GITESH RANJAN BHATTACHARJEE, J. ( 1 ) ON 5/2/1992 the range Officer, West Bengal, Mahananda Wild Life Sanctuary, Sukna (O. P. No. 2 herein) seized a good number of captive animals including Hyena. Leopard etc. from the custody of the present petitioner, Jaydeb Kundu at a Mela at Surya Sen Masterda Park, Mahakalpalli, Siliguri under a seizure list prepared in presence of witnesses. The present petitioner and another person were also arrested as accused persons at that time under section 50 of the Wild Life (Protection) Act, 1972. The accused persons were then forwarded to the learned Sub-Divisional Judicial Magistrate, Silliguri. In the forwarding report which was submitted before the learned Magistrate while producing the accused persons it was stated inter alia by the Range Officer that the accused persons were arrested for committing offences under sections 9 and 39 of the Wild Life (protection) Act, 1972. It was also mentioned therein that the accused persons were operating zoo with the animals mentioned in the seizure list and they could not produce and valid documents in support of acquisition and possession of the animals. It was further stated therein that the necessary P. O. R. (Prosecution Report) would be submitted through the Divisional Forest Officer for trial in due course. Subsequently, on 19. 2. 1992 the Range Officer submitted an application before the learned Magistrate for considering the question of survival of the seized animals and for release of certain items in Mahananda Wild Life Sanctuary and for order of interim custody of the other seized animals at zoo and permanent rescue home and captive breeding center in order to protect the life of the animals. That application was opposed by tie present petitioner. But the learned Magistrate in his order-dated 31. 3. 1992 observed that the seized animals were government property under section 39. Considering the facts and circumstances and keeping in view the welfare of the wild animals, the learned Magistrate directed the animals to be given to the custody of the Forest Department and also directed the Warden, Wild Life, Sukna Division to do the needful in accordance with the rules for the safety and welfare of the wild animals after obtaining permission from the Chief Wild Life Warden, Government of West Bengal within 15 days from the date of his order and to submit a detailed report to that effect. Being aggrieved by these aid order the petitioner accused has filed this revisional application for quashing the said order as well as the entire proceedings of the Court below, being C. R. Case No. 32 of 1992. ( 2 ) MR. Samaresh Banerjee representing the petitioner accused emphatically submitted that even according to the opposite party the petitioner was operating a zoo with the seized animals and that being so the petitioner has contravened no provision of the Wild Life (Protection) Act, 1972 and the seizure of the animals by the Range Officer of the Forest Department was wholly illegal and the entire proceedings should be quashed. He also submitted that the seized property as contained in section 2 (14) of the said Act or in Section 39. On the other hand, Mr. Nure Alam Choudhary, the learned Public Prosecutor appearing for the opposite parties submitted that even apart from the particular sections of the wild life (Protection) Act, 1972 as mentioned in the forwarding report submitted to the Court below by the Range Officer while producing the accused persons the petitioner has also contravened certain other provisions of the said Act for which also he is liable to be tried and punished. Here it may be mentioned that the Wild Life (Protection) Act, 1972 suffered extensive amendment by the amending Act, 1991 which came into force on 2nd October, 1991, but certain provisions of that Amending Act, of Course, came into force on a subsequent date. Such as, section 26 of the said Amending Act, namely, the Wild Life (protection) Amendment Act, 1991 (44 of 1991) came into force on the 4th day of February, 1992 in virtue of notification S. O. 112 (E) dated the 3rd February, 1992. By the said section 26 of the Amending Act a new chapter, namely, Chapter IV A containing sections 38a to 38z has been insured in the principal Act. As we have already noted in the forwarding report dated 5/2/1992, the range Officer out two sections of the Wild Life (Protection) Act, 1972 being Sections 9 and 39 which were allegedly violated by the petitioner. Section 9 relates to prohibition and restriction in respect of hunting of wild animals. Hunting has been defined in section 2 (16) of the Act as follows: 2 (16 ). Section 9 relates to prohibition and restriction in respect of hunting of wild animals. Hunting has been defined in section 2 (16) of the Act as follows: 2 (16 ). Hunting with its grammatical variations and cognate expression, includes (a) Capturing, killing poisoning, snaring and trapping of any wild animals and every attempt to do so, (b) driving any wild animal for any of the purposes specified in Sub-clause (a), injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles. ( 3 ) THE