ORDER
D.M. Dharmadhikari, J.
1. A common order is being passed in this petition with a batch of petitions W.P. No. 1189/98 (Amar Chand Jain and Anr. v. The State of M.P.), W.P. No. 1236/98 (Kripa Shankar Singh v. State of M.P. and Ors.), W.P. No. 3769/97 (Umashankar Bhargava v. State of M.P. and Ors.) as common question of general importance arises for decision.
2. The question raised is whether as a result of deletion of Sub-section (2) of Section 50 of the Wild Life (Protection) Act, 1972 and as an effect of the provisions of Section 39(1)(d) of the said Act, there exists no power with the Authorities under the Act of the Code to release any vehicle used in the course of alleged commission of an offence under the Act. Learned Single Judge I.P. Rao (as he then was) in State of M.P. v. Syed Yahya Ali (1995 MPLJ 791) and a Division Bench at Gwalior consisting of Justice S. Dwivedi and Justice S.S. Jha in its judgment in L.P.A. 152/99 (State of M.P. v. Asad Amin) decided on 8-5-96 have taken a view that after omission of Section 50(2) read with Section 39(1)(d) of the Act power to release any seized vehicle for alleged commission of the offence under the Act no longer exists in any Court. One of us namely learned brother Dipak Misra, J., in his order of reference dated 23-3-98 to this Bench has raised serious doubt on the correctness of the single Bench decision of this Court in the case of respondent Sayed Yahya Ali (supra) and the Division Bench decision of Gwalior in the case of Asad Amin (supra). In taking the aforesaid view the Division Bench at Gwalior has also made reference and relied on the decision in Rajkumar Agarwal v. Superintendent of Police, Sarguja (1975 JLJ 159) and Laxmi Chandra v. State of M.P. (1995 JLJ 746).
3. For deciding the legal question, general scheme of the Act and the relevant provisions will have to be critically examined. As the preamble of the Act states the legislation has been brought for the protection of wild animals, birds and plants and for matters connected therewith or incidental thereto as there has been rapid decline of India’s wild animals and forest growth. The Act underwent several amendments by Act No. 23 of 82, Act No. 44 of 91 and Act No. 26 of 93. The object and reasons for Amendment Act of 44/91 which with other amendments resulted in omission of Sub-section (2) of Section 50 of the Act and introduction of Sub-clause (d) of Sub-section (1) to Section 39 deserve to be noticed and to which our attention was drawn on behalf of the State. The object and reasons read as under :–
“The penalties for various offences are proposed to be suitable enhanced to make them deterrent. The Central Government officers as well as individuals now can also file complaints in the Courts for offences under the Act. It is also proposed to provide for appointment of Honorary Wild Life Wardens and payment of rewards to persons helping in apprehension of offenders.”
4. Section 2 of the Act contains ‘Definition clauses’. Sub-clause (14) defines ‘Government property’. It means any property referred to in Section 39 [or Section 17H]. In Clause 33 of Section 2 ‘vehicle’ is defined, means any conveyance used for movement on land, water or air and includes buffalo, bull, bullock, camel, donkey, elephant, horse and mule. Section 39, Sub-section (1) thereunder and Clauses (a) to (d) which are most relevant for deciding the legal question before us need full reproduction :–
“39. Wild animals, etc., to be Government property.– (1) Every, (a) wild animal, other than vermin, which is hunted under Section 11 of Sub-section (1) or Section 29 or Sub-section (6) of Section 35 or kept or bred in captivity or hunted in contravention of any provisions of this Act or any rule or order made thereunder or found dead, or killed by mistake; and
(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in Clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed;
(c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;
(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.”
5. Chapter VI of the Act deals with the subject of ‘Prevention and Detection of Offences’. Section 50 is on the subject of Tower of entry, search, arrest and detention’. Sub-clause (1) with various Sub-clauses (a), (b) and (c) need reproduction :
(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, 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 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.”
6. Sub-section (2) of the said Section has been omitted by Amendment Act No. 44 of 1991. Original Section prior to amendment reads as under :–
“(2) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or Wild Life Warden, who, or whose 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 of a 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.”
7. Sub-section (3-A) of Section 50 inserted by Act No. 44 of 1991 and Sub-section (4) on the issue in question also need to be noticed which are under :–
“(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.
(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.”
