Hamsa vs State Of Kerala

Shircy V, J

The petitioners, who are accused Nos. 1 and 3 in O.R. No. 12 of 2021 of Pattikad Forest Station have moved this application for their release on bail. They along with four others, are alleged to have committed offences punishable under Sections 2(16), 2(32), 9, 39(1)(a)(b)(d), 3(a)(b)(c), 50, 51(1) and 57 of the Wildlife (Protection) Act, 1972 and Sections 7, 24 and 55 of the Biological Diversity Act, 2002.

These petitioners are undergoing incarceration right from 09.07.2021. The other accused are yet to be apprehended.

The prosecution has alleged that the accused were found in unauthorized possession of 19 kgs. of 'ambergris' on 09.07.2021 by the forest officials near Kajah Resort kept for the purpose of sale in black market. The same is included in Serial No.5A in Schedule II Part II of Wildlife (Protection) Act and is coming under protected species. It was seized from the possession of the petitioners by the forest officials. But they could apprehend only these two petitioners as well the 2nd accused. The value of the same in black market is Rs.30 Crores and the sale of 'Ambergris' which is used for making perfumes is prohibited by law. Now the investigation of the case is only proceeding as the other accused have not been apprehended so far.

According to the learned counsel for the petitioners, they have not committed any offence as alleged by the prosecution. But they are languishing in jail for about two months. Still the investigation has not been completed. Hence, they pleaded for their release on bail.

But this application is vehemently opposed by the learned Public Prosecutor. It is contended that the the article seized by the forest officials of a rare species and the approximate value per kilogram would be Rs.3,00,000/- to Rs.4,00,000/-. It is also contended that the other accused are yet to be apprehended.

The materials so far collected by the investigating agency would show that 'Ambergris' is part from an endangered marine mammal and a very costly item, has been recovered from the petitioners. The other accused persons have not been apprehended and the investigation of the case has not been completed so far. The petitioners have no criminal antecedents. The petitioners are in custody for more than 55 days. Still the materials are not available on record to show that further detention of these petitioners is inevitable to proceed with the investigation of the case and to file the charge sheet. So, even though the offences alleged against these petitioners are grave and serious in nature, I am inclined to accept the argument of the learned counsel for the petitioners to release them on bail.

Therefore, this application is allowed subject to the following conditions:

(i) The petitioners shall be released on bail on each of them executing a bond for a sum of Rs.1,50,000/- (Rupees One lakh fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the court having jurisdiction.

(ii) The petitioners shall appear before the Investigating Officer for interrogation as and when required by him, in writing.

(iii) The petitioners shall appear before the Forest Officer, Pattikad Forest Station on the 1st Monday of every month between 10.30 a.m. and 11 a.m.

(iii) The petitioners shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iv) The petitioners shall not commit any offence while on bail.

In case of violation of any of the above conditions, the learned Magistrate/Judge  is empowered to cancel the bail in accordance with the law.