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2005 DIGILAW 345 (ORI)

Chuana Parida v. State of Orissa

2005-05-20

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. : This revision is directed against the order dated 16.4.2005 passed by the S.D.J.M., Kendrapara in 2(b) CC No. 14 of 2004 wherein he rejected the petition of the petitioner, Chuana Parida filed under Section 457 of the Cr.P.C. for interim release of the gillnetor bearing registration No. O.C.T. (G) 5006 after the name MAA BAJAR BUDHI in his favour. 2. Shorn of all unnecessary details, the facts leading to filing of this revision is that on 9.12.2004, Jayanta Patnaik the Forstor of Batighar section seized the aforesaid gillnetor from accused Arkhita Behera and Rabi Parida on the allegation that they were catching fish inside Gahirmatha Marine without being backed by any authority for the same. After completion of inves¬tigation the Forestor submitted prosecution Report under Section 51(1) of the Wild Life Protection Act (‘the Act’ hereinafter) against the aforesaid two accused persons and Chuana Parida the petitioner before Court below. While the case is subjudiced before the S.D.J.M., Kendrapara, Chuana Parida, the petitioner No. 1 claiming himself to be the owner of the gillnetor filed a petition under Section 457 Cr.P.C. for interim release of the same in his favour. 3. After hearing learned counsel for the parties the S.D.J.M., Kendrapara turned down the prayer for release of the gillnetor, holding that it is liable for forfeiture to the State Government in view of Section 51 (2) of the Act and that the same shall be the property of the State Government as laid down under Section 39 (1)(d) of the said Act. Being aggrieved with this order the petitioner has preferred this revision. 4. Section 51(2) of the Act reads as follows : (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, animal article, trophy, (uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof) in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in 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. 5. Similarly Section 39(1)(d) of the Act reads as follows : 39. 5. Similarly Section 39(1)(d) of the Act reads as follows : 39. Wild animals, etc., to be Government property - (1) Every (a) xx xx xx (b) xx xx xx (c) xx xx xx (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. 6. Learned counsel appearing for the petitioners submitted that as per the above quoted provisions after conclusion of the trial if the accused persons are found guilty of any offence under the Act then only the gillnetor shall be forfeited to the State Government and it shall be the property of the State. So he pressed to allow the revision. The learned Additional Standing Counsel supported the trial Court order. 7. It does not stand to reason that the gillnetor seized merely on accusation of commission of an offence under the Act would become the property of the State. If mere seizure of the gillnetor is sufficient to declare it as the property of the Government then there was no necessity to incorporate the provision under Sub-section (2) of Section 51 of the Act as quoted above. So, it is held that mere seizure of the gillnetor on accusation of the offence under Section 51(1) of the Act is no enough to forfeit the same to the State Government and to declare it to be the property of the State. It may be forfeited to the State Government and declared to be the property of the State if the accused persons are found guilty of the alleged offence after conclusion of the trial of the case. So, I am in one with the submission of the learned counsel for the petitioners in this regard. The petitioner No. 1 claiming to be the owner of the gillnetor filed duplicate R.C. book, which shows that, he is the owner thereof. Admittedly there is no rival claimant of the petitioner for the gillnetor. So, I am in one with the submission of the learned counsel for the petitioners in this regard. The petitioner No. 1 claiming to be the owner of the gillnetor filed duplicate R.C. book, which shows that, he is the owner thereof. Admittedly there is no rival claimant of the petitioner for the gillnetor. Hence the trial Court ought to have released the seized gillnetor in interim custody of petitioner No. 1. 8. Accordingly the revision is allowed and the impugned order dated 16.4.2005 passed by the S.D.J.M., Kendrapara in 2 (b) C.C. No. 14 of 2004 is set aside. He is directed to release the gillnetor bearing registration No. O.C.T. (G) 5006 in interim custody of the petitioner No. 1 on suitable terms and conditions as would be deemed fit and proper at an early date. Revision allowed.