8. Section 51 provides for the penalties which may be imposed on a person found guilty of contravention of the provisions of the Act. Sub-section (2) of Section 51 provides for forfeiture to the State Government of any property including vehicle used for commission of offence under the Act. The said Sub-section (2) of Section 51 reads thus :–
“(2) When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal article, trophy, uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part of derivative thereof in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.”
9. Section 51 provides punishment for any wrongful seizure by any person exercising powers under the Act and it reads as under :–
“53. Punishment for wrongful seizure.– If any person, exercising powers under this Act, vexatiously and unnecessarily seizes the property of any other person on the pretence of seizing it for the reasons mentioned in Section 50, he shall, on conviction, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.”
10. Section 54 contains powers conferred on specified authorities under the Act to compound offences and consequent there-upon release the seized property liable to forfeiture on payment of the value thereof. Sub-section (2) of Section 54 empowers compounding of offences on accepting a sum of money and discharging from custody the person suspected of having committed any offence and release his property seized.
11. Learned counsel appearing for the petitioners in these batch of petitions contend that provisions of Section 39(1)(d) and Section 50, even after omission of Sub-section (2) thereof, read harmoniously with the above quoted provisions of the Act, empower the Magistrate, who has to try the suspected offender for the charge of committing offence under the Act, to release the property seized pending trial, in exercise of his powers under Section 451 of the Code of Criminal Procedure, 1973.
12. On the other hand learned Dy. Advocate General appearing for the State contends that omission of Sub-section (2) from Section 50 which empowered the Authorities to release seized property pending trial, leaves no power under the Act to the Magistrate to direct any interim release because provisions of Section 39(1)(d) provide that any property including vehicle mentioned therein used for committing an offence and which has been seized under the provisions of the Act shall be the property of the State Government. The learned Dy. Advocate General submits that the statements and objects of reasons for Amendment Act No. 44 of 1991 clearly show that power of interim release of property for vehicles involved in commission of the offence has been taken away to make the provision more deterrent. It is further submitted that if interim release of vehicle used in commission of the offence is allowed, the same vehicle is likely to be used again for committing offences.
13. After hearing the arguments advanced on behalf of the petitioners and the State and its Authorities, we find no merit in the submissions made on behalf of the State on the interpretation and effect of the provisions of Section 39(1)(d) read with Section 50 of the Act as it stands after omission of Sub-section (2) therefrom.
14. As has been noticed and quoted above the omitted Sub-section (2) of Section 50 empowered an officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or Wild Life Warden to grant interim release of the property seized after taking a bond for production of the properties 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.
15. The question before us is whether the withdrawal of power of interim release conferred on the Authorities under the Act can be construed as taking away such power of the Magistrate as the Criminal Court, competent to try the offence to impose punishment or acquit the accused of the charge.
16. Strong reliance has been placed on behalf of the State on Clause (d) of Sub-section (1) of Section 39 of the Act. It is submitted that vehicle including properties mentioned therein which have been seized on the ground of having been used for committing the offence become the property of the State and, therefore, such property including vehicle cannot be released even by the Magistrate. It is submitted that other interpretation would frustrate the object of the Amendment Act whereby the power to grant interim release of the property allegedly used in commission of offence has been taken away. On the plain language used in Sub-clause (d) of Sub-section (1) of Section 39, we are unable to accept the interpretation placed and submission made on behalf of the State that every property seized merely on accusation or suspicion of commission of an offence under the Act would become property of the State. The language used in Sub-clause (d) of Sub-section (1) of Section 39 is ‘vehicle …………….. that has been used for committing an offence and has been seized”. In order that the seized property may be treated as property of the State, there should be a finding by the competent Court that vehicle seized has been used for committing an offence. The seized vehicle or other property merely on the charge of commission of an offence cannot be declared to be the property of the State Government under said Clause (d) of Section 39(1). The power to seize a vehicle by an Authority or Officer under the Act is contained in Section 50(1)(c). The power of seizure can be exercised in respect of a property including a vehicle if it appears to the Authority that an offence under the Act has been committed. The seizure of property or vehicle is effected on accusation or suspicion of commission of an offence. Under Sub-section (3-A) introduced by Amendment Act No. 44 of 1991, power has expressly been conferred on the specified Forest Authorities to grant interim release of any captive animal or wild animal seized in commission of an offence on a condition of executing a bond by the person concerned that the said animal shall be produced before the Magistrate having jurisdiction to try the offence. Such a power in respect of certain properties including vehicles existed in Sub-section (2) of Section 50 prior to its deletion under Amendment Act No. 44 of 1991. The omission of Sub-section (2) of Section 50 by amendment has necessary consequence of taking away power of the prescribed Authorities under the Act to grant interim release of seized property including vehicle to the person claiming ownership to the same. The omission of Sub-section (2) of Section 50 cannot, however, be construed to hold that the power to grant interim release already available to an established Criminal Court, meaning the Magistrate under Section 452 of the Code of Criminal Procedure, has also been taken away. No such intention can be gathered from any of the provisions of the Act quoted above. We on the contrary, find a clear indication in them that the power of the Magistrate as a Criminal Court empowered to deal and try the offence under the Act is not in any manner affected. Sub-section (4) of Section 50 requires that any person detained or things seized under Sub-section (1) of Section 50 shall forthwith be taken before a Magistrate to be dealt with according to law. It is not disputed on behalf of the State that by virtue of the provisions contained in Sub-section (2) of Section 4 of the Criminal Procedure Code any offence under the Act can be investigated, enquired into and tried under the Code. The Magistrate therefore, as a Criminal Court under the Code is empowered to try the offences and impose penalties and punishments provided by the Act on proving of commission of the offence under the Act.
