ANIL KUMAR SHARMA, J. - (1.) HEARD learned counsel for the parties at length and perused the material on record.
(2.) IN this Writ u/s 226 of the Constitution, the petitioner has prayed for issue of writ, order or direction in the nature of Certiorari quashing the order dated 3.5.2013 passed by Addl. District Judge/Special Judge, (S.C. & S.T. Act), Gautam Budh Nagar in Criminal Revision no. 145 of 2013 and order dated 11.9.2012 passed by Chief Judicial Magistrate in Misc. Application no. 949 of 2013 State Vs. Iqbal and orders. It has been further prayed that the FIR dated 29.6.2012 being case crime no. 422 of 2012 u/s 279, 429, 289, 290 IPC read with Section 7 Criminal Law Amendment Act and Section 16C, 43(2), 48-A and 51 of Wild Life Protection Act, 1972, P.S. Sector-39 Noida District Gautam Budh Nagar be quashed and a writ, order or direction in the nature of Mandamus commanding the respondents to release the elephant with chip no. 958000000/522960 taken in possession by respondent no. 4 on 29.6.2012 from Mahawat Mukut Singh on behalf of the petitioner be issued. The facts leading to the instant petition succinctly stated are that on 29.6.2012 at about 6 a.m. on Noida Expressway Mahavat Mukat Singh and Mehraj were carrying two female-elephants towards Greater Noida and when they reached 500 meters ahead of Mahamaya Flyover, the driver of truck HR 38L-8300 driving the vehicle rashly and negligently dashed with the elephants, resultantly one had died and the other was seriously injured. The roaring injured elephant carried by Mahavat Mukat Singh ran on the Expressway causing hue and cry amongst the passersby was controlled and taken in possession by Forest Department. In the FIR lodged by Area Forest Officer, Dadri it was stated that both the animals were being illegally transported for commercial purposes from Delhi to U.P. Without any transit permit and the certificate of ownership was also not possessed. On the basis of this report FIR was lodged for the offences punishable u/s 16C, 43(2), 48A, 51 of The Wild Life (Protection) Act, 1972 (which shall be referred to as the 'Act' hereinafter), sections 279, 429, 289 and 290 IPC and Section 7 Criminal Law Amendment Act in P.S. Sector-39, Noida district Gautam Bud Nagar against the petitioner, his Mahavat Mukat Singh and others including the driver of the offending truck. The injured elephant was seized and sent to Elephant Rescue Centre, Mathura for treatment. Although the petitioner has not filed the copy of application submitted by him in the Court of Chief Judicial Magistrate, Gautam Budh Nagar, but the facts mentioned in the impugned order of the Magistrate shows that the petitioner alleged himself to be the legal owner in possession of the injured elephant. The application was supported by an affidavit and certificate of Dr. Prashant Deshmukh, who has stated that on 29.6.2012 at about 9.30 a.m. he had examined 35-years' old she elephant having Micro Chip no. ISOFD B-Animal 958000000/522960 dated 9.10.2007. The petitioner also filed his affidavit and that of his son Iqbal in support of his application. The learned CJM after hearing parties' counsel had rejected the application of the petitioner vide order 11.9.2012. The petitioner filed Criminal Revision no. 145 of 2012, which had been dismissed by Addl. Sessions Judge/Special Judge (SC & ST Act), Gautam Budh Nagar on 3.5.2013. The Courts below referring to the provisions of Section 40(2) and 42 of the Act have unanimously held that the petitioner did not possess any certificate of ownership regarding the animal in question and he has inter-state transported the same without the permission of the concerned Chief Wild Life Warden, Delhi so he is not entitled to get its supurdgi. Both these orders are under challenge in this writ petition.
(3.) AFFIDAVITS between the parties have been exchanged.;