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2006 DIGILAW 325 (CAL)

Narayan Chandra Mondal v. STATE OF WEST BENGAL

2006-05-19

S.P.TALUKDAR

body2006
Judgment :- S.P. Talukdar, J. The present case arising out of an application under section 401 read with section 482 of the Code of Criminal Procedure, 1973 is directed against the order dated 4.4.2006 passed by the learned Chief Judicial Magistrate, Nadia in complaint case No. 269C of 2006. 2. Grievances of the petitioner may briefly be stated as follows: The petitioner is the registered owner of a bus bearing Registration Number WB-53/0001. It is a stage carriage bus used for the purpose of carrying passengers from Sainthia to Krishanagar under valid route permit issued by the Regional Transport Authority having permanent permit No.5/95, which is renewed from time to time and is valid till 19.4.2010. The case under reference was started on the basis of a petition of complaint filed by the Forest Range Officer, Krishnanagar Range, on 25.3.2006 before the learned Court of Chief Judicial Magistrate, Krishnanagar, Nadia. It was alleged in the said complaint that on the basis of a source information that a good number of pipits (Bhurui birds) were being carried in a private bus, bearing No. WB-53/0001 in the Krishnanagar-Sainthia route, on 24.03.2006 at about 10.00 a.m the said vehicle was intercepted. On search, few baskets could be found with such Bhurui birds numbering about 509. On demand, no valid papers/licence could be produced for transportation of the said birds. Upon enquiry from the owner of those birds, namely, Rajjak Sk., it could be learnt that there was no valid permit, document or licence authorising possession and transportation of the said birds. The driver of the bus or its khalasi also could not produce any valid document in respect of the same. Along with the said driver and khalasi, Rajjak Sk. was also arrested and the vehicle was seized. The authority concerned thereafter, started a case for the alleged offence under sections 9, 39, 44, 50, 51(1) (2) and 58 of the Wild Life (Protection) Act, 1972. The said case was registered for investigation. 3. The present petitioner as owner of the seized vehicle, being WB-53/0001 filed an application before the learned Court of Chief Judicial Magistrate, Nadia praying for return of the vehicle. The petitioner claimed to be the registered owner of the same. It was further claimed that no case had been started as against the present petitioner. 3. The present petitioner as owner of the seized vehicle, being WB-53/0001 filed an application before the learned Court of Chief Judicial Magistrate, Nadia praying for return of the vehicle. The petitioner claimed to be the registered owner of the same. It was further claimed that no case had been started as against the present petitioner. The learned Court in response to such application directed the concerned forest authority to submit a report. After hearing the parties and taking into consideration all relevant facts and materials, the learned Court rejected the said application. 4. Being aggrieved by the said order, the petitioner filed the present application praying for a direction upon the authority concerned to return the seized vehicle. 5. Mr. Moitra, as learned Counsel for the petitioner, expressed his wonder as to how could such a stage carriage be detained by the authority concerned and that too, in absence of any case being instituted against the owner of the said vehicle. In response to this, the learned Counsel appearing for the concerned forest authority, referred to clause (d) of sub-section (1) of section 39 of the Wild Life (Protection) Act, 1972. It was submitted that vehicle, vessel, weapon, trap or tool, that has been used for committing an offence and has been under the provisions of this Act, is the property of the State Government. It was emphatically submitted on behalf of the forest authority that the vehicle was used for committing an offence under the Wild Life (Protection) Act, 1972 and, as such, it could not be returned to its registered owner. The expression "used for committing an offence" was sought to be explained by submitting that since the birds were in baskets, which were being carried in the vehicle, the said bus was seized and it, thus, became the property of the State Government. In response to an query, the learned Counsel did not hesitate to add that in an identical situation even an aeroplane or a ship could be seized and taken as property of the State Government. 6. On behalf of the opposite party/forest authority written argument was submitted wherein it was claimed that the bus, which was meant for carrying passengers could only be used for carrying goods after taking permission from the Motor Vehicle Department. 6. On behalf of the opposite party/forest authority written argument was submitted wherein it was claimed that the bus, which was meant for carrying passengers could only be used for carrying goods after taking permission from the Motor Vehicle Department. It was also submitted that if such vehicle is used for carrying migratory birds, the owner has to take special previous permission under section 17B of the said Act from the State Government and/or being empowered under section 17A of the said Act from the authorised officer. 7. I am afraid the said opposite party failed to appreciate the matter in its proper perspective. So far the permission from the Motor Vehicle Department is concerned, it could not be headache of the Forest Department. 8. Though learned Counsel, Mr. Mallick appearing for the State Government adopted the argument advanced on behalf of the opposite party/forest authority, I am afraid that an unreasonable attempt has been made to extend the word "used" for committing an offence under the Act. 9. Mr. Moitra relying upon the decision in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in 2002 (10) SCC 283, submitted that it is of no use to keep vehicles for a long period and it is for the Court to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 10. In the present case, there is sufficient scope for raising controversy as to how such stage carriage, which was in the nature of a public transport, could be said to be a vehicle, which was used for committing an offence under the said Act. It cannot be denied that the owner of the vehicle had not been implicated as an accused. The ownership had not been challenged either. In such facts and circumstances, I am inclined to hold that there could be no scope, nor any rational justification for the learned Court for rejection of the prayer for return of such vehicle. It cannot be denied that the owner of the vehicle had not been implicated as an accused. The ownership had not been challenged either. In such facts and circumstances, I am inclined to hold that there could be no scope, nor any rational justification for the learned Court for rejection of the prayer for return of such vehicle. Having regard to the facts and circumstances of the present case and in appreciation of the grievances ventilated in the present application, the present case, being C.R.R. No. 1158 of 2006, is disposed of with the following directions: The order dated 4.4.2006 passed by the learned Chief Judicial Magistrate, Nadia in complaint case No. 269C if 2006 is set aside. 11.The learned Court is to consider the application praying for return of the seized vehicle bearing No. WB-53/0001, afresh and pass order within a period of two weeks from the date of communication of this order in the light of observation made hereinbefore and return the vehicle to its registered owner after being satisfied as to the claim of ownership on execution of a bond to the satisfaction of the learned Counsel and on further condition to produce the same in Court as and when called for. Condition may also be imposed to the effect that nothing should be done in order to change the identity of the vehicle in any manner whatsoever. 12. Send a copy of this order to the learned Court of Chief Judicial Magistrate, Nadia for information and necessary action. 13. Criminal Department is directed to supply urgent xerox certified copy of this order, if applied for, to the learned Counsel for the parties, after due compliance with the legal formalities. 14. Immediately after passing of the said judgment, the learned Counsel for the opposite party No.2/forest authorities prays for stay of operation of the said order. The prayer is considered and refused. Later: Appeal disposed of with directions.