Important Point
The seized property becomes the property of the State Government when the same has been used for commission of an offence under the Act and has been seized.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment of a learned Single Judge of the Allahabad High Court allowing the revision petition filed by the respondent. The question of importance involved in this appeal relates to the ambit of Section 50(4) of the Wild Life (Protection) Act, 1972 (in short the ‘Act’). Connected issues relate to the scope for exercise of jurisdiction under Section 457 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).

2.Background facts in a nutshell are as follows :

“One Hoshiyar Singh, the brother of the revisionist, Lalloo Singh was allegedly found carrying sand on a tractor trolley being dug and loaded from the bed of Jamuna river, within the sanctuary declared under Section 18 of the Act. The Forest Authorities intercepted the tractor trolley, arrested Hoshiyar Singh and seized the tractor trolley in exercise of the powers conferred under the provisions of the Act. A revision was filed by Lalloo Singh claiming to be the owner of the tractor trolley. He, therefore, moved an application for release of the same. The VIIth Addl. Chief Judicial Magistrate in exercise of the powers conferred under Section 457 of the Code released the tractor trolley in favour of the revisionist on his furnishing personal bond of Rs.2 lacs and two sureties in the like amount. Against that order, the State of UP. through District Forest Officer, Agra filed a Criminal Revision No.85 of 1999 before the Sessions Judge, Agra which was heard and disposed of by Special Judge (E.C. Act). The revisional court being of the view that the tractor trolley seized under the Act, which has become the property of the Government, held that same could not be released by the Magistrate, allowed the revision and set aside the order of the Magistrate. Hence, the revision by the revisionist, Lalloo Singh was filed as noted above.

3.The High Court by the impugned order held that the Magistrate had the jurisdiction.

4.In support of the appeal, learned counsel for the appellant submitted that the effect of deletion of sub-section (2) of Section 50 of the Act has not been considered by the High Court. It also lost sight of the fact that the moment there is seizure of the seized property it becomes the property of the Government in terms of Section 39 of the Act. Section 457 of the Code has no application because it relates to only when a police officer produces the said property before the magistrate. The officials under the Act are not police officials.

5.Learned counsel for the respondent on the other hand submitted that the interpretation given by the High Court to Section 50 of the Act is correct. Sub section (2) of Section 50 has no effect on the power of the Magistrate to release the seized articles. For application of Section 39 of the Act there has to be first determination that the seized property in question was used for the purpose of commission of an offence.

6.Considering the fact that there is diversion of views of various High Courts, we requested Mr.Ashok Bhan to act as Amicus Curiae.

7.We have heard at length learned counsel for the parties. It is to be noted that substantial changes have been made in the Act by the Act 44 of 1991 operating with effect from 2.10.1991. The major changes so far as the present case is concerned relate to deletion of sub-section (2) of Section 50, insertion of clauses (c) & (d) in sub section (1) of Section 39, insertion of sub-section 3(a) in Section 50.

8.While dealing with the first question, what needs consideration is whether Section 457 of the Code has any application to the present case. Undisputedly, Section 457 of the Code applies when the seizure of property by a police officer is reported to a Magistrate under the provisions of the Code. There is a marked distinction between police officers and the officials under the Act as is evident from sub-section (1) of Section 50. The said Section so far as relevant reads as follows :

“50.Power of entry, search, arrest