Full Judgment Text
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CASE NO.:
Appeal (crl.) 963 of 2001
PETITIONER:
State of U.P. & Anr
RESPONDENT:
Lalloo Singh
DATE OF JUDGMENT: 20/07/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned
Single Judge of the Allahabad High Court allowing the revision
petition filed by the respondent. The question of importance
involved in this appeal relates to the ambit of Section 50(4) of
the Wild Life (Protection) Act, 1972 (in short the ’Act’).
Connected issues relate to the scope for exercise of jurisdiction
under Section 457 of the Code of Criminal Procedure, 1973 (in
short the ’Code’).
2. Background facts in a nutshell are as follows:
One Hoshiyar Singh, the brother of the revisionist, Lalloo
Singh was allegedly found carrying sand on a tractor trolley
being dug and loaded from the bed of Jamuna river, within the
sanctuary declared under Section 18 of the Act. The Forest
Authorities intercepted the tractor trolley, arrested Hoshiyar
Singh and seized the tractor trolley in exercise of the powers
conferred under the provisions of the Act. A revision was filed
by Lalloo Singh claiming to be the owner of the tractor trolley.
He, therefore, moved an application for release of the same.
The VIIth Addl. Chief Judicial Magistrate in exercise of the
powers conferred under Section 457 of the Code released the
tractor trolley in favour of the revisionist on his furnishing
personal bond of Rs.2 lacs and two sureties in the like
amount. Against that order, the State of UP. through District
Forest Officer, Agra filed a Criminal Revision No.85 of 1999
before the Sessions Judge, Agra which was heard and
disposed of by Special Judge (E.C. Act). The revisional court
being of the view that the tractor trolley seized under the Act,
which has become the property of the Government, held that
same could not be released by the Magistrate, allowed the
revision and set aside the order of the Magistrate. Hence, the
revision by the revisionist, Lalloo Singh was filed as noted
above.
3. The High Court by the impugned order held that the
Magistrate had the jurisdiction.
4. In support of the appeal, learned counsel for the
appellant submitted that the effect of deletion of sub-section
(2) of Section 50 of the Act has not been considered by the
High Court. It also lost sight of the fact that the moment there
is seizure of the seized property it becomes the property of the
Government in terms of Section 39 of the Act. Section 457 of
the Code has no application because it relates to only when a
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police officer produces the said property before the magistrate.
The officials under the Act are not police officials.
5. Learned counsel for the respondent on the other hand
submitted that the interpretation given by the High Court to
Section 50 of the Act is correct. Sub section (2) of Section 50
has no effect on the power of the Magistrate to release the
seized articles. For application of Section 39 of the Act there
has to be first determination that the seized property in
question was used for the purpose of commission of an
offence.
6. Considering the fact that there is diversion of views of
various High Courts, we requested Mr. Ashok Bhan to act as
Amicus Curiae.
7. We have heard at length learned counsel for the parties.
It is to be noted that substantial changes have been made in
the Act by the Act 44 of 1991 operating with effect from
2.10.1991. The major changes so far as the present case is
concerned relate to deletion of sub-section (2) of Section 50,
insertion of clauses (c) & (d) in sub section (1) of Section 39,
insertion of sub-section 3(a) in Section 50.
8. While dealing with the first question, what needs
consideration is whether Section 457 of the Code has any
application to the present case. Undisputedly, Section 457 of
the Code applies when the seizure of property by a police
officer is reported to a Magistrate under the provisions of the
Code. There is a marked distinction between police officers
and the officials under the Act as is evident from sub-section
(1) of Section 50. The said Section so far as relevant reads as
follows:-
"50. Power of entry, search, arrest and
detention.\027(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;
(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
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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 kilometers 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."
9. Sub-section (2) of Section 50 was omitted by Act 44 of
1991. The amendment read as follows:
"36. Amendment of Section 50.\027 In Section 50 of
the principal Act,-
(a) in sub-section (1),-
(i) in clause (a), for the words "trophy or uncured
trophy", the words "trophy, uncured trophy,
specified plant or part or derivative thereof" shall be
substituted;
(ii) for clause (c), the following clause shall be
substituted, namely:-
"(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 kilometers 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.";
(b) sub-section (2) shall be omitted;
(c) after sub-section (3), the following sub-section
shall be inserted, namely:-
"(3-A) Any officer of a rank not inferior to that of an
Assistant Director of Wild Life Preservation or Wild
Life Warden, 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.";
(d) in sub-section (6), for the words "meat or
uncured trophy", wherever they occur, the words
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"meat, uncured trophy, specified plant, or part or
derivative thereto" shall be substituted;
(e) after sub-section (7), the following sub-sections
shall be inserted, namely:-
"(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 Wild Life Warden 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."
Sub-section (2) of Section 50 before omission reads as follows:
"Any officer of a Bank not inferior to that of an
Assistant Director of Wild Life Preservation or Wild
Life Warden, who or chose sub-ordinate has seized
any trap, tool, vehicle, vessel, or weapon under
clause (c) of sub-section (1), may release the same,
on the execution by the owner thereof a bond for
the production of the property to be released, if and
when required, before the Magistrate having
jurisdiction to try the offence on account of which
the seizure has been made."
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.
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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.
15. It appears that by order dated 26.3.2001 respondent was
required to indicate whether he is prepared to deposit a bond
of Rs.2,00,000/-as security. If the said security has been
furnished, because of passage of time the impugned order
shall remain in force, though in view of the analysis made
above the conclusions are not sustainable.
16. Learned counsel for the parties could not tell us whether
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the trial in the matter has been completed. We dispose of the
appeal on clarifying the legal issues involved.
17. The appeal is accordingly disposed of.