IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1789 of 2009()
1. M.G.THOMAS, AGED 75 YEARS
... Petitioner
2. EAPEN VARGHESE @ SHAJI M.VARGHESE,
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SMT.CELINE JOSEPH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/07/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.1789 of 2009
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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
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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
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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
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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
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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
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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
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accused is quashed. The case as against the second
petitioner is to be continued.
1st July, 2009 (M.Sasidharan Nambiar, Judge)
tkv