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CASE NO.: Appeal (crl.)  963 of 2001

PETITIONER: State of U.P. &  Anr

RESPONDENT: Lalloo Singh

DATE OF JUDGMENT: 20/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Allahabad High Court allowing the revision  petition filed by the respondent. The question of importance  involved in this appeal relates to the ambit of Section 50(4) of  the Wild Life (Protection) Act, 1972 (in short the ’Act’).  Connected issues relate to the scope for exercise of jurisdiction  under Section 457 of the Code of Criminal Procedure, 1973 (in  short the ’Code’).

2.      Background facts in a nutshell are as follows:         One Hoshiyar Singh, the brother of the revisionist, Lalloo  Singh was allegedly found carrying sand on a tractor trolley  being dug and loaded from the bed of Jamuna river, within the  sanctuary declared under Section 18 of the Act. The Forest  Authorities intercepted the tractor trolley, arrested Hoshiyar  Singh and seized the tractor trolley in exercise of the powers  conferred under the provisions of the Act. A revision was filed  by Lalloo Singh claiming to be  the owner of the tractor trolley.  He, therefore, moved an application for release of the same.  The VIIth Addl. Chief Judicial Magistrate in exercise of the  powers conferred under Section 457 of the Code released the  tractor trolley in favour of the revisionist on his furnishing  personal bond of Rs.2 lacs and two sureties in the like  amount.  Against that order, the State of UP. through District  Forest Officer, Agra filed a Criminal Revision No.85 of 1999  before the Sessions Judge, Agra which was heard and  disposed of by Special Judge (E.C. Act). The revisional court  being of the view that the tractor trolley seized under the Act,  which has become the property of the Government, held that  same could not be released by the Magistrate, allowed the  revision and set aside the order of the Magistrate. Hence, the  revision by the revisionist, Lalloo Singh was filed as noted  above.  

3.        The High Court by the impugned order held that the  Magistrate had the jurisdiction.

4.      In support of the appeal, learned counsel for the  appellant submitted that the effect of deletion of sub-section  (2) of Section 50 of the Act has not been considered by the  High Court. It also lost sight of the fact that the moment there  is seizure of the seized property it becomes the property of the  Government in terms of Section 39 of the Act.  Section 457 of  the Code has no application because it relates to only when a

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police officer produces the said property before the magistrate.   The officials under the Act are not police officials.

5.      Learned counsel for the respondent on the other hand  submitted that the interpretation given by the High Court to  Section 50 of the Act is correct.   Sub section (2) of Section 50  has no effect on the power of the Magistrate to release the  seized articles.  For application of Section 39 of the Act there  has to be first determination that the seized property in  question was used for the purpose of commission of an  offence.  

6.      Considering the fact that there is diversion of views of   various High Courts, we requested Mr. Ashok Bhan to act as  Amicus Curiae.   

7.      We have heard at length learned counsel for the parties.   It is to be noted that substantial changes have been made in  the Act by the Act 44 of 1991 operating with effect from  2.10.1991.  The major changes so far as the present case is  concerned relate to deletion of  sub-section (2) of Section 50,  insertion of clauses (c) & (d) in sub section (1) of Section 39,  insertion of sub-section 3(a) in Section 50.  

8.      While dealing with the first question, what needs  consideration is whether Section 457 of the Code has any  application to the present case.  Undisputedly, Section 457 of  the Code applies when the seizure of property by a police  officer is reported to a Magistrate under the provisions of the  Code.  There is a marked distinction between police officers  and the officials under the Act as is evident from sub-section  (1) of Section 50.  The said Section so far as relevant reads as  follows:-          "50. Power of entry, search, arrest and  detention.\027(1) Notwithstanding anything  contained in any other law for the time being in  force, the Director or any other officer authorised  by him in this behalf or the Chief Wild Life Warden  or the authorised officer or any forest officer or any  police officer not below the rank of a sub-inspector,  may, if he has reasonable grounds for believing  that any person has committed an offence against  this Act,-

