HIGH COURT OF UTTARAKHAND AT NAINITAL. (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the Case. Writ Petition No. 636 of 2008 (M/S) Krishna Singh Garbiyal & another … Petitioners Vs State of Uttarakhand, through Secretary Home, Dehradun … Respondent Approved for reporting ______________________ Not approved for reporting Date of Decision 27th June, 2008 Initial of Judge. (B.C. Kandpal, J.) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ petition No. 636 of 2008 (M/S) Krishna Singh Garbiyal & another … Petitioners Vs State of Uttarakhand, through Secretary Home, Dehradun … Respondents Sri R.S. Sammal, learned counsel for the petitioners Sri G.S. Sandu, learned G.A. assisted by Sri S.S. Adhikari, learned A.G.A. for the State. Hon’ble B.C. Kandpal, J. By way of this petition under Section 226 of the Constitution of India, the petitioners have challenged the order dated 19.10.2007 passed by learned C.J.M., Champawat in a case No. 9/sha/07-08, State Vs Gautam Singh Garbiyal & another as well as the judgment and order dated 14.03.2008 passed by learned Sessions Judge, Champawat in Criminal Revision No. 48 of 2007, Gautam Singh Vs State of Uttarakhand, which are annexure Nos. 1 and 2 to the petition. 2. Brief facts of the case are that the police apprehended one Gautam Singh Garbiyal and Fanne along with 5Kg of Yarsha Gamba in their possession. The police ceased the contraband and prosecuted the accused persons under the provision of Wild Life Protection Act. 3. An application was filed by the petitioner No. 2 and other accused persons for releasing of the Yarsha Gamba recovered from their possession. The Chief Judicial Magistrate vide order dated 19.10.2007 rejected the application under the provision of Section 451 of the Cr.P.C. 4. The revision was preferred against the petitioner No. 2 against the aforesaid order which was also dismissed vide order dated 14.03.2008. 5. Feeling aggrieved by the aforesaid orders of the courts below, the petitioners preferred this petition before this Court. 6. Heard Sri R.S. Sammal, learned counsel for the petitioners, Sri G.S. Sandhu, learned G.A. assisted by Sri S.S. Adhikari, learned counsel for the respondent and perused the record. 7. Sri R.S. Sammal, learned counsel for the petitioners has submitted before the court that in view of the Government Order dated 18.01.2001 contained as Annexure No. 6 to the rejoinder affidavit, the possession of the Yarsha Gamboo with the petitioner No. 2 and his companion cannot be said to be illegal as the petitioner being local resident of the place from where Yarsha Gamboo was recovered from their possession could have possessed the contraband. 8. Learned Government Advocate has made rival contention by inviting my attention towards the provision of Section 17-A of the Wild Life Protection Act. He has submitted that the petitioners were carrying the recovered contraband for the purpose of sale. Hence, the petitioner No. 2 and his companion have clearly violated the provision of the Act and the recovery is absolutely justified. 9. According to his submission, the court below have not committed any manifest error in rejecting the application moved by the petitioner No. 2 and his companion. In order to 2 resolve the controversy, it would be pertinent to quote the provision of Section 17-A of the Wild Life Protection Act, which reads as under:- “Protection of Specified Plants 17-A Prohibition of picking, uprooting, etc. of specified plants:- Save as otherwise provided in this Chapter, no person shall- a) willfully pick, uproot, damage, destroy, acquire or collect any specified, by notification, by the Central Government. b) Possess, sell, offer for sale, or transfer by way of gift or otherwise, or transport any specified plant, whether alive or dead or part or derivative thereof: Provided that nothing in this section shall prevent a member of a Scheduled Tribe, subject to the provision of Chapter IV, from picking, collecting or possessing in the district he resides any specified plant or part or derivative thereof for his bona fide personal use.” 10. On bare perusal of the provision of Section 17-A, it is clear that firstly the petitioner should belong to the same district from where the recovery has been made and secondly, the recovered contraband should be for the personal bona fide use of the petitioners. 11. In the instant case, petitioner No. 1 has neither been made an accused by the prosecution agency nor any recovery of the contraband has been made from his possession. The petitioner No. 1 cannot be said to be an aggrieved person at this stage in any manner, therefore, this 3 writ petition filed by him is misconceived and at this stage no relief is to be granted to petitioner No. 1. 12. As far as the petitioner No. 2 is concerned, firstly he is not the resident of the same District from where the recovery has been made in view of the proviso of Section 17-A of the Wild Life Protection Act. He belongs to District Pithoragarh while the recovery of the contraband article has been recovered from the District Champawat which is on different District. Hence, the petitioner No. 2 cannot get the benefit of the provision made in the proviso of Section 17-A of the Act. The second aspect of the matter is that the contraband was being carried by the petitioner No. 2 and his companion for the purpose of sale at the time of search and seizure. The protection to petitioner No. 2 and his contention could have been extended only when the contraband was being carried by these persons for bona fide personal use. The recovery of huge quantity of Yarsha Gamba i.e. 5 Kg recovered from their possession, itself indicates that the same was not being carried by these persons for bona fide personal use. It has also been evident from the perusal of the recovery memo at this stage that the same was being carried by these persons for sale. I am therefore, of the definite view that the petitioners are not entitled to get the benefit of the provision of Section 17-A proviso, at this stage. 13. As far as the provision contained in Government Order, which has been annexed as annexure No. 6 to this writ petition is concerned, I am again of the view that the Government Order issued by the Government 18.01.2001 is not going to override the provision of the Act. Therefore, only on the basis of the above Government Order, the petitioner No. 4 2 and his companion are not going to get any benefit at this stage. 14. In view of the above, I do not find any infirmity in the impugned orders passed by the courts below. The petition lacks merit and is liable to be dismissed. 15. Accordingly, the petition is dismissed in-limine. 16. Consequently, the interim relief application No. 1940 of 2008 is dismissed and urgency application No. 1380 of 2008 is disposed of accordingly. (B.C. Kandpal, J.) 27.06.2008 ASWAL 5