IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 OP(Crl.).No. 895 of 2011(Q) --------------------------- CMP NO.150/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD OR NO.24/2010 OF FOREST RANGE OFFICE, KASARAGOD PETITIONER/PETITIONER: -------------------- ABDUL SAMAD, S/O.ADAM KUNHI, R/AT SOMPADY HOUSE, SAVANOOR, P.O.PUTHUR, KARNATAKA STATE. \ BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S)/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY GOVERNMENT PLEADER SHRI K.J.MOHAMMED ANZAR THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.) No.895 of 2011 -------------------------------------- Dated this the 21st day of March, 2011. JUDGMENT Ext.P1, order dated January 28, 2011 in O.R.No.24 of 2010 of Forest Range Office, Kasaragod refusing to release the vehicle by way of interim custody to the petitioner is under challenge in this petition. 2. O.R.No.24 of 2010 is registered against the accused therein for offences punishable under Section 27(1)(e)(iv) of the Kerala Forest Act (for short, “the Forest Act”) read with Sections 2, 9, 39 and 50 of the Wild Life Protection Act (for short, “the Act”) for alleged trespass into the reserve forest and hunting an Indian Bison. When the carcass was being carried in the vehicle involved, forest officials seized the same. The vehicle was produced before learned Chief Judicial Magistrate, Kasaragod. Petitioner who is the brother of one of the accused in O.R.No.24 of 2010 claiming to the registered owner of the vehicle filed C.M.P.No.150 of 2011 before learned Chief Judicial Magistrate requesting that interim custody of the vehicle be released to him. Learned Chief Judicial Magistrate considered the request and by Ext.P1, order rejected it. Learned Chief Judicial Magistrate observed that the offences alleged are serious in nature, the object of the Act is to preserve and protect the wild life and a liberal approach in such matters is unwarranted, for the same is likely to frustrate the provisions of the Act. Learned counsel submitted that even the OP(Crl.) No.895/2011 2 amended provisions of Sections 39 and 50 of the Act do not take away power of the criminal court to release the vehicle by way of interim custody and if the vehicle is kept idle it will get damaged and lost which is not advantageous to either the petitioner or the State Government. In such circumstances it is within the power of the court to order release of the vehicle. Learned Public Prosecutor has opposed the petition contending that serious offences are involved and that apart from the case registered by the Range Office, the Police also has registered a case against the accused for offences under the Indian Arms Act. Learned Public Prosecutor submitted that in matters of this nature a strict view is to be taken. 3. I have gone through the statement filed by the Range Officer in reply to the averments in the petition. It is not disputed that petitioner is the brother of one of the accused in the case. Records prima facie show that vehicle was used for commission of the offences. The Range Officer has produced photographs showing carcass being seized from the dickey of the vehicle. True that the offence alleged is serious in nature and that the object of the Act is to protect wild life. But the question arises whether until final disposal of the cases, appeals and revisions if any arising therefrom the vehicle is to be kept idle in which case it is possible that it will get rusted, damaged and lost. The Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat OP(Crl.) No.895/2011 3 (2003(2) KLT 1089) has stated the guidelines to be followed with regard to interim custody of material objects seized in cases. 4. Though a contention is raised on behalf of the respondent that in view of amended provisions of Sections 39 and 50 of the Act vehicle involved is the property of the Government and not liable to be released under Section 451 of the Code of Criminal Procedure (for short, “the Code”), reply is the decision of the Supreme Court in State of M.P. v. Madhukar Rao (2008(2) KLT 105). There it was held that Section 50 and amendments made thereunder do not affect the Magistrate's power to make an order of interim release of vehicle under Section 451 of the Code. 5. Since possibility of the vehicle getting damaged and rendered useless when kept idle cannot be ruled out I am inclined to allow the request of petitioner but on stringent conditions so that vehicle is made available as and when required by the court or other appropriate authority and use of the vehicle for similar purposes is excluded. Resultantly this petition is allowed in the following lines: A. Ext.P1, order is set aside and C.M.P.No.150 of 2011 (in O.R.No.24 of 2010 of Forest Range Office, Kasaragod) is allowed. B. The vehicle shall be released to the petitioner subject to his complying with the following conditions: (i) Petitioner shall produce bank guarantee for Rupees ten lakhs OP(Crl.) No.895/2011 4 before the learned Chief Judicial Magistrate, Kasaragod. (ii) The vehicle shall not be dismantled or disposed of in any manner whatsoever until culmination of the proceeding before the court or other appropriate authority as the case may be. (iii) Petitioner shall produce photocopy of the vehicular documents including registration particulars before the learned Chief Judicial Magistrate to satisfy the learned Magistrate that he is the registered owner in possession of the vehicle. (iv) Petitioner shall produce photographs of the vehicle attested by him showing the registration number of the vehicle and produce the same before the learned Chief Judicial Magistrate. (v) The vehicle shall not be used for commission of any offence during the period the bond remains in force. If any case is registered by any authority for alleged use of the vehicle for any offence whatsoever, that will be sufficient to cancel the bond executed by the petitioner and to take custody of the vehicle. (vi) Petitioner shall execute a bond undertaking to produce the vehicle as and when directed by the court or any other authority as the case may be in the course of investigation or trial or other proceedings, undertaking to comply with the conditions mentioned above and that in case the vehicle is lost, damaged, dismantled or otherwise disposed of while in the custody of petitioner or that for any reason whatsoever he failed to produce the vehicle as directed by OP(Crl.) No.895/2011 5 the Investigating Officer, court or other authority, value of the vehicle as assessed by the appropriate authority shall be recovered from the bank guarantee. THOMAS P.JOSEPH, Judge. cks