Tuesday, 11 October 2016

Whether vehicle seized in wild life protection Act can be confiscated without finding of criminal court?

The aforesaid determination brings me to the factual matrix
of the case in hand. The Authorized Forest Officer in exercise of
power under Section 39(1)(d) of the Act of 1972 has directed
confiscation of the vehicle in favour of the State Government but
the criminal case initiated for commission of offence against the
petitioners under Sections 9,44,51,25,26 (28) of the Act, 1972 is
pending consideration before the jurisdictional criminal court; and
at present there is no finding recorded by the criminal court that
the petitioners' vehicle has been used for committing offence. In
absence of such finding by the competent criminal court, the
provisions of Section 39(1)(d) of the Act, 1972 cannot be invoked
into. The order of the Specified Officer forfeiting the vehicle
without awaiting the decision of the competent criminal court
about use of offending vehicle in above-stated offence is without
jurisdiction and without authority of law in light of the decision
rendered by the Full Bench of the Madhya Pradesh High Court in
the matter of Madhukar Rao (supra).
HIGH COURT OF CHHATTISGARH, BILASPUR
 Writ Petition (Cr.) No. 57 of 201 4
 Mohammad Shoaib, S/o Rafiq Mohammaad,
V
 The State of Chhattisgarh, 
Hon'ble Shri Justice Sanjay K. Agrawal
DATED: 05 /0 4 /201 6

(1) The petitioner No.1 is the registered owner of Maruti
Zen bearing registration No.CG.04/ZD 7655. The said2
vehicle was found involved in commission of offence
punishable under Sections 9,44,51,25 & 26(28) of the Wild
Life (Protection) Act, 1972 (henceforth 'Act of 1972') and
Criminal Case No. 647/2012 was registered in the Court of
Judicial Magistrate First Class, Baloda Bazar titled as State
of Chhatisgarh v. Mohammad Shoaib & another and same is
pending consideration.
(2) Case of the respondent/State, in brief, is that the
petitioner No.1, who is registered owner of the above stated
vehicle, was found committing offence, which is punishable
under the Act of 1972. The said vehicle along with arms and
other articles was seized by the jurisdictional forest
authorities and, thereafter, proceeding for confiscation was
initiated under the provisions of the Wild Life (Protection)
Act, 1972 read with Section 26(Jha) of the Indian Forest Act,
1927 (henceforth 'Act of 1927'). The Specified Officer, by its
order dated 23.08.2012, confiscated the said vehicle finding
inter alia that the said vehicle was involved in hunting of the
forest scheduled animal namely “Chital”.
(3) Feeling aggrieved and dissatisfied with the order of
Specified Officer under the Act of 1972, instant writ petition
under Article 226/227 of the Constitution of India has been
filed by the petitioners herein.3
(4) Case of the petitioners, in the instant writ petition, is
that Criminal Case No. 647/2012 for commission of offence
by using aforesaid vehicle under Sections 9,44,51,25,26 (28)
of the Act of 1972 is pending consideration before the
jurisdictional criminal court and date is fixed for further
hearing. Unless it is established in the said criminal trial that
the said vehicle is used for committing the aforesaid
offences, the said vehicle cannot be confiscated in exercise
of power conferred under Section 39(1)(d) of the Act, 1972
and, as such, the order passed by the Authorized Officer and
the Additional Divisional Forest Officer is unsustainable and
bad in law.
(5) Return has been filed on behalf of the
Respondents/State stating inter alia that Authorized Officer
has seized the vehicle of the petitioners finding that the said
vehicle was used in commission of offence under the
provisions of the Act of 1972 & the Act of 1927 and after
giving due opportunity of hearing, the aforesaid vehicle has
been seized and, therefore, no interference is called for in
the order impugned and, as such, the writ petition deserves
to be dismissed.
(6) No rejoinder has been filed on behalf of the petitioners.
(7) Shri Alok Dewangan, learned counsel appearing for the4
petitioners would submit that order of the Authorized Forest
Officer confiscating the vehicle of the petitioners is without
jurisdiction and without authority of law as it has not been
established in the criminal trial that the said vehicle was used
for committing the offence under the Act of 1972 and they
have not been convicted by the said criminal court for
offence under the Act of 1972 and, as such, confiscation of
the petitioners' vehicle by the Authorized officer is
unsustainable and bad in law.
(8) Per contra, learned counsel for the State opposes the
writ petition and would support the order confiscating the
vehicle of petitioner No.1.
(9) I have heard counsel for the parties and considered
their rival submissions made hereinabove and also gone
through the relevant documents with utmost circumspection.
