DEEPAK MAHESHWARI,J. - (1.) Heard learned counsel for the petitioner as also learned Public Prosecutor.
(2.) Briefly stated the facts of the present misc. petition are that vehicle Bolero Car No. RJ-29 AQ 2079 was seized by the authorities of the Forest Department and a criminal case being FIR No. 51-4/2015 was registered for offence under Sections 9, 39, 40, 44 (C), 49 (B) and 51 of the Wild Life (Protection) Act, 1972 (for short, hereinafter referred to as "the Act of 1972"). The petitioner being the registered owner of the vehicle in question moved an application for interim custody under Section 451 of Cr.P.C. before the learned Magistrate, which came to be dismissed by learned Magistrate vide impugned order dated 01.10.2015. Against the said order, the petitioner preferred a revision petition before learned Addl. Sessions Judge No. 4, Kota, which too, was dismissed vide order dated 15.10.2015. On perusal of the order dated 15.20.2015, it appears that the release application has been rejected mainly on account of Section 39 (1) (d) of the Act of 1972.
(3.) Learned counsel for the petitioner has referred to the judgment passed by Hon'ble Supreme Court in case of State of Madhya Pradesh and Ors. v. Madhukar Rao, reported in (2008) 14 SCC p. 624 . On the strength of the above judgment, he has contended that the restriction imposed by Section 39 (1) (d) of the Wild Life (Protection) Act will come into force only when the accused has been finally held guilty by the learned trial Court but during pendency of the trial, that Section cannot be pressed into service for refusing the release of vehicle. He has specifically referred to para 23 of the said judgment in this regard, wherein it has been observed as follows: "It was held that the provision of Section 39 (1)(d) would come into play only after a court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence. Any attempt to operationalise Section 39(1)(d) of the Act merely on the basis of seizure and accusations/allegations levelled by the departmental authorities would bring it into conflict with the constitutional provisions and would render it unconstitutional and invalid. In our opinion, the High Court has taken a perfectly correct view and the provisions of Section 39(1) (d) cannot be used against exercise of the magisterial power to release the vehicle during pendency of the trial".;