Raghuveer vs Superintendent and Project Officer, National Chambal Sanctuary and Others

Rajendra Menon, J.

By this petition, challenge is made to an order dated 27-6-2002, Annexure P-2 passed by the Competent Authority u/s 39(1)(d) of the Wild Life (Protection) Act, 1972, by which tractor of the petitioner alongwith trolly has been confiscated and declared to be property of the Government.

It is the case of the petitioner that he is owner of the tractor in question bearing No. M.P. 06-J A 1662 alongwith trolly. Respondent No. 4 was driver of the tractor and on 13-6-2001 on the allegation that the tractor was being used for unauthorisedly digging sand in protected area namely the National Chambal Sanctuary, Morena, offence under Sections 27 and 29 punishable u/s 51 of the Act of 1972 was registered and petitioner was prosecuted for the same. While the prosecution was pending in the Court of Judicial Magistrate 1st Class, Vijaypur in Case No. 186/2001 tractor of the petitioner along with trolly confiscated and declared as property of the State Government u/s 39(1)(d) by the impugned order. An appeal filed, has been rejected Annexure P-1, dated 28-3-2003 on the ground that no appeal is maintainable against the impugned order, Annexure P-2.

It is the case of the petitioner that vehicle in question can be confiscated and declared property of the Government u/s 39(1)(d), only if it is proved that vehicle was used for committing an offence. It is argued by the learned Counsel that in the criminal case vide judgment dated 19-9-2003, Annexure P-6 petitioner and driver respondent No. 4 have been acquitted and it has been held that no offence has been committed. In that view of the matter, it is argued that order is unsustainable.

Respondents have filed reply and it is contended by them that action is taken in accordance with law. The question of confiscation is pending adjudication before the Supreme Court in SLP No. 20731/2000 vide Annexure R-2 the judgment of the D.B. passed by this Court in W.P. No. 4421/1997 having been stayed, no relief can be granted in the present petition.

I have heard learned Counsel for the parties and perused the record.

As far as the question of the matter pending before the Supreme Court and stay of the judgment of the Full Bench of this Court is concerned, a perusal of the judgment rendered by the Full Bench in the case of Madhukar Rao Vs. State of M.P. and Others, indicates that the question involved in the said case was with regard to seizure of the property including the vehicle and release thereof by interim order of the Court, pending prosecution in the matter and the effect of amendment made to Sub-section (2) to Section 15 of the Wild Life (Protection) Act, 1972. The said judgment is, therefore, with regard to release of the vehicle and the effect of deletion of Sub-section (2) of Section 15 and pendency of the matter in the Supreme Court does not have any bearing in the present case where orders for confiscation of the property u/s 39(1)(d) has been passed and the question is as to whether the aforesaid order is tenable in view of acquittal of the accused person of the offence.

A bare reading of Section 39 and in particular the provisions of Sub-section (1) (d) indicates that every vehicle that has been used for committing an offence and has been seized under the provisions of the Act, shall become property of the State Government. That being so, it is only when a finding is recorded that the vehicle is used for committing an offence, that the same becomes property of the Government. So long as a Competent Court of law does not find that the vehicle has been used for the purpose of commission of the offence, the vehicle does not become property of the State Government. This view is taken by Orissa High Court in the case of Baikuntha Bihari Mohapatra v. State of Orissa, 2001 Criminal Law Journal 4151. Where the judgment of the Full Bench in the case of Madhukar Rao (supra) is also considered. That apart, the Full Bench in the case of Madhukar Rao (supra) also by considering various provisions of the Wild Life (Protection) Act, in Para 17 has interpreted the provisions of Section 39(1)(d) and it is observed as under in the aforesaid para :

"If the interpretation, as has been sought to be put on behalf of the State on Clause (d) of Sub-section (1) of Section 39, is accepted, every property mentioned therein including a vehicle seized merely on accusation or suspicion would become property of the State and that would be the result even though in the trial ultimately the Magistrate finds that no offence has been committed and acquits the accused. In our considered opinion the property seized u/s 50 of the Act from an alleged of fender can not become properly of the Stale under Clause (d) of Section 39(1) unless there is a trial and a finding reached by the Competent Court that the properly was used for committing an offence under the Act. If the seizure of a property was enough to declare it as the property of the Government, there was no necessity to provide under Sub-section (2) of Section 51 that on proof of commission of the offence, the properties including vehicle, vessel, or weapon used in the commission of the offence would be forfeited to the State Government, we do not find any dichotomy conflict in the provisions u/s 39(1)(d) and Section 51(2) of the Act.

In the present case, on trial the Competent Court has found that no offence under Sections 27 and 29 has been committed and the accused persons have been acquitted. The finding, therefore, is that no offence is committed, when the Competent Court of jurisdiction has not found the vehicle being used for committing the offence, no order of confiscation can be passed.

In that view of the matter the impugned order passed is unsustainable as the pre condition necessary for attracting the provision u/s 39(1)(d) is not available. The vehicle being used for committing an offence has not been established by the Competent Court of jurisdiction and accused persons have been acquitted, and in that view of the matter passing of the impugned order is clearly unsustainable.

Accordingly, the writ petition and M.W.P. No. 726/2003 arc allowed.

Order Annexure P-2, dated 27-6-2002 and Annexure P-1, 28-3-2003 passed by the respondents are quashed. Respondents are directed to return the vehicle in question along with its trolly to the petitioner. Petition stands allowed and disposed of with the aforesaid.