Orissa High Court
Bedabyas Behera vs State Of Odisha .... Opposite Party on 3 September, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 840 of 2023
Bedabyas Behera .... Petitioner
Mr. S. K. Swain, Advocate
-versus-
State of Odisha .... Opposite Party
Ms. S. Mohanty, Addl. P. P.
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 03.09.2025
Chittaranjan Dash, J.
1. By means of this application, the Petitioner seeks to set
aside the order dated 16.08.2021 passed by the learned Addl.
Sessions Judge, Deogarh in Criminal Revision No.8 of 2021 and 06
of 2021 as well as order dated 05.10.2020 passed by the learned
J.M.F.C., Reamal in Crl. Misc. Case No.13 of 2020 arising out of
2(b) C.C. Case No.47 of 2019.
2. The background facts of the case, in brief, are that on
08.09.2019 at about 01:45 p.m., the Assistant Conservator of
Forest, Deogarh Forest Division, on receipt of reliable information,
proceeded on the allegation that a villager of Nuapada had hunted a
wild boar by firing a gunshot which struck the animal on the chest
causing its death. On the basis of the said report, proceedings were
initiated under Section 51 of the Wild Life (Protection) Act, 1972,
(hereinafter referred to as "WLPA") leading to seizure of properties
including a licensed firearm alleged to be owned by the Petitioner.
It is alleged that the gun was seized from the house of the
Petitioner. The Petitioner, however, has categorically denied any
connection with the alleged offence and asserts that the firearm
ought to have been released in his favour.
It is further brought on record that the Petitioner, namely
Bedabyas Behera, was earlier implicated in Sahid Nagar P.S. Case
No. 147 of 2018 corresponding to G.R. Case No. 2293 of 2018
under Sections 498-A/506/34 IPC. During the pendency of the said
proceedings, his licensed gun had also been seized by the
Investigating Agency and kept in police custody. Upon closure of
the criminal case on account of compromise between the parties and
subsequent acquittal of the Petitioner, an application was filed
before the learned J.M.F.C., Bhubaneswar seeking release of the
seized firearm. The learned Court, however, declined to exercise
jurisdiction by observing that the proper authority for release of
firearm is the District Magistrate and not the Court. The Petitioner,
being aggrieved by the refusal of the learned courts below to release
his licensed gun, contends that such action is arbitrary and
capricious, thereby warranting interference with the impugned
order.
3. Mr. Swain, learned counsel for the Petitioner, submits that
the Petitioner is the registered license holder of one 12 bore SBBL
Gun bearing No. B/4-32701, Dass & Co., which has been seized in
connection with 2(b) C.C. Case No. 47 of 2019 pending before the
learned J.M.F.C., Reamal. It is urged that since the Petitioner is the
lawful owner of the firearm, he is entitled to its release in interim
custody under the provisions of Sections 451 and 457 of the
Cr.P.C., subject to such conditions as the Court may impose. It is
further contended that the gun has been lying in custody since the
year 2019 and prolonged storage without proper upkeep will render
the same irreparably damaged, which would amount to deprivation
of the Petitioner's property rights. Learned counsel for the
Petitioner further places reliance on the decision of this Court in
Ratnakar Behera Vs. State of Odisha passed in CRLMC No. 985
of 2020, decided on 05.08.2020, as well as the judgment of the
Hon'ble Supreme Court in Sunderbhai Ambalal Desai Vs. State of
Gujarat reported in (2002) 10 SCC 283, wherein it has been
consistently held that seized articles should not be allowed to lie
exposed to decay and that the Court is empowered to release the
same to the owner on appropriate terms. On the strength of the said
ratio, it is urged that there is no distinction in principle between a
seized vehicle and a licensed firearm, and the same approach ought
to be adopted to prevent wastage. It is further submitted that the
rejection of the Petitioner's prayer by the learned J.M.F.C., Reamal,
and its confirmation by the revisional Court, on the reasoning that
the Court is not the competent authority to order release of a
firearm, is misconceived. According to the Petitioner, the Criminal
Court is vested with jurisdiction under the Cr.P.C. to direct interim
custody, and the authority of the District Magistrate under the Arms
Act does not exclude the jurisdiction of the Court to pass such
orders. Learned counsel also draws attention to the fact that no
confiscation proceeding, as contemplated under the Wild Life
(Protection) Act, 1972 or the Arms Act, 1959, has been initiated in
respect of the seized gun. In the absence of any such confiscation
proceeding, the statutory bar cannot be invoked to deny release, and
the refusal by the Courts below has resulted in serious prejudice to
the Petitioner.
4. Ms. Mohanty, learned Additional Standing Counsel,
submits that the weapon in question, having been seized in
connection with a wildlife offence, squarely attracts the operation of
Section 39(1)(d) of the Wild Life (Protection) Act, 1972, and is
deemed to be the property of the State Government once shown to
have been used in the commission of such offence. She argued that
the legislative scheme places a higher duty on courts to ensure that
such property is not casually released, lest the object of the Act be
frustrated. Reliance is placed on the principle that wildlife offences
are distinct in character, touching upon environmental and
ecological interests of the public at large, and hence require strict
application of statutory safeguards. It is therefore contended that
interim release, if at all permissible, must be exercised sparingly
and only upon satisfaction that the statutory mandate has not been
undermined.
