# Devendra Kumar v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Writ C No. 5726 of 2020
- **Bench:** Salil Kumar Rai, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-v-state-of-u-p-anr-50911
- **Pages:** 8

## Headnote

A. Constitution of India,1950-Article 226Wild Life (Protection) Act, 1972-Sections
9,
44,
49-B,
50,
51-petitioner
filed
application for release of the vehicle
which was rejected by the Magistrate as
well as by the revisional court on the
ground that the prima facie vehicle was
used in the commission of the offence
made under the Act of 1972, therefore
under the provisions of section 39(1)(d),
the vehicle is the property of the State
Government and is not liable to be
released during the pendency of the trialHence,
learned
court
below
rightly
rejected the application.(Para 25 to 33)

The writ petition is dismissed. (E-6)

List of cases cited:

## Text

202 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner, Mirzapur (respondent no. 3)
and as such does not find any cogent reason
that warrants interference by this Court in
exercise of its powers under Article 226 of
the Constitution of India.

39. Accordingly, the writ petition is
dismissed.
----------
(2024) 1 ILRA 202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SURENDRA SINGH-I, J.

Writ C No. 5726 of 2020

Devendra Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Mohd. Farooq

Counsel for the Respondents:
C.S.C.

A. Constitution of India,1950-Article 226Wild Life (Protection) Act, 1972-Sections
9,
44,
49-B,
50,
51-petitioner
filed
application for release of the vehicle
which was rejected by the Magistrate as
well as by the revisional court on the
ground that the prima facie vehicle was
used in the commission of the offence
made under the Act of 1972, therefore
under the provisions of section 39(1)(d),
the vehicle is the property of the State
Government and is not liable to be
released during the pendency of the trialHence,
learned
court
below
rightly
rejected the application.(Para 25 to 33)

The writ petition is dismissed. (E-6)

List of cases cited:
1. St. of M.P. & ors. Vs Madhukar Rao (2008) 14
SCC 624

2. St. of U.P & anr. Vs Lalloo Singh (2007) 7
SCC 334

(Delivered by Hon'ble Surendra Singh-I,
J.)

Heard Mohd. Farooq, learned counsel
for the petitioner and learned Standing
Counsel representing the State.

2. The prosecution case against the
petitioner, Devendra Kumar, and his son,
Prashant Vishnoi in brief is that on
receiving the information regarding illegal
storage of large quantity of hide, trophies
made of skulls and horn of prohibited forest
animals including their meat kept in 47
packets on 29.04.2017 at 01:30 p.m., a joint
team of officers of Directorate of Revenue
Intelligence and Forest Department, Meerut
Division, Meerut, raided the residence of
the petitioner, Devendra Kumar, and his
son, Prashant Vishnoi situated at 36/4, Civil
Lines, Meerut. From the room situated at
second floor of the house, hide of leopard,
hide and skull of black deer, horns of
sambar and deer in large quantity and a
knife with handle made of tusk, was
recovered. On the ground floor, meat of
prohibited wild animals kept in 47 packets
in freeze container (deep freezer) was also
recovered. Details of articles recovered is
as follows :-

(i) one hide of leopard

(ii) one hide of deer/antelope

(iii) one skull of large antelope

(iv) 3 horns of young large
antelope

(v) 9 deer skull with two horns

(vi) One deer skull with neck and
horn

(vii) 7 teeth of wild animals
1 All. Devendra Kumar Vs. State of U.P. & Anr.
203

(viii) one knife handle sized 12
cm x 1 cm made of elephant tusk, total
length with cutting part 26 cm

(ix) On the ground floor, 47
packets of meat of prohibited forest animal
kept in freezer (deep freezer)

3. The petitioner, Devendra Kumar,
retired colonel, informed the raiding team
that the frozen meat is that of wild boar.
From the aforesaid recovery, Range Case
No. 6/2017-18 u/s 9, 44, 49-A, 49-B, 50
and 51 of Wild Life (Protection) Act, 1972,
Police Station- Civil Lines, District-
Meerut,
was
registered
against
the
petitioner and his son, Prashant Vishnoi.