(10) ln order to decide the question raised at the bar, it
would be appropriate to notice certain provisions contained
in the Indian Forest Act, 1927 and Wild Life (Protection) Act,
1972, which read as under:-
“2. Interpretation clause.-xxx xxx xxx xxx
 (1)xxx xxx xxx xxx xxx xxx
 (2)xxx xxx xxx xxx xxx xxx
(3)xxx xxx xxx xxx xxx xxx
 (4) “forest-produce” includes-
 xxx xxx xxx xxx xxx xxx5
(iii) wild animals and skins, tusks, horns, bones, silk,
cocoons, honey, and wax, and all other parts of
produce of animals, and”
“26.Acts prohibited in such forest.- (1) Any person
who-
 xxx xxx xxx xxx xxx xxx
 (i) in contravention of any rules made in this behalf
by the State Government hunts, shoots, fishes,
poisons water or sets traps or snares; or
shall be punishable with imprisonment for a term
terms which, may extend to six months, or with
fine which may extend to five hundred rupees, or
with both, in addition to such compensation for
damage done to the forest as the convicting
Court may direct to be paid.”
“Section 52 as amended by M.P. Act.- Seizure of
property liable to confiscation and procedure therefor-
(1) Where there is reason to believe a forest offence
has been committed in respect of any forest produce,
such produce, together with all tools, boats, vehicles,
ropes, chains or any other article used in committing
any such offence may be seized by any Forest Officer
or Police Officer.
(2) Every officer xxx xxx xxx
(3) Subject to sub-section (5), where the authorised
officer upon production before him of property seized
or upon receipt of report about seizure, as the case
may be, is satisfied that a forest offence has been
committed in respect thereof, he may be order in
writing and for reasons to be recorded confiscate forest
produce so seized together with all tools, vehicles,
boats, ropes, chains or any other article used in 6
committing such offence. xxx xxx”.
“52-C (as amended by M.P. Act) Bar to jurisdiction
of Court etc. under certain circumstances.- (i) On
receipt of intimation under sub-section (4) of Section
52 about initiation of proceedings for confiscation of
property by the magistrate having jurisdiction to try the
offence on account of which the seizure of property
which is subject matter of confiscation, has been
made, no Court, Tribunal or Authority (other than
the authorised officer, Appellate Authority and Court of
Sessions referred to in Sections 52, 52-A and 52-B)
shall have jurisdiction to make orders with regard to
possession, delivery, disposal or distribution of the
property in regard to which proceedings for
confiscation are initiated under Section 52,
notwithstanding anything to the contrary contained in
this Act, or any other law for the time being in force.”
The relevant provisions of Wild Life (Protection) Act, 1972 are as
under :-
“2. Definition.- In this Act, unless the context otherwise
requiresxxx
xxx xxx xxx
(36) “Wild animal” means any animal found wild in nature
and includes any animal specified in Schedule I, Schedule
II, Schedule III, Schedule IV or Schedule V, wherever
found;
(37) “Wild Life” includes any animal, bees, butterflies,
crustacea, fish and moths, and aquatic or land vegetation
which forms part of any habitat;”
“29. Destruction, etc., in a sanctuary prohibited 7
without a permit.- No person shall destroy, exploit or
remove any wild life from a sanctuary or destroy or
damage the habitat of any wild animal or deprive any wild
animal of its habitat within such sanctuary except under
and in accordance with a permit granted by the Chief Wild
Life Warden and no such permit shall be granted unless
the State Government, being satisfied that such
destruction, exploitation or removal of wild life from the
sanctuary is necessary for the improvement and better
management of wild life therein, authorises the issue of
such permit.”
“Declaration of National Parks.-
xxx xxx xxx xxx
(6) No person shall destroy, exploit or remove any wild life
from a National Park or destroy or damage the habitat of
any wild animal or deprive any wild animal of its habitat
within such National Park except under an in accordance
with a permit granted by the Chief Wild Life Warden and
no such permit shall be granted unless the State
Government, being satisfied that such destruction,
exploitation or removal of wild life from the National Park
is necessary for the improvement and better management
of wild life therein, authorises the issue of such permit.”
“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 [xxx] by
mistake, and
(b) animal article, trophy or uncrued trophy or meat 8
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
(derived from such animal or any vehicle, vessel,
weapn, trap or tool used in such hunting) shall be the
property of the Central Government.”
(11) Concededly, Chital (Axix axis) is a scheduled wild animal
included in Schedule III, Serial No. 5 enacted under Sections 2,8,9
[xxx] 11 and 61 of the Act, 1972.
