Supreme Court of India
STATE OF M.P. AND ORS.versusMADHUKAR RAO
- Citation
- 2008 INSC 29
- Decided
- 9 January 2008
- Disposal
- Dismissed
- Bench
- H K SEMA
Holding
A magistrate may order interim release of a vehicle seized under the Wild Life (Protection) Act during the pendency of trial under Section 451 of the CrPC; Section 39(1)(d) applies only after a competent court has finally found the seizure to be in connection with the offence.
Summary
The State of Madhya Pradesh seized a Tata Sumo vehicle carrying antlers under Section 50(1)(c) of the Wild Life (Protection) Act, 1972 and the owner, Madhukar Rao, sought its interim release on a supersedeas bond under Section 451 of the Code of Criminal Procedure, 1973. The trial court granted release, but the State appealed, arguing that the vehicle became Government property under Section 39(1)(d) of the Act and that the Act barred any magistrate from ordering release. The Supreme Court examined the interplay between the Act and the CrPC, holding that the expression "according to law" in Section 50(4) requires the matter to be dealt with under the Code, and that Section 39(1)(d) only operates after a competent court has finally adjudicated the offence. Consequently, the magistrate’s power to grant interim release remains unaffected by the Act. The Court dismissed all appeals and special leave petitions, affirming the High Court’s order allowing release.
Issues considered
- Whether a vehicle seized under Section 50(1)(c) of the Wild Life (Protection) Act, 1972 is beyond the jurisdiction of a magistrate to order its interim release under Section 451 of the Code of Criminal Procedure, 1973.
- Whether Section 39(1)(d) of the Wild Life (Protection) Act, 1972 renders the seized vehicle Government property, thereby precluding its release before a final judgment.
Legislation cited
- Code of Criminal Procedure, 1973s. 451
- Wild Life (Protection) Act, 1972s. 39(1)(d), s. 50(1)(c), s. 50(2), s. 50(3-A), s. 50(4), s. 51, s. 53, s. 54
Subjects
Wild Life (Protection) Actinterim releasemagistrate powerseizure of vehiclegovernment propertyCrPC Section 451Section 39Section 50constitutional validity
Judgment
(2008] 1S.C.R.413
STATE OF M.P. AND ORS. A
' -...F v.
MADHUKAR RAO
(C.A. No. 5196 of 2001)
JANUARY 9, 2008
B
[H.K. SEMA AND AFTAB ALAM, JJ.]
1 Code of Criminal Procedure, 1973:
• s.451- Interim release of vehicle seized under s.50(1)(c)
c
of the Wild Life (Protection) Act, 1972 - Power of Magistrate -
Held: Magistrate in exercise of power under s. 451, can release
the seized vehicle during the pendency of trial - s.39(1)(d) of
the Act cannot be used against this power of magistrate - Wild
Life (Protection) Act, 1972- ss.39(1)(d) and 50(1)(c).
D
Wild Life (Protection) Act, 1972:
s.50(4)-Expression 'according to law' - Scope of- Code
of Criminal Procedure, 1973 - s.451.
The questions which arose for consideration in the
E
instant appeals and SLPs were: (1) Whether a vehicle or
vessel seized under s.50(1 )(c) of the Wild Life (Protection)
Act, 1972, is put beyond the power of the Magistrate to
direct its release during the pendency of trial in exercise
of powers under s.451 of Code of Criminal Procedure,
1973? and (2) Whether the seized property becomes the F
"'' )_
government property under s.39(1)(d) and thus cannot be
released?
Dismissing the appeals and SLPs, the Court
HELD: 1. The provisions of s.50 of the Wild Life G
(Protection) Act, 1972 and the amendments made
thereunder do not in any way affect the Magistrate's power
to make an order of interim release of the vehicle under
s.451 of the Code of Criminal Procedure, 1973. The use of
413 H
414 SUPREME COURT REPORTS [2008] 1 S.C.R.
A a vehicle in the commission of an offence under the Act,
'\... - •
without anything else, would not bar its interim release.
