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CASE NO.: Appeal (civil)  5196 of 2001

PETITIONER: State of M.P. & Ors.

RESPONDENT: Madhukar Rao

DATE OF JUDGMENT: 09/01/2008

BENCH: H.K.Sema & Aftab Alam

JUDGMENT: J U D G M E N T

W I T H

C.A.Nos.5197, 5198, 5199, 5200 of 2001, SLP) Nos.2095 and  8024 of 2002 and Criminal Appeal No.487 of 2006

AFTAB ALAM,J.

       This judgment will dispose of the four appeals in all of  which the same question arises for consideration.  The question  is whether a vehicle or vessel etc. seized under Section 50(1)(c)  of the Wild Life (Protection) Act, 1972 (hereinafter referred to  as \021the Act\022) is put beyond the power of the Magistrate to direct   its release during the pendency of trial in exercise of powers  under Section 451 of the Code of Criminal Procedure, 1973  (hereinafter referred to as \021the Code\022).  On behalf of the  appellant, the State of Madhya Pradesh, it is strongly contended  that the answer to the question would be only in the affirmative.   The contention appears to us to be ex facie untenable but in  order to examine the stand of the State Government it would be  necessary to state the facts and circumstances in which the  question arises and to take note of the relevant provisions of  law in light of which it is to be answered.          The facts of the case are taken from Civil Appeal  No.5199 of 2001, the State of Madhya Pradesh vs. Madhukar  Rao, which was the leading case before the High Court. On  March 12, 1997 at about 3.30 a.m., in course of checking a   Sub-Inspector of Excise found a Tata Sumo vehicle, bearing  Registration No.MH.31-H/6919, carrying 206 kgs. of antlers.   The vehicle was owned by Madhukar Rao, the respondent, but  he was not in it at the time of checking.  The Excise Sub- Inspector informed the officers of the Forest Department who  registered a case being Offence No.6527/97 under Sections 39,  42, 43, 44, 49(Kha) and 51(Kha) of the Act.  The four persons  occupying  the vehicle were arrested and the vehicle and the  antlers were seized under Section 50(1)(c) of the Act.  The  Judicial Magistrate, Raipur, was duly informed about the  institution of the case on March 13, 1997.        The respondent, being the owner of the vehicle, moved  the Judicial Magistrate, First Class, Raipur on May 12, 1997 for  its release on Supurdnama.  On behalf of the respondent it was  stated that he was not an accused in the case and he had no  concern with the commission of any offences.  It was further  stated that his neighbour Shri Lohiya, one of the accused in the  case, had borrowed the vehicle on the pretext of going to see his  ailing father. The Magistrate allowed the petition and directed  for release of the vehicle on Supurdnama by order, dated May  12, 1997.  

