Mujahid Ahmed vs State Of Telangana And Another
2021 Latest Caselaw 4335 Tel

               HON'BLE SRI JUSTICE K. LAKSHMAN

               CRIMINAL PETITION No.9175 OF 2021
ORDER:

The present Criminal Petition is filed seeking a direction against

Respondent No. 2 to release the crime vehicle i.e., SWIFT D'ZIRE ZDI

BS V bearing Registration No.KA 36 M 7236 seized in connection with

Crime No. POR 17/14-15/2020 dated 25.01.2020.

2. Heard Mr. Ch. Ganesh, learned counsel for the petitioner and

learned Government Pleader for Forest appearing on behalf of respondent

No.2.

3. Facts of the Case:

i) The Petitioner claims to be the owner of Maruthi Swift Dzire

(hereinafter the 'subject vehicle' bearing Registration No.KA 36 M 7236.

The allegation against the Petitioner is that he along with two others was

involved in transporting a 'two-head Red Sand Boa Snake' (Eryx

Johinii). A case vide POR No. 17/14-15/2020 was registered under

Sections 2 (16), 29, 49, 50 and 57 of the Wildlife (Protection) Act, 1972

(hereinafter 'the Act, 1972'). The Petitioner herein is Accused No. 3 in

the said case. Based on the said POR, the subject vehicle was seized

under the provisions of the Act, 1972.

ii) Aggrieved by the seizure the Petitioner herein filed a petition

vide Crl.M.P. No. 111 of 2020 before the Junior Civil Judge - cum -

Judicial Magistrate of First Class at Chevella. The said Crl. M.P. No.

111 of 2020 was dismissed on the ground that under Section 39(1)(d) of

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the Act, 1972 any vehicle seized is the property of the State Government

and the Trial Court does not have jurisdiction to release the same.

iii) Therefore, the present petition is filed seeking release of the

subject vehicle.

4. Contentions of the Petitioner

i) Accused Nos. 1 and 2 have engaged the petitioner's vehicle for

a trip from Gulbarga to Hyderabad on the pretext of personal work.

ii) The petitioner is no way concerned with the transportation of

the 'two-head Red Sand Boa snake'.

iii) The petitioner was under the impression that Accused Nos. 1

and 2were carrying their personal luggage in the subject vehicle.

iv) The petitioner and his family members are dependent on the

subject vehicle for their livelihood.

Any property including a vehicle seized for an offence committed

under the Act, 1972 will be treated as Government property under

Section 39. Such seized Government property cannot be released.

6. Analysis and Findings of the Court

i) The facts of the case clearly indicate that offences were

committed under various and under Sections 2 (16), 29, 49, 50 and 57 of

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the Act, 1972. Respondent No. 2 contended before the Trial Court that

the subject vehicle was seized under the provisions of the Act, 1972 and

the Magistrate cannot direct interim release. Therefore, it is apt to

discuss the procedure of seizure/confiscation and release of the seized

property under the Act, 1972. The relevant provisions under the Act,

1972 are extracted below:

"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, 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 1 [derived from such animal or

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any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central Government.

(2) Any 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."

"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, 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;

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(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."

"53. Punishment for wrongful seizure.--If any person, exercising powers under this Act, vexatiously and unnecessarily seizes the property of any other person on the pretence of seizing it for the reasons mentioned in section 50 he shall, on conviction, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."

"54. Power to compound offence.--(1) The Central Government may, by notification, empower the Director of Wild Life Preservation or any other officer not below the rank of Assistant Director of Wild Life Preservation and in the case of a State Government in the similar manner, empower the Chief Wild Life Warden or any officer of a rank not below the

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rank of a Deputy Conservator of Forests, to accept from any person against whom a reasonable suspicion exists that he has committed an offence against this Act, payment of a sum of money by way of composition of the offence which such person is suspected to have committed.

(2) On payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person.

(3) The officer compounding any offence may order the cancellation of any licence or permit granted under this Act to the offender, or if not empowered to do so, may approach an officer so empowered, for the cancellation of such licence or permit.

(4) The sum of money accepted or agreed to be accepted as composition under sub-section (1) shall, in no case, exceed the sum of twenty-five thousand rupees:

Provided that no offence, for which a minimum period of imprisonment has been prescribed in section 51, shall be compounded."

ii) Section 39(1)(d) provides that any vehicle, vessel, weapon, trap

or tool used for committing an offence under the Act, 1972 and which

has been seized will be treated as property of the Central Government.

iii) Section 50(1)(c) provides that any trap, tool, vehicle, vessel or

weapon used for committing any offence under the Act, 1972 can be

seized by the authorised officer. Section 50(4) provides that the Chief

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Wild Life Warden or any other authorised person shall be intimated and

the seized property shall be taken forthwith before the magistrate who

has to deal with such property in accordance with law.

iv) Section 53 of the Act, 1972 provides for punishment if the

property is seized vexatiously or unnecessarily. Section 54 of the Act,

1972 provides that the Governments can vest power on officers to

compound offences in certain cases. The said provision also states that no

offence can be compounded if a period of minimum imprisonment is

prescribed under Section 51 is prescribed.

v) Now coming to the facts of the case, relying on Section

39(1)(d) it was argued before the Trial Court that the seized subject

vehicle is a Government property. The question 'whether seizure of

property under the Act, 1972 vests it in Central Government and cannot

be released by a magistrate' is no longer res integra. The Supreme Court

in State of Madhya Pradesh v. Madhukar Rao1 affirming a full bench

judgment of Madhya Pradesh High court held that mere seizure of

property under the Act, 1972 does not vest it in the Central Government

and a magistrate has the power to release the same under Section 451 of

Cr.P.C. Section 39(1)(d) will be rendered unconstitutional if merely on

allegations a vehicle is seized. The relevant paragraphs are extracted

below:

. (2008) 14 SCC 624

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"16. We are unable to accept the submissions. To contend that the use of a vehicle in the commission of an offence under the Act, without anything else would bar its interim release appears to us to be quite unreasonable. There may be a case where a vehicle was undeniably used for commission of an offence under the Act but the vehicle's owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that situation, we are unable to see why the vehicle should not be released in the owner's favour during the pendency of the trial.

