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2023 Supreme(Online)(KER) 16370
HIGH COURT OF KERALA
A. BADHARUDEEN, J
BENCY SHAJI
– Appellant
Versus
THE STATE OF KERALA – Respondent
Crl.Rev.Pet 556 2021
K.B.PRADEEP HARISANKAR R
The transfer of ownership of captive animals without compliance to the Wildlife Protection Act is prohibited, affecting custody rights.
Headnote:
Wildlife - Elephant Custody - Wildlife Protection Act - [Sections 39, 40, 42, 43, 51]
Fact of the Case:
The petitioner sought interim custody of an elephant, claiming ownership. The elephant was seized by the Forest Department due to illegal possession by another party, with ownership certificates suggesting transfers violated the Wildlife Protection Act.
Finding of the Court:
The court held that the petitioner had transferred ownership of the elephant in violation of the Wildlife Protection Act. The interim custody applications were rightly dismissed as the D.Praveen, the current custodian, acted without proper permissions.
Issues: The main issues included the procedure for declaring possession of captive animals and the legality of transferring ownership without appropriate permissions under the Wildlife Protection Act.
Ratio Decidendi: Ownership transfer without adherence to the Wildlife Protection Act's provisions is prima facie illegal; hence, it bars interim custody claims.
Final Decision: Both revision petitions were dismissed, maintaining the elephant's custody with the Forest Department.
C O M M O N O R D E R
Bency Shaji is the revision petitioner in both these revision petitions, where State of Kerala is the 1st respondent and the Range Forest Officer, Thiruvananthapuram is arrayed as the 2nd respondent. In Crl.R.P.No.555/2023, the revision petitioner assails order in CMP No.281/2021 in O.R.No.2/2020 and in Crl.R.P.No.556/2023, the same revision petitioner impugns order in CRMP No.282/2021 in O.R.No.4/2020, germane as per common order dated 02.06.2021.
2. Heard the learned counsel for the revision petitioner as well as the learned Special Government Pleader appearing for the Forest Department in detail. The precise allegation led to registration of O.R.No.2/2020 alleging commission of offences punishable under Sections 39 (3)(b), 40(2), 42, 43(1), 43(2), 44, 49, 50 and 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as `the Act’ for easy reference) is that A.V.Prasanth, Mangalassery, Oham Nagar, Manikanteshwaram, Perookada, kept an elephant by name `Balanarayanan (Ganesan)’ without any ownership and without the permission of the Chief Wild Life Warden. On inspection, the Chief Wild Life Warden found that possession of the elephant by A.V.Prasanth is illegal and accordingly crime alleging commission of the above offences was registered and the elephant was taken into physical custody and thereafter given temporary custody to .Praveen, facilitating rehabilitation of the elephant under the custody of the Forest Department.
3. O.R.No.4/2020 was registered on the basis of a complaint lodged alleging commission of offences punishable under Sections 2(16), 39(3), 42, 43 and 44 of the Act by Dr.Amrith Prasad stating that the 1st accused along with other agreed to sell the elephant by name Balanarayanan to Dr.Amrith Prasad and thereby obtained Rs.1,10,25,000/- from Dr.Amrith Prasad towards the sale consideration and thereafter cheated him without giving the elephant. In this crime also, the elephant has been in custody.
4. After receiving custody of the elephant it was given to Mr. Praveen, the 3rd accused in O.R.No.2/2020 for interim custody on executing bond by him, as an interim arrangement to hand over the elephant to the Forest Department to keep the elephant in the custody of the Forest Department at rehabilitation Centre at Kottur. While so, Sri A.V.Prasanth, the 1st accused in O.R.Nos.2/2020 and 4/2020 filed petitions, viz., CMP.Nos.1367/2020 and 1368/2020 and sought interim custody of the elephant. But those petitions were dismissed. Then the said orders were challenged before the Sessions Court, the same also were dismissed. It was thereafter Bency Shaji filed C.M.P No.281/2021 in OR No.2/2020 and C.M.P No.282/2021 in O.R.No.4/2020 under Section 451 of the Code of Criminal Procedure, seeking interim custody of the elephant till the disposal of this case.
5. As per common order dated 02.06.2021, Judicial First Class Magistrate Court for the trial of forest offences, Nedumangad dismissed both the petitions.
6. Challenging the said common order, these Revision Petitions have been filed and in view of the interim order passed by this Court, now the elephant is in custody of Praveen.
7. While assailing the common order, the learned counsel for the petitioner submitted that Bency Shaji, the revision petitioner herein, is the owner of the elephant and ownership in the name of Bency Shaji is not in dispute. Therefore, being the owner of the elephant, Bency Shaji has every right to keep the custody of the elephant and, therefore, the learned Magistrate went wrong in dismissing the interim custody applications and as such the common order requires interference granting interim custody of the elephant at the hands of the revision petitioner.
8. The learned counsel for the petitioner also placed decision of a Division Bench of this Court reported in [2012 (2) KHC 622], Venkitachalam V.R v. State of Kerala & Ors. to contend that absolute transfer of elephant is not prohibited but the same can be done only
