Point of Law: Section 50(8) authorises an officer not below rank of Assistant Director of Wild Life Preservation or Assistant Conservator of Forests to receive and record evidence.

ORDER :

This bail application has been filed under Section 438 of the Code of Criminal Procedure seeking the relief of pre-arrest bail.

2. The petitioners are accused Nos.2 to 4 in OR No.03 of 2022 on the files of Peruvannamoozhy Forest Station, Kozhikode District.

3. Heard the learned Counsel for the petitioners and the learned Public Prosecutor.

4. The prosecution case to be read out from the case diary is that on 22.10.2022, based on a secret information that 1st accused stored Sambar deer meat at his residence, search was conducted. During search cooked deer meat, raw deer meat, vessels used for cooking the meat and knife used for the said purpose were recovered from the house of the 1st accused. Under the said premise, crime was registered alleging commission of offences punishable under Sections 9, 39, 50,51 r/2 2 (16), 2(20), 2(36) of Wild Life (Protection) Act, 1972. Subsequently, on the basis of confession statement given by the 1st accused, accused Nos.2 to 4 were also arrayed in the said crime.

5. The learned Counsel for the petitioners pointed out a very serious anomaly in so far as the investigation and recording of the confession by the Investigating Officer herein, who is none other than the Forest Ranger who is not authorised under Section 50(8) of the Wild Life (Protection) Act, 1972 neither to investigate nor to record confession. The learned Counsel for the petitioner placed two decisions on this point. Luca Beltrami and Others v. State of Kerala reported in 2020 (4) KHC 603 is the final decision placed to substantiate the said point. Apart from that, he has placed decision of the Bombay High Court in Criminal Revision Application No.1 of 2015 rendered on 22.06.2015.

6. The learned Public Prosecutor though opposed this contention, she failed to go out of the orbit of Section 50(8) of the Wild Life (Protection) Act, 1972. Section 50 deals with the power of entry, search, arrest and detention of persons involved in offences under the Wild Life (Protection) Act, 1972. Sub-Sections (8) and (9) of Section 50 of the Wild Life (Protection) Act provides as under:

(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or [an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the powers, for purposes of making investigation into any offence against any provision of this Act-

(a) to issue a search warrant;

(b) to enforce the attendance of witnesses;

(c) to compel the discovery and production of documents and material objects; and

(d) to receive and record evidence.

(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.

Even on a cursory reading of the above legal provisions, it is clear that at the time of passing the Wild Life (Protection) Act, sub-section (8) was not there. However, by way of amendment introduced with effect from Act 16 of 2003, the Assistant Director of Wild Life Preservation was authorised to issue a search warrant; to enforce the attendance of witnesses; to compel the discovery and production of documents and material objects; and to receive and record evidence. Thereafter, by way of amendment introduced by amendment Act 44 of 1991, Assistant Conservator of Forest was authorised by the State Government in this behalf also was given the power to do the said exercise since Section 50(8) authorises an officer not below the rank of Assistant Director of Wild Life Preservation or Assistant Conservator of Forests to receive and record evidence. Any officer not below their rank cannot have the power to do any acts provided as (a) to (d) and if anything done by the officer below the rank is a nullity and has no legal effect. Be it as may, the confession recorded by the Forest Ranger is a nullity