IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Crl.MC.No. 3099 of 2009 --------------------------------------- CRRP.44/2009 of SESSIONS COURT, PALAKKAD OR.17/2009 OF MUKKALI FOREST STATION .................... PETITIONER/RESPONDENT: T.PARTHIPAN, S/O. THODAHTHAMMA GOUDER, 2/42 A, VELLIYAMKADU, KARAMADA, METTUPALAYAM, COIMBATORE. BY ADV. SRI.SUNNY MATHEW RESPONDENT/REVISION PETITIONER: STATE OF KERALA THROUGH THE DEPUTY RANGER, MUKKALI FOREST STATION, MUKKALI, MANNARKKAD, PALAKKAD DIST. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3099 of 2009 -------------------------- ORDER Pick Up Van TN-43/B 5180 belonging to the petitioner was seized by the forest officials in O.R.No.17/2009 of Mukkali Forest Station, registered for the offences under Sections 2(1)(2), 2(16)(a)(b), 9, 39(a)(d), 50, 51 and 57 of Wild Life Protection Act, 1972 and Section 27(1)(e)(iv) of Kerala Forest Act, 1961. The allegation is that on getting reliable information that illegal sale of wild snakes are being done by one Devasahayam, the forest officials on 7.5.2009 contacted that person without disclosing their official designation and agreed to purchase the snakes and waited at Kottathara and Devasahayam came there in a motor bike followed by the pick up van and when demanded by the officials the accused showed two snakes which were kept under the driver's seat in the pick up van and the vehicles and the snakes CRMC 3099/09 2 were seized and the case was registered. Seizure of the vehicles, though reported, were not produced before the Magistrate. Petitioner filed C.M.P.No. 1024/2009 under Section 457 of Code of Criminal Procedure for interim custody of the pick up van. By Annexure-A1 order, learned Magistrate granted interim custody on conditions. State challenged that order before Sessions Court, Palakkad in Crl.R.P.No.44/2009. Learned Sessions Judge, following the decision of the Apex Court in State of U.P. v. Lalloo Singh ((2007) 7 SCC 334), held that Section 457 of Code of Criminal Procedure cannot be invoked by the learned Magistrate to grant interim custody of a vehicle seized under the Wild Life Protection Act and if at all, only a petition under Section 451 of Code of Criminal Procedure would lie, if the vehicle is produced before the learned Magistrate. By Annexure-A2 order, the revision was allowed, quashing Annexure- A1 order. This petition is filed under Section 482 CRMC 3099/09 3 of Code of Criminal Procedure to quash Annexure-A2 order contending that the vehicle, even if involved in commission of an offence under the Wild Life Protection Act, would become the property of the Government only on conviction and therefore, learned Magistrate could grant interim custody of the vehicle and Annexure-A2 order is to be quashed. 2. Learned counsel appearing for the petitioner pointed out that sub-section (4) of Section 50 of Wild Life Protection Act empowers the forest officials to seize vehicle. It mandates that the vehicle, so seized, shall be taken before the Magistrate forthwith and the officials cannot be allowed to circumvent the provisions by not producing the vehicle before the Magistrate and if the vehicle is produced, as held by the Apex Court in Lalloo Singh's case (supra), a petition under Section 451 of Code of Criminal Procedure would lie and petitioner is entitled to get interim custody of the vehicle and therefore, learned Sessions CRMC 3099/09 4 Judge was not justified in quashing Annexure-A1 order. 3. Learned Public Prosecutor argued that as declared by the Apex Court in Lalloo Singh's case (supra), when the vehicle seized under the provisions of Wild Life Protection Act was not produced before the Magistrate, Section 457 of Code of Criminal Procedure cannot be invoked and therefore, learned Sessions Judge rightly set aside Annexure-A1 order and there is no reason to interfere with that order. 4. The Honourable Supreme Court in Lalloo Singh's case (supra), analysing the provisions of Section 50 of Wild Life Protection Act and Section 457 of Code of Criminal Procedure, held that interim custody cannot be granted by the Magistrate under Section 457 of Code of Criminal Procedure, when sub-section (4) of Section 50 mandates that the things seized under the Section are to be produced before the Magistrate forthwith “to be CRMC 3099/09 5 dealt with according to law” and interim custody could be granted only under Section 451 of Code of Criminal Procedure. 5. Forest Officials seized the vehicle invoking the power under Section 50 of Wild Life Protection Act, 1972. Sub-section (4) of Section 50 mandates that any person detained or any property seized in exercise of the powers provided under Section 50, shall forthwith be taken before the Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard. Though Section 39 of Wild Life Protection Act provides for confiscation, as declared by the Apex Court, the vehicle seized under Section 50, for allegedly committing an offence under the Wild Life Protection Act, would become the property of the Government only on entering a conviction by the Magistrate. Till then, it is not the property of the Government. If that be so, when sub-section (4) CRMC 3099/09 6 of Section 50 mandates that the things seized shall be produced before the Magistrate forthwith, so that Magistrate can deal with it according to law, Section 451 of Code of Criminal Procedure would definitely applies and Magistrate can grant interim custody of the vehicle. 6. In view of the decision of the Apex Court in Lalloo Singh's case (supra), though the seizure was reported to the Magistrate, when the vehicle was not produced before the Magistrate, an application under Section 457 of Code of Criminal Procedure would not lie and interim custody cannot be granted under Section 457 of Code of Criminal Procedure. At the same time, the right available to the owner of a vehicle, to get interim custody of the vehicle under Section 451 of Code of Criminal Procedure, if the vehicle is produced before the Magistrate under sub-section (4) of Section 50 of Wild Life Protection Act, cannot be allowed to be defeated by its non production, in violation of the mandatory CRMC 3099/09 7 provisions under Section 50(4) of Wild Life Protection Act. As the law mandates that on its seizure it shall be produced before the learned Magistrate to be dealt with according to law, no official is entitled to violate the law. It is relevant to note that sub-section (2) of Section 50 of Wild Life Protection Act, which originally provided power to the officials of the Forest Department to grant interim custody, was deleted. Hence, sub-section (4) of Section 50 is to be given its full effect. In such circumstances, to secure justice, necessary directions are to be issued under Section 482 of Code of Criminal Procedure to the forest officials to produce the vehicle before the Magistrate, so that petitioner could approach the Magistrate under Section 451 of Code of Criminal Procedure and the Magistrate could consider the question of granting interim custody of the vehicle on conditions. CRMC 3099/09 8 Petition is disposed directing Deputy Ranger, Mukkali Forest Station to produce pick up van TN- 43/B 5180 seized in O.R.No.17/2009 of Mukkali Forest Station forthwith before the concerned Magistrate. On such production, petitioner is entitled to file a petition under Section 451 of Code of Criminal Procedure for interim custody. On filing the petition, learned Magistrate is competent to grant interim custody of the vehicle on sufficient conditions. 28th October, 2009 (M.Sasidharan Nambiar, Judge) tkv