4. The aforesaid articles recovered
from the residence of the petitioner were
seized, taken into possession and recovery
memo was prepared in the presence of the
witnesses. After investigation against the
petitioner and his son, challan in complaint
case under the aforesaid sections was sent
to the court of jurisdictional Magistrate.

5. The raiding party also seized white
Fortuner vehicle no. U.K. 06 V 0044
involved in the commission of the offence
from the residence of the petitioner and
prepared
its
seizure
memo
dated
05.09.2017 and sent it to the jurisdictional
Magistrate.

6. The petitioner filed application for
release of the vehicle which was rejected
vide order dated 24.04.2018 by the
Magistrate
concerned.
Thereafter,
the
petitioner filed Criminal Revision No. 227
of 2018, Devendra Kumar Vs. State of U.P.
and another against the impugned order
passed by the Magistrate which was
rejected vide order dated 17.10.2018 passed
by the Additional Sessions Judge, Court
No. 7, Meerut. Against the aforesaid order
passed
by
the
revisional
court,
the
petitioner instituted Matters under Article
227 No. 8477 of 2018, Devendra Kumar
Vs. State of U.P. and Another before this
Court. Later on, he not pressed it and the
petition vide order dated 29.03.2019 was
dismissed as withdrawn with liberty to
avail any other remedy available under the
law.

7. Later on, the petitioner filed an
application for release of aforesaid vehicle
before the Prescribed Authority/Divisional
Director, Social Forestry Division, Meerut
which was rejected by the Divisional
Director vide order dated 23.06.2019 on the
ground that he has no jurisdiction to release
a vehicle detained under Wild Life
(Protection)
Act,
1972.
Against
the
aforesaid order of Divisional Director,
Social Forestry Division, Meerut, the
petitioner filed appeal before Principal
Secretary of Forest/Appellate Tribunal,
Department
of
Social
Forestry,
U.P.
Government at Lucknow, which has been
rejected
by
the
aforesaid
Principal
Secretary vide order dated 14.10.2020.

8. The respondent no. 2 in his counter
affidavit has emphasized the averment
made in the challani report filed against the
petitioner and his son. It has been stated in
the counter affidavit that co-accused, Bablu
son on Kartare, in his statement recorded
u/s 161 Cr.P.C., has stated that on
06.11.2016 in the afternoon, co-accused
Prashant Vishnoi by his mobile number
9410644444 ranged him on his mobile
number 7060127190 and asked him to
come to his residence situated at 36/4, Civil
Lines, Meerut. On reaching there, he told
him that meat is kept in the freezer attached
to the back side of his white Fortuner car
no. U.K. 06 V 0044. He asked him to alight
and bring it in his residence. On the
204 INDIAN LAW REPORTS ALLAHABAD SERIES
direction of Prashant Vishnoi, co-accused,
Bablu opened the aforesaid freezer attached
to the car and found that large quantity of
meat was kept in it. Prashant Vishnoi told
him that the meat is of wild animals like
neelgai and padaa which he has hunted
from the jungle of the east. Co-accused,
Bablu carried the meat from the Fortuner
car and stored in a freezer which was
placed at the ground floor of the house.

9. In the counter affidavit, it is also
stated that on the basis of statement of coaccused, Bablu, it was found that the
Fortuner car was used in the commission of
wildlife crime relating to Range Case No.
6/2017-18, Meerut Range and, therefore, it
was seized on 05.09.2017. It has also been
stated in the counter affidavit that the
petitioner preferred an appeal before the
State Government on 17.06.2019 and
during the pendency of the aforesaid
appeal, the present writ petition has been
filed by the petitioner for release of the
above-mentioned
vehicle.
It
is
also
submitted that the appeal filed by the
petitioner was rejected by the State
Government by a detailed, reasoned and
speaking order dated 14.10.2020 on the
ground that jurisdiction for release of the
vehicle
detained
under
Wild
Life
(Protection) Act, 1972, lies within the
jurisdictional Magistrate and not with the
Divisional
Director,
Social
Forestry
Division, Meerut or the State Government.
It has also been stated in the counter
affidavit that on the basis of challan
submitted by Forest Department, the trial of
the case is pending against the petitioner in
the court of Additional Chief Judicial
Magistrate, Meerut and the petitioner has
not yet been acquitted by the court. In the
appeal, it was held that the vehicle seized
under the provisions of Section 39(1)(d) of
the Wild Life (Protection) Act, 1972, is a
government
property.
The
decision
regarding the said vehicle lies only with the
jurisdictional magistrate.

