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1998 DIGILAW 104 (CAL)

Arjun Kumar Ghosh v. State of West Bengal

1998-03-09

ASISH BARAN MUKHERJEE

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JUDGMENT ASISH BARAN MUKHERJEE, J. 1. An application under section 482 of the Criminal Procedure Code has given rise to this revisional application, the purpose of which is to challenge and set aside an order dated 21.1.1998 passed by the Sub-Divisional Judicial Magistrate Ranaghat in Case No. C-126 of 1997 wherein a case under section 51 of the Wild Life (Protection) Act, the Ld. Magistrate refused to release a Truck seized by the Officials under provisions of the said Act. 2. The case of the petitioner is that the Truck in question being WB-11/3306 belongs to his wife who executed a General Power of Attorney on 7th of January in favour of the petitioner who in his turn entered into a Lease Agreement by which the vehicle was given to the possession of one Gopal Krishna Chakraborty for the period between 10.2.97 to 9.8.97. It is alleged that the aforesaid Truck was seized by Forest Beat Officer, Ranaghat on 18.4.97 on the allegation that it was carrying some dead as well as alive turtles in contravention of relevant provisions of the Wild Life (Protection) Act and was handed over to Ranaghat Police Station on 21.4.1997. An application for release of the vehicle made before the Magistrate was rejected on 31.7.97. The petitioners came to this Court and files a revisional application which was disposed of on 15.9.97 with the liberty to the petitioner to move any other forums, if so, advised. The petitioner accordingly filed an application under section 226 of the Constitution which was disposed of on 17.11.97 with the direction that the trying Magistrate had the authority to consider release of the vehicle. The matter was again heard by the Sub-Divisional Judicial Magistrate and by order dated 21.1.1998 he rejected the prayer with the observation that he did not have any jurisdiction to consider the question of release of the truck in view of section 39 of the Wild Fife (Protection) Act. Being aggrieved the petitioner has come to this Court. 3. I have heard the Ld. Advocate appearing for the petitioner and also the State, it is submitted by the Ld. Advocate appearing for the petitioner that in the face of the judgment an application under Article 226 of the Constitution specifically mentioning the power of the Magistrate in the matter of release of the Truck in the impugned order is illegal since the Ld. Advocate appearing for the petitioner and also the State, it is submitted by the Ld. Advocate appearing for the petitioner that in the face of the judgment an application under Article 226 of the Constitution specifically mentioning the power of the Magistrate in the matter of release of the Truck in the impugned order is illegal since the Ld. Sub-Divisional Judicial Magistrate again came to the conclusion that he had got no jurisdiction. In support of his contention he relied on the decision in the said writ application, a xerox copy of which forms part of the revisional application being WP 21302(W) of 1997 disposed of on 17.11.97. Referring to the earlier decision of this Court on 15.9.97 in C.R.R. No. 2652 of 1997 it is contended that the Ld. Advocate moving the said application did not place on record, the earlier view taken by a Division Bench of this Court ill the matter of release of a vehicle which was seized under provision of Wild Life (Protection) Act. In this connection he has relied on a decision reported in A.K. Rana vs. State of West Bengal & other, 1996 C. Cr. LR (Cal) 233 (DB), which is also a case under section of Wild Life (Protection) Act where it has been specifically held that in the event of seizure of a vehicle in terms of section 50 (c) of the said Act the Magistrate has got the power and jurisdiction to deal with the question of release of vehicle allegedly involved in the commission of an offence under the Wild Life (Protection) Act. In this connection reliance has also been placed on a decision reported in State of Madhya Pradesh vs. Azad Bharat Finance Company, AIR 1967 SC 270, where the expression shall appearing in section 11 of the Opium Act as applicable to Madhya Pradesh has been interpreted by the Apex Court as not obligatory. 4. On the other hand, the learned Advocate appearing for the State relied on section 39 of the Wild Life (Protection) Act which says that a vessel which has been used for committing the offence and has been seized under the Act becomes the property of the State Government as mentioned in clause (d) of the sub-section (1) of section 39 of the said Act. When his attention is drawn to the provisions of section 51, Ld. When his attention is drawn to the provisions of section 51, Ld. Advocate appearing for the State has practically no answer excepting that notwithstanding the contradictory provisions in the Act itself since none of the section having been struck down they will have to be given effect to. 5. Having given my careful consideration to the submissions of the Ld. Advocates of both the sides and in view of the decision taken by a Division Bench of this Court in the matter of release of a vehicle under Wild Life (Protection) Act, there is practically no need to go into the details of the matter excepting the Ld. Sub-Divisional Judicial Magistrate is not right in passing the impugned order when the order in the writ application was before him and which categorically directed him to consider the matter with the observation that he had the right to deal with the matter of release of the vehicle. 6. An examination of section 39(1)(b) and section 51 of the Wide Life (Protection) Act leads us to a peculiar position since in terms of the former a vehicle becomes the property of the Government while the latter says that in the event of a conviction under the Act a vehicle may be confiscated to the State by the trial Court. Obviously, if the vehicle becomes the property of the State Government automatically by operation of section 39(1)(d) of the Act as soon as it is seized, the same cannot again be confiscated to State since the property which already belongs to the State cannot be further confiscated and there cannot be a harmonious construction of the two sections. Since the matter has come up before this Court as revisional application the Court is not in a position to struck down any provision of the Act except mentioning that these two provisions are contradictory to each other and cannot remain in the statute together. 7. In view of the decision of the Division Bench of this Court, the Ld. Since the matter has come up before this Court as revisional application the Court is not in a position to struck down any provision of the Act except mentioning that these two provisions are contradictory to each other and cannot remain in the statute together. 7. In view of the decision of the Division Bench of this Court, the Ld. Sub-Divisional Judicial Magistrate has got the jurisdiction to consider the question of release of the vehicle since it is contended on the basis of the xerox copy of the agreement for lease entered into the petitioner and Gopal Krishna Chakraborty that at the relevant time the vehicle was in the possession of the latter and since the former had got no opportunity to supervise day to day use of the vehicle which was lying with the lessee in terms of the agreement, he cannot be penalised by way of detaining the Truck. Therefore, truck need be released but before doing so the Ld. Sub-Divisional Judicial Magistrate need be satisfied about the legal status of the petitioner accordingly while setting aside the impugned order dated 21.1.1998 the Ld. Sub-Divisional Judicial Magistrate is directed to give an opportunity to the petitioner to produce the relevant documents in support of ownership of the vehicle and once he is satisfied about such ownership he shall release the vehicle in favour of either the registered owner or his authorised power of Attorney holder as contended by the petitioner on executing a suitable bond with express provisions for its safe keeping and production whenever required by the Trial Court in course of trial. With this observation the revisional application stands allowed in part. Let a copy of the order be sent to the Court below expeditiously. Allowed in part with directions.