(a) require any such person to produce for  inspection any captive animal, wild animal, animal  article, meat, trophy uncured trophy, specified  plant or part or derivative thereof] in his control,  custody or possession, or any licence, permit or  other document granted to him or required to be  kept by him under the provisions of this Act; (b) stop any vehicle or vessel in order to conduct  search or inquiry or enter upon and search any  premises, land, vehicle or vessel, in the occupation  of such person, and open and search any baggage  or other things in his possession;

(c) seize any captive animal, wild animal, animal  article, meat, trophy or uncured trophy, or any  specified plant or part or derivative thereof, in  respect of which an offence against this Act  appears to have been committed, in the possession  of any person together with any trap, tool, vehicle,  vessel or weapon used for committing any such

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offence and, unless he is satisfied that such person  will appear and answer any charge which may be  preferred against him, arrest him without warrant,  and detain him:

Provided that where a fisherman residing  within ten kilometers of a sanctuary or National  Park, inadvertently enters on a boat, not used for  commercial fishing, in the territorial waters in that  sanctuary or National Park, a fishing tackle or net  on such boat shall not be seized."

9.      Sub-section (2) of Section 50 was omitted by Act 44 of  1991. The amendment  read as follows:

"36. Amendment of Section 50.\027 In Section 50 of  the principal Act,-

(a) in sub-section (1),-

(i) in clause (a), for the words "trophy or uncured  trophy", the words "trophy, uncured trophy,  specified plant or part or derivative thereof" shall be  substituted;

(ii) for clause (c), the following clause shall be  substituted, namely:-

"(c) seize any captive animal, wild animal, animal  article, meat, trophy or uncured trophy, or any  specified plant or part or derivative thereof, in  respect of which an offence against this Act  appears to have been committed, in the possession  of any person together with any trap, tool, vehicle,  vessel or weapon used for committing any such  offence and, unless he is satisfied that such person  will appear and answer any charge which may be  preferred against him, arrest him without warrant,  and detain him:

Provided that where a fisherman, residing  within ten kilometers of a sanctuary or National  Park, inadvertently enters on a boat, not used for  commercial fishing, in the territorial waters in that  sanctuary or National Park, a fishing tackle or net  on such boat shall not be seized.";

(b) sub-section (2) shall be omitted;

(c) after sub-section (3), the following sub-section  shall be inserted, namely:-

"(3-A) Any officer of a rank not inferior to that of an  Assistant Director of Wild Life Preservation or Wild  Life Warden, who, or whose subordinate, has seized  any captive animal or wild animal under clause (c)  of sub-section (1) may give the same for custody on  the execution by any person of a bond for the  production of such animal if and when so required,  before the Magistrate having jurisdiction to try the  offence on account of which the seizure has been  made.";

(d) in sub-section (6), for the words "meat or  uncured trophy", wherever they occur, the words

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"meat, uncured trophy, specified plant, or part or  derivative thereto" shall be substituted;

(e) after sub-section (7), the following sub-sections  shall be inserted, namely:-

"(8) Notwithstanding anything contained in any  other law for the time being in force, any officer not  below the rank of an Assistant Director of Wild Life  Preservation or Wild Life Warden shall have the  powers, for purposes of making investigation into  any offence against any provision of this Act,-

(a) to issue a search warrant;  

(b) to enforce the attendance of witnesses;

(c) to compel the discovery and production of  documents and material objects; and

d) to receive and record evidence.

(9) Any evidence recorded under clause (d) of sub- section (8) shall be admissible in any subsequent  trial before a Magistrate provided that it has been  taken in the presence of the accused person."

Sub-section (2) of Section 50 before omission reads as follows:

"Any officer of a Bank not inferior to that of an  Assistant Director of Wild Life Preservation or Wild  Life Warden, who or chose sub-ordinate has seized  any trap, tool, vehicle, vessel, or weapon under  clause (c) of sub-section (1), may release the same,  on the execution by the owner thereof a bond for  the production of the property to be released, if and  when required, before the Magistrate having  jurisdiction to try the offence on account of which  the seizure has been made."