17. We are also unable to accept the submission that Section 50 and the other provisions in Chapter VI of the Act exclude the application of any provisions of the Code. It is indeed true that Section 50 of the Act has several provisions especially aimed at prevention and detection of offences under the Act. For example, it confers powers of entry, search, arrest and detention on Wild Life and Forest Officers besides police officers who are normally entrusted with the responsibility of investigation and detection of offences; further sub-section (4) of Section 51 expressly excludes application of Section 360 of the Code and the provisions of the Probation of Offenders Act to persons eighteen years or above in age. But it does not mean that Section 50 in itself or taken along with the other provisions under Chapter VI constitutes a self-contained mechanism so as to exclude every other provision of the Code. This position becomes further clear from sub-

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section (4) of Section 50 that requires that any person detained, or things seized should forthwith be taken before a Magistrate.

18. Sub-section (4) of Section 50 reads as follows:

"50. (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."

It has to be noted here that the expression used in the sub-section is "according to law" and not "according to the provisions of the Act". The expression "according to law" undoubtedly widens the scope and plainly indicates the application of the provisions of the Code.

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

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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."

vi) The decision in Madhukar Rao (Supra) has been

subsequently confirmed by the Supreme Court in Deptt. of Forests v.

J.K. Johnson.2The relevant paragraphs are extracted below:

31. In Madhukar Rao [(2008) 14 SCC 624 : (2009) 2 SCC (Cri) 1140] , albeit, the question was a little different but this Court considered the ambit and scope of Section 39(1)(d). That matter reached this Court from a Full Bench decision of the Madhya Pradesh High Court. The question before the Full Bench was whether as a result of deletion of sub-

section (2) of Section 50 withdrawing power of interim release, there existed any power with the authorities under the 1972 Act or the Code to release the vehicle used in the course of alleged

. (2011) 10 SCC 794

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commission of offence under the Act. The Full Bench of the High Court held that any property including vehicle seized on accusation or suspicion of commission of offence under the 1972 Act can be released by the Magistrate pending trial in accordance with Section 50(4) of the 1972 Act read with Section 451 of the Code. The Full Bench also held that mere seizure of any property including vehicle on the charge of commission of offence would not make the property to be of the State Government under Section 39(1)(d) of the 1972 Act.

33. We are in complete agreement with the view of this Court in Madhukar Rao [(2008) 14 SCC 624: (2009) 2 SCC (Cri) 1140] that on the basis of seizure and mere accusations/allegations, Section 39(1)(d) of the 1972 Act cannot be allowed to operate and if it is so done, it would be hit by the constitutional provisions.

vii) Thus, the provisions of the Act, 1972 including Section 50 do

not take away the power of the learned Magistrate under Section 451 of

Cr.P.C. to make an order of interim custody of vehicle.

viii) To sum up the procedure, any property seized under the Act,

1972 should immediately be produced before the concerned magistrate.

The magistrate has to deal with such property in accordance with law.

The phrase 'in accordance with law' here means that the concerned

magistrate has powers to act in accordance with Chapter XXXIV of the

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Code of Criminal Procedure, 1973 which deals with Disposal of

Property.

ix) There is no dispute that the petitioner herein is the owner of

the subject vehicle. He has filed copy of certificate of registration to the

said effect. He has filed a petition under Section - 451 of Cr.P.C. vide

Crl.M.P. No.111 of 2020 in POR 17/14-15/2020 seeking interim custody

of the subject vehicle and the learned Magistrate has dismissed the same

vide order dated 25.09.2020. The petitioner has not specifically sought

to quash the said order dated 25.09.2020 in Crl. M.P. No. 111 of 2020.

However, this Court has ample power to mould the relief and quash the

same by invoking its inherent power under Section - 482 of Cr.P.C. This

Court can grant a relief not specifically claimed in the pleadings, if such

relief is obviously required and is not inconsistent with the pleadings.

The said principle was laid down by a full bench of the erstwhile Lahore

High Court in Mehar Chand v. Milkhi Ram3 and was subsequently

followed by the Supreme Court in Hindalco Industries Ltd. v. Union of

India4

7. Conclusion

i) In the present case, the Trial Court had erred in not considering

the judgment in Madhukar Rao (Supra) and also the procedure laid

. AIR 1932 Lah. 401.

. (1994) 2 SCC 594.

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down under the Act, 1972. At the cost of repetition, the Magistrate under

Section 451 of the Cr.P.C. has power to release any property seized under

the Act, 1972. Therefore, the order dated 25.09.2020 in Crl.M.P. No.111

of 2020 passed by the learned Junior Civil Judge - cum - Judicial

Magistrate of First Class, Chevella, is hereby quashed. The matter is

remanded back to the learned Junior Civil Judge - cum - Judicial

Magistrate of First Class, Chevella, with a direction to release the subject

vehicle on imposition of certain conditions to its satisfaction.

ii) The present Criminal Petition is accordingly is allowed.

As a sequel, the miscellaneous petitions, if any, pending in the

criminal petition shall stand closed.

_________________ K. LAKSHMAN, J 15th December, 2021 Note: L.R. Copy to be marked.

(B/O.)Mgr