IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 357 of 2010()
1. ABDUL AZEEZ, AGED 35 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. FOREST RANGE OFFICER,
For Petitioner :SRI.ANIL KUMAR SREEDHARAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/02/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.357 of 2010
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ORDER
Car KL-53/A 141 was seized by the police in
Crime No.1420/2009 of Ernakulam Town South Police
Station, registered for the offences under Sections
39(b), 42, 44, 49(b) and 51 of Wild Life
(Protection) Act, 1972. Petitioner filed C.M.P.No.
4898/2009 under Section 451 of Code of Criminal
Procedure before Additional Chief Judicial
Magistrate’s Court (Economic Offences), Ernakulam
for interim custody of the vehicle. By Annexure-A1
order, learned Magistrate dismissed the petition
holding that as the vehicle was allegedly used for
transporting ivory tusks, it is liable to be
confiscated under Section 61A of Kerala Forest Act
and therefore, the vehicle cannot be released to
the petitioner. This petition is filed under
Section 482 of Code of Criminal Procedure to quash
Annexure-A1 order and to get the vehicle released.
CRMC 357/10 2
2. Learned counsel appearing for the petitioner
and learned Public Prosecutor were heard.
3. Learned counsel, relying on the decision of
this Court in Mohammed Ismail v. State of Kerala
(2004 (3) KLT 322), argued that the Magistrate is
competent to grant interim custody of the vehicle
when the offences alleged are only under the Wild
Life (Protection) Act, 1972 and confiscation of the
vehicle would arise only on conviction of the
accused for the said offences and hence, Annexure-
A1 order is to be quashed.
4. Learned Magistrate dismissed the petition
for the sole reason that as the vehicle was
allegedly used for transporting ivory tusks, it is
liable to be confiscated under Section 61A of
Kerala Forest Act.
5. Section 61A of Kerala Forest Act provides
that notwithstanding anything contained in the
foregoing provisions of the said Chapter, where a
forest offence is believed to have been committed
CRMC 357/10 3
in respect of timber, charcoal, firewood or ivory,
which is the property of the Government, the
officer seizing the property under Section 52(1)
shall, without any unreasonable delay, produce it,
together with all tools, ropes, chains, boats,
vehicles and cattle used in committing such
offence, before an officer authorised by the
Government in this behalf by notification in the
Gazette.
6. Confiscation under Section 61A of Kerala
Forest Act could only be in respect of a vehicle
used for committing a forest offence. There is no
case for the prosecution that any forest offence
was committed. On the other hand, the vehicle was
seized on the allegation that offences under Wild
Life (Protection) Act were committed.
7. Section 50 of Wild Life (Protection) Act
provides for search, arrest and detention. Under
sub-section (3), it shall be lawful for any of the
officers referred to in sub-section (1) to stop and
CRMC 357/10 4
detain any person, whom he sees doing any act for
which a licence or permit is required under the
provisions of the Act for the purpose of requiring
such person to produce the licence or permit and if
such person fails to produce the licence or permit,
he could be arrested without warrant. Under sub-
section (4), any person detained or things seized,
under the foregoing power, shall forthwith be taken
before the Magistrate to be dealt with according to
law.
8. Confiscation provided under Wild Life
(Protection) Act is only under Section 51(2). Under
Section 51(2), a court, trying the offence under
this Act, upon conviction of the person under the
Act, may order that the vehicle used for commission
of the offence shall be forfeited to the State.
Till then, it is not the property of the
Government. If so, interim custody could be granted
on sufficient conditions. Therefore, learned
Magistrate was not justified in dismissing the
CRMC 357/10 5
petition on the ground that the property is liable
for confiscation under Section 61A of Kerala Forest
Act.
Petition is allowed. Annexure-A1 order is
quashed. Additional Chief Judicial Magistrate
(Economic Offences), Ernakulam is directed to pass
appropriate order in C.M.P.No.4898/2009, in
accordance with law.
16th February, 2010 (M.Sasidharan Nambiar, Judge)
tkv