[Paras 12, 18] [421-D, E; 424-F, G]
2. S.50 and the other provisions in Chapter VI of the
Act do not exclude application of any provisions of the
B Code. It is indeed true that s.50 of the Act has several
provisions especially aimed at prevention and detection
of offences under the Act. But it does not mean that s.50 ~
in itself or taken along with the other provisions under
Chapter VI of the Act constitutes a self-contained
c mechanism so as to exclude every other provision of the
Code. This position becomes further clear from sub-
section (4) of s.50 that requires any person detained or
things seized to be taken forthwith before a Magistrate to
be dealt with according to law. The expression used in
D the sub-section is 'according to law' and not 'according
to the provisions of the Act'. The expression 'according
to law' undoubtedly widens the scope and plainly
indicates the application of the provisions of the Code.
The deletion of sub-section (2) and its replacement by sub-
E section (3-A) in s.50 of the Act has no effect on the powers
of the Magistrate to release the seized vehicle during the
pendency of trial under the provisions of the Code. [Paras
13, 14, 15] [421-FG; 422-A, B, D, E, F]
Moti Lal v. Central Bureau of Investigation andAnr. (2002)
F 4 sec 713 - relied on.
~
State of Karnataka v. K.A. Kunchindammed (2002) 9 SCC
90 - distinguished.
"'
3. The provision of s.39(1)(d) would come into play
G only after a court of competent jurisdiction found the
accusation and the allegations made against the accused
as true and recorded the finding that the seized article
was, as a matter of fact, used in the commission of offence.
Any attempt to operationalise s.39(1)(d) of the Act merely
H on the basis of seizure and accusations/allegations
STATE OF M.P. AND ORS. v. MADHUKAR RAO 415
[AFTAB ALAM, J.]
levelled by the departmental authorities would bring it into A
-J<
conflict with the constitutional provisions and would
render it unconstitutional and invalid. The provisions of
s.39(1 )(d) cannot be used against exercise of the
Magisterial power to release the vehicle during pendency
of the trial. [Para 19] [425-A, B, C] B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1 5196 of 2001.
• From the final Judgment and Order dated 28.10.1999 of
the High Court of Madhya Pradesh at Jabalpur in W.P. No. 4421 c
of 1997.
WITH
C.A. Nos. 5197-5200 of 2001, SLP(C) Nos. 2095 and
8024 of 2002 and Criminal Appeal No. 487 of 2006.
D
Vibha Datta Makhija, C.D. Singh, Merusagar Samantaray,
Kirti Renu Mishra, Sudheer Mishra, M. Gireesh Kumar, Avijith
K. Lala and Vijay Kumar for the Appellants.
AK. Sanghi, Prakash Shrivastava, Sakesh Kumar, Rohit
E
Singh, Suman Bala Rastogi and B.K. Satija for the Respondent.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. This judgment will dispose of the four
appeals in all of which the same _question arises for
consideration. The question is whethet a vehicle or vessel etc. F
;._ seized under Section 50(1 )(c) of the Wild Life (Protection) Act,
1972 (hereinafter referred to as 'the Act') is put beyond the
power of the Magistrate to direct its release during the pendency
of trial in exercise of powers under Section 451 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the G
Code'). On behalf of the appellant, the State of Madhya Pradesh,
it is strongly contended that the answer to the question would
be only in the affirmative. The contention appears to us to be ex
facie untenable but in order to examine the stand of the State
Government it would be necessary to state the facts and H
416 SUPREME COURT REPORTS [2008] 1 S.C.R.
A circumstances in which the question arises and to take note of
the relevant provisions of law in light of which it is to be answered. ,.. -
2. The facts of the case are taken from Civil Appeal
No.5199 of 2001, the State of Madhya Pradesh vs. Madhukar
Rao, which was the leading case before the High Court. On
8 March 12, 1997 at about 3.30 a.m., in course of checking a
Sub-Inspector of Excise found a Tata Sumo vehicle, bearing
Registration No.MH.31-H/6919, carrying 206 kgs. of antlers. The
vehicle was owned by Madhukar Rao, the respondent, but he r
was not in it at the time of checking. The Excise Sub-Inspector
C informed the officers of the Forest Department who registered
a case being Offence No.6527/97 under Sections 39, 42, 43,
44, 49(Kha) and 51 (Kha) of the Act. The four persons occupying
the vehicle were arrested and the vehicle and the antlers were
seized under Section 50(1 )(c) of the Act. The Judicial
D Magistrate, Raipur, was duly informed about the institution of
the case on March 13, 1997.