allegation in the forwarding report is that the petitioner was operating zoo with the animals and or demand he could not produce any valid documents in support of acquisition and possession of the animals. The charge of hunting under section 9 requires it to be shown that the petitioner captured any wild animal or did any other thing as mentioned in section 2 (16) of the Act in respect of any kind of wild animals mentioned in section 9 in contravention of the provisions of that section. The next section of the Wild Life (Protection) Act, 1972 mentioned in the forwarding report is section 39 of the said Act. Under clause (a) of sub-section (1) of Section 39 which is primarily relevant for our purpose every wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or bred in captivity in contravention of any provisions of this Act or any rule or order made there under or found dead, or killed without a licence or by mistake shall be Government property. The learned Magistrate, it may be mentioned here, brought in section 39 (1) (b) but that must be a mistake for 39 (1) (a) because clause (b) relates only to animal article, trophy, uncured trophy or meat derived from any wild animal and therefore that clause is not attracted in the present case. It has been argued by Mr. The learned Magistrate, it may be mentioned here, brought in section 39 (1) (b) but that must be a mistake for 39 (1) (a) because clause (b) relates only to animal article, trophy, uncured trophy or meat derived from any wild animal and therefore that clause is not attracted in the present case. It has been argued by Mr. Banerjee that with a view to claiming the wild animal as Government property under section 39 (1) (a) on the ground that the same has been kept in captivity as is the allegation here it must be shown in terms of the provisions of the section itself that the concerned wild animal has been kept in captivity in contravention of any provision of this Act or any rule or order made there under. He argued that mere keeping of any wild animal in captivity will not make the animal Government property unless the same was kept in captivity in contravention of any provision of the act or any rule or order made there under. He further argued that in this case there has been no contravention of any such provision by the petitioner in keeping the concerned animals in captivity and therefore these animals cannot be Government property. Sub-section (2) of Section 39, it has been submitted by Mr. Nure Alam Choudhury on behalf of the opposite parties, imposes an obligation upon the person who obtains Possession of Government property and requires the person to report to the nearest police station or the authorised Officer within 48 hours of obtaining such possession. He also referred to sub-section (3) of section 39 which provides inter-alia that no person shall without the previous permission in writing of the appropriate authority acquire or keep in his possession, custody or control or transfer to any person whether by way of gift, sale or otherwise such Government property. As against that Mr. Banerjee argued that the subsections (2) and (3) of section 39 are attracted only when the animals are Government property and not otherwise. As against that Mr. Banerjee argued that the subsections (2) and (3) of section 39 are attracted only when the animals are Government property and not otherwise. He argued that since it could not be shown that the petitioner had kept the concerned animals in captivity in contravention of any provision of the Act or rule or order made there under, there is no question of claiming the concerned animals as Government property under section 39 (1) (a) and that being so nothing in clauses (2) and (3) of the said section will apply to this case inasmuch as those clauses apply only when the concerned animals are Government property and not otherwise. ( 4 ) NOW we came to section 40. Sub-section (1) of section 40 imposes an obligation inter alia upon every person having at the commencement of the Act the control, custody or possession of any specified captive animal to declare to the concerned authority mentioned therein within 30 days of the commencement of the Act, the description of the animal under his control, custody or possession and the plea where such animal is kept. Sub-section (2) of section 40 inter-alia provides that no person shall after the commencement of the Act, acquire receive, keep in his control custody or possession sell, offer for sale or otherwise transfer or transport any specified animal except with the previous permission in writing of the appropriate authority. Had the matter been left at that the provision of sub-section (2) of section 40 would have been attracted to this case. But Mr. Banerjee draws our attention to sub-section (3) of section 40. Now this sub-section (3) of section 40 before the 1991 amendment stood like this: 11 (3) nothing in sub-section (1) or sub-section (2) shall apply to a public museum or zoo. Mr. Banerjee argued that since the petitioner was operating zoo the provisions of sub-sections (1) and (2) of