17. If the interpretation, as has been sought to be put on behalf of the State on Clause (d) of Sub-section (1) of Section 39, is accepted, every property mentioned therein including a vehicle seized merely on accusation or suspicion would become property of the State and that would be the result even though in the trial ultimately the Magistrate finds that no offence has been committed and acquits the accused. In our considered opinion the property seized under Section 50 of the Act from an alleged offender cannot become property of the State under Clause (d) of Section 39(1) unless there is a trial and a finding reached by the competent Court that the Property was used for committing an offence under the Act. If the seizure of a property was enough to declare it as the property of the Government, there was no necessity to provide under Sub-section (2) of Section 51 that on proof of commission of the offence, the properties including vehicle, vessel, or weapon used in the commission of the offence would be forfeited to the State Government. We do not find any dichotomy or conflict in the provisions under Section 39(1)(d) and Section 51(2) of the Act. Properties including vessel can be seized on accusation of commission of an offence under the Act and if the offender is available and is arrested, on proof of his guilt, the property seized from him and used in commission of the offence is liable to forfeiture to the State under Section 51(2) of the Act. Similarly every property seized and is held to have been used for committing an offence by competent Court, whether the offender is available or not for punishment, would be declared to be the property of the State by virtue of the provisions contained under Section 39(1)(d) of the Act. We find that Section 39 contained in Chapter-V is sort of a residuary provision to make all properties seized and found to be used in commission of an offence as properties of the State Government irrespective of the fact whether they are liable to forfeiture at the conclusion of the trial under Sub-section (2) and Section 51 of the Act. A situation can be envisaged where the offence is proved to have been committed but the owner of the property or the offender himself is not available for prosecution. In that situation by virtue of Clause (d) of Section 39 of the Act the property would become the property of the State without any requirement of passing an order of forfeiture in a trial by the Criminal Court in accordance with Sub-section (2) of Section 51 of the Act.
18. Examination of the provisions contained in Section 54 providing for power to compound offences under the Act also leads to the same conclusion that every property seized irrespective of proof of commission of the offence and finding in that respect by the Criminal Court, would not become property of the State. Section 54 empowers the Authorities to compound the offences and release the seized properties in favour of the person suspected of the commission of the offence. If the argument on behalf of the State is accepted a property seized on accusation would become the property of the State and can never be released even on the compounding of the offence. The provisions of Clause (d) of Section 39 have to be reasonably and harmoniously construed with other provisions of the Act and the Code which together provide a detailed procedure for the trial of the offences. If, as contended on behalf of the State, seizure of property merely on accusation would make the property to be of the Government, it would have the result of depriving an accused of his property without proof of his guilt. On such interpretation Clause (d) of Section 39(1) of the Act would suffer from the vice of unconstitutionality. The interpretation placed by the State would mean that a specified officer under the Act merely by seizure of property of an accused would deprive him of his property which he might be using for his trade, profession or occupation. This would be a serious encroachment on the fundamental right of a citizen under Article 19(1)(g) of the Constitution to carry on his trade, occupation or business. The power thus would be exercised by an Executive Officer and without any proof of commission of an offence. Such arbitrary and uncannalised powers cannot be allowed to any Executive Authority. That would be against basic structure of the Constitution. The Constitution envisages trial of offences by an independent judiciary. An interpretation which would render Clause (d) of Section 39(1) to be unconstitutional has to be eschewed and interpretation which makes it constitutional should be preferred. See the following observations of the Supreme Court in Kedarnath v. State of Bihar (AIR 1962 SC 955) :
“It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction.”