3. The respondent, being the owner of the vehicle, moved
the Judicial Magistrate, First Class, Raipur on May 12, 1997
for its release on Supurdnama. On behalf of the respondent it
E was stated that he was not an accused in the case and he had
no concern with the commission of any offences. It was further
stated that his neighbour Shri Lohiya, one of the accused in the
case, had borrowed the vehicle on the pretext of going to see
his ailing father. The Magistrate allowed the petition and directed
F for release of the vehicle on Supurdnama by order, dated May
12, 1997.
4. Against the order of the Magistrate, the State
Government filed a revision before the Sessions Judge, Raipur.
G In the revision, it was stated that the Magistrate had erred in
allowing the release of the vehicle in disregard of Section 39(d)
of the Act in terms of which the seized vehicle became the
property of the Government and hence, the court had no power
to release it on Supurdnama. It was further contended that the
power of release under Section 451 of the Code could be
H
STATE OF M.P. AND ORS. v. MADHUKAR RAO 417
[AFTAB ALAM, J]
exercised only in respect of vehicles seized by a police officer. A
The Sessions Judge by order, dated June 5, 1997 allowed the
revision, relying upon a Bench decision of the Gwalior Bench of
Madhya Pradesh High Court in L.P.A.No.152of1996. (Here it
is stated on behalf of the State that the S.L.P. filed against the
order in the L.P.A. was dismissed by this Court in limine). B
5. After the revision was allowed and the order of release
; passed by the Magistrate was set aside, the Wild Life Warden
1
and Divisional Forest Officer, Raipur passed an order on June
~
16, 1997 declaring the seized vehicle as Government property
in terms of Section 39(d) of the Act. c
6. The respondent then went to the High Court at Jabalpur,
in Writ Petition No.4421 of 1997, challenging the decision of
the Sessions Judge and seeking a direction for release of the
vehicle on Supurdnama as ordered by the Magistrate. The case
D
of the present respondent along with three other cases (giving
rise to the three other appeals in this batch) was finally heard by
a full bench. Dharmadhikari,J. (as His Lordship then was) who
---i authored the full bench judgment held and found that the
Magistrate's power to release a vehicle during the pendency of
trial was not, in any way, affected by the legislative changes in E
the Act relied upon by the State and in appropriate cases it was
fully open to the Magistrate to pass an order of interim release
of a seized vehicle. The three other cases were also disposed
of following the Full Bench decision in Madhukar's case.
F
7. The State is in appeal against the order passed by the
j.__
High Court.
8. On behalf of the State, it is contended that after the
amendments made in Section 50 and Section 39(1)(d) of the
Act w.e.f. October 2, 1991 by Act 44 of 1991 there was no way G
a vehicle seized for violation of the Act could be released. The
r amendments in Section 50 took away the power from the
Assistant Director of Wild Life Preservation or Wild Life Warden
(or an officer superior to them) and the Magistrate under the
Code, in any event, had no such power. Moreover, the H
418 SUPREME COURT REPORTS [2008] 1 S.C.R.
A amendment of Section 39(1)(d) of the Act made any interim
release of the vehicle further impossible.