10. It has been submitted by learned
counsel for the petitioner that there is no
iota of evidence about the involvement of
vehicle in the alleged offence committed
under the Wild Life (Protection) Act, 1972,
but the jurisdictional Magistrate as well as
the revisional court illegally rejected
petitioner's application for release of the
vehicle. It has also been submitted that the
trial of the case is still pending before the
Magistrate and the petitioner as well as his
son, Prashant Vishnoi have been released
on bail by this Court in Criminal Misc. Bail
Application Nos. 4681 of 2018 and 5275 of
2018 vide orders dated 07.02.2018 and
02.04.2018 respectively. It has also been
submitted that no purpose would be served
by detention of the vehicle, therefore, it
should be released in favour of the
petitioner. It has also been submitted that
the State Government/Principal Secretary
of Forest/Appellate Tribunal, Department
of Social Forestry, U.P. Government at
Lucknow, dismissed the appeal on the
ground that there is no provision of
appellate authority at the government level
under the Wild Life (Protection) Act, 1972.
Thus, decision/order can be passed by
Hon'ble Court in the case.

11. The petitioner has stated in his
rejoinder affidavit that the confessional
statement of co-accused, Bablu is false and
no action can be taken against the petitioner
on the basis of statement of co-accused,
Bablu.

12. Per contra, learned Standing
Counsel representing the State has opposed
the writ petition on the ground that huge
quantity of body parts and meat of
1 All. Devendra Kumar Vs. State of U.P. & Anr.
205
prohibited wild animals was recovered
from the residence of the petitioner. Apart
from that, forensic report has been sent by
the Wildlife Forensic Lab, Dehradun. After
analysis of the blood, it was found that it
belongs to gallus gallus (red junglefowl)
which is prohibited under the Wild Life
(Protection) Act, 1972. Thus, there is
evidence of involvement of vehicle in the
offence committed under the Wild Life
(Protection) Act, 1972. There is no ground
to release the vehicle. The Divisional
Director, Social Forestry Division, Meerut,
has no jurisdiction to release the vehicle
detained under the Wild Life (Protection)
Act, 1972. It has also been submitted that
there is no provision for any appellate
authority at the government level in the
Wild Life (Protection) Act, 1972. Based on
the revelation of involvement of the vehicle
in the wildlife crime, the vehicle has been
lawfully seized. The case is under trial
before
the Additional
Chief
Judicial
Magistrate, Meerut and the accused have
not yet been acquitted. If the accused is
convicted after the conclusion of trial, the
vehicle is liable to be confiscated. The
vehicle has been seized under the Wild Life
(Protection) Act, 1972 and not under
provisions of Indian Forest Act, 1927.
Hence, only the jurisdictional Magistrate
has power to release the vehicle.

13. For the disposal of the petition, it
is necessary to examine the relevant
provisions of law. Chapter VI of the Wild
Life (Protection) Act, 1972 (hereinafter
referred to as the 'Act of 1972') contains
provisions dealing with prevention and
detection of offences. Section 50 of the Act
of 1972 gives to the specified officers the
powers of entry, search, arrest and
detention. By the Amendment Act 44 of
1991
(w.e.f
02.10.1991),
certain
amendments were made in Section 50 of
the Act of 1972. Before the amendment
made in 1991, Section 50 had sub-section
(2) which was as follows :-

"50. (2) Any officer of a rank not
inferior to that of an Assistant Director of
Wild Life Preservation or Wild Life Warden,
who, or whose subordinate has seized any
trap, tool ,vehicle, vessel or weapon under
clause (c) of sub-section (1), may release
the same on the execution by the owner
thereof of a bond for the production of the
property so released, if and when so
required, before the Magistrate having
jurisdiction to try the offence on account of
which the seizure has been made."

