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2023 Supreme(Online)(KER) 25297
HIGH COURT OF KERALA
A. BADHARUDEEN, J
BENCY SHAJI
– Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 555 2021
K.B.PRADEEP, HARISANKAR R, SPECIAL GOVERNMENT PLEADER (FOREST) NAGARAJ NARAYAN
All transfers of protected animals are strictly regulated, requiring prior permission from the Chief Wild Life Warden to ensure compliance with the Wildlife (Protection) Act.
Headnote:
Wildlife - Wildlife Protection Act - Sections 39(3)(b), 40(2), 42, 43(1), 43(2), 44, 49, 50, 51 - The court emphasized the need for permission from the Chief Wild Life Warden for any transfer of ownership or custody of elephants, reiterating the legal restrictions against the commercial sale of protected animals.
Fact of the Case:
The revision petitioner, owning an elephant, sought interim custody after it was taken by the Forest Department for illegal possession during transfers without appropriate permissions, as per the Wildlife (Protection) Act.
Finding of the Court:
The court upheld the previous dismissals for interim custody, noting the illegal transfer of ownership based on the petitioner’s own admission, which violated the Wildlife Act’s provisions governing the custody and transfer of elephants.
Issues: The court considered the legality of animal custody, the procedure for transfer under the Wildlife Act, and the implications of ownership in light of illegal sales and transfers.
Ratio Decidendi: The court concluded that the provisions of the Wildlife (Protection) Act explicitly prohibit unauthorized transfers of elephants and that such actions without required permissions constitute criminal offences.
Final Decision: Both Revision Petitions are dismissed with directions for the Forest Department to take custody of the elephant for rehabilitation.
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