9. In order to appreciate the submissions made on behalf
of the State it would be necessary to examine the relevant
provisions of law. Chapter VI of the Act contains provisions
8 dealing with the prevention and detection of offences. The
chapter begins with Section 50 that gives to the specificied
officers the powers of entry, search, arrest and detention. It is a
long section having as many as nine sub-sections. Sub-section
(1) which is sub-divided into three clauses is as follows :
c
"50. Power of entry, search, arrest and detention - (1)
Notwithstanding anything contained in any other law for
the time being in force, the Director or any other officer
authorized by him in this behalf or the Chief Wild Warden
or the authorised officer or any Forest Officer or any Police
D
Officer not below the rank of a sub-inspector, may, if he
has reasonable grounds for believing that any person has
committed an offence against this Act -
(a) require any such person to produce for inspection
E any captive animal, wild animal, animal article, meat,
[trophy, uncured trophy, specified plant or part or derivative
thereof] in his control, custody or possession, or any
licence, permit or other document granted to him or required
to be kept by him under the provisions of this Act;
F (b) stop any vehicle or vessel in order to conduct
search or inquiry or enter upon and search any premises,
land, vehicle or vessel, in the occupation of such person,
and open and search any baggage or other things in the
possession;
G
(c) seize any captive animal, wild animal, animal
article, meat. trophy or uncured trophy, or any specified
plant or part or derivative thereot, in respect of which an
offence against this Act appears to have been committed,
in the possession of any person together with Bf'.Y trap,
H
STATE OF M.P. AND ORS. v. MADHUKAR RAO 419
[AFTAB ALAM, J.]
~-+
tool, vehicle, vessel or weapon used for committing any A
such offence and, unless he is satisfied that such person
will appear and answer any charge which may be preferred
against him, arrest him without warrant, and detain him.
Provided that where a fisherman, residing within ten
kilometers of a sanctuary or National Park, inadvertently B
..., enters on a boat, not used for commercial fishing, in the
~ territorial waters in that sanctuary or National Park, a fishing
tackle or net on such boat shall not be seized."
Before the Act was subjected to a large number of c
amendments with effect from October 2, 1991, Section 50 had
sub-section (2) which was as follows :
"(2) Any officer of rank not inferior to that of an Assistant
Director of Wild Life preservation or Wild Life Warden,
who, or whose subordinate has seized any trap, tool, D
vehicle, vessel or weapon under clause (c) of sub-section
--1 (1 ), may release the same on the execution by the owner
thereof of bond for the production of the property so
released, if and when so required, before the Magistrate
having jurisdiction to try the offence on account of which E
the seizure has been made."
The Amendment Act 44 of 1991 deleted sub-section (2)
and inserted in its place sub-section (3-A) which is as follows :
"(3-A). Any officer of a rank not inferior to that of an Assistant F
~
Director of Wild Life Preservation of [as Assistant
Conservator of Forests], who, or whose subordinate, has
seized any captive animal or wild animal under clause (c)
of sub-section (1) may give the same for custody on the
execution by any person of a bond for the production of
G
~ such animal if and when so required, before the Magistrate
having jurisdiction to try the offence on account of which
the seizure has been made."
At the same time, amendments were made in Section
39(1 )(d) after which it reads as follows : H
420 SUPREME COURT REPORTS [2008] 1 S.C.R.
A ":~9. Wild animals, etc., to be Government property -
(1) Every
(a) ~ ~ ~ ~
(b) ~ ~ ~ ~
8 (c:) ~ ~ ~ ~
(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
c 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]
D shall be the property of the Central Government."
10. Ms.Vibha Datta Makhija, learned counsel appearing
for the State of Madhya Pradesh referred in detail to various
sub-sections of Section 50. She also referred to Section 51
laying down the penalties for offences committed under the Act,
E Section 53 dealing with the punishment for wrongful seizure and
Section 54 dealing with the power to compound offences.
Learne~d counsel submitted that prior to October 2, 1991, while
sub-section (2) of Section 50 was in existence, the specified
officers were empowered to release any trap, tool, vehicle, vessel
F or weapon seized under clause (c) of sub-section (1) in
connection with any offence under the Act. But the provision was
deleted and was substituted by sub-section (3-A) tt1at limited
the power of release only in regard to any captive animal or wild
animal. The legislative intent was thus clear that no release was
G permissible of any article other than a captive animal or wild
animal that could be given in the custody of any person on
execution of a bond.
11. Learned counsel submitted that Section 50 of the .A.ct
provided a complete and comprehensive scheme in matters of
H entry, search, arrest and detention for prevention and detection
STATE OF M.P. AND ORS. v. MADHUKAR RAO 421
~-'"
[AFTAB ALAM, J.]
of offence under the Act and excluded the application of any A
other Act, including the Code, in the matter. She maintained
that at no time it was open to the Magistrate to direct for interim
release of a vehicle seized under Section 50(1)(c) of the Act.