14. The Amendment Act 44 of 1991
deleted sub-section (2) and inserted in its
place sub-section (3-A) which is as follows
:-

"50. (3-A) Any officer of a rank
not inferior to that of an Assistant Director
of Wild Life Preservation or as Assistant
Conservator of Forests, who, or whose
subordinate, has seized any captive animal
or wild animal under clause (c) of subsection (1) may give the same for custody
on the execution by any person of a bond
for the production of such animal if and
when so required, before the Magistrate
having jurisdiction to try the offence on
account of which the seizure has been
made."

15. At the same time, amendments
were made in Section 39(1)(d) after which
it reads as follows :-

"39. Wild animals, etc., to be
government property. - (1) Every

(a)- (c)

(d) vehicle, vessel, weapon, trap
or tool that has been used for committing
206 INDIAN LAW REPORTS ALLAHABAD SERIES
an offence and has been seized under the
provisions of this Act, shall be the property
of the State Government, and, where such
animals is hunted in a sanctuary or
National Park declared by the Central
Government, such animal or any animal
article, trophy, uncured trophy or meat
derived from such animal, or any vehicle,
vessel, weapon, trap or tool used in such
hunting shall be the property of the Central
Government."

16. Section 50(1)(c) of the Act of
1972 authorises a Director or any other
Officer authorized by him in this behalf or
the Chief Wild Life Warden or the
authorized officer or any Forest Officer or
any police officer not below the rank of a
Sub-Inspector, having reasonable grounds
for
believing
that
any
person
has
committed an offence against this Act to
seize any captive animal, Wild Life animal,
article, meat, trophy, in respect of which the
offence against this Act appears to have
been committed in the possession of any
person together with trap, tool, vehicle or
weapon used for committing any special
offence.

17. Before the deletion of Section
50(2) of the Act of 1972, any officer of a
rank not inferior to that of an Assistant
Director of Wild Life Preservation or Wild
Life Warden, who, or whose subordinate
has seized any trap, tool, vehicle, vessel or
weapon under clause (c) of sub-section (1),
could release the same on the execution by
the owner thereof of a bond for the
production of the property so released, if
and
when
so
required,
before
the
Magistrate having jurisdiction to try the
offence.

18. After aforesaid amendment made
in the Act of 1972 which is effective from
02.10.1991, the aforesaid officers of the
Forest Department or Police Department
don't have jurisdiction to release the
aforesaid seized articles trap, tool, vehicle,
vessel or weapon, etc. in favour of its
owner.

19. Under the provisions of Section
50 (3-A), any officer of a rank not inferior
to that of an Assistant Director of Wild Life
Preservation or Assistant Conservator of
Forests, is competent to give the custody of
any captive or wild animal seized under
clause (c) of sub-section (1) of Section 50
of Act of 1972 to any person on execution
of a bond for the production of such animal
if and when so required, before the
Magistrate having jurisdiction to try the
offence.

20. Thus, the aforesaid various
officers are authorised only to give custody
of any captive or wild animal which has
been seized under clause (c) of sub-section
(1) of Section 50 of Act of 1972. They have
not been authorised to release the trap, tool,
vehicle, vessel or weapon which has been
seized under Section 50(1)(d) of Act of
1972. The State Government or the Central
Government is also not authorised to
release and handover the custody of trap,
tool, vehicle, vessel or weapon in the
custody of the owner thereof on execution
of a bond for production of the property so
released before the Magistrate having
jurisdiction to try the offence.

21. Sub-section (4) of Section 50 of
Act of 1972 provides that when any of
authority or police officer mentioned in
paragraph 1(c) of this section seizes any
captive animal, wild animal, article, meat,
trophy, etc. in respect of which an offence
against this Act appears to be have been
committed or arrests and detains any
1 All. Devendra Kumar Vs. State of U.P. & Anr.
207
person in this connection shall forthwith
take him before the Magistrate "to be dealt
with according to law."

22. Sub-section (4) of Section 50 of
Act of 1972 reads as follows :-

"(4) Any person detained, or
things seized under the foregoing power,
shall
forthwith
be
taken
before
a
Magistrate to be dealt with according to
law (under intimation to the Chief Wild Life
Warden or the officer authorized by him in
this regard)."