5. This Court finds it necessary, before proceeding to the
merits of the case, to clarify the position of law with regard to the
authority competent to order release of articles seized in connection
with offences under the Wild Life (Protection) Act, 1972. The
matter assumes importance inasmuch as there exists a recurrent
confusion at the trial courts as to whether such power vests
exclusively with the forest authorities or the District Magistrate
under the regulatory statutes, or whether the Criminal Court, before
whom the seizure report is mandatorily placed, retains the
jurisdiction to order release of the property during pendency of
inquiry or trial. Since the present application concerns the release of
a licensed firearm seized in a proceeding under the Wild Life
(Protection) Act, it is essential to undertake a careful examination
of the statutory provisions of the said Act in their proper sequence,
to appreciate their scope, effect and interplay with the general
provisions of the Code of Criminal Procedure. The discussion shall
therefore proceed section by section, beginning with Section 39 of
the Wild Life (Protection) Act, 1972, and thereafter traversing
through the other relevant provisions including Sections 50, 51 and
54, before examining the scheme of the Code of Criminal
Procedure and the guidance available from judicial precedents.
39. Wild animals, etc., to be Government
property.--(1) Every--
(a) wild animal, other than vermin, which is hunted
under section 11 or sub-section (1) of section 29 or
sub-section (6) of section 35 or kept or [bred in
captivity or hunted] in contravention of any provision
of this Act or any rule or order made thereunder or
found dead, or killed or by mistake; and
(b) animal article, trophy or uncured trophy or meat
derived from any wild animal referred to in clause (a)
in respect of which any offence against this Act or
any rule or order made thereunder has been
committed,
[(c) ivory imported into India and an article made
from such ivory in respect of which any offence
against this Act or any rule or order made thereunder
has been committed;
(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,
wheresuch 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.
(2) Amy person who obtains, by any means, the
possession of Government property, shall, within
forty-eight hours from obtaining such possession,
make a report as to the obtaining of such possession
to the, nearest police station or the authorised officer
and shall, if so required, hand over such property to
the officer-in-charge of such police station or such
authorised officer, as the case may be.
(3) No person shall, without the previous permission
in writing of the Chief Wild Life Warden or the
authorised officer--
(a) acquire or keep in his possession, custody or
control, or
(b) transfer to any person, whether by way of gift,
sale or otherwise, or
(c) destroy or damage, such Government property.
6. Section 39 of the Wild Life (Protection) Act, 1972, is the
foundational provision that determines the ownership of property
connected with the commission of offences under the Act. A plain
reading of sub-section (1) makes it clear that the legislature, in
order to protect wildlife resources and ensure accountability, has
declared that not only wild animals and animal articles but also
vehicles, vessels, weapons, traps or tools used in the commission of
an offence under the Act, shall vest in the State Government, or in
the Central Government if the hunting has taken place in a
sanctuary or National Park declared by the Central Government.
The significance of this provision lies in its twofold effect: first, it
vests ownership of the seized property in the State, thereby
preventing private claims or dealings contrary to the scheme of the
Act; and second, it establishes the premise for further regulatory or
judicial orders to be passed with respect to the custody, release or
confiscation of such property. It is pertinent to note that the
expression "weapon" in clause (d) specifically brings firearms
within the purview of Section 39, thereby placing the licensed gun
seized in the present case squarely within the category of
"Government property" by operation of law.
Sub-section (2) casts a statutory obligation on any person
who comes into possession of such Government property to report
the same within forty-eight hours to the nearest police station or the
authorised officer, and to hand it over if so directed. This
procedural safeguard ensures that such property is immediately
brought under the control of lawful authorities, avoiding its misuse
or clandestine disposal. Further, sub-section (3) imposes a strict
prohibition against any person acquiring, transferring, damaging or
destroying such Government property without the prior written
permission of the Chief Wild Life Warden or an authorised officer.
This reinforces the exclusive control of the State over such property
and ensures that even temporary or bona fide dealings by private
persons require authorisation.
7. Thus, the legislative intent underlying Section 39 is to
firmly vest ownership of the weapon or other instrumentalities used
in wildlife offences with the State, and to regulate their handling
through authorised channels alone. However, it is equally important
to underline that vesting of ownership in the State does not ipso
facto determine the procedure for custody, release, or confiscation.