(12) Allegation against the petitioners is that they have made gun
shot injuries to the said animal on 11.10.2011 at 4 am., which is
offence punishable under Section 26(jha) of the Act, 1927 as well
as Sections 9,44,50 & 51 of the Act, 1972.
(13) Since Chital is a Scheduled animal under the Act, 1972 and
offence is alleged to have been committed under Sections 9,44,509
& 51 of the Act, 1972, the provisions of Section 39 of the said Act,
1972 are attracted and, therefore, it can be construed that the said
car was seized under Section 39 of the Act of 1972.
(14) The Full Bench of the High Court of Madhya Pradesh in the
matter of Madhukar Rao V. State of M.P. a nd others1
 considered
the question whether the property seized under the Act, 1972
becomes the property of the State Government on accusation or
suspicion of commission of an offence or there should be finding of
the competent authority about the commission of offence; and it
was held by their Lordships that seized property may be treated as
property of the State, only upon a finding by the competent court
that vehicle seized has been used for committing an offence and
observed as under:-
“16. Strong reliance has been placed on behalf of the
State on Clause (d) of sub-Section (1) of Section 39 of
the Act. It is submitted that vehicle including properties
mentioned therein which have been seized on the
ground of having been used for committing the offence
become the property of the State and, therefore, such
property including vehicle cannot be released even by
the Magistrate. It is submitted that other interpretation
would frustrate the object of the Amendment Act
whereby the power to grant interim release of the
property allegedly used in commission of offence has
been taken away. On the plain language used in subclause
(d) of sub-section (1) of Section 39, we are
unable to accept the interpretation placed and
1 2000 (1) JLJ 304 10
submission made on behalf of the State that every
property seized merely on accusation or suspicion of
commission of an offence under the Act would become
property of the State. The language used in sub-clause
(d) of sub-section (1) of Section 39 is “Vehicle
…..........that has been used for committing an offence
and has been seized”. In order that that the seized
property may be treated as property of the State, there
should be a finding by the competent Court that
vehicle seized has been used for committing an
offence. The seized vehicle or other property merely
on the charge of commission of an offence cannot be
declared to be the property of the State Government
under said Clause (d) of Section 39(1). The power to
seize a vehicle by an Authority or officer under the Act
is contained in Section 50(1)(c). The power of seizure
can be exercised in respect of a property including a
vehicle if it appears to the Authority that an offence
under the Act has been committed. The seizure of
property or vehicle is, effected on accusation or
suspicion of commission of an offence Under subsection
(3-A) introduced by Amendment Act No.44 of
1991 , power has expressly been conferred on the
specified Forest Authorities to grant interim release of
any captive animal or wild animal seized in
commission of an offence on a condition of executiong
a bond by the person concerned that the said animal
shall be produced before the Magistrate having
jurisdiction to try the offence. Such a power in respect
of certain properties including vehicles existed in subsection
(2) of Section 50 prior to its deletion under
Amendment Act No.44 of 1991. The omission of subsection
(2) of Section 50 by amendment has11
necessary consequence of taking away power of the
prescribed Authorities under the Act to grant interim
release of seized property including vehicle to the
person claiming ownership to the same. The omission
of sub-section (2) of Section 50 cannot, however, be
construed to hold that the power to grant interim
release already available to an established criminal
Court, meaning the Magistrate under Section 452 of
the Code of Criminal Procedure, has also been taken
away. No such intention can be gathered from any of
the provisions of the Act quoted above. We on the
contrary, find a clear indication in them that the power
of the Magistrate as a Criminal Court empowered to
deal and try the offence under the Act is not in any
manner affected. Sub-section (4) of Section 50
requires that any person detained or things seized
under sub-section (I) of Section 50 shall forthwith be
taken before a Magistrate to be dealt with according to
law. It is not disputed on behalf of the State that by
virtue of the provisions contained in sub-section (2) of
Section 4 of the Criminal Procedure Code any offence
under the Act can be investigated, enquired into and
tried under the Code. The Magistrate, therefore, as a
Criminal Court under the Code is empowered to try the
offences and impose penalties and punishments
provided by the Act or proving of commission of the
offence under the Act.
