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2019 DIGILAW 359 (AP)

V. Murali Mohan v. State of Andhra Pradesh

2019-12-06

M.SATYANARAYANA MURTHY

body2019
ORDER : 1. This writ petition under Article 226 of Constitution of India is filed, for issue of writ of mandamus, declaring the action of respondents in not releasing seized car bearing No. TN-18-AF-6856 or producing before Magistrate as per procedure contemplated under Wild Life Protection Act, 1972 (for short the Act) as illegal, arbitrary and unjust, consequently direct respondents to release car bearing No. TN-18-AF-6856. 2. The petitioner is the owner of car bearing No. TN-18-AF-6856, Maruthi Alto bearing Engine No. F8-DN-5604157 of 2016 model. While so, fourth respondent/Forest Range Officer, Nellore Range, SPSR Nellore District has registered a case in DOR No. 4 of 2019-20 dated 17.08.2019 on the file of Forest Range Officer, SPSR Nellore District for the offence punishable under Section 9 read with Section 2(16), Section 39(1)(d) punishable under Section 51 of the Act against one T. Guna Sekhar and V. Kumar alleging that on 17.08.2019 at about 9:00 a.m. upon reliable information from National Highways Authority, Forest Section Officer, Gudur along with his staff went to NH-5 road near Pandluru village tank, observed that accused were standing near Maruthi Alto car bearing No. TN-18-AF-6856. On enquiry with accused, they voluntarily confessed that while they were travelling in the car from Chennai to Buchireddypalem for repairing paddy harvesting machine, on en-route suddenly two spotted deers came on NH-5 road from the side of Pandluru village tank, hit the car, when they were driving, due to that two spotted deers fell died on both sides of car. Then Forest Section Officer, Gudur along with staff, on observing two deers as male deers, aged about two and three years old, conducted panchanama, produced before authorized officer and the dead bodies were burnt, by taking photos. In pursuance of registration of crime, Maruthi Alto car bearing No. TN-18-AF-6856, was seized and kept with fourth respondent/Forest Range Officers office. 3. Seizure of vehicle, keeping the same with fourth respondent is contrary to procedure contemplated under the Act and according to the Act, competent authority has to forward the seized vehicle to Magistrate and on such surrender, Magistrate can proceed under Section 457 of Criminal Procedure Code (for short Cr.P.C.). But in the present case, respondents are not producing vehicle before Magistrate, contrary to procedure contemplated under Section 50(4) of the Act. But in the present case, respondents are not producing vehicle before Magistrate, contrary to procedure contemplated under Section 50(4) of the Act. Therefore, inaction of respondents in not producing car before jurisdictional Magistrate or releasing vehicle on application of petitioner is violative of Article 14 of Constitution of India and Section 50(4) of the Act requested to issue direction. 4. During the course of hearing, the learned Counsel for petitioner reiterated the contentions, placed on record relevant judgment of High Court of Judicature at Hyderabad in Bhola Kundu vs. The Principal Secretary to Government, Forest Department, Government of Andhra Pradesh and Others, 2014 (3) ALT (Crl.) 181 : 2014 (1) ALD (Cri.) 1009 where the learned Single Judge referred various judgments of Supreme Court in Conservator of Forests and Another vs. J.K. Johnson and Others, (2011) 10 SCC 794 , issued direction to produce vehicle or release vehicle in accordance with Section 50(4) of the Act. On the strength of the principle, learned Counsel for the petitioner Sri. V. Siva Prasad Reddy, requested to pass appropriate order, following principles laid down therein. 5. Whereas, the Assistant Government Pleader for Forests contended that vehicle when seized is deemed to be property of State as per Section 39(1)(d) of the Act, relied on judgment in State of Madhya Pradesh vs. Sayed Yahaya Ali, 1996 Cri. L.J. 3660 (M.P.) based on the principle laid down, learned Government Pleader for Forests, requested to dismiss the petition. 6. Admittedly, vehicle of petitioner, bearing No. TN-18-AF-6856 was taken into custody by fourth respondent on account of registration of crime against petitioner in DOR No. 4 of 2019-20 for the offences punishable under Section 9 read with Section 2(16), 39(1)(d) punishable under Section 51 of the Act. When car was seized under the cover of panchanama, duty cast upon such officer, who seized the vehicle is contemplated under Section 50(4) of the Act. Section 50 deals with power of entry, search, arrest and detention, Clause (4) deals with procedure to be followed. According to it any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorized by him in this regard. At the same time Section 51 deals with penalties for contravention of any of provisions of the Act. At the same time Section 51 deals with penalties for contravention of any of provisions of the Act. According to Section 51(4) where any person is convicted of an offence against this Act, the court may direct that the license, if any, granted to such person under the Arms Act, 1959 (54 of 1959), for possession of any arm with which an offence against this Act has been committed, shall be cancelled and that such person shall not be eligible for a license under the Arms Act, 1959 (54 of 1959), for a period of five years from the date of conviction. 7. Similarly Section 39(1)(d) deals with Wild animals, etc. to be to be Government property, every: (a) wild animal, other than vermin, which is hunted under Section 11 of sub-section (1) or Section 29 of sub-section (6) of Section 35 or kept or bred in captivity or hunted in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed or by mistake. (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. 8. Thus there is any amount of confliction between Section 39(1)(d), Section 50(4) and 51(4) of the Act. Both these provisions are not reconciling one another. 8. Thus there is any amount of confliction between Section 39(1)(d), Section 50(4) and 51(4) of the Act. Both these provisions are not reconciling one another. However, this position is clarified by Apex Court in two judgments in Conservator of Forests and Another vs. J.K. Johnson and Others (supra) and State of Madhya Pradesh vs. Madhukar Rao, (2008) 14 SCC 624 , following the principles laid down in two judgments of Apex court referred above, learned Single Judge of High Court of Judicature at Hyderabad in Bhola Kundu (supra), held that order passed by the Conservator of Forests, for forfeiture of the vehicle and two rifles to the state government is dehors the provisions of the 1972 Act and unsustainable, finally issued direction to refer the matter to concerned Magistrate under the Provisions of the Act to be dealt with in accordance with provision of the said Act. 9. Applying the same principle to the present facts of the case, though it is difficult to reconcile the provisions under Sections 39(1)(d) and 50(4) of the Act, this Court is bound by judgments of both the Apex Court and learned Single Judge of High Court of Judicature at Hyderabad. The same direction is issued to fourth respondent to produce vehicle before jurisdictional Magistrate to deal with in accordance with law, within ten (10) days from the date of receipt of copy of this order. The learned Counsel for the petitioner is permitted to furnish copy of this order to fourth respondent to act upon it and produce the vehicle before Magistrate. 10. With the above direction, the writ petition is disposed of. There shall be no order as to costs. 11. Consequently, miscellaneous petitions, pending if any, shall stand closed.