IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.MC.No. 1789 of 2009() ------------------------- CC.316/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA .................... O.R.NO.14/04 OF KALPETTA FOREST RANGE ....... PETITIONER(S): ACCUSED 2 AND 3: ------------------------------------------------------ 1. M.G.THOMAS, AGED 75 YEARS, M.G.T.VILLA, P.T.USHA ROAD, KOZHIKODE. 2. EAPEN VARGHESE @ SHAJI M.VARGHESE, AGED 48 YEARS, S/O.M.G.VARGHESE, GEO COTTAGE, MANAPPALLY HOUSE, KALPETTA NORTH. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE - FOREST RANGE OFFICER,KALPETTA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1789 of 2009 -------------------------- ORDER Petitioners are accused 2 and 3 in C.C. No.316/08 on the file of Chief Judicial Magistrate's Court, Kalpetta. Prosecution case is that all the accused committed offences under Sections 2(14), 39B, 51 and 57 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Act'). The case as against the first petitioner is that he is the owner of Hotel 'MGT International' near Civil Station, Wayanad at Kalpetta and on 8.4.2004 getting information that trophy of wild animal is kept in the building, Forest Range Officer conducted a raid and seized the trophy from the room used by the first accused, the Manager, who was reportedly hospitalised at that time. The case is that first petitioner, being the owner and second petitioner, being CRMC 1789/09 2 the person in charge of running of the hotel, have also committed offences under Sections 2(14), 39B, 51 and 57 of the Act. This petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings as against the petitioners. 2. It is contended that there is no specific overt act alleged against the petitioners and though the building belongs to the first petitioner, hotel is being managed by the second petitioner and the trophy was seized from the room of the first accused and in the absence of allegation of any overt act against the petitioners, prosecution as against them is only an abuse of process of the court and therefore, the case as against them is to be quashed. 3.Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. The argument of the learned counsel appearing for the petitioners is that Annexure-I charge sheet submitted by the Forest Range Officer itself would show that first petitioner, though is CRMC 1789/09 3 the owner of the hotel, due to his age as well as illness, was not managing the hotel and second petitioner is managing it and in such circumstances, even if first accused committed any offence, first petitioner cannot be prosecuted for the offences and therefore, prosecution as against the first petitioner is an abuse of process of the court and is to be quashed. As against the second petitioner, it is contended that even though second petitioner is running the hotel, the case was foisted due to enmity of the employees of the Zodiac Bar, as the period expired and a case is pending before the Munsiff's Court, Kalpetta for eviction and second petitioner has nothing to do with the offences alleged and if at all, it would lie only against the first accused and therefore, the case as against second petitioner also is to be quashed. 5. Learned Public Prosecutor argued that the offending trophy was seized from the room of the Manager of the hotel and the hotel is owned by the CRMC 1789/09 4 first petitioner and therefore, the presumption is that the offending trophy was kept there with the knowledge of the first petitioner and under Section 57 of the Act, a presumption is available in favour of the prosecution as against the first petitioner also and therefore, the case cannot be quashed exercising the inherent powers of this Court under Section 482 of Code of Criminal Procedure. Learned Public Prosecutor also submitted that as far as second petitioner is concerned, he is the person responsible for running the hotel and in such circumstances question whether offending trophy was kept there with the knowledge and consent of the second petitioner is a matter for decision on evidence and at this stage second petitioner is not entitled to get the proceedings quashed. 6. The presumption provided under Section 57 of the Act can be drawn only if possession, custody or control of any captive animal, animal article, meat (trophy, uncured trophy, specified plant or part or derivative thereof) is established with the CRMC 1789/09 5 accused. If possession, custody or control is established, there is a presumption until the contrary is proved, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant or part or derivative thereof). Therefore, unless possession of the trophy with first petitioner is established, presumption available under Section 57 of the Act cannot be invoked as against him. Annexure-I charge sheet itself shows that first petitioner is not attending to the management of the hotel because of his age and illness. In such circumstances, unless there is material to show that the seized trophy was kept in the building either by first petitioner or at least with his consent or knowledge, first petitioner cannot be prosecuted. In the absence of any such allegation in the final report, prosecution as against the first petitioner, though he is the owner of the hotel, who has nothing to do with the running of CRMC 1789/09 6 the hotel at the relevant time, is only an abuse of process of the court and it can only be quashed. 7. With regard to second petitioner, the position is different. The materials produced establish that second petitioner was running the hotel for the first petitioner at the relevant time. In such circumstances, second petitioner cannot express ignorance of the presence of offending trophy seized from the hotel. The question whether second petitioner is liable for the possession or not cannot be decided at this stage, as it can be decided only after recording the evidence. Hence, case as against second petitioner cannot be quashed invoking the inherent powers under Section 482. If charge is not framed, second petitioner is at liberty to seek an order of discharge under Section 239 of Code of Criminal Procedure. The petition is partly allowed. C.C.No. 316/2008 on the file of Chief Judicial Magistrate's Court, Kalpetta as against first petitioner/second CRMC 1789/09 7 accused is quashed. The case as against the second petitioner is to be continued. 1st July, 2009 (M.Sasidharan Nambiar, Judge) tkv