For that, one has to look at the subsequent provisions of the Act,
particularly Sections 50 and 51, and their interface with the Code of
Criminal Procedure, read as follows:
50. Power of entry, search, arrest and detention.--
(1) Notwithstanding anything contained in any other
law for the time being in force, the Director or any
other officer authorised by him in this behalf or the
Chief Wild Life Warden or the authorised officer or
any forest officer or any police officer not below the
rank of a sub- inspector, may, if he has reasonable
grounds for believing that any person has committed
an offence against this Act,--
(a) require any such person to produce for inspection
any captive animal, wild animal, animal article, meat,
trophy or [trophy, uncured trophy, specified plant or
part or derivative thereof]in his control, custody or
possession, or any licence, permit or other document
granted to him or required to be kept by him under
the provisions of this Act;
(b) stop any vehicle or vessel in order to conduct
search or inquiry or enter upon and search any
premises, land, vehicle or vessel, in the occupation of
such person, and open and search any baggage or
other things in his possession;
[(c) seize any captive animal, wild animal, animal
article, meat, trophy or uncured trophy, or any
specified plant or part or derivative thereof, in respect
of which an offence against this Act appears to have
been committed, in the possession of any person
together with any trap, tool, vehicle, vessel or weapon
used for committing any such offence and, unless he
is satisfied that such person will appear and answer
any charge which may be preferred against him,
arrest him without warrant, and detain him
Provided that where a fisherman, residing within ten
kilometres of a sanctuary or National Park,
inadvertently enters on a boat, not used for
commercial fishing, in the territorial waters in that
sanctuary or National Park, a fishing tackle or net on
such boat shall not be seized.]
(3) It shall be lawful for any of the officers referred to
in sub-section (1) to stop and detainany person, whom
he sees doing any act for which a licence or permit is
required under the provisions of this Act, for the
purposes of requiring such person to produce the
licence or permit and if such person fails to produce
the licence or permit, as the case may be, he may be
arrested without warrant, unless he furnishes his
name and address, and otherwise satisfies the officer
arresting him that he will duly answer any summons
or other proceedings which may be taken against him.
[(3A) Any officer of a rank not inferior to that of an
Assistant Director of Wild Life Preservation or [an
Assistant Conservator of Forests] who, or whose
subordinate, has seized any captive animal or wild
animal under clause (c) of sub-section (1) may give
the same for custody on the execution by any person
of a bond for the production of such animal if and
when so required, before the Magistrate having
jurisdiction to try the offence on account of which the
seizure has been made.]
(4) Any person detained, or things seized under the
foregoing power, shall forthwith be taken before a
Magistrate to be dealt with according to law [under
intimation to the Chief Wild Life Warden or the
officer authorised by him in this regard].
(5) Any person who, without reasonable cause, fails
to produce anything, which he is required to produce
under this section, shall be guilty of an offence
against this Act.
[(6) Where any meat, uncured trophy, specified plant
or part or derivative thereof is seized under the
provisions of this section, the Assistant Director of
Wild Life Preservation or any other officer of a
gazetted rank authorised by him in this behalf or the
Chief Wild Life Warden or the authorised officer may
arrange for the disposal of the same in such manner
as may be prescribed.]
(7) Whenever any person is approached by any of the
officers referred to in sub-section (1) for assistance in
the prevention or detection of an offence against this
Act, or in apprehending persons charged with the
violation of this Act, or for seizure in accordance with
clause (c) of sub-section (1), it shall be the duty of
such person or persons to render such assistance.
[(8) Notwithstanding anything contained in any other
law for the time being in force, any officer not below
the rank of an Assistant Director of Wild Life
Preservation or [an officer not below the rank of
Assistant Conservator of Forests authorised by the
State Government in this behalf] shall have the
powers, for purposes of making investigation into any
offence against any provision of this Act--
(a) to issue a search warrant;
(b) to enforce the attendance of witnesses;
(c) to compel the discovery and production of
documents and material objects; and
(d) to receive and record evidence.
(9) Any evidence recorded under clause (d) of sub-
section (8) shall be admissible in any subsequent trial
before a Magistrate provided that it has been taken in
the presence of the accused person.]
51. Penalties.--(1) Any person who 1[contravenes
any provision of this Act [(except Chapter VA and
section 38J)]]or any rule or order made thereunder or
who commits a breach of any of the conditions of any
licence or permit granted under this Act, shall be
guilty of an offence against this Act, and shall, on
conviction, be punishable 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:
[Provided that where the offence committed is in
relation to any animal specified in Schedule I or Part
II of Schedule II or meat of any such animal or
animal article, trophy or uncured trophy derived from
such animal or where the offence relates to hunting in
a sanctuary or a National Park or altering the
boundaries of a sanctuary or a National Park, such
offence shall be punishable with imprisonment for a
term which shall not be less than three years but may
extend to seven years and also with fine which shall
not be less than ten thousand rupees:
Provided further that in the case of a second or
subsequent offence of the nature mentioned in this
sub-section, the term of the imprisonment shall not be
less than three years but may extend to seven years
and also with fine which shall not be less than
twenty-five thousand rupees.]
[(1A) Any person who contravenes any provisions of
Chapter VA, shall be punishable with imprisonment
for a term which shall not be less than [three years]
but which may extend to seven years and also with
fine which shall not be less than [ten thousand
rupees].]
[(1B) Any person who contravenes the provisions of
section 38J, shall be punishable with imprisonment
for a term which may extend to six months, or with
fine which may extend to two thousand rupees, or
with both: Provided that in the case of a second or
subsequent offence the term of imprisonment may
extend to one year or the fine may extend to five
thousand rupees.]