23. The Hon'ble Apex Court has held
in State of Madhya Pradesh and Others
Vs. Madhukar Rao, (2008) 14 SCC 624
which is as hereunder :-

"18. ..... It has to be noted here
that the expression used in the sub-section
is "according to law" and not "according
to the provisions of the Act". The
expression "according to law" undoubtedly
widens the scope and plainly indicates the
application of the provisions of the Code.

19. We find that the Full Bench of
the High Court has correctly taken the view
that the deletion of sub-section (2) and its
replacement by sub-section (3-A) in Section
50 of the Act had no effect on the powers of
the Magistrate to release the seized vehicle
during the pendency of trial under the
provisions of the Code. The effect of
deletion
of
sub-section
(2)
and
its
replacement by sub-section (3-A) may be
summed up thus: as long as sub-section (2)
of Section 50 was on the statute book, the
Magistrate would not entertain a prayer for
interim release of a seized vehicle, etc. until
an application for release was made before
the departmental authorities as provided in
that sub-section. Further, in case the prayer
for interim release was rejected by the
departmental authority, the findings or
observations made in its order would
receive due consideration and would carry
a lot of weight before the Magistrate while
considering the prayer for interim release
of the vehicle. But now that sub-section (2)
of Section 50 stands deleted, an aggrieved
person has not option but to approach the
Magistrate directly for interim release of
the seized vehicle.

22. We have, therefore, no doubt
that the provisions of Section 50 of the Act
of 1972 and the amendments made
thereunder do not in any way affect the
Magistrate's power to make an order of
interim release of the vehicle under Section
451 of the Code."

24. Law relating to release of vehicle,
vessel, trap, tool seized by the Forest
Officer or police Officer u/s 50(1)(c) of Act
of 1972 has been settled by the Apex Court
in the case of State of U.P. and Another
Vs. Lalloo Singh, (2007) 7 SCC 334. In
paragraph nos. 13, 14, 15, 16 and 17 of the
aforesaid judgement, the Apex Court has
held as hereunder :-

"13.
For
appreciating
this
contention reference is necessary to Section
39 of the Act. Clause (d) of sub-section (1)
of Section 39 deals with a situation when
any vehicle, vessel, weapon, trap or tool
has been used for committing an offence
and has been seized under the provisions of
the Act. The twin conditions are that the
vehicle, etc. must have been used for
committing an offence and has been seized.
Mere seizure of the property without any
material to show that the same has been
used for committing an offence does not
make the seized property, the property of
the Government. At this juncture, it is also
to be noted that under sub-section (1) of
Section 50 action can be taken if the
208 INDIAN LAW REPORTS ALLAHABAD SERIES
official concerned has reasonable grounds
for
believing
that
any
person
has
committed an offence under the Act. In
other words, there has to be a reasonable
ground for belief that an offence has been
committed. When any person is detained,
or things seized are taken before the
Magistrate, he has the power to deal with
the same "in accordance with law".

14. There is a significant addition
in sub-section (4) by Act 16 of 2003 i.e.
requirement of intimation to the Chief
Wildlife Warden or the officer authorised in
this regard as to the action to be taken by
the Magistrate when the seized property is
taken before a Magistrate. A combined
reading of the omitted sub-section (2) and
the substituted sub-section (3-A) of Section
50 makes the position clear that prior to
the omission, the officials under the Act had
the power to direct release of the seized
article. Under sub-section (1), the power
for giving temporary custody subject to the
condition that the same shall be produced
if and when required by the Magistrate is
indicative of the fact that the Magistrate
can pass appropriate orders in respect of
the purported seized property which is
taken before him.

15.
While
dealing
with
an
application for temporary release of
custody, there cannot be a complete
adjudication of the issues involved as the
same is a matter for trial. While dealing
with the application the Magistrate has to
take into account the statutory mandate
that the seized property becomes the
property of the State Government when
the same has been used for commission of
an offence under the Act and has been
seized.