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    Against the order of the Magistrate, the State  Government filed a revision before the Sessions Judge, Raipur.   In the revision, it was stated that the Magistrate had erred in  allowing the release of the vehicle in disregard of Section 39(d)  of the Act in terms of which the seized vehicle became the  property of the Government and hence, the court had no power  to release it on Supurdnama.  It was further contended that the  power of release under Section 451 of the Code could be  exercised only in respect of vehicles seized by a police officer.   The Sessions Judge by order, dated June 5, 1997 allowed the  revision, relying upon a Bench decision of the Gwalior Bench  of Madhya Pradesh High Court in L.P.A.No.152 of 1996. (Here  it is stated on behalf of the State that the S.L.P. filed against the  order in the L.P.A. was  dismissed by this Court in limine).        After the revision was allowed and the order of release  passed by the Magistrate was set aside,  the Wild Life Warden  and Divisional Forest Officer, Raipur passed an order on June  16, 1997 declaring the seized vehicle as Government property  in terms of Section 39(d) of the Act.        The respondent then went to the High Court at Jabalpur,  in Writ Petition No.4421 of 1997, challenging the decision of  the Sessions Judge and seeking a direction for release of the  vehicle on Supurdnama as ordered by the Magistrate.  The case  of the present respondent along with three other cases (giving  rise to the three other appeals in this batch) was finally heard by  a full bench.  Dharmadhikari,J. (as His Lordship then was) who  authored the full bench judgment held and found that the  Magistrate\022s power to release a vehicle during the pendency of  trial was not, in any way, affected by the legislative changes in  the Act relied upon by the State and in appropriate cases it was  fully open to the Magistrate to pass an order of interim release  of a seized vehicle. The three other cases were also disposed of  following the Full Bench decision in Madhukar\022s case.       The State is in appeal against the order passed by the  High Court.      On behalf of the State, it is contended that after the  amendments made in Section 50 and Section 39(1)(d) of the  Act w.e.f. October 2, 1991 by Act 44 of 1991 there was no way   a vehicle seized for violation of the Act could be released.  The  amendments in Section 50 took away the power from the  Assistant Director of Wild Life Preservation or Wild Life  Warden (or an officer superior to them) and the Magistrate  under the Code, in any event, had no such power.  Moreover,  the amendment of Section 39(1)(d) of the Act made any interim  release of the vehicle further impossible.      In order to appreciate the submissions made on behalf of  the State it would be necessary to examine the relevant  provisions of law.  Chapter VI of the Act contains provisions  dealing with the prevention and detection of offences. The  chapter begins with Section 50 that gives to the specificied  officers the powers of entry, search, arrest and detention.  It is a  long section having as many as nine sub-sections.  Sub-section  (1) which is sub-divided into three clauses is as follows : \02350. Power of entry, search, arrest and  detention -  (1) Notwithstanding anything  contained in any other law for the time being in  force, the Director or any other officer authorized  by him in this behalf or the Chief Wild 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 \026

    (a)        require any such person to produce

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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 the 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  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.\024

Before the Act was subjected to a large number of amendments  with effect from October 2, 1991, Section 50 had sub-section  (2) which was as follows : \023(2) Any officer of rank not inferior to that of an  Assistant Director of Wild Life preservation or  Wild Life Warden, who, or whose subordinate 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 of  bond for the production of the property so  released, if and when so required, before the  Magistrate having jurisdiction to try the offence on  account of which the seizure has been made.\024

The Amendment Act 44 of 1991 deleted sub-section (2) and  inserted in its place sub-section (3-A) which is as follows : \023(3-A). Any officer of a rank not inferior to that of  an Assistant Director of Wild Life Preservation of  [as Assistant Conservator of Forests], 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.\024    

At the same time, amendments were made in Section 39(1)(d)   after which it reads as follows : \02339. Wild animals, etc., to be Government  property \026 (1) Every

(a)     xxx             xxx             xxx             xxx

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(b)     xxx             xxx             xxx             xxx

(c)     xxx             xxx             xxx             xxx

(d) vehicle, vessel, weapon, trap or tool that has  been used for committing an offence and has been  seized under the provisions of this Act, shall be the  property of the State Government, and, where such  animal is hunted in a sanctuary or National Park  declared by the Central Government, such animal  or any animal article, trophy, uncured trophy or  meat [derived from such animal, or any vehicle,  vessel, weapon, trap or tool used in such hunting]  shall be the property of the Central Government.\024   

