IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 13960 of 2009(Q) -------------------------- Crl.MP.609/2009 of JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM .................... PETITIONER(S): --------------- 1. DIVISIONAL FOREST OFFICER, KOTHAMANGALAM. 2. FOREST RANGE OFFICER, KOTHAMANGALAM. BY GOVERNMENT PLEADER SRI.K.M.PAULOSE RESPONDENT(S): --------------- ABDUL RAHIMAN, S/O. HAMSA, DEVALA BAZAR, DEVALA VILLAGE, GUDALUR TALUK, NILAGIRI DISTRICT, TAMILNADU. ADV. SRI.BAIJU JOHN FOR R1 SRI.JOHN VARGHESE(THOPPIL) FOR R1 SRI.K.N.CHANDRABABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 13960 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of December, 2009 JUDGMENT TATA Sumo vehicle bearing registration No. T.N. 43 Z- 5194 was seized by Forest officials, on the allegation that tiger skin, included in Schedule No.I of Wild Life Protection Act, was being transported therein and respondent/petitioner committed offences under sections 2(16), 2(33), 50(c) of the Wild Life Protection Act, 1972. Though the vehicle was not produced before the Magistrate, factum of seizure was reported. The respondent filed C.M.P. No. 609 of 2009 for interim custody of the vehicle under section 457 Cr.P.C. By Ext.P8 order, the learned Magistrate granted interim custody of the vehicle on executing a bond for Rs.5 lakhs with two solvent sureties each for the like sum, on condition that the vehicle shall be produced before the court or the Forest Officer as and when directed and the vehicle shall not be used for commission of similar offence and endorsement shall be made in the R.C. Book that the vehicle is involved in OR No.7 of 2009 of F.R.O., Kothamangalam in connection with illegal transportation of tiger skin. State has filed this writ petition under Article 226 of the Constitution of India to quash Ext.P8 order. W.P.(C) No. 13960/09 2 2. Learned Government Pleader and the learned counsel appearing for the respondent were heard. 3. The learned Government Pleader questioned the authority of the learned Magistrate to grant interim custody of the vehicle to the respondent. 4. Confiscation proceedings were initiated. But confiscation under the Wild Life Protection Act is possible, only after conviction and not earlier to the conviction, as is the case with commission of an offence under Kerala Forest Act. This Court in Mohammed Ismail V. State of Kerala (2004(3) KLT 322) has already settled the above position, holding that so long as there is no conviction, a vehicle involved in an offence under the Wild Life Protection Act cannot be confiscated and so long as no conviction is entered, Magistrate has power under section 451 Cr.P.C. to deal with the vehicle produced before him. When power is available under section 451 Cr.P.C. to grant interim custody Magistrate has power under section 457 Cr.P.C. also. In such circumstances, the authority of the learned Magistrate to grant interim custody of the vehicle cannot be challenged. 5. Then the question is whether learned Magistrate was justified in granting custody of the vehicle without getting adequate security. I find force in the submission of the learned Government Pleader. Learned Magistrate should not have granted interim custody of the vehicle on mere W.P.(C) No. 13960/09 3 execution of the bond. The learned Magistrate should have directed the respondent to furnish bank guarantee for the value of the vehicle. 6. In such circumstances, learned Magistrate is directed to release the vehicle to the respondent on the conditions provided in Ext.P8 order, but only on production of bank guarantee for Rs.4 lakhs before Magistrate. This writ petition is disposed of as above. M.SASIDHARAN NAMBIAR, JUDGE. Mn.