(2) When any person is convicted of an offence
against this Act, the Court trying the offence may
order that any captive animal, wild animal, animal
article, trophy, [uncured trophy, meat, ivory imported
into India or an article made from such ivory, any
specified plant, or part or derivative thereof]in respect
of which the offence has been committed, and any
trap, tool, vehicle, vessel or weapon, used in the
commission of the said offence be forfeited to the
State Government and that any licence or permit, held
by such person under the provisions of this Act, be
cancelled.
(3) Such cancellation of licence or permit or such
forfeiture shall be in addition to any other punishment
that may be awarded for such offence.
(4) Where any person is convicted of an offence
against this Act, the Court may direct that the licence,
if any, granted to such person under the Arms Act,
1959 (54 of 1959), for possession of any arm with
which an offence against this Act has been
committed, shall be cancelled and that such person
shall not be eligible for a licence under the Arms Act,
1959, for a period of five years from the date of
conviction.
(5) Nothing contained in section 360 of the Code of
Criminal Procedure, 1973 (2 of 1974), or in the
Probation of Offenders Act, 1958 (20 of 1958), shall
apply to a person convicted of an offence with respect
to hunting in a sanctuary or a National Park or of an
offence against any provision of Chapter VA unless
such person is under eighteen years of age.
8. The powers conferred under Section 50 of the Wild Life
(Protection) Act, 1972, are wide and plenary, designed to enable
effective enforcement of the statute. Sub-section (1) authorises a
range of officers from the Chief Wild Life Warden down to any
police officer not below the rank of Sub-Inspector to enter, search,
seize, detain, and even arrest, upon having reasonable grounds to
believe that an offence under the Act has been committed. Sub-
section (1)(c) expressly includes within its ambit the seizure of "any
vehicle, vessel, weapon, trap or tool" used in the commission of the
offence. The legislative intent is, therefore, clear that not only the
wildlife specimen but also every instrumentality of offence,
including firearms, falls within the sweep of the seizure power.
9. However, the legislature did not leave the matter at the
discretion of the seizing officer alone. Section 50(4) mandates that
where any person is detained or any animal, vehicle, vessel,
weapon, trap or tool is seized, the officer making such seizure shall
forthwith report the seizure to the Magistrate having jurisdiction
over the case. This clause serves a dual purpose. First, it ensures
accountability of the seizing officer by requiring immediate judicial
intimation. Second, and more importantly, it vests the Magistrate
with supervisory control over the seized property, thereby bringing
the matter into the judicial fold. This provision, therefore, bridges
the executive act of seizure with the judicial process of trial.
10. The significance of this becomes clearer when Section 51 is
read in conjunction with Section 50. Section 51 prescribes the
penalties for contravention of the Act, ranging from imprisonment
to fines, and contains the substantive provision under which
offenders are tried and punished. Sub-section (1) declares that any
person who contravenes any provision of the Act, or any rule or
order made thereunder, shall be guilty of an offence and liable to
punishment. Importantly, Section 51 also lays down that the
offences are triable by a Magistrate. This provision, therefore,
completes the chain initiated by Section 50. The same Magistrate to
whom the seizure is reported under Section 50(4) is also the
authority who conducts the trial under Section 51 and imposes
penalties.
It follows, then, that seizure and custody under Section 50
cannot be divorced from the penal process under Section 51. The
two provisions form a continuum: the seizure is reported to the
Magistrate, and the Magistrate then proceeds to try the offence
under Section 51. During this continuum, the Magistrate's
jurisdiction to regulate interim custody of the seized property flows
naturally, and indeed necessarily, from the statutory design. To hold
otherwise that the Magistrate may try the offence but cannot pass
interim orders with respect to the very weapon that is an exhibit in
the trial would be to create an artificial dichotomy which the
legislature never intended.
11. The structure of Section 50 itself supports this
interpretation. Sub-section (1) empowers seizure; sub-section (2)
contemplates issuance of summons or warrants; sub-section (4)
requires reporting to the Magistrate; and sub-section (8) even
authorises the Magistrate to receive and consider evidence relating
to the offence. The reporting obligation in sub-section (4), when
read with the trial jurisdiction under Section 51, demonstrates that
the Magistrate is the central authority to whom the seized property
must be produced, and who thereafter has competence to pass all
consequential orders, including those for interim custody or release.
12. In practical terms, this ensures that the weapon seized which
simultaneously qualifies as (i) Government property under Section
39, and (ii) material evidence for the offence under Section 51 is
not left languishing indefinitely without judicial oversight. The
Magistrate, being the trial authority, is best placed to decide
whether continued retention of the weapon is necessary for
evidentiary purposes, or whether its release can be safely ordered
subject to conditions. The Act itself provides no separate
administrative mechanism for interim release, and therefore the
judicial power under the Cr.P.C. fills this gap. Thus, a conjoint
reading of Sections 50 and 51 establishes the following
propositions:
(i) The seizure of a weapon under Section 50(1)(c) must be
reported to the Magistrate forthwith under Section 50(4).
(ii) The same Magistrate is the trial court under Section 51,
vested with jurisdiction to impose penalty and order
confiscation on conviction.
(iii) By necessary implication, the Magistrate also retains
incidental jurisdiction to regulate interim custody of the
seized weapon during pendency of the trial, consistent with
the provisions of the Code of Criminal Procedure.