19. One of us learned brother Kulshrestha, J., sitting singly in Writ Petition No. 2226/97 (Kunj Bihari Soni v. Conservator of Forests and Ors.) decided on 18-9-97 has taken a similar view on construing provisions of Section 39(1)(d) of the Act and it receives respectful approval from all of us.
20. Justice I.P. Rao, J., (as he then was) in the case of Sayed Yahya Ali (supra) has not considered the provisions after examining over-all scheme of the Act and the provisions of the Code. With respect we are unable to uphold the same and overrule it. That decision in case of Sayed Yahya AH (supra) has been followed by the learned Judges of the Division Bench at Gwalior in the case of Asad Amin (supra) and in our considered opinion with respect the view taken by the Bench is unacceptable for the reasons mentioned above. In taking a view that there no longer exists any power of interim release of any property or vehicle, the Division Bench in case of Asad Amin (supra) referred to and relied on two earlier decisions of this Court in Rajkumar Agarwal v. S.P. Sarguja (1995 JLJ 159) and Laxmi Chandra (supra). The case of Rajkumar Agarwal (supra) appears to have been decided on the basis of earlier decision of this Court in Rajkumar Agarwal v. State of M.P. and Anr. (M.P. No. 112/74) decided on 23-4-74. The decision turned on the provisions of Sections 550 and 523 of the Code of Criminal Procedure, 1898. In the matter of seizure of Forest produce Sal Seed under the relevant enactment applicable to that forest produce, it appears that the Court found that since seizure of the forest produce was not made by any police officer, the provisions of Sections 523 and 550 of the Code of 1898 could not be resorted to by the owner of the property or the offender for getting its release. This Court as a Constitution Court under Article 226 of the Constitution of India granted relief to the petitioner by releasing his property by holding that the seizure was illegal. The Division Bench observed that grant of such relief is necessary to protect the fundamental right of the citizen. The decision of learned Single Judge S. Dwivedi J., in case of Laxmi Chandra (supra) is also distinguishable. In that case forest wood was seized by Forest Officials under provisions of Sections 52 and 52(4) of the Forest Act. The seizure of property was not found to have been made by the police. It was held that Magistrate derived no power under Section 457 of the Code to release the property as no report of the seizure was sent to the Magistrate. The decision clearly is distinguishable on specific provision of the Forest Act and the Code considered therein. It has no application to the provisions contained in the Act under consideration before us.
21. The question before us is whether the property seized and produced before the Magistrate in accordance with the Sub-section (4) of Section 50 of the Act can be released by the Magistrate dealing with the offence under the Act or not and we have answered the said question in affirmative.
22. While we were hearing this case we were informed that a Special Leave Petition preferred against the decision of Division Bench of Gwalior in the case of Asad Amin (supra) has been dismissed by the Supreme Court. We have sent for the order passed in the S.L.P. by the Supreme Court and we find that it is an order of dismissal of the petition in motion without giving any reasons. A mere order of dismissal of the S.L.P. which contains no reasons on the interpretation of the provisions of the Act cannot be treated as a binding precedent on this Court. See the following observations of the Supreme Court in State of Manipur v. Thingujam Brojen Meetei (AIR 1996 SC 2124):–
“The dismissal of a Special Leave Petition by a non speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appealed against. The effect of such a non speaking order of dismissal without anything more only means that Supreme Court has decided only that it is not a fit case where the Special Leave Petition should be granted. Such an order does not constitute law laid down by Supreme Court for the purpose of Article 141 of the Constitution.”
23. In our respectful opinion as the Supreme Court has not dealt with the legal question involved, we can consider the correctness of the Division Bench decision and decide a legal question referred to us by the learned Single Judge. As a result of the detailed discussion above, we hold that any property including vehicle seized on accusation or suspicion of commission of an offence under the Act can, on relevant grounds and circumstances, be released by the Magistrate pending trial in accordance with Section 50(1) read with Section 451 of the Code of Criminal Procedure, 1973. We also hold that mere seizure of any property including vehicle on the charge of commission of an offence would not make the property to be of the State Government under Section 39(1)(d) of the Act. The legal question thus posed by the learned Single Judge is answered accordingly. Let this petition and the connected petitions be now placed before the appropriate Bench for their decision on merits.