- (1.) These two applications are directed in matter concerning a piece of Ambergris, which is a solid substance formed in the intestine of the sperm whale. In . Revisional Application No. 510/85 the petitioner Chief Wild Life Warden has challenged order dt. 22-2.85 and 8-3-85 passed by the learned C.J.M., Port Blair in Misc. Case No. 3/1985. This Misc. case arose out of an application filed by the O.P. for return of a piece of Ambergris seized by the Officers of the Chief Wild Life Warden. It was alleged in the said application that in the year 1976 the Ambergris in question was seized by police from the possession of one Suresh Chandra Barui u/s. 102 of the Cr. P.C. Police ultimately submitted a report praying for return of the seized article to the person from whom it was seized. Suresh Chandra Barui sold this article to the applicant O.P. on 7-6-1976. Thereafter by amendment of the Wild Life Protection Act, 1972 whale was treated as a wild life and the provision of the said Act was made applicable to it. On 7-4-83 the applicant O.P. filed an application to the Chief Wild Life Warden with a prayer for issue of ownership certificate in favour of the applicant O.P. but instead of issuing the same certificate the officer under the said Warden seized the said Ambergris. After hearing both the parties the learned Magistrate concluded by the impugned order on the basis of submission made by Mr. Khanna learned Senior A.P.P. that the said Ambergris cannot be said to be uncured trophy as defined in section 2 (32) of the said Act. Accordingly he ordered return of the said seized article to the O.P. by order dt. 22-2-85. By another order dt. 8-3-85 the learned Magistrate granted stay of operation of the said order until 1-4-1985. Against this order this application has been moved. The other Revisional application is filed by one K. Abdul Rahman, Range Officer, Wild Life Division Haddo. He filed a complaint before the learned Chief Judicial Magistrate on 4-4-85 alleging violation of section 40 of the said Act which is punishable u/s. 51 of the Act. In the complaint it was alleged that the O.P. on 7-4-83 applied to the Chief Wild Life-Warden for granting permission for transporting this piece of Ambergris from Port Blair to main land. It was also stated that Ambergris was found in the body of sperm whale which have been included in Schedule I of the Wild Life Protection Act. In terms of the said Ambergris being an uncured trophy it is required (Sic) a declaration within 30 days from the commencement of the said Act and such violation is punishable under the Act. The O.P. has been filed to make the declaration this prosecution was lodged on the basis of the complaint filed (Sic). On this petition the learned C.J.M. considering the complaint found that in para 3 of the petition of complaint was stated that Ambergris is a substance which is spit out by Sperm whale and on the basis of this statement as well as concession made by Mr. Khanna the learned Senior A.P.P. in Misc. Case No. 3/1985 came to the finding that the Ambergris would not be said to be uncured trophy. Accordingly he dismissed the complaint u/s. 203 of the Cr. P.C. By another order dt. 6-4-85 the learned C.J.M., considered the question of the return of the Ambergris to the O.P. He found that the Ambergris in question has been produced before him u/s. 50(4) of the Wilt Life Protection Act. Accordingly he is competent to pass an order on this. Learned Magistrate referred to his earlier order in Misc. Case No. 3/85 and directed return of the seized Ambergris to the O.P. on his furnishing bond of Rs. 70,000/- for restoring the property to the Court after the order for return is modified or set aside on appeal and revision and ultimately he accepted the bond furnished and directed making over of the Ambergris to O.P. Mr. N.K. Joshi. These orders have been challenged in this Revisional Application.
(2.) Mr. B.R. Ghoshal, appearing for the petitioner in both the cases has mainly canvassed three points before me. According to him the learned Magistrate has erred in coining to a finding that the Ambergris in question is not an uncured trophy. He further contended that the learned C.J.M. has no jurisdiction to return the seized Ambergris to the O. P. as the seized Ambergris cannot be dealt with under Ss. 451 and 452 and 457 of the Cr. P.C. inasmuch as it was not seized by a police officer. Finally he asserted the concession said to have been made by the learned A.P.P. is based on a wrong notion of law and fact and this Court should not rely on it. Let me now examine the submission made by Mr. Ghoshal one after another. Mr. Ghoshal has referred to Encyclopaedia Britannica Volume No. I, page 295. In its Index the Encyclopaedia Britannica states as follows : - "Ambergris, solid substance formed in the Intestine of the sperm whale. It is used chiefly as a spice in the east and in the west it is used to fix the scent of fine perfumes. Ambergris is thought to form as a collection of faces around the indigestable parts a squid and other pray of the sperm whale. It is not definitely known whether the process is normal or the pathological. Ambergris when fresh, is soft and black and has a disagreeable odour. When exposed to sun, air and sea water, it harden, fades and developes a pleasant scent. It has been washed ashore in many countries specially Bahamas and is also found by whalers both in the bodies of captured whales and floating free on the sea. "
(3.) According to Mr. Ghoshal the Ambergris is a part of the body of the sperm whale. He has thereafter relied on the definition of uncured trophy in section 2(32) of the Wild Life Protection Act. The definition runs thus : - " 'Uncured trophy' means the whole or any part of any captive animal or wild animal, other than vermin, which has not undergone a process of taxidermy and includes a freshly killed wild animal." According to the petitioner the Ambergris in question comes within the definition of uncured trophy as it is a part of a whale and has not undergone any process of taxidermy.;