(iv) The powers of forest officers and authorised officers are
executive in nature; final adjudication, including
confiscation, remains within the judicial domain of the
Magistrate under Section 51 read with Section 50.
13. Accordingly, the statutory scheme itself places the
Magistrate at the heart of the seizure-trial-confiscation continuum.
Any interpretation that excludes the Magistrate from passing
interim custody orders would not only undermine the design of
Sections 50 and 51 but would also frustrate the object of judicial
accountability in the handling of seized property.
14. Having set out the vesting and seizure scheme under the
Wild Life (Protection) Act, 1972, it becomes essential to identify
the judicial mechanism that regulates custody and, where
appropriate, orders release of seized property (including weapons).
That mechanism is provided by Chapter XXXIV of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."),
which deals with "Disposal of Property" and places the Magistrate
at the centre of custody and release decisions both during and after
trial. Three provisions, read together, are decisive: Section 451,
Section 452, and Section 457. Section 459 is ancillary (perishables)
but completes the picture.
15. Section 451 Cr.P.C. empowers "any Criminal Court" before
which property is produced during an inquiry or trial to make such
order as it thinks fit for the proper custody of such property pending
conclusion of the proceedings; if the property is perishable or
"otherwise expedient," the Court may order its sale or disposal after
recording such evidence as it thinks necessary. The section's
explanation defines "property" widely. In the present context, a
seized firearm though declared "Government property" by Section
39 WLPA nonetheless qualifies as "property" within Section 451
when produced before the Magistrate, and the Magistrate may, in
the exercise of judicial discretion, release it on suitable conditions
as the court may think fit, if its continued retention is unnecessary
for evidentiary purposes. The text of Section 451 leaves no carve-
out for weapons; the discretion is on the case-to-case basis and the
legal principle, not category-based.
16. Section 457 Cr.P.C. deals with the complementary situation
precisely the one the WLPA creates through Section 50(4), namely,
when a seizure is reported to the Magistrate but the property is not
produced before any Criminal Court during inquiry or trial. In such
cases, "the Magistrate may make such order as he thinks fit
respecting the disposal of such property or the delivery of such
property to the person entitled to the possession thereof," or, if that
person cannot be ascertained, make appropriate orders; subsection
(2) provides for an order if necessary. This harmonises with WLPA
Section 50(4), which obligates the seizing officer to "forthwith
report the seizure to the Magistrate having jurisdiction." Read
together, WLPA Section 50(4) places the weapon within the
Magistrate's supervisory orbit, and Section 457 Cr.P.C. confers the
very power to regulate its interim custody or delivery when it has
not (or not yet) been produced in Court. The statutory architecture
thus channels executive seizure into judicial control.
17. Section 452 Cr.P.C. then addresses the end-stage: once the
inquiry or trial "is concluded," the Court "may make such order as
it thinks fit for the disposal, by destruction, confiscation or delivery
to any person claiming to be entitled to possession" of the property.
This is the final disposal power, exercised on adjudicative findings
and consistent with any special statute (here, the WLPA). More
importantly, it confirms that disposing authority, confiscation,
destruction, or delivery resides in the Criminal Court at the
conclusion of proceedings, reinforcing that interim custody
decisions earlier in time (under Sections 451/457) are also judicial.
18. Section 459 Cr.P.C. is supportive. Where the person entitled
to possession is unknown/absent and the property is perishable or of
such a nature that sale is expedient, the Magistrate may order sale
and hold the proceeds subject to Sections 457 and 458. While
weapons are typically not "perishable," Section 459 confirms the
breadth of the Magistrate's custodial jurisdiction over seized
articles and proceeds, underscoring the Code's policy that seized
property is not to languish without judicially managed disposition.
19. Consolidated reading of these provisions together yields a
coherent rule that is directly applicable to WLPA seizures of
weapons:
(i) seizure of a weapon used in an alleged wildlife offence is
reported forthwith to the jurisdictional Magistrate (Section
50(4), WLPA);
(ii) from that moment, the Magistrate exercises judicial
supervision over its custody under Section 457 Cr.P.C., if it
is not produced in Court, and under Section 451, if it is
produced;
(iii) upon conclusion of the case, the Magistrate/Court finally
disposes of the weapon under Section 452 Cr.P.C.,
consistent with the findings and with the provisions of
WLPA; and
(iv) where circumstances so warrant (such as risk of
deterioration in perishable items), Section 459 Cr.P.C.
equips the Magistrate to prevent wastage.
20. In practice, therefore, the Magistrate is empowered to
release a seized weapon, even though Section 39 WLPA vests
ownership in the State, provided such release does not undermine
evidentiary needs or statutory prohibitions, and adequate safeguards
(bond/surety, photographic inventory, engraving/identification
marks, prohibition on use except as permitted by law, production on
call, deposit/verification of licence, etc.) are imposed. This reading
is complicit to the letter and spirit of Chapter XXXIV Cr.P.C. and
harmonises, rather than conflicts, with the WLPA's statutory
framework.
