IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.MC.No. 2429 of 2009() ------------------------------------ CMP.542/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, DEVIKULAM .................... PETITIONER/ACCUSED ---------------------------------- R. KANAN, S/O. RAJU, G.K.BHAVAN SANTHANPARA KARA, SANTHANPARA VILLAGE, UDUMBANCHOLA TALUK. BY ADV. MR.LATHEESH SEBASTIAN RESPONDENTS/COMPLAINANT --------------------------------------------- 1. STATE OF KERALA, REP. BY DIRECTOR GENERAL PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. FOREST RANGE OFFICER, DEVIKULAM FOREST RANGE, DEVIKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2429 of 2009 -------------------------- ORDER An autorickshaw KL-17/C 6728, owned by the petitioner, was seized by forest officials while transporting 'tusk' removed from an illegally hunted wild elephant. Petitioner filed C.M.P.No. 542/2009 in O.R.No.25/2008 of Devikulam Forest Range before Judicial First Class Magistrate's Court, Devikulam for interim custody of the vehicle under Section 451 of Code of Criminal Procedure. Finding that the vehicle was seized under Section 50(C) of Wild Life (Protection) Act, 1972 and is liable to be confiscated under Section 51(2) of the Act and vehicle was valued at Rupees One lakh by the Assistant executive Engineer, PWD Mechanical Division, Chalakudy, learned Magistrate granted interim custody of the vehicle to the petitioner on deposit of Rupees One lakh, providing that if the proceedings before the authorised officer ends in CRMC 2429/09 2 confiscation of the vehicle, the authorised officer is entitled to receive the amount deposited in court or otherwise, petitioner is entitled to get the amount released. The order also directs the authorised officer to complete the confiscation proceedings if petitioner fails to deposit the amount. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A1 order contending that under the provisions of the Act, authorised officer has no jurisdiction to confiscate the vehicle and confiscation could only be by the Magistrate after the trial and in such circumstances, the direction to complete the confiscation proceedings and that on completing the confiscation proceedings, if the vehicle is confiscated by the authorised officer, he is entitled to receive the amount deposited in court are illegal and are to be quashed. Reliance was placed on the decision of this Court in Mathew v. Range Officer (2004 (2) KLT 865). CRMC 2429/09 3 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3.Learned counsel appearing for the petitioner, relying on the decision of this Court in Mathew's case (supra), argued that the Act only provides for forfeiture and it is for the court to decide whether the vehicle involved is to be confiscated or not and in such circumstances, directions passed by the Magistrate are illegal and are to be quashed. Learned counsel argued that in Mathew's case (supra), this Court had directed to give interim custody of the vehicle to the owner, on furnishing security of immovable property and in such circumstances, instead of directing to deposit value of the vehicle, petitioner is to be permitted to furnish security of immovable property, to get the vehicle released. Learned Public Prosecutor submitted that vehicle cannot be given interim custody without furnishing sufficient security. CRMC 2429/09 4 4. This Court, in Mathew's case (supra), considered an identical question whether Forest Range Officer is competent to confiscate the vehicle or it is for the Magistrate, on conviction, to confiscate the vehicle. It was held that it was not at the time when the vehicle is seized that it becomes the property of the Government, but, only when it is found by a competent court that the offence is committed, it becomes the property of the Government and till that decision is arrived at, interim custody of the vehicle could be granted. In the light of the said decision, the direction of the Magistrate to the authorised officer, to proceed with confiscation proceedings will not stand. 5. Annexure-A2 order is quashed. Learned Magistrate is directed to grant interim custody of the vehicle to the petitioner, being the registered owner of autorickshaw KL-17/C 6728, on furnishing bank guarantee for Rupees One lakh or furnishing CRMC 2429/09 5 sufficient security of immovable properties to the satisfaction of the learned Magistrate with two solvent sureties for the like sum, making it clear that petitioner is liable to produce the vehicle before the Magistrate as and when directed and shall not alienate or transfer the vehicle without permission of the Magistrate. Petition is disposed. 10th August, 2009 (M.Sasidharan Nambiar, Judge) tkv