10.     In view of the clear language of sub-section (1) of Section  50, Section 457 of the Code has no application.  But there is  another provision which also is relevant i.e. Section 451 of the  Code that relates to the order for custody and disposal of the  property pending trial in certain cases.  It provides that when  any property is produced before any criminal Court, during  any enquiry or trial, the Court may make such order as it  thinks fit for proper custody of such property pending the  conclusion of the enquiry or the trial.  It also provides for  action to be taken when the property is subject to speedy and  natural decay.  If the Court otherwise thinks it expedient to do  so, the Court may after recording such evidence as it thinks fit   may pass orders  for sale of the property or disposal thereof.

11.     The real complexity of the issue arises as to what is the  effect of the expression "to be dealt with according to law", as  appearing in sub-section (4) of Section 50 of the Act.  

12.     Learned counsel for the appellant-State has submitted  that when the property on seizure becomes the property of the  Government, the Magistrate cannot pass any order for release  thereof or interim custody thereof.  

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13.     For appreciating this contention reference is necessary to   Section 39 of the Act.  Clause (d) of sub-section (1) of Section  39 deals with a situation when any vehicle, vessel, weapon,  trap or tool has been used for committing an offence and has  been seized under the provisions of the Act.  The twin  conditions are that the vehicle etc. must have been used for  committing an offence and has been seized.  Mere seizure of  the property without any material to show that the same has  been used for committing an offence does not make the seized  property, the property of the Government.  At this juncture, it  is also to be noted that under sub-section (1) of Section 50  action can be taken if the concerned official has reasonable  grounds for believing that any person has committed an  offence under the Act. In other words, there has to be a  reasonable ground for belief that an offence has been  committed.  When any person is detained, or things seized are  taken before the magistrate, he has the power to deal with the  same "in accordance with law".  There is a significant addition  in sub-section (4) by Act 16 of 2003 i.e. requirement of  intimation to the Chief Wild Life Wardon or the officer  authorized in this regard as to the action to be taken by the  Magistrate when the seized  property is taken before a  Magistrate.  A combined reading  of the omitted sub-section (2)  and the substituted sub-section (3A) of the Section 50 makes  the position clear that prior to the omission, the officials under  the Act had the power to direct  release of the seized article.   Under sub-section (1), the power for giving temporary custody  subject to the condition that the same shall be produced if and  when required by the magistrate is indicative of the fact that  the  Magistrate can pass appropriate orders in respect of the  purported seized property which is taken before him.  While  dealing with an application for temporary release of custody,  there cannot be a complete adjudication of the issues involved  as the same is a matter for trial.  While dealing with the  application the Magistrate has to take into account the  statutory mandate that the seized property becomes the  property of the State Government when the same has been  used for commission of an offence under the Act and has been  seized.  It appears that insertion in sub-section (4) relating to  the intimation to the Chief Wild Life officer or the officer  authorized by him is intended to give concerned  official an  opportunity of placing relevant materials on record before the  Magistrate passes any order relating to release or custody.  In  appropriate cases on consideration of materials placed before  him, prayer for such release or custody can be rejected.   

14.     It is to be noted that under sub-section (1) of Section 50  for the purpose of entry, seizure, arrest and detention the  official has to form the belief on reasonable grounds that the  person has committed an offence under the Act. The  Magistrate is, therefore, required to consider these aspects  while dealing with the application as noted above.  It cannot  be a routine exercise.  As noted above, the High Court is not  justified in holding that Section 457 of the Code has  application.   

15.     It appears that by order dated 26.3.2001 respondent was  required to indicate whether he is prepared to deposit a bond  of Rs.2,00,000/-as security. If the said security has been  furnished, because of passage of time the impugned order  shall remain in force, though in view of the analysis made  above the conclusions are not sustainable.  

16.     Learned counsel for the parties could not tell us whether

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the trial in the matter has been completed.  We dispose of the  appeal on clarifying the legal issues involved.

17.     The appeal is accordingly disposed of.