section 40 were not applicable to this case. However after the 1991 amendment the said sub-section (3) stands thus: (3) nothing in sub-section (1) or subsection (2) shall apply to a recognized zoo subject to the provisions of section 38-1 or to a public museum. ( 5 ) IT is indeed the common case of both sides that the petitioner was, on the date of seizure, operating a zoo. ( 5 ) IT is indeed the common case of both sides that the petitioner was, on the date of seizure, operating a zoo. In view of section 2 (39) zoo means an establishment, whether stationary or mobile, where captive animals are kept for exhibition to the public but does not include a circus and an establishment of a licensed dealer in captive animals. According to section 2 (25a) recognized zoo means a zoo recognized under section 38h. As I have already pointed out sections 38a to 38z all find place in a new chapter, namely, Chapter IV A which has come into force on the 4th February, 1992. The seizure in this case was made on the 5th February, 1992. Section 38a provides for the constitution of a Central Zoo Authority. By notification dated the 3rd February, 1992 of the Government of India, Ministry of Environment and Forests, the Central Zoo Authority has been constituted. One of the functions of the said Authority to recognize or de-recognize zoos under section 38c. Section 38h contains provision relating to recognition of zoos. Sub-section (1) of Section 39h provides that no zoo shall be operated without being recognized by the Authority. It also provides however that a zoo which was being operated immediately before the date of commencement of the Wild Life (Protection) Amendment Act, 1991 may continue to be operated without being recognized for a period of six months from the date of such commencement. Where any application seeking recognition is made to the Authority within the said period of six months, the zoo may continue to be operated until the application is finally decided or withdrawn. In case of refusal of recognition the zoo may be operated for a further period of six months only from the date of such refusal. Where any application seeking recognition is made to the Authority within the said period of six months, the zoo may continue to be operated until the application is finally decided or withdrawn. In case of refusal of recognition the zoo may be operated for a further period of six months only from the date of such refusal. It has been submitted on behalf of the petitioner that in this case the petitioner has time to apply for recognition of the zoo to the Authority under section 38h within six months from the date on which the said Chapter IV A came into force, namely, from 4th February, 1992 and he is entitled to operate his zoo during the said period of six months without the same being formally recognized and even thereafter in accordance with sub-section (1) of section 38h inasmuch as he was operating his zoo before the date of commencement of the said Amendment Act, 1991 or for that matter before coming into force of the said Chapter IV A. It may be noted here that in view of section 2 (10) commencement of the Act, in relation to any provision of the Act means the commencement of that provision in the concerned state. ( 6 ) IT has been submitted on behalf of the petitioner that in view of the fact that he is entitled to operate his zoo for a period of six months from the date of coming into force of section 38h without the Same being formally recognized by the Authority concerned he cannot be made responsible under section 40 (1) or (2) inasmuch as sub-section (3) of section 40 provides that nothing in sub-section (1) or sub-section (2) of the said section shall apply to a recognized zoo subject to the provision of section 381. It has been further argued that nothing in sections 42 and 43 will also therefore apply to this case inasmuch as these sections are applicable only where section 40 is applicable and not to a zoo which is exempted under sub-section (3) of section 40. It has been further argued that nothing in sections 42 and 43 will also therefore apply to this case inasmuch as these sections are applicable only where section 40 is applicable and not to a zoo which is exempted under sub-section (3) of section 40. In this connection it is however to be noted that sub-section (1) of section 40 requires inter alia that every person having at the commencement of the Act the control, custody or possession of any of the specified captive animals shall within 30 days from the commencement of the Act declare to the authority concerned the number and description of the animals under his control, custody and the place where such animals are kept. Sub-section (2) of section 40, on the other hand, prohibits one after the commencement of the Act, from acquiring, receiving, keeping in control, custody or possession, selling, offering for animal except with the previous written permission of the authority concerned, namely, the Chief Wild Life Warden or the authorised Officer. It is however to be noted that even apart from section 40 there is another