21. Before this Court proceeds to finally crystallise the position
of law, it is necessary to advert to judicial precedents of the Hon'ble
Supreme Court, which have examined the precise issue of whether
a Magistrate is empowered to regulate interim custody or order
release of property seized under the Wild Life (Protection) Act,
1972. These authorities are of binding character, and any
interpretation of the statutory scheme under Sections 39, 50, and 51
of the Act must be read in harmony with them. The decisions in
State of U.P. & Anr. Vs. Lalloo Singh, (2007) 7 SCC 334 and The
State of Madhya Pradesh Vs. Uday Singh, (2019) 17 SCC 393 are
particularly instructive.
22. The Apex Court in its decision in State of U.P. & Anr. Vs.
Lalloo Singh, (2007) 7 SCC 334, has held as follows:
10. In view of the clear language of sub-section (1)
of Section 50, Section 457 of the Code has no
application. But there is another provision which also is
relevant i.e. Section 451 of the Code that relates to the
order for custody and disposal of the property pending
trial in certain cases. It provides that when any property
is produced before any criminal Court, during any
enquiry or trial, the Court may make such order as it
thinks fit for proper custody of such property pending
the conclusion of the enquiry or the trial. It also
provides for action to be taken when the property is
subject to speedy and natural decay. If the Court
otherwise thinks it expedient to do so, the Court may
after recording such evidence as it thinks fit may pass
orders for sale of the property or disposal thereof.
11. The real complexity of the issue arises as to what is
the effect of the expression "to be dealt with according
to law", as appearing in sub-section (4) of Section 50 of
the Act.
12. Learned counsel for the appellant-State has
submitted that when the property on seizure becomes
the property of the Government, the Magistrate cannot
pass any order for release thereof or interim custody
thereof.
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 concerned
official 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". There is a significant addition in
sub-section (4) by Act 16 of 2003 i.e. requirement of
intimation to the Chief Wild Life Wardon or the officer
authorized 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 sub-
section (2) and the substituted sub-section (3A) of
the 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. While dealing with an application for
temporary release of custody, there cannot be a
complete adjudication of the issues involved as the
same is a matter for trial. While dealing with the
application the Magistrate has to take into account the
statutory mandate that the seized property becomes the
property of the State Government when the same has
been used for commission of an offence under the Act
and has been seized. It appears that insertion in sub-
section (4) relating to the intimation to the Chief Wild
Life officer or the officer authorized by him is intended
to give concerned official an opportunity of placing
relevant materials on record before the Magistrate
passes any order relating to release or custody. In
appropriate cases on consideration of materials placed
before him, prayer for such release or custody can be
rejected.
14. It is to be noted that under sub-section (1) of Section
50 for the purpose of entry, seizure, arrest and detention
the official has to form the belief on reasonable grounds
that the person has committed an offence under the Act.
The Magistrate is, therefore, required to consider these
aspects while dealing with the application as noted
above. It cannot be a routine exercise. As noted above,
the High Court is not justified in holding that Section
457 of the Code has application.
23. In Lalloo Singh (Supra), the issue arose in the context of a
tractor trolley seized by forest officials on the allegation that it had
been used for illegal excavation of sand from a river bed falling
within a notified sanctuary. The Magistrate, exercising powers
under Section 457 of the Code of Criminal Procedure, ordered its
release on furnishing of security. The revisional court overturned
this order, holding that by operation of Section 39 of the Wild Life
(Protection) Act, the tractor had become Government property and
therefore could not be released by the Magistrate. The High Court,
however, restored the Magistrate's order. When the matter reached
the Supreme Court, the Court undertook a careful analysis of the
amendments introduced into the Act by Act 44 of 1991 and Act 16
of 2003, especially the deletion of Section 50(2) (which earlier
permitted forest officials themselves to release seized articles), the
insertion of clauses (c) and (d) into Section 39(1), and the
substitution of Section 50(3A) requiring intimation to the Chief
Wild Life Warden. Against this statutory background, the Court
posed the central question: whether the Magistrate retained
jurisdiction to order release of seized property under the Act.
24. The Hon'ble Apex Court observed that mere seizure does
not, in and of itself, vest ownership irrevocably in the Government
under Section 39(1)(d). For vesting to take place, two conditions
must be satisfied, namely, that the property was used in the
commission of an offence and that it was seized. A mere act of
seizure, untested by adjudication, cannot extinguish all rights and
foreclose judicial scrutiny. Section 50(1) itself predicates action on
"reasonable grounds for belief" that an offence has been committed,
thereby reinforcing that a prima facie satisfaction, not conclusive
proof, underlies the seizure.
Most importantly, the Court explained the true import of
Section 50(4), which requires that seizures be reported to the
Magistrate "to be dealt with according to law." The phrase was held
to be of wide import, empowering the Magistrate to consider
applications for interim custody or release. While dealing with such
an application, the Magistrate is not expected to conduct a full trial
or make final determinations as those belong to the adjudicatory
stage under Section 51 of the WLPA. Nevertheless, the Magistrate
is obliged to apply judicial mind to whether continued retention is
justified, having due regard to the statutory presumption that seized
property may vest in the Government if proven to have been used in
the offence.