(17) If the interpretation, as has been sought to be put
on behalf of the State on Clause (d) of sub-section (1)
of Section 39, is accepted, every property mentioned
therein including a vehicle seized merely on
accusation or suspicion would become property of the
State and that would be the result even though in the12
trial ultimately the Magistrate finds that no offence has
been committed and acquits the accused. In our
considered opinion the property seized under Section
50 of the Act from an alleged offender cannot become
property of the State under Clause (d) of Section 39(1)
unless there is a trial and a finding reached by the
competent Court that the Property was used for
committing an offence under the Act. If the seizure of a
property was enough to declare it as the property of
the Government, there was no necessity to provide
under sub-section (2) of Section 51 that on proof of
commission of the offfence, the properties including
vehicle, vessel, or weapon used in the commission of
the offence would be forfeited to the State
Government, we do not find any dichotomy or conflict
in the provisions under Section 39(1)(d) and Section
51 (2) of the Act. Properties including vessel can be
seized on accusation of commission of an offence
under the Act and if the offender is available and is
arrested, on proof of his guilt, the property seized from
him and used in commission of the offence is liable to
forfeiture to the State under Section 51(2) of the Act.
Similarly every property seized and is held to have
been used for committing an offence by competent
Court, whether the offender is available or not for
punishment, would be declared to be the property by
virtue of the provisions contained under Section 39(1)
(d) of the Act. We find that Section 39 contained in
Chapter-V is sort of a residuary provision to make all
properties seized and found to be used in commission
of an offence as properties of the State Government
irrespective of the fact whether they are liable to
forfeiture at the conclusion of the trial under sub-13
section (2) of Section 51 of the Act. A situation can be
envisaged where the offence is proved to have been
committed but the owner of the property or the
offender himself is not available for prosecution. In that
situation by virtue of Clause (d) of Section 39 of the
Act the property would become the property of the
State without any requirement of passing an order of
forfeiture in a trial by the Criminal Court in accordance
with sub-section (2) of Section 51 of the Act.”
Their Lordships finally concluded:-
“We also hold that mere seizure of any property
including vehicle on the charge of commission of an
offence would not take the property to be State
Government under Section 39(1)(d) of the State”
(15) From the judgment of Full Bench of the High Court of
Madhya Pradesh, it is quite vivid that mere seizure of any
property including vehicle on the charge of commission of an
offence would not make property to be of the State Government
under Section 39(1)(d) of the Act of 1972, unless there is finding
returned by the criminal court that said vehicle seized has been
used for committing offence.
(16) The aforesaid determination brings me to the factual matrix
of the case in hand. The Authorized Forest Officer in exercise of
power under Section 39(1)(d) of the Act of 1972 has directed
confiscation of the vehicle in favour of the State Government but
the criminal case initiated for commission of offence against the
petitioners under Sections 9,44,51,25,26 (28) of the Act, 1972 is14
pending consideration before the jurisdictional criminal court; and
at present there is no finding recorded by the criminal court that
the petitioners' vehicle has been used for committing offence. In
absence of such finding by the competent criminal court, the
provisions of Section 39(1)(d) of the Act, 1972 cannot be invoked
into. The order of the Specified Officer forfeiting the vehicle
without awaiting the decision of the competent criminal court
about use of offending vehicle in above-stated offence is without
jurisdiction and without authority of law in light of the decision
rendered by the Full Bench of the Madhya Pradesh High Court in
the matter of Madhukar Rao (supra).
(17) As a fall out and consequence of aforesaid discussion,
order dated 23.08.2012 passed by Specified Officer is hereby
quashed. In the matter of Madhukar Rao (Supra), it was held that
any property including vehicle seized on accusation or suspicion
of commission of an offence under the Act can on relevant
grounds and circumstances, be released by the Magistrate
pending trial in accordance with Section 50(4) read with Section
451 of the Code of Criminal Procedure. Thus an application under
Section 451 of the Cr.P.C. before the jurisdictional Magistrate is
maintainable for interim custody of questioned vehicle.
Accordingly, the petitioners are granted liberty to make an
application before the Magistrate having jurisdiction to try the
offence under Section 50(4) read with Section 451 of the Code of15
Criminal Procedure for grant of interim custody of the vehicle and
in the event of filing such application before the learned
jurisdictional Magistrate, it is directed to be decided by the
concerned Magistrate in light of judgment rendered in the matter
of Madhukar Rao (Supra) and in light of observations made
hereinabove expeditiously preferably within a period of 30 days
from the date of production of a certified copy of this order, in
accordance with law. No order as to costs.
(18) However, liberty is reserved in favour of the Authorized
Forest Officer to proceed for seizure/confiscation of the vehicle
depending upon the result and finding of Criminal Case
No. 647/2012 pending in the Court of Judicial Magistrate, First
Class, Baloda Bazar against the petitioners.
 Sd/-
(Sanjay K. Agrawal)
 Judge
 D/-16
 HEAD NOTE
(1) Vehicle seized under Section 39(1)(d) of Wild Life
(Protection) Act, 1972 cannot be property of the Government
unless finding is recorded by Criminal Court that vehicle is used
for commission of offence.

Print Page

No comments:

Post a Comment