provision, vis. section 49 which inter alia provides that no person shall purchase, receive or acquire any captive animal etc. otherwise than from a dealer or from a person authorised to sell or other wise transfer the same under the Act. There is however a proviso to the said section 49 which after the 1991 Amendment stands thus: Provided that nothing in this section shall apply to a recognized zoo subject to the provisions of section 381 or to a public museum. Before the said amendment there was however a different proviso which ran thus: Provided that nothing in this section shall apply to any transaction entered into by a public museum or zoo with any other public museum or zoo. Since in the case the seizure of the captive animals from the custody of the petitioner was made on 5/2/1992 i. e. on the day immediately following the date on which the Chapter IV A came into force the petitioner must have purchased, received or acquired the captive animals before the date and at such time when the old proviso to section 49 was in force. Be that as it may, the question that poses is where from the petitioner purchased, received or acquired these captive animals, section 38- I provides that subject to other provisions of the Act no zoo shall acquire or transfer any wild animal specified in Schedule I and II except with the previous permission of the Authority. In a case where the old proviso to section 49 applies protection will be available where the transaction by which the captive or wild animals were purchased, received or acquired was entered into by a zoo with any other zoo. In a case where the new proviso to section 49 applies a recognized zoo can purchase, receive or acquire any captive or wild animals only with the previous permission of the Authority as provided in section 38-1. ( 7 ) IF we take a comprehensive view of some of the relevant provisions of the Act relating to purchase, acquisition or transfer etc. of any wild or captive animal as the provisions stood at the time when the petitioner might have acquired the seized animals before the 1991 amendment, we will find that although in view of sub-section (3) of zoo was exempted from the provisions of subsection (1) and (2) of section 40 regarding declaration or permission as required there under, yet section 49 would have application independent of the provisions of section 40. While section 40 (2) debars acquisition of any specified animal without prior written permission of the Chief Wild Life Warden or the authorised Officer. Section 49 debars acquisition of any such animal from any source other than a dealer or a person authorised to sell or otherwise transfer the same. According to section 2 (11), dealer means any person who carries on the business of buying and selling any captive animal etc. Under section 44 (1) one cannot carry on the business as a dealer in captive animal without a licence granted for the purpose under the said section. Under section 49 one cannot purchase or acquire any captive or wild animal as mentioned therein except from a dealer or a person authorised to sell or otherwise transfer the same. A transaction between zoos and public museums regarding such animal was however exempted from the requirement of section 49 in view of the proviso thereto as it stood before the 1991 amendment. A transaction between zoos and public museums regarding such animal was however exempted from the requirement of section 49 in view of the proviso thereto as it stood before the 1991 amendment. Therefore any purchased or acquisition of any such animal can be made either from a licensed dealer or an authorised filler, but a zoo however could acquire any animal through any transaction from another zoo. The question whether the petitioner in this case acquired the seized animals from any licensed dealer or authorised seller in accordance with the main provision of section 49 of his acquisition was in virtue of any transaction between two zoos under the protection of the proviso to that section as was operating at that time is indeed a matter for consideration in this connection. In case the purchase or acquisition of the concerned animals by the petitioner took place in contravention of the provisions of section 49 and was not covered by the protection of its proviso operating at the relevant time, the keeping of the concerned animals in captivity also will be in contravention of the provision of section 49 and in that event section 39 may also be attracted. It is, therefore, evident that question of facts are involved in the matter. ( 8 ) UNDER section 55 no court can take cognizance of any offence against the Act except on the complaint of the Chief Wild Life Warden or such other Officer as the State Government may authorise in this behalf. But the Act imposes the burden of proof upon the accused in certain circumstances section 57, provides inter alia that where in any prosecution for any offence against the Act it is established that the accused is in possession, custody or control of any captive animal etc. it shall be presumed until the contrary is proved by the