IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 Crl.MC.No. 357 of 2010() ------------------------------------ CMP.NO.4898/2009 OF ADDL.CHIEF JUDICIAL MAGISTRATE (E.O.),ERNAKULAM ...... (CRIME NO.1420/2009 OF E.T. SOUTH POLICE STATION) PETITIONER(S): 2ND ACCUSED: ----------------------------------------------- ABDUL AZEEZ, AGED 35 YEARS, S/O.HAMSA HAJI, PULIYAKKOTTU VEEDU, PATTIKKAD P.O., KEEZHATTOOR VILLAGE, PERINTHALMANNA. BY ADV. MR.ANIL KUMAR SREEDHARAN RESPONDENT(S): DEFACTO COMPLAINANT AND STATE: ------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY C.I. OF POLICE, E.T.SOUTH POLICE STATION, ERNAKULAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. FOREST RANGE OFFICER, KODANAD RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 & R2 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.357 of 2010 -------------------------- ORDER Car KL-53/A 141 was seized by the police in Crime No.1420/2009 of Ernakulam Town South Police Station, registered for the offences under Sections 39(b), 42, 44, 49(b) and 51 of Wild Life (Protection) Act, 1972. Petitioner filed C.M.P.No. 4898/2009 under Section 451 of Code of Criminal Procedure before Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam for interim custody of the vehicle. By Annexure-A1 order, learned Magistrate dismissed the petition holding that as the vehicle was allegedly used for transporting ivory tusks, it is liable to be confiscated under Section 61A of Kerala Forest Act and therefore, the vehicle cannot be released to the petitioner. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A1 order and to get the vehicle released. CRMC 357/10 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel, relying on the decision of this Court in Mohammed Ismail v. State of Kerala (2004 (3) KLT 322), argued that the Magistrate is competent to grant interim custody of the vehicle when the offences alleged are only under the Wild Life (Protection) Act, 1972 and confiscation of the vehicle would arise only on conviction of the accused for the said offences and hence, Annexure- A1 order is to be quashed. 4. Learned Magistrate dismissed the petition for the sole reason that as the vehicle was allegedly used for transporting ivory tusks, it is liable to be confiscated under Section 61A of Kerala Forest Act. 5. Section 61A of Kerala Forest Act provides that notwithstanding anything contained in the foregoing provisions of the said Chapter, where a forest offence is believed to have been committed CRMC 357/10 3 in respect of timber, charcoal, firewood or ivory, which is the property of the Government, the officer seizing the property under Section 52(1) shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette. 6. Confiscation under Section 61A of Kerala Forest Act could only be in respect of a vehicle used for committing a forest offence. There is no case for the prosecution that any forest offence was committed. On the other hand, the vehicle was seized on the allegation that offences under Wild Life (Protection) Act were committed. 7. Section 50 of Wild Life (Protection) Act provides for search, arrest and detention. Under sub-section (3), it shall be lawful for any of the officers referred to in sub-section (1) to stop and CRMC 357/10 4 detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of the Act for the purpose of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, he could be arrested without warrant. Under sub- section (4), any person detained or things seized, under the foregoing power, shall forthwith be taken before the Magistrate to be dealt with according to law. 8. Confiscation provided under Wild Life (Protection) Act is only under Section 51(2). Under Section 51(2), a court, trying the offence under this Act, upon conviction of the person under the Act, may order that the vehicle used for commission of the offence shall be forfeited to the State. Till then, it is not the property of the Government. If so, interim custody could be granted on sufficient conditions. Therefore, learned Magistrate was not justified in dismissing the CRMC 357/10 5 petition on the ground that the property is liable for confiscation under Section 61A of Kerala Forest Act. Petition is allowed. Annexure-A1 order is quashed. Additional Chief Judicial Magistrate (Economic Offences), Ernakulam is directed to pass appropriate order in C.M.P.No.4898/2009, in accordance with law. 16th February, 2010 (M.Sasidharan Nambiar, Judge) tkv