25. It is true that in Lalloo Singh (Supra), as also observed in
the impugned judgment, the Hon'ble Supreme Court expressly
observed that "the High Court is not justified in holding that
Section 457 of the Code has application." This sentence, however,
cannot be read in isolation. The Court's reasoning, when read in a
comprehensive manner, makes it clear that the objection was
directed not against the Magistrate's power to regulate custody, but
against a mechanical transposition of Section 457 Cr.P.C. to a
statutory scheme where seizure is carried out not by a "police
officer" but by officials under the WLPA. The ratio of Lalloo Singh
(Supra) is not that the Magistrate lacks jurisdiction, but rather that
jurisdiction does not arise from a precise application of Section 457
in isolation. It arises from the combined reading of Section 50
WLPA with the general powers of the Magistrate under the Cr.P.C.
to regulate seized property. Indeed, the Court itself held that when
property is taken before a Magistrate, he "can pass appropriate
orders in respect of the purported seized property." The doctrinal
takeaway is thus: while Section 457 Cr.P.C. may not apply textually
to WLPA seizures, the Magistrate nevertheless retains the
jurisdiction to make custody orders because Section 50(4) expressly
contemplates judicial oversight, and such oversight necessarily
operates through the procedural machinery of the Cr.P.C.
26. At this juncture, it is also enlightening to note the
observations made by the Hon'ble Supreme Court in Abdul Vahab
Vs. State of Madhya Pradesh, reported in 2022 LiveLaw (SC) 243.
We are conscious that the said decision dealt with confiscation
proceedings under the Madhya Pradesh Prohibition of Cow
Slaughter Act, 2004, and not directly under the Wild Life
(Protection) Act, 1972. The ratio in Abdul Vahab (Supra) is
therefore not being relied upon for its ultimate holding regarding
confiscation, but only for the reaffirmation of an earlier principle
laid down in State of M.P. Vs. Madhukar Rao reported in (2008)
14 SCC 624, which is squarely relevant for our present
interpretative exercise. The relevant paragraphs in Abdul Vahab Vs.
State of Madhya Pradesh, reported in 2022 LiveLaw (SC) 243, are
as follows -
15. We find support for the above view, from the ratio
in the State of M.P Vs. Madhukar Rao, 2008 (14) SCC
624 wherein this Court while adverting to the
provisions of another legislation i.e. the Wild Life
(Protection) Act, 1972 opined that the power of the
Magistrate to order interim release of confiscated
vehicle under Section 451 CrPC, is not affected. The
Court reasoned that withdrawal of the power of interim
release conferred on the Authorities under Section
50(2), cannot be construed to mean a bar on the powers
of the Magistrate under Section 451 of the Code of
Criminal Procedure. It was next noted that a clear
intention to the contrary can be found in the Act in
Section 50(4) under which, any person detained, or
things seized shall be taken before a Magistrate to be
dealt with according to law (and not according to the
provisions of the Act).
16. Pertinently, State of M.P. Vs. Madhukar Rao, 2008
(14) SCC 624 affirmed the decision of the High Court
in Madhukar Rao v. State of MP, (2000) 1 MP LJ 289
(FB) wherein Justice D.M Dharmadhikari, writing for
the Full Bench, opined that the provision of Section
39(1)(d) of the Wildlife (Protection) Act, 1972,
providing for absolute vesting of seized property with
State Government, without a finding by the Competent
Court that the property was being used for the
commission of an offence, runs afoul of the
Constitutional provisions. It is succinctly observed in
Para 18,
"18... If the argument on behalf of the State is
accepted a property seized on accusation would
become the property of the State and can never be
released even on the compounding of the offence.
The provisions of Clause (d) of section 39 have to be
reasonably and harmoniously construed with other
provisions of the Act and the Code which together
provide a detailed procedure for the trial of the
offences. If, as contended on behalf of the State,
seizure of property merely on accusation would make
the property to be of the Government, it would have
the result of depriving an accused of his property
without proof of his guilt. On such interpretation
Clause (d) of section 39(1) of the Act would suffer
from the vice of unconstitutionality. The
interpretation placed by the State would mean that a
specified officer under the Act merely by seizure of
property of an accused would deprive him of his
property which he might be using for his trade,
profession or occupation. This would be serious
encroachment on the fundamental right of a citizen
under Article 19(1)(g) of the Constitution to carry on
his trade, occupation or business."
27. In Abdul Vahab (Supra), while striking down the
confiscation of the appellant's vehicle despite his acquittal in the
connected prosecution, the Court reiterated that in Madhukar Rao
(Supra), it was unequivocally held that the power of the Magistrate
under Section 451 Cr.P.C. to order interim release of a seized
vehicle is not affected by the amendments to Section 50 of the
WLPA. Importantly, it was emphasised that the withdrawal of
powers earlier conferred on forest officials by Section 50(2) cannot
be construed to mean a parallel withdrawal of the Magistrate's
judicial powers under the Code. Rather, Section 50(4) of the WLPA
expressly mandates that seized property and detained persons must
be placed before the Magistrate "to be dealt with according to law,"
thereby preserving judicial supervision. Furthermore, Madhukar
Rao (Supra), as noticed in Abdul Vahab (Supra), clarified that a
mere seizure cannot ipso facto vest ownership of the vehicle or
weapon in the State under Section 39(1)(d) of the WLPA. To
interpret otherwise would mean depriving a citizen of property
merely on accusation, without adjudication, which would render the
provision unconstitutional as violative of Article 19(1)(g) and
Article 300A of the Constitution. The Full Bench of the Madhya
Pradesh High Court in Madhukar Rao (Supra) had already stressed
that such an interpretation would result in serious encroachment on
fundamental and constitutional rights, and the Supreme Court, in
affirming that view, underscored that "confiscation" or "vesting"
must follow a judicial finding, not precede it.
