Point of Law: Section 40(2B) provides that every person inheriting any captive animal, animal article, trophy or uncured trophy under sub-section (2A) shall, within ninety days of such inheritance make a declaration to Chief Wild Life Warden.

ORDER :

Crl.R.P.No.754/2022 has been filed by the State of Kerala represented by the Range Forest Officer, Kodanad, Ernakulam district, challenging order dated 09.06.2022 in CMP.628/2020 in C.C.No.358/2019 pending before the Judicial First Class Magistrate Court-III, Perumbavoor. Respondents 1 to 3 herein are respondents 1, 2 and 4 in the above case. Respondents 4 and 5 are third parties/interveners in the Revision Petition.

2. The 1st respondent/1st accused has filed Crl.R.P.No.593/2022 challenging the same order. Similarly, Crl.R.P.No.591/2022 has been filed by the 2nd accused also challenging the same order.

3. Heard the learned Additional Director General of Prosecution Shri Gracious Kuriakose, learned Senior Counsel Shri S.Sreekumar, appearing for the 1st respondent; Advocate Nireesh Mathew appearing for the 2nd respondent and Dr.Abraham P.Meachinkara appearing for the intervenors.

4. Bereft of unnecessary embellishments, the factual matrix of the prosecution in nutshell is that the Divisional Forest Officer, Malayattoor and the Forest Range Officer, Kodanad, along with staff, had detected possession of two pairs of elephant tusks by the 1st accused and seized the same. It was found that two tusks fixed on a rosewood stand and another two tusks fixed on both sides of a mirror, at the residence of the accused No.1 at 4 pm on 21.12.2011 at Thevara, Kochi. The Divisional Forest Officer, Malayattoor had verified the said tusks and prepared a mahazar, in the presence of witnesses, on the same day from 10 a.m to 4 p.m. A receipt dated 21.12.2011 was executed by one MJ Antony for the proper custody of the said tusks in question, being the representative of A1.

5. The complainant, in this case, alleges that the 1st accused at the time of the seizure, did not have a certificate of possession as mandated under the Wildlife (Protection) Act, 1972, the act of the accused persons are sufficient to invoke penal consequences since they had contravened the provisions of the Act regarding declarations to be made pertaining to the control, custody, or possession of any captive animal specified in the Schedule I of the Act or animal article, trophy, the prohibition of trade or commerce in trophies, animal articles etc. derived from certain animals, the prohibition of dealing in trophies, animal articles, attempts and abatements among other requirements of law. Accordingly, an occurrence report was lodged on 12.06.2012 and on the said premise, the prosecution registered O.R.No.14/12 of Mekkappala Police Station alleging commission of offences punishable under Sections 39, 40(2), (2A), 49A, 49B, 52, 57 r/w Section 2(2)(7)(11)(14)(32)(36) punishable under Sections 51(1)(1A) of Wild Life Protection Act, 1972. On completion of investigation, the Form II report against accused Nos.1 to 4 was laid before Court below on 02.12.2015 by the Range Forest Officer, Kodanadu.

6. The learned Magistrate took cognizance of the case and proceeded against the accused.

7. During pendency of the case, the Assistant Public Prosecutor filed a petition under Section 321 of Cr.P.C, to accord sanction to withdraw the case as against all the accused persons in the interest of justice.

8. Third party interveners, who are respondents 4 and 5, objected withdrawal of the case.

9. The reasons for withdrawal of prosecution, as could be read out from the averments in the C.M.P.628/2021 in para.3 and 4 of the petition are as under:

“3. Accused No.1 approached the State Government by offering his willingness to declare possession of the two pairs of the Elephant tusks in question if he is permitted to do so. In exercise of the special powers under section 40(4) of the State Government had vide a notification GO (Rt) 538/2015/F&WLD dated 16/12/2015 accorded sanction to the said accused to declare possession after completing the mandatory provisions under the act. The legality of the possession of the said two elephant tusks in question as per the letter dated 01/06/2015 by A1 was accepte