021 is filed seeking release of the boat, in
implementation of Annexure B order of the Magistrate Court, Annexure
E order of this Court and the consequential Annexure F order.
Crl.M.C.No.81 of 2021 is filed by the Central Bureau of Investigation
which has taken over the investigation in Forest Crime No.1 of 2020, as
directed by the Administrator, Union Territory of Lakshadweep. The
challenge in Crl.M.C.No.81 of 2021 is against Annexure B order, by
which the jurisdictional court had ordered release of the petitioner's
boat. For the sake of convenience, the parties and documents are
referred to, as described in Crl.M.C.No. 83 of 2021.
5. Learned counsel for the petitioner contended that the
jurisdictional Court having issued Annexure B order on 20.3.2020,
directing release of the petitioner's boat and this Court having made it
clear that the petitioner is free to approach Magistrate Court for
immediate implementation of the order, there is absolutely no
justification in refusing to release the boat. It is submitted that fishing
is the only means of livelihood of the petitioner and the deliberate
delay in releasing the boat is causing substantial prejudice and
hardship to him. The boat being supposed to the vagaries of nature, is
getting ruined and its engine is getting damaged due to non-user for a
long period.
6. The learned Standing Counsel for the CBI contended that, in
view of Section 39(1)(d) of the Wildlife Protection Act, the boat has
become the property of the Government and that, 'Sea Cucumber'
being an item listed under Schedule I Part IV-C of the Act, the learned
Magistrate could not have granted interim custody of the boat to the
petitioner. It is submitted that though the initial investigation was
conducted by the Forest Department, later the Lakshadweep
Administrator decided to entrust investigation with the CBI, since it
was suspected that the Sea Cucumber was being collected by local
fishermen and thereafter transferred to larger vessels as part of
international trade. It is contended that the conditions imposed in
Annexure B order are not sufficient to ensure production of the boat as
and when required.
7. In reply, the learned counsel for the petitioner placed reliance
on the decisions in Mathew v. Range Officer [2004(2) KLT 865] and
State of Kerala v. Thomas K.B [2018(1) KLJ 213] to contend that, till
it is established that the boat was used for commission of the offence,
the boat will not become the property of the Government and the
jurisdictional Magistrate can pass order regarding interim custody.
According to the learned counsel, the sole reason behind filing
Crl.M.C.No.81 of 2021 is to delay release of the boat in spite of
Annexures B, E and F orders.
8. The facts reveal that Annexure B was subjected to challenge
before the Sessions Court, resulting in Annexure D order. A perusal of
Annexure D order shows that it was passed after hearing the CBI
Prosecutor. The contention based on Section 39(1)(d), though raised
before the Sessions Court, was found against the prosecution. But,
Annexure D order was not challenged by the CBI. Further, in Annexure
E order this Court permitted the petitioner to move the Magistrate
Court seeking immediate release of his boat.
9. Since this Court left open the contentions against Annexure B,
the challenge against that order is liable to be considered on merits.
Section 39(1)(d), which is the basis on which the order is challenged, is
to the effect that every vehicle, vessel, weapon, trap or tool that has
been used for committing an offence and seized under the provisions
of the Act shall be the property of the Government. Therefore, it is
evident that for becoming the property of the Government, the
vehicle, vessel, weapon or tool should have been used for committing
the offence. Interpreting this provision, this Court has held in Mathew
and Thomas K.B that the conclusion of the vehicle, vessel, weapon,
trap or tool having been used for committing the offence can be
reached only after trial of the case. It was also held that Magistrate
Courts are not denuded of the power to release the articles on interim
custody. I am in respectful agreement with the said decisions. Further,
in my considered opinion, release of the boat on interim custody will
not have any adverse impact on the investigation.
For the reasons above mentioned, Crl.M.C.No.81 of 2021 is
dismissed and Crl.M.C.No.83 of 2021 is allowed. The respondents
therein are directed to release the petitioner's boat. The terms of the
direction contained in Annexure B and F, within one week of production
of a copy of this order.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF Crl.MC 81/2021
PETITIONER'S/S EXHIBITS:
ANNEXURE A THE CERTIFIED COPY OF THE ORDER IN CRL.MP
NO.22/2020 DATED 20.3.2020 OF JFCM COURT,
ANDROTH.
ANNEXURE B THE CERTIFIED COPY OF THE ORDER IN
CRL.M.P.NO.67/2020 IN CRL.M.P.NO.22/2020
DATED 9.12.2020 OF JFCM COURT, ANDROTH
APPENDIX OF Crl.MC 83/2021
PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF THE FISHING BOAT OF THE
PETITIONER DATED 03.09.2015.
ANNEXURE B TRUE COPY OF THE ORDER IN CR.M.P NO.22/2020
DATED 20.03.2020 OF THE J.F.C.M, ANDROTT.
ANNEXURE C TRUE COPY OF THE ORDER DATED 27.05.2020 IN
CR.M.P NO.22/2020 OF THE J.F.C.M, ANDROTT.
ANNEXURE D TRUE COPY OF THE ORDER DATED 30.09.2020 IN
CRL.R.P NO.4/2020 OF THE COURT OF SESSION,
KAVARATTI.
ANNEXURE E TRUE COPY OF THE ORDER DATED 11.11.2020 IN
CRL.M.C NO.4431/2020 OF THIS HON'BLE COURT.
ANNEXURE F TRUE COPY OF THE ORDER OF THE J.F.C.M.
ANDROTT IN CRL.M.P. NO.67/2020 DATED
09.12.2020.