       Ms.Vibha Datta Makhija, learned counsel appearing for  the State of Madhya Pradesh referred in detail to various sub- sections of Section 50.  She also referred to Section 51 laying  down the penalties for offences committed under the Act,  Section 53 dealing with the punishment for wrongful seizure  and Section 54 dealing with the power to compound offences.   Learned counsel submitted that prior to October 2, 1991, while  sub-section (2) of Section 50 was in existence, the specified  officers were empowered to release any trap, tool, vehicle,  vessel or weapon seized under clause (c) of sub-section (1) in  connection with any offence under the Act. But the provision  was deleted and was substituted by sub-section (3-A) that  limited the power of release only in regard to any captive  animal or wild animal.  The legislative intent was thus clear that  no release was permissible of any article other than a captive  animal or wild animal that could be given in the custody of any  person on execution of a bond.         Learned counsel submitted that Section 50 of the Act  provided a complete and comprehensive scheme in matters of  entry, search, arrest and detention for prevention and detection  of offence under the Act and excluded the application of any  other Act, including the Code, in the matter.  She maintained  that at no time it was open to the Magistrate to direct for interim  release of a vehicle seized under Section 50(1)(c) of the Act.   Previously officers of certain higher ranks had the power to  release the seized vehicle but after deletion of sub-section (2)  the power was taken away from the departmental officers as  well and hence, a vehicle seized for commission of an offence  under the Act could no longer be released on interim basis.  In  support of the submission that Section 50 provided a complete  Code she also referred to Sections 51 and 53 of the Act.  She  submitted that the punishment for wrongful seizure too was  provided under the Act itself and hence, the seizure would not  attract the provisions of any other law, including the Code.  In  support of the submission she relied upon the decision of this  Court in State of Karnataka vs. K.A.Kunchindammed [2002 (9)  SCC 90].  She particularly relied upon paragraph 23 of the  decision.         We are unable to accept the submissions.  To contend  that the use of a vehicle in the commission of an offence under  the Act, without anything else would bar its interim release  appears to us to be quite unreasonable.  There may be a case  where a vehicle was undeniably used for commission of an  offence under the Act but the vehicle\022s owner is in a position to  show that it was used for committing the offence only after it  was stolen from his possession.  In that situation, we are unable  to see why the vehicle should not be released in the owner\022s  favour during the pendency of the trial.         We are also unable to accept the submission that Section

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50 and the other provisions in Chapter VI of the Act exclude  the application of any provisions of the Code.  It is indeed true  that Section 50 of the Act has several provisions especially  aimed at prevention and detection of offences under the Act.   For example, it confers powers of entry, search, arrest and  detention on Wild Life and Forest Officers besides police  officers who are normally entrusted with the responsibility of  investigation and detection of offences; further sub-section (4)  of Section 51 expressly excludes application of Section 360 of  the Code and the provisions of Probation of Offenders Act to  persons eighteen years or above in age.   But it does not mean  that Section 50 in itself or taken along with the other provisions  under Chapter VI constitutes a self-contained mechanism so as  to exclude every other provision of the Code.  This position  becomes further clear from sub-section (4) of Section 50 that  requires that any person detained, or things seized should  forthwith be taken before a Magistrate.  Sub-section (4) of  Section 50 reads as follows : \02350(4). Any person detained, or things seized  under the foregoing power, shall forthwith be  taken before a Magistrate to be dealt with  according to law [under intimation to the Chief  Wild Life Warden or the officer authorized by him  in this regard].\024   It has to be noted here that the expression used in the sub- section is \021according to law\022 and not \021according to the  provisions of the Act\022.  The expression \021according to law\022  undoubtedly widens the scope and plainly indicates the  application of the provisions of the Code.       We find that the full bench of the High Court has  correctly taken the view that the deletion of sub-section (2) and  its replacement by sub-section (3-A) in Section 50 of the Act  had no effect on the powers of the Magistrate to release the  seized vehicle during the pendency of trial under the provisions  of the Code.  The effect of deletion of sub-section (2) and its  replacement by sub-section (3-A) may be summed up thus: as  long as, sub-section (2)  of Section 50 was on the Statute Book  the Magistrate would not entertain a prayer for interim release  of a seized vehicle etc. until an application for release was made  before the departmental authorities as provided in that sub- section.  Further, in case the prayer for interim release was  rejected by the departmental authority the findings or  observations made in his order would receive due consideration  and would carry a lot of weight before the Magistrate while  considering the prayer for interim release of the vehicle. But  now that sub-section (2) of Section 50 stands deleted, an  aggrieved person has no option but to approach the Magistrate  directly for interim release of the seized vehicle.         We are also of the view that the decision in  Kunchindammed is of no help to the State in the present  appeals.  Paragraph 23 of the decision apparently seems to  support the appellant\022s contention but we find it difficult to  apply it in the facts of the present case.  The decision in  Kunchindammed was rendered on the provisions of the  Karnataka Forest Act, 1963.  In that case, an order of  confiscation of the vehicle was passed by the competent  authority and the confiscation order had attained finality.  The  present case arises under the Wild Life Protection Act and the  facts are materially different.               The decision of this Court closer to the issue under  consideration may be found in Moti Lal vs. Central Bureau of  Investigation & Anr. [2002 (4) SCC 713].  In that case an  offence committed under the Act was handed over for  investigation to the Central Bureau of Investigation and the

