1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1089 OF 2009 Swapnil Murlidhar Patil ..Petitioner versus The State of Maharashtra ..Respondents WITH CRIMINAL WRIT PETITION NO. 1090 OF 2009 Sameer Rajaram Patil ..Petitioner versus The State of Maharashtra ..Respondents WITH CRIMINAL WRIT PETITION NO. 1091 OF 2009 Vincent Vilfred Pareira ..Petitioner versus The State of Maharashtra ..Respondents Mr. S. M. Marwadi and Mr. Vinayak V. Katti for Petitioners. Ms. A. T. Jhaveri – APP for State. 2 CORAM : S. A. BOBDE, J. DATED : 23RD SEPTEMBER, 2009. ORAL ORDER : 1. Criminal Writ Petition No. 1089 of 2009 is for release of of vehicle, viz. Commander Jeep (Mahindra) bearing Registration No. MH-04 AA-4913 and Criminal Writ Petition No. 1090 of 2009 is for release of two rifles viz. one bearing No. 1147343 of .22 caliber and another bearing No. 38399 of .3006 caliber. 2. The learned counsel for the petitioners after addressing the court for some time, seeks leave to withdraw Criminal Writ Petition Nos. 1089 and 1090 of 2009. Accordingly, both the Petitions are allowed to be withdrawn. 3. Criminal Writ Petition No. 1091 of 2009 is for release of Toyota Innova Car bearing Registration No. MH-04, CM 6810 belonging to the petitioner – Vincent Vilfred Pareira. The facts emerging from the prosecution case are that the accused Sameer Rajaram Patil and Vincent Vilfred Pareira were apparently found inside a forest along with search light and rifles in the course of hunting. No animal actually hunted was seen on the spot or recovered. It is not the 3 prosecution case that they actually killed any animal. They had apparently entered forest in (Mahindra) Commander Jeep and they were carrying two rifles i.e. one bearing No. 1147343 of .22 caliber and another bearing No. 38399 of .3006 caliber. This vehicle and the rifles have rightly been seized by the forest officers and the owners of the vehicle and rifles have not pressed the writ petitions for their release. 4. Criminal Writ Petition No. 1091 of 2009 is concerning the vehicle, viz. Toyota Innova Car bearing Registration No. MH-04, CM 6810, which was found parked in the restaurant near the forest where the accused apparently had their dinner. The rifles were allegedly transported from Palghar to Kinavali in this car. Rifles were admittedly not found inside the vehicle. This vehicle has also been directed to be seized along with the other items i.e. (Mahindra) Commander Jeep and rifles which were actually used for entering the forest and for hunting. 5. Mr. Marwadi, the learned counsel for the petitioner submitted that the definition of hunting in The Wild Life (Protection) Act, 1972 is wide and Section 39 of the Act provides that a vehicle that has been used for committing offence is liable to be seized and becomes the property of the Government under Section 39 of the Act. According to the petitioner the vehicle in question i.e. Toyota Innova Car bearing Registration No. MH-04, 4 CM 6810, has not been used for hunting and therefore may be released to the petitioner who is the registered owner. 6. Section 2(16) of the Act defines hunting and reads as follows:- “hunting”, with its grammatical variations and cognate expressions, includes,- [(a) killing or poisoning of any wild animal or captive animal and every attempt to do so,- (b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every attempt to do so;] (c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds of reptiles;” The section clearly includes not only killing of any wild animal and the other acts mentioned therein within the meaning of a definition “hunting” but undoubtedly it includes every attempt to do any act within the definition of “hunting”. 7. Section 39 provides that the hunted wild animal and other things including the vehicle shall be the property of the State Government if it is used in hunting . Section 39 reads as follows: 5 “39. Wild Animal, etc. to be Government property. - (1) Every – (a) wild animal, other than vermin, which is hunted under Sec. 11 or sec.29 or sub-section (6) of section 35 or kept or [bred in captivity or hunted1] in contravention of any provisions of this Act or any rule or order made thereunder, or found dead, or killed [***] 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; [2(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 provision 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 article, trophy, uncured trophy or meat [derived from such animal or any vehicle, vessel, weapon, trap, or tool used in such hunting, 3] shall be the property of 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. 6 (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.” 8. At this stage, it is not possible to enter into the facts because they have not been determined and decide finally whether this vehicle i.e. Toyota Innova Car bearing Registration No. MH-04, CM 6810, was used for the offence of hunting. Prima facie, however it appears that this vehicle has not been used for hunting i.e. for killing any wild animal or capturing, coursing, snaring, tapping or injuring any wild animal or for any attempt to do so since even according to the prosecution the vehicle was found parked at a restaurant and the accused entered the forest in another vehicle i.e. (Mahindra) Commander Jeep, referred to above, which has been seized. 9. The learned APP submitted that the vehicle can be said to have been used for hunting because one of the witnesses has stated that rifles were carried from Palghar to Kinavali in it. Assuming that statement to be true, it does not appear to be part of “hunting” as defined in Section 2(16). The connection with the act of hunting is remote. Indeed it can be said that every vehicle in which the accused travelled or carried any weapon at any 7 stage which is eventually used in hunting would become liable to be seized, even if the vehicle is not actually used in hunting. That does not appear to be intention of the Parliament. 10. Having regard to the circumstances, I consider it appropriate in the interest of justice to direct that the said vehicle viz. Toyota Innova Car bearing Registration No. MH-04, CM 6810, be released to the petitioner on his executing bond that he shall not alter vehicle and shall produce the same as and when directed by the trial court. The fate of the vehicle shall depend on the finding of the trial court as to whether it was involved in hunting. 11. Mr. Marwadi, the learned counsel for the petitioner, however, points out a disturbing aspect of this case. The learned counsel has referred to a photograph in the newspaper and a copy of Video CD of a news items on television channel which appears to show that much after the incident in question this vehicle was found parked near forest stream and certain officers who have not yet been identified were making merry in the forest. According to the learned counsel the CD, a copy of which has been served on the respondents show that such persons were in an inebriated condition and certain bottles of liquor were also noticed on the site. Mr. Marwadi the learned counsel for the petitioner has contended that the CD shows that an attempt was made by one person to hush up the matter by asking the 8 journalist not to proceed with the filming. The respondents have filed an affidavit of one Dunda Balu Mukane – Assistant Conservator of Forests, Shahapur, who has emphatically denied the contents of the newspaper as also the CD. The said deponent has called the CD doctored and concocted besides being defamatory and derogatory. It is further stated that the Chief Conservator of Forests has already instituted an enquiry within 48 hours of the said incident and the reports are negative for alcohol consumption. Having regard to the fact that the enquiry is pending before the Chief Conservator of Forests, it would be appropriate in the interest of justice to direct that the enquiry be completed within a period of eight weeks from today and an Action Taken Report be submitted to this court. 12. In the circumstances it is directed that the vehicle in question viz. Toyoto Innova Car bearing Registration No. MH-04, CM 6810, be released to the petitioner on the aforementioned condition and enquiry report be submitted to this court. 13. The petition shall remain pending only for the purpose of considering the enquiry report. 14. Stand over to 25th November, 2009. (S. A. BOBDE, J.)