accused, that he is in unlawful possession, custody or control of the same. it shall be presumed until the contrary is proved by the accused, that he is in unlawful possession, custody or control of the same. Therefore, the very fact that the concerned animals were seized from the possession and custody of the petitioner and the petitioner could not, as reported by the Range Officer in his forwarding report dated 5/2/1992 produce on demand any valid document in support of acquisition and possession of the animals, prima facie raises a presumption under section 57 that the petitioner was in unlawful possession, custody or control of the captive animals and the burden is on him to prove that his possession, custody or control of such animals was lawful. The petitioner has not been able to produce any document showing as to how the acquired the concerned animals. From the materials placed before me on behalf of the opposite party forest officials, it appears that the petitioner made a statement in writing on the very date of his arrest, namely 5/2/1992 that he purchased the zoo three years back at Toofanganj Mela from one Mohan Sarkar, but he did not possess any document in respect of the same. Therefore according to the said statement the petitioner purchased the zoo (with the seized animals) sometime in early 1989 i. e. three years back but in this revision applications he says in paragraph 2 (a) that he has been operating the said zoo since 1984. There is, therefore, a prima facie discrepancy between the own versions of the petitioner as to how and when he acquired the concerned animals and he also could not produce any document whatsoever as to the manner and time of acquisition of those animals. Therefore, the prosumption of Section 57 against the petitioner comes to the forefront even at this stage. ( 9 ) THE mere fact that some person is or was operating a zoo does not mean that he acquired or purchased the captive animals from a dealer or from any authorised person or from another zoo. The fact that a person is found in possession or custody or control of captive animals, even if he is operating a zoo, raises a presumption under section 57 that he is in unlawful possession, custody or control of the same unless such person rebuts the presumption by furnishing necessary proof of lawful possession or acquisition of the same. The fact that a person is found in possession or custody or control of captive animals, even if he is operating a zoo, raises a presumption under section 57 that he is in unlawful possession, custody or control of the same unless such person rebuts the presumption by furnishing necessary proof of lawful possession or acquisition of the same. Even for a zoo the manner of acquisition of any captive or wild animal must be lawful and must conform to the requirement of section 49 or the proviso to section 49. In the present case, at least at this stage the petitioner has not been able to produce anything in support of his lawful acquisition of the animals within the protection of section 49 including the proviso thereto as was applicable at the relevant time. The petitioner also has not been able to come forward with any consistent case about the manner and time of acquisition of the concerned animals. Therefore prima facie the presumption of section 57 operates in the field and if there is presumption under the said section that the petitioners possession of the animals was unlawful then section 39 also will be attracted. Accordingly, I find no reason to interfere at this stage. At the same time, I must also note that the opposite party forest officials cannot keep the matter hanging for any indefinites period of time and they must file proper complaint in court within a reasonable time if they intend to do so. ( 10 ) IN the circumstances, this revisional application is dismissed with this direction that in case the opposite party forest official fail to file any regular and proper complaint in the appropriate court in regard to this matter under section 55 of the Act within six weeks from this date, they will return within two weeks thereafter the seized animals now under care to the petitioner. In case a complaint is filed within the aforesaid period of six weeks the petitioner will be at liberty to apply for return of the seized animals in the court below, if so advised, in the background of the complaint and any such application for return, if filed, shall be disposed of by the court below in accordance with law. In case a complaint is filed within the aforesaid period of six weeks the petitioner will be at liberty to apply for return of the seized animals in the court below, if so advised, in the background of the complaint and any such application for return, if filed, shall be disposed of by the court below in accordance with law. All points remain open including the point about the legality or otherwise of the release of certain animals during the pendency of the proceeding in the court below. Revision dismissed forest officials to file proper complaint in court within reasonable time if they intend to do so.