State
of U.P. & Anr Vs.
Lalloo Singh [2007] Insc 753 (20 July 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
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 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.(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 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. 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 "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.
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 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.
Back