Madras High Court
Bala Ganesh vs The Forest Range Officer on 9 October, 2023
W.P.(MD)No.24162 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.24162 of 2023
Bala Ganesh ... Petitioner
versus
The Forest Range Officer,
Palayamkottai Branch,
Tirunelveli Forest Range
W.L.Or.No.17/23 ... Respondent
Writ Petition filed under Article 226 of the Constitution of India,
seeking for the issuance of Writ of Mandamus, to permit the petitioner
to surrender his motor vehicle car (Scorpio Classic S11 MT7S, Pearl
White) vide Registration Number TN59 CQ 7878 before the learned
Judicial Magistrate, Tirunelveli, in Crime No.W.L.Or.No.17/23
registered by the respondent and further direct the learned Judicial
Magistrate-V, Tirunelveli, to consider the petition for return of
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W.P.(MD)No.24162 of 2023
property on the same date in connection with offences under Sections
9, 39(1)(b), 49(A), 50(1), 52, 57 of Wild Life (protection) Act 1972
r/w. Section 7, 25(1)(a), 25(1)(b) of Arms Act based on conditions set
out in under Section 50(1)(c) & under Section 51(1) of Wild Life
Protection Act 1972.
For Petitioner : Mr.I.Velpradeep
For Respondent : Mr.G.V.Vairam Santhosh,
Additional Government Pleader
ORDER
The petitioner has filed this writ petition seeking to grant
permission to him to surrender his Car (Scorpio Classic S11 MT7S,
Pearl White) vide Registration Number TN59 CQ 7878 before the
learned Judicial Magistrate No.V, Tirunelveli, in Crime No.W.L.Or.No.
17/23 registered by the respondent and also for a direction to the
learned Judicial Magistrate No.V, Tirunelveli, to consider the petition
for return of property on the same day.
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W.P.(MD)No.24162 of 2023
2. The learned counsel appearing for the petitioner submits that
the petitioner was arrested by the respondent as accused No.2, in
W.L.Or.No.17 of 2023 that he along with other accused hunted three
spotted deer. He was remanded on 30.08.2023 for the commission of
offences under Sections 9, 39(1)(b), 49(A), 50(1), 52, 57 of the Wild
Life (Protection) Act 1972 r/w. Section 7, 25(1)(a), 25(1)(b) of Arms
Act and released on bail by the learned Principal Sessions Judge,
Tirunelveli on 02.09.2023. In the confession statement, the accused
No.1 has implicated the petitioner's vehicle bearing Reg.No.TN59 CQ
7878 that the vehicle was also used for commission of offence.
Therefore, the petitioner is inclined to surrender his Scorpio Car
bearing Reg. No.TN59 CQ 7878 before the concerned Judicial
Magistrate and also inclined to pay penalty as per the provisions set out
under Section 51(1) of Wild Life (Protection) Act, 1972. Therefore,
the petitioner is before this Court.
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W.P.(MD)No.24162 of 2023
3. The learned counsel appearing for the petitioner has also relied
upon a Judgment of the Hon'ble Apex Court in State of U.P. And
another vs. Lalloo Singh reported in 2007 (7) SCC 334 and an order of
this Court passed in Crl.R.C.No.306 of 2017 dated 23.09.2021 (J.Babu
vs. State through the Forest Range Officer, Forest Department,
Sirkali Taluk reported in 2021 (3) MWN (Cri) 531)
4. The learned Additional Government Pleader appearing for the
respondent, by referring to the provisions under Section 39(1)(d) of the
Wild Life (Protection) Act 1972, submits that the vehicle, which has
been used for commission of offence and has been seized under the
provisions of this Act, shall be the property of the State Government.
Therefore, the petitioner is not entitled for return of the property.
However, he admits that the vehicle has not been confiscated so far.
5. This Court considered the rival submissions and perused the
materials on record.
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W.P.(MD)No.24162 of 2023
6. The petitioner's vehicle has been seized by the respondent
under the provisions of the Wild Life (Protection) Act, 1972. The
petitioner now claims that he will surrender his vehicle before the
concerned Judicial Magistrate.
7. In a similar circumstance, this Court, in J.Babu vs. State
through the Forest Range Officer, Forest Department, Sirkali Taluk,
reported in 2021 (3) MWN (Cri) 531, by referring to Judgments of the
Hon'ble Supreme Court in State of U.P. and another vs. Lalloo Singh
reported in 2007 (7) SCC 334 and State of M.P. and others vs.
Mahukar Rao reported in 2008 (14) SCC 624, has observed as
follows:
“8 (b). Whether, as to the petition for interim
custody of the vehicle, is maintainable, in view of Section
39 of the Act, is, no longer res integra, since the Hon'ble
Apex Court in the case of State of U.P. & Anr. - Vs –
Lalloo Singh reported in (2007 (7) SCC 334), had
considered the scope of Section 39 of the Wildlife
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W.P.(MD)No.24162 of 2023
Protection Act and held as under :-
“13. For appreciating this contention
reference is necessary to Section 39 of the Act.
