DISPOSAL OF PROPERTY

DISPOSAL OF PROPERTY

 Sunderbhai Ambalal Desai And C.M. Mudaliar vs State Of Gujarat on 1/10/2002 and as reported in2003 SCC (Cri) 1947= A.I.R. 203 S.C.638 passed the following order:-
ORDER 
   1. In these two petitions filed by the police inspectors serving the Gujarat State, it has been contended that prosecuting agency has no right to ask for remand of petitioners (accused) for the purpose of collecting evidence and the application moved for remand of the petitioners (accused) was unjustified because anticipatory bail was granted to them. 
   2. It is the prosecution version, as per the FIR lodged on 7.2.2002 by the Assistant Commissioner of Police 'D' Division, Surat that petitioners and other police personnel are involved in offences punishable under Sections 429, 420, 465, 468, 477-A and 114 IPC. It is alleged that when they were working at various police stations, they have committed offences during the period from 20.2.1992 to 23.11.2001 by replacement of mudamal articles including golden
ornaments by other spurious articles, misappropriation of the amount which was kept at the police station, unauthorised auction of the property which was seized and kept in the police custody pending trial and tampering with the records of police station. The High Court by its judgment and order dated 20.6.2002 rejected the application against the order passed by the trial court granting remand of the petitioner. Hence, these special leave petitions. 
   3. At the time of the hearing of these matters, learned counsel for the parties submitted that various articles are kept at the police station for a long period by not adhering to the procedure prescribed under Cr.P.C., which creates difficulties for keeping them in safe custody. Finally, the suffers are --either the State exchequer or the citizens whose articles are kept in such custody. It is submitted that speedier procedure is required to be evolved
either by the Court or under the rules for disposal of muddamal articles which are kept at various police stations as most of the police stations are flooded with seized articles. It is, therefore, submitted that directions be given so that burden of the Courts as well as at the police station can, to some extent, be reduced and that there may not be any scope for misappropriation or of
replacement of valuable articles by spurious articles.

   4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which reads thus--

     "451. Order for custody and disposal of property pending trial in certain cases.--When any property is produced before any Criminal Court during any inquiry of trial, the Court may make such order as it thinks fit for the property custody of such property pending the conclusion of the inquiry or trial and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. 
     Explanation.-- For the purposes of this section, "property" includes 
     (a) property of any kind or document which is produced before the Court or which is in its custody. 
     (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 
     457. Procedure by police upon seizure of property.- 
     (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
     (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of
such proclamation."

   5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as--
     (1) for the proper custody pending conclusion of the inquiry or trial;
     (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary; 
     (3) if the property is subject to speedy and natural decay to dispose of the same. 
   6. It is submitted that despite wide powers, proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody. 
   7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:--
     1. Owner of the article would not suffer because of its remaining unused or by its misappropriation; 
     2. Court or the police would not be required to keep the article in safe custody;
     3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 
     4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. 
   8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil v. State of Mysore and Anr. , this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:- 
     "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the
property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain its ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper
order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance." 
   9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. 
   10. To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. 

   Valuable Articles and Currency Notes

   11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. 
   12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-- 
     (1) preparing detailed proper panchnama of such articles; 
     (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and 
     (3) after taking proper security. 
   13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person
to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.
   14. In case, where such articles are not handed over either to the
complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of ircumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed. 

   Vehicles
   15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrate who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the
guarantee for the return of the said vehicles if required by the Court at any point of time.
   16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 
   17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

   18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. 
   19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing. 
   20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. It identity could be no the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same. 
   21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in
seeing that the rules framed by the High Court with regard to such articles are implemented properly.
   22. Adjourned for three weeks.

RELEASE OF PROPERTY SEIZED UNDER WILD LIFE PROTECTION ACT : POWER OF THE MAGISTRATE

CASE NO.:Appeal (civil) 5196 of 2001

PETITIONER: State of M.P. & Ors.

versus

RESPONDENT:Madhukar Rao

DATE OF JUDGMENT: 09/01/2008

BENCH: H.K.Sema & Aftab Alam

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

JUDGEMENT

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 the Act) 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 the Code). 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.

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 Magistrates 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 Madhukars case.

The State is in appeal against the ordeit is contended that after the amendments made in Section 50 and Section 39(1)(d) of the Act w.e.f. Octr 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. Octr passed by the High Court.

ober 2, 1991 by Act 44 of 199ober 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 specified 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 :

50. 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

(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 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. 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 :

(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.The Amendment Act 44 of 1991 deleted sub-section (2) and inserted in its place sub-section (3-A) which is as follows :

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

(a) xxx xxx xxx xxx

(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.

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 vehicles 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 owners favour during the pendency of the trial.

We are also unable to accept the submission that Section 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 :

50(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]. It has to be noted here that the expression used in the sub-section is according to law and not according to the provisions of the Act. The expression according to law 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 appellants 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 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 :

The 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.

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 Magistrates 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 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.


ċ
Harjinder Singh,
Jul 23, 2009, 11:44 AM
Comments