Previously officers of certain higher ranks had the power to
release the seized vehicle but after deletion of sub-section (2) B
~ the power was taken away from the departmental officers as
"" well and hence, a vehicle seized for commission of an offence
under the Act could no longer be released on interim basis. In
support of the submission that Section 50 provided a complete
Code she also referred to Sections 51 and 53 of the Act. She c
submitted that the punishment for wrongful seizure too was
provided under the Act itself and hence, the seizure would not
attract the provisions of any other law, including the Code. In
support of the submission she relied upon the decision of this
Court in State of Karnataka vs. K.A.Kunchindammed [2002
D
(9) SCC 90]. She particularly relied upon paragraph 23 of the
·-4 decision.
12. We are unable to accept the submissions. To contend
that the use of a vehicle in the commission of an offence under
the Act, without anything else would bar its interim release E
appears to us to be quite unreasonable. There may be a case
where a vehicle was undeniably used for commission of an
offence under the Act but th.e vehicle's owner is in a position to
show that it was used for committing the offence only after it
' f, was stolen from his possession. In that situation, we are unable F
to see why the vehicle should not be released in the owner's
favour during the pendency of the trial.
13. We are also unable to accept the submission that
Section 50 and the other provisions in Chapter VI of the Act
+- exclude the application of any provisions of the Code. It is indeed G
true that Section 50 of the Act has several provisions especially
aimed at prevention and detection of offences under the Act.
For example, it confers powers of entry, search, arrest and
detention on Wild Life and Forest Officers besides police
officers who are normally entrusted with the responsibility of H
422 SUPREME COURT REPORTS [2008] 1 S.C.R.
+.·
A investigation and detection of offences; further sub-section (4)
of Section 51 expressly excludes application of Section 360 of
the Code and the provisions of Probation of Offenders Act to
persons eighteen years or above in age. But it does not mean
that Section 50 in itself or taken along with the other provisions
B under Chapter VI constitutes a self-contained mechanism so
as to exclude every other provision of the Code. This position
becomes further clear from sub-section (4) of Section 50 that
,.
,..,
requires that any person detained, or things seized should
forthwith be taken before a Magistrate. Sub-section (4) of
c Section 50 reads as follows :
"50(4). 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
D authorized by him in this regard]."
14. It has to be noted here that the expression used in the )...
sub-sei:::tion is 'according to law' and not 'according to the
provisions of the Act'. The expression 'according to law'
undoubtedly widens the scope and plainly indicates the
E application of the provisions of the Code.
15. We find that the full bench of the High Court has correctly
taken the view that the deletion of sub-section (2) and its
replacement by sub-section (3-A) in Section 50 of the Act had
F no effect on the powers of the Magistrate to release the seized ,.\
vehicle during the pendency of trial under the provisions of the
Code. The effect of deletion of sub-section (2) and its
replacement by sub-section (3-A) may be summed up thus: as
long as, sub-section (2) of Section 50 was on the Statute Book
the Magistrate would not entertain a prayer for interim release
G
of a seized vehicle etc. until an application for release W2'S made
before the departmental authorities as provided in that sub- •
section. Further, in case the prayer for interim release was
rejected by the departmental authority the findings or
observations made in his order would receive due consideration
H
STATE OF M.P. AND ORS. v. MADHUKAR RAO 423
i [AFTAB ALAM, J.]
_,, -+ and would carry a lot of weight before the Magistrate while A
"
considering the prayer for interim release of the vehicle. But
now that sub-section (2) of Section 50 stands deleted, an
aggrieved person has no option but to approach the Magistrate
directly for interim release of the seized vehicle.