Clause (d) of sub-section (1) of Section 39 deals
with a situation when any vehicle, vessel, weapon,
trap or tool has been used for committing an
offence and has been seized under the provisions of
the Act. The twin conditions are that the vehicle,
etc. must have been used for committing an offence
and has been seized. Mere seizure of the property
without any material to show that the same has
been used for committing an offence does not make
the seized property, the property of the
Government. At this juncture, it is also to be noted
that under sub-section (1) of Section 50 action can
be taken if the official concerned has reasonable
grounds for believing that any person has
committed an offence under the Act. In other
words, there has to be a reasonable ground for
belief that an offence has been committed. When
any person is detained, or things seized are taken
before the Magistrate, he has the power to deal
with the same “in accordance with law”.
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W.P.(MD)No.24162 of 2023
14. There is a significant addition in sub-
section (4) by Act 16 of 2003 i.e. requirement of
intimation to the Chief Wildlife Warden or the
officer authorised in this regard as to the action to
be taken by the Magistrate when the seized
property is taken before a Magistrate. A combined
reading of the omitted subsection (2) and the
substituted subsection (3-A) of Section 50 makes
the position clear that prior to the omission, the
officials under the Act had the power to direct
release of the seized article. Under sub-section (1),
the power for giving temporary custody subject to
the condition that the same shall be produced if
and when required by the Magistrate is indicative
of the fact that the Magistrate can pass appropriate
orders in respect of the purported seized property
which is taken before him.”
9. In the case of State of M.P & Ors. - Vs –
Madhukar Rao reported in (2008 (14) SCC 624), the
power of the Magistrate to release the vehicle has been
considered by the Hon'ble Apex Court and in the said
context, the Hon'ble Apex Court has held as under :-
“19. We find that the Full Bench of the High
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W.P.(MD)No.24162 of 2023
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 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
subsection (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
subsection. 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.”
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W.P.(MD)No.24162 of 2023
10. Thus, the bar codified under Section 39 of the
Act will not stand in the way. Aggrieved person has to
approach the Magistrate Court directly for interim
release of the seized vehicle under Section 451 of
Cr.P.C. and hence, in view of the settled position as
stated in the above citation of the Hon'ble Apex Court,
the learned Judicial Magistrate, is empowered to pass an
order under Section 451 of Cr.P.C. for the release of the
vehicle by way of interim custody, if no confiscation
proceeding is pending relating to the vehicle involved in
the forest offence as held in Madhukar Rao case cited
supra.
11. This Court in Crl.O.P.No.11945 of 2019, dated
06.06.2019, has considered the similar objection raised
by the learned Government Advocate on the footing that
once the proceedings ends under Section 49(a) and (b) of
the Forest Act, the Magistrate cannot entertain the
petition for return of the vehicle, in exercise of
jurisdiction under Section 451 or 457 of Cr.P.C.
12. Brother Justice N.Anand Venkatesh, on
drawing parallel lines and comparing Section 14(4) of
the Tamil Nadu Prohibition Act, held that the provisions
of Section 49A of the Act does not in any way take away
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W.P.(MD)No.24162 of 2023
the Jurisdiction of the Magistrate Court to exercise its
power under Section 451 or 457 of Cr.PC and held as
follows:-
"The confiscation of a vehicle involved in the
commission of an offence under the Tamil Forest
Act is not only punitive in nature but also a
deterrent. When a vehicle is involved in the
commission of offence under the Tamil Nadu
Forest Act and there are prima facie materials to
show that the owner of the vehicle did not have any
knowledge or connivance in the commission of the
offence, he can always file an application for
return of vehicle under Section 451 or 457 of
Cr.PC. But, however the Court while exercising its
powers will have to do it with care and caution and
should provide an opportunity to the Public
Prosecutor and also must keep in mind the spirit
behind Section 49A of the Tamil Nadu Forest Act,
1882 and its benevolent object."
13. A similar view was expressed by Brother
Justice V.Parthiban in Crl.R.C.(MD) No.553 of 2019,
dated 25.09.2019 and thus, I find that the first question
is no longer res integra, in view of the settled legal
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W.P.(MD)No.24162 of 2023
position as stated supra.”
8. In view of the above decision, this writ petition is disposed of
with liberty to the petitioner to file a petition under Section 451 of
Cr.P.C. before the concerned trial Court. On filing of such petition, the
same shall be disposed of by the concerned trial Court as per the ratio
laid down as stated supra, within a period of one week from the date of
filing of the petition. No costs.
09.10.2023
ogy
NCC : Yes / No.
Index : Yes / No.
Internet : Yes / No.
To
The Forest Range Officer,
Palayamkottai Branch,
Tirunelveli Forest Range.
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W.P.(MD)No.24162 of 2023
B.PUGALENDHI, J.
ogy
W.P.(MD)No.24162 of 2023
09.10.2023
https://www.mhc.tn.gov.in/judis
