- (1.) BHAGWAN. Din, J. This criminal revision has been directed against the judgment and order dated 22-4-1999 passed by the Special Judge (E. C. Act), Agra in criminal revision No. 85 of 1999 allowing the revision and quashing the order dated 17-3-1999 passed by the VII Additional Chief Judicial Magistrate, Agra.
(2.) THE facts, giving rise to the revision, briefly stated are that one Hoshiyar Singh, the brother of the revisionist, Lalloo Singh was allegedly found carrying sand on tractor trolley being dug and loaded from the bed of Jamuna river, within the "sanctuary" declared under Section 18 of the Wild Life (Protection) Act (hereinafter referred to as the Act ). THE Forest Authorities inter cepted the tractor trolley, arrested Hoshiyar Singh and seized the tractor trol ley in exercise of the powers conferred under the provisions of the Act. THE revisionist is the owner of the tractor trol ley. He, therefore, moved an application for release of the same. THE A. C. J. M. VII in exercise of the powers conferred under Section 457, Cr.-PC. released the tractor trolley in favour of the present revisionist. On his furnishing personal bond of Rs. 2 lacs and two sureties in the like amount. Against that order, the Slate of U. R through District Forest Officer, Agra filed a criminal revision No. 85 of 1999 before the Sessions Judge, Agra which has been heard and disposed of by Special Judge (E. C. Act ). THE revisional Court on the view that the tractor trolley seized, under the Act, which has become the property of Government, could not be released by the Magistrate, allowed the revision and set aside the order of the Magistrate. Hence, the revision by the revisionist, Lalloo Singh. The vexed question involved in this case is whether the Magistrate is em powered to release the property seized under the Act in exercise of the powers conferred under Section 5j) (4) of the Wild Life (Protection) Act or under Section 457,cr. P. C? Learned counsel appearing for the revisionist has submitted that the revisional Court was wrong in holding that the Magistrate has no jurisdiction to entertain the application for the release of the property seized under Section 50 (1) (C) of the Act. He relied on the decision of Calcutta High Court rendered in Ashok Kumar Rana v. State of West Bengal, (1997 (1) Crimes 359 Calcutta High Court (D. B.)) wherein it is held that "in the present case the vehicle was not at all confiscated. It was only seized in terms of Section 50 (C) of the Wild Life (Protec tion) Act, 1972. The Magistrate, therefore, had jurisdiction to deal with the question relating to the release of the vehicle al legedly involved in the commission of the offence. "
(3.) ON the other hand, the learned A. G. A. urged that the revisional Court was justified in holding that the Magistrate has no power to release the vehicle involved in the commission of the offence under this Act in terms of Section 39 (d), the vehicle has become the property of the Stale. He relied on the decisions of Madhya Pradesh High Court in: (1) Babu Lal Lodhi v. State of Madhya Pradesh and another, 1987cr. L. J. 1709 (2) Stale of Madhya Pradesh through Director, Madhav National Park, Shivpuri v. Asadamin, (L. P. A. No. 152 of 1996 decided on 8-5-1996) (3) State ofm. P. v. Sayed Yahyaali, 1996 Cri. LJ. 366. In case of Babu Lal Lodhi, (supra), the Madhya Pradesh High Court held that "the Range Officer who seized the tractor and the trolley, did not have any power to initiate prosecution by filing a charge-sheet before the Magistrate. As pointed out by the Hon'ble Supreme Court in AIR 1981 SC 379, the clinching attribute of an Investigating Officer being lacking in the instant case, it cannot be said that the seizure by the Range Officer was seizure by a police officer within the meaning of Sec tion 457, Cr. P. C. , hence the seizure by the Forest Officer could not be said to be a seizure by a police officer, consequently Section 457, Cr. P. C. was not attracted.;