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action was assailed exactly on the plea that the Wild Life Act  was a special law and it contained comprehensive provisions  for investigation, inquiry, search, seizure, trial and imposition  of punishment and, therefore, the police force establishment  under the Delhi Special Police Establishment Act was not  empowered to investigate the case.  This Court rejected the  contention and after examining in detail the various provisions  of the Act particularly the provisions of Section 50 came to find  and hold as follows : \023The scheme of Section 50 of the Wild Life Act   makes it abundantly  clear that a police officer is  also empowered to investigate the offences and  search and seize the offending articles.  For trial   of offences, the Code of Criminal Procedure is  required to be followed and for that there  is no  other specific provision to the contrary.  The  special  procedure prescribed  is limited for taking  cognizance  of the offence as well as powers are  given to other officers  mentioned  in Section 50  for inspection,  arrest, search and seizure as well as  of recording statement.  The power to compound  offences is also conferred under section 54.   Section 51 provides for penalties which would  indicate that certain offences are cognizable  offences meaning thereby a police officer can  arrest without warrant.  Sub-section (5) of Section  51 provides that nothing contained in Section 360  of the Code of Criminal Procedure or in the  Probation of Offenders Act, 1958 shall apply to a  person convicted of an offence with respect to  hunting in a sanctuary or a national park or of an  offence against any provision of Chapter 5-A  unless such person is under 18 years of age.  The  aforesaid specific provisions are contrary to the  provisions contained in the Code of Criminal   Procedure and that would prevail during the trial.   However, from this, it cannot be said that  operation of rest of the provisions of the Code of  Criminal Procedure are excluded.

       In this view of the matter, there is no  substance in the contention raised by the learned  counsel for the appellant that Section 50 of the  Wild Life Act is a complete code and, therefore,  CBI would have no jurisdiction to investigate the  offences under the said Act.  Hence, it cannot be  said that the judgment and order passed by the  High Court rejecting the petition filed by the  appellant is in any way illegal or erroneous.\024

       We have, therefore, no doubt that the provisions of  Section 50 of the Act and the amendments made thereunder do  not in any way affect the Magistrate\022s power to make an order  of interim release of the vehicle under Section 451 of the Code.        Learned counsel submitted that Section 39(1)(d) of the  Act made the articles seized under Section 50(1)(c) of the Act  as government property and, therefore, there was no question of  their release.  The submission was carefully considered by the  Full Bench of the High Court and on an examination of the  various provisions of the Act it was held that the provision of  Section 39(1)(d) would come into play only after a court of  competent jurisdiction found the accusation and the allegations  made against the accused as true and recorded the finding that  the seized article was, as a matter of fact, used in the  commission of offence.  Any attempt to operationalise Article

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39(1)(d) of the Act merely on the basis of seizure and  accusations/allegations leveled by the departmental authorities  would bring it into conflict with the constitutional provisions  and would render it unconstitutional and invalid.  In our  opinion, the High Court has taken a perfectly correct view and  the provisions of Section 39(1)(d) cannot be used against  exercise of the Magisterial power to release the vehicle during  pendency of the trial.        We thus find no merit in any of the submission made on  behalf of the appellants.  The High Court has taken a correct  view that warrants no interference by this Court.  Accordingly,  all the appeals and special leave petitions are dismissed.