28. To sum up, the issue requires a careful, holistic reading of
the Wild Life (Protection) Act, 1972 together with the Code of
Criminal Procedure, 1973. Section 39 of the WLPA declares that
animals and articles used in wildlife offences (including "vehicle,
vessel, weapon, trap or tool") are, on proof of use in an offence and
on seizure, deemed to be the property of the State, but that
declaration cannot be read so literally at the seizure stage as to
effect an automatic and irrevocable elimination of the accused's
proprietary or possessory rights without adjudication; such a
reading would permit deprivation of property on mere accusation
and would raise serious constitutional concerns.
29. Section 50 confers wide powers of entry, search and seizure
on authorised forest and police officers and, importantly, Section
50(4) requires that any seizure be reported forthwith to the
Magistrate "to be dealt with according to law," thereby bringing
seized material within the ambit of judicial supervision; Section 51
provides the penal forum for trial of the substantive offence and
completes the statutory chain between seizure and adjudication.
Read together, Sections 50 and 51 constitute a continuum: the
executive seizes on reasonable grounds, the seizure is reported to
the Magistrate, and the Magistrate, who is also the trial authority
under the Act is vested with the duty and the power to regulate
interim custody of the seized property until final disposal.
In the parallel, framework of the Cr.P.C., Chapter XXXIV,
particularly Sections 451, 457, and 452 vests criminal courts with
broad, remedial powers to safeguard, preserve, deliver or otherwise
dispose of produced or reported property; while Section 457's
literal text refers to police seizures, its rationale and effect must be
harmonised with Section 50(4) WLPA so that the Magistrate's
custodial and supervisory role is not nullified by a technical
construction. The jurisprudence supports this synthesis in State of
U.P. Vs. Lalloo Singh (Supra) and in State of M.P Vs. Madhukar
Rao (Supra).
30. Practically, therefore, the following legal and procedural
propositions can be emerged as the settled approach which trial
courts could follow when asked to consider interim release of
weapons seized in WLPA matters:
(i) verify the licence/permit and its genuineness;
(ii) obtain an up-to-date report from the seizing officer and
permit the Chief Wild Life Warden / authorised officer to
place relevant material before the court;
(iii) ascertain whether confiscation proceedings under any
special statute have been initiated and whether those
proceedings, by express statutory language, exclude judicial
relief;
(iv) refuse release where prima facie material indicates that the
weapon was used in the commission of the offence or where
there is a real risk of misuse;
(v) where release is considered appropriate, record reasons in
writing and impose robust conditions (such as deposit or
verification of licence/permit; furnishing of personal bond
and adequate sureties; an undertaking not to use or transfer
the weapon and to produce it whenever called; photographic
inventory and verification of serial/identification marks;
engraving/marking and forwarding of a copy of such record
to the seizing agency and the licensing authority)
(vi) safe custody arrangements in accordance with law
31. Finally, and emphatically, any interim release under judicial
supervision is without prejudice to the prosecution's evidentiary
needs and to the authority of the Court (or competent authority
under the statute where applicable) to order final confiscation,
destruction or delivery at the conclusion of trial or in accordance
with the special statute but until such adjudication is complete,
judicial supervision and the remedial powers of the Magistrate
remain available to prevent unnecessary and irreversible loss to the
accused while preserving the Public interest and the integrity of
wildlife protection laws.
32. It is pertinent to note that, as of now, there is no instructions
received as to any independent confiscation proceedings having
been initiated under the Wild Life (Protection) Act, 1972, by the
authorised officers. In the absence of such proceedings, the only
jurisdictional framework presently available is that under Section
50(4) of the Act, read together with Chapter XXXIV of the Code of
Criminal Procedure, 1973. Consequently, the property in question,
having been seized and duly reported, is to be dealt with by the
Magistrate "in accordance with law," and the general powers
conferred under Sections 451 and 457 Cr.P.C. stand attracted. To
assume otherwise would amount to reading into the statute a bar
which the legislature has not expressly enacted.
33. At the same time, it is made clear that the present
adjudication is confined strictly to a clarification of the position of
law and not to the merits of the case at hand. If, subsequent to this
order, the authorised officer initiates confiscation proceedings under
the Wild Life (Protection) Act, 1972, in accordance with law,
nothing stated herein shall prejudice or limit the jurisdiction of such
authority to proceed in the matter.
34. The CRLMC is accordingly disposed of.
(Chittaranjan Dash)
Judge
A.K.Pradhan
Signed by: ANANTA KUMAR PRADHAN
Location: HIGH COURT OF ORISSA
Date: 04-Sep-2025 17:44:54