16. We are also of the view that the decision in B
. Kunchindammed is of no help to the State in the present
4 -4 appeals. Paragraph 23 of the decision apparently seems to
support the appellant's contention but we find it difficult to apply
it in the facts of the present case. The decision in
Kunchindammed was rendered on the provisions of the c
Karnataka Forest Act. 1963. In that case, an order of confiscation
of the vehicle was passed by the competent authority and the
confiscation order had attained finality. The present case arises
under the Wild Life Protection Act and the facts are materially
different. D
17. The decision of this Court closer to the issue under
consideration may be found in Moti Lal vs. Central Bureau of
J ~
Investigation &Anr. [2002 (4) sec 713]. In that case an offence
committed under the Act was handed over for investigation to
the Central Bureau of Investigation and the action was assailed E
exactly on the plea that the Wild Life Act was a special law and
it contained comprehensive provisions for investigation, inquiry,
'' ~
search, seizure, trial and imposition of punishment and,
therefore, the police force establishment under the Delhi Special
Police Establishment Act was not empowered to investigate F
* the case. This Court rejected the contention and after examining
in detail the various provisions of the Act particularly the
provisions of Section 50 came to find and hold as follows :
"The scheme of Section 50 of the Wild Life Act makes it
G
·abundantly dear that a police officer is also empowered
to investigate the offences and search and seize the
offending articles. For trial of offences, the Code of
Criminal Procedure is required to be followed and for that
there is no other specific provision to the contrary. The
H
424 SUPREME COURT REPORTS [2008] 1 S.C.R.
A special procedure prescribed is limited for taking +-·
cognizance of the offence as well as powers are given 'to
other officers mentioned in Section 50 for inspection,
arrest, searGh and seizure as well as. of recording
statement. The. power to compound offences is also
B conferred under section 54. Section 51 provides for
penalties which would indicate that certain offences are
cognizable offences meaning thereby a police officer can t- •
arrest without warrant. Sub-section (5) of Section 51
provides that nothing contained in Section 360 of the Code
c of Criminal Procedure or ·in the Probation of Offenders
Act, 1958 shall apply to a person convicted of an offence
with respect to hunting in a sanctuary or a national park or
of an offence against any provision of Chapter 5-A unless
such person is under 18 years of age. The aforesaid
specific provisions are contrary to the provisions contained
D
in the Code of Criminal Procedure and that would prevail
during the trial. However, from this, it canno~ be said that
,._
operation of rest of the provisions of the Code of Criminal.
Procedure are. excluded.
l
E In this view of the matter, there is no substance in the
contention raised by the learned counsel for the appellant
that Section 50 of the Wild Life Act is a comple.te code
and, therefore, CBI would have no jurisdiction to
investigate the offel)ces under the said Act. Hence, it •
F cannot be said that the judgment and order passed by the
High Court reiecting the petition filed by the appellant is in ~
any way illegal or erroneous."
18. We have, therefore, no doubt that the provisions of
Section 50 of the Act and the amendments made thereunder
G do not in any way affect the Magistrate's power to make an
order of interim release of the vehicle under Section 451 of the +
Code.
19. Learned counsel submitted that Section 39(1 )(d) of
the Act made the articles seized under Section 50(1 )(c) of the
H
STATE OF M.P.· AND ORS. v. MADHUKAR RAO 425
[Ai;TAB ALAM, J.J
~~-
Act as go~ernment property and, theref-ore, there was no A
qu·estion of their release .. The submission was carefully
considered by the Full Bench of the High Court and on an
examination of the various provisions of the Act it was held that
the provision of Section 39(1)(d}would come into play only after
. a court ofcompetentjurisdiction found the accusation and the B
alle9ations made against the accused as true and recorded
-1 the finding that the seized article was, as a matter of fact, used
--..
in the commission of offence. Any attempt to operationalise
Section 39(1 )(d) of the Act merely on the basis of seizure and·
accusations/allegations leveled by the departmental authorities c
would bring it into.confli'ct with the constitutional provisions and
would render it unconstitutional and invalid. In our OP.inion, the
,'' High Court has taken a perfectly c9rrect view and the provisions
of Sectron 39(1 )(d) cannot be used against exercise of the .
Magisterial power to release the \lehicle during. pendency of
D
the trial.
-< 20. We. thus find no merit
. in any of the submission
. made
on behalf of the appellants. The High Court has taken a correct
view that warrants no interference by t.his Court. Accordingly, all
the appeals and special leave petitions are di!)missed. E
D.G.. Appeals· and Special
"
Leave petitions dismissed.
- -#.
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