16. It appears that insertion in
sub-section (4) relating to the intimation to
the Chief Wildlife Officer or the officer
authorised by him is intended to give the
official concerned an opportunity of
placing relevant materials on record before
the Magistrate passes any order relating to
release or custody. In appropriate cases on
consideration of materials placed before
him, prayer for such release or custody can
be rejected.

17. It is to be noted that under
sub-section (1) of Section 50 for the
purpose of entry, seizure, arrest and
detention the official has to form the belief
on reasonable grounds that the person has
committed an offence under the Act. The
Magistrate is, therefore, required to
consider these aspects while dealing with
the application as noted above. It cannot
be a routine exercise. As noted above, the
High Court is not justified in holding that
Section 457 of the Code has application.

25. Learned A.G.A. for the State has
submitted that Section 39(1)(d) of the Act
of 1972 made the articles seized u/s
50(1)(c) of Act of 1972 as government
property and, therefore, there was no
question of their release by the Magistrate.

26. In view of the above-mentioned
pronouncement of the Hon'ble Apex Court,
the contention of the learned A.G.A. cannot
be accepted.

27. From the analysis of the aforesaid
pronouncements of the Apex Court in the
cases of Madhukar Rao (supra) and
Lalloo Singh (supra) that while disposing
the application given for the release of
vehicle detained u/s 50(1)(c) of the Act of
1972 states that the Magistrate should
ascertain whether the vehicle was used for
committing any such offence.

28. We have to analyse the recovery
of vehicle and other articles made from the
accused-petitioner to ascertain whether the
1 All. State of U.P. & Anr. Vs. Smt. Chandrawali & Ors.
209
Magistrate was justified in rejecting the
release application of the vehicle by the
impugned order.

29. From the perusal of the recovery
memo, it is clear that large quantity of
animal articles, parts of animal body,
animal meat and a knife having its handle
made of elephant tusk was recovered from
the house of the accused-petitioner. The
details
of
the
articles
recovered
is
mentioned in paragraph no. 2 of this
judgement. From the perusal of the
aforesaid recovery and the statement u/s
161 Cr.P.C. of co-accused Babloo, it prima
facie appears that animal articles, animal
parts and meat of such animals were stored
after hunting by the petitioner.

30. Thus, prima facie vehicle was
used in the commission of the offence
made punishable under the Act of 1972.

31. The petitioner has relied on the
judgement of the Apex Court in the case of
Sunderbhai Ambalal Desai Vs. State of
Gujarat, 2002 LawSuit (SC) 1346 and has
argued that during the pendency of trial, the
case property/vehicle should be released in
favour of the owner after obtaining
undertaking and surety and preparing
panchnama of the case property/vehicle. In
the present case, the vehicle, prima facie
being used in the commission of offence
under the Act of 1972 has become
government property. Therefore, the law
laid down by Hon'ble Apex Court in
Sunderbhai Ambalal Desai (supra) shall
not be applicable on the release application
of the vehicle.

32.

Under
these
facts
and
circumstances of the case, the learned
Magistrate has not committed any illegality
in rejecting the vehicle release application
of the petitioner. The learned revisional
court has also rightly rejected the revision
filed against the impugned order of the
learned Magistrate.

33. From the aforesaid discussion, we
are of the considered view that vehicle no.
U.K. 06 V 0044 seized in Range Case No.
6/2017-18 u/s u/s 9, 44, 49-A, 49-B, 50 and
51 of Wild Life (Protection) Act, 1972, was
prima facie used in committing the offence
under the aforesaid Act and, therefore,
under the provisions of Section 39(1)(d),
the vehicle is the property of the State
Government and is not liable to be released
during the pendency of the trial. There is no
ground to interfere in the impugned order
passed by the learned Magistrate and the
revisional court.

34. The petition is dismissed,
accordingly.
----------
(2024) 1 ILRA 209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1001366 of 2013

State of U.P. & Anr. ...Petitioners
Versus
Smt. Chandrawali & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Manish Kumar, Ajay Kumar Sharma, Lalit
Kishore Tiwari

A. Writ Petition - Appellate Order Set
Aside, Matter Remitted - The St. challenged
the order dated 04.04.2012 by the IVth