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. and 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.
3. 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 and 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 haveunanimously 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.
4. Affidavits between the parties have been exchanged.
5. Learned counsel for the petitioner has vehemently argued that the petitioner has made a declaration u/s 40 of the Act on 14.7.2003 in respect of the elephant in question, which was inventorised on 8.11.2007 to Chief Wild Life Warden, Govt. of NCT of Delhi, so the learned Courts below have erred in declining its supurdgi to the petitioner. It has been further submitted that certificate of ownership as required u/s 42 of the Act is not mandatory, because the language of the Act itself shows that the Chief Wild Life Warden may for the purposes of Section 40, issue a certificate of ownership, therefore, the petitioner having fulfilled all the requirements to possess and transport the animal, its interim custody cannot be denied by the Courts.
6. Per contra learned counsel for the respondents have contended that admittedly the petitioner did not possess any certificate of ownership of the elephant in question and it was being transported inter-state without any valid permit or authority, so the petitioner has contravened the penal provisions of the Act and as such is not entitled to the custody of the animal and the Courts below have not at all erred in rejecting his application for its release.
7. Elephant is a 'captive animal' as per definition given in Section 2(5) of the Act, which means any animal, specified in Schedule I, Schedule II, Schedule III or Schedule IV, which is captured or kept or bred in captivity. It is a Schedule I animal, as per entry no. 12-B i.e. 'Indian Elephant (Elephas maximus) of Part I of Schedule I of the Act under the category 'Mammals'.
8. In order to appreciate the submissions made on behalf of the parties, it would be necessary to examine the relevant provisions of the Act.
39. Wild animals, etc., to be Government property. Every-
(a) wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or bred in captivity in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed without a licence or by mistake; and
(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed,
(c) ivory imported into India and an article made from such ivory in respoect of which any offence against this Act or any rule or order made thereunder has been committed;
(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act,
shall be the property of the State Government, and, where such animal 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, shall be the property of the Central Government.
(2) Amy person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining such possession, make a report as to the obtaining of such possession to the, nearest police station or the authorised officer and shall, if so required, hand over such property to the officer-in-charge of such police station or such authorised officer, as the case may be.
(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorised officer-
(a) acquire or keep in his possession, custody or control, or
(b) transfer to any person, whether by way of gift, sale or otherwise, or
(c) destroy or damage,
such Government property.
40. Declarations - (1) Every person having at the commencement of this Act the control, custody or possession of any captive animal specified in Schedule I or Part II of Schedule II, or any uncured trophy derived from such animal or salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days from the commencement of this Act, declare to the Chief Wild Life Warden or the authorised officer the number and description of the animal, or article of the foregoing description under his control, custody or possession and the place where such animal or article is kept.
(2) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy ormeat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer.
2(A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wile Life (Protection) Amendment Act, 2002 acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance.
2(B) Every person inheriting any captive animal, animal article, trophy or uncured trophy under sub-section (2A) shall, withing ninety days of such inheritance make a declaration to the Chief wild Life Warden or the authorised officer and the provisions of sections 41 and 42 shall apply as if the declaration had been made under sub-section (10 of section 40.
Provided that nothing in sub-sections (2A) and (2B) shall apply to the live elephant.
3) Nothing in sub-section (1) or sub-section (2) shall apply to a public museum or zoo.
(4) The State Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer any animal article or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, in such manner, and within such time, as may be prescribed.
41. Inquiry and preparation of inventories - (1) On receipt of a declaration made under section 40, the Chief Wild Life Warden or the authorised officer may, after such notice, in such manner and at such time, as may be prescribed,-
(a) enter upon the premises of a person referred to in section 40;
(b) make inquiries and prepare inventories of animal articles, trophies, uncured trophies, salted and dried skins and captive animals specified in Schedule I and Part II of Schedule II and found thereon; and
(c) affix upon the animals, animal articles, trophies or uncured trophies identification marks in such manner as may be prescribed.
(2) No person shall obliterate or counterfeit any identification mark referred to in this Chapter.
42. Certificate of ownership - The Chief Wild Life Warden may, for the purposes of section 40, issue a certificate of ownership in such form, as may be prescribed to any person who, in his opinion, is in lawful possession of any wild animal or any animal article, trophy, uncured trophy and may, where possible, mark, in the prescribed manner, such animal article, trophy or uncured trophy for purposes of identification.
43. Regulation of transfer of animal, etc. - (1) No person having in his possession captive animal, animal article, trophy or uncured trophy in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature, such animal or article or trophy or uncured trophy.
(2) where a person transfers or transports from the State in which he resides to another Sate or acquires by transfer from outside the State, any such animal, animal article, trophy or uncured trophy in respect of which he has a certificate of ownership, he shall, within thirty days of the transfer or transport, report the transfer or transport to the Chief wild Life Warden or the authorised officer within whose jurisdiction the transfer or transport is effected.
(3) Nothing in this section shall apply-
(a) to tail feather of peacock and animal article or trophies made therefrom;
(b) to transfer of captive animals between recognized zoos and public museums.
48A.- Restriction on transportation of wild life. - No person shall accept any wild animal (other than vermin), or any animal article, or any specified plant or part or derivative thereof, for transportation except after exercising due care to ascertain that permission from the Chief Wild Life Warden or any other officer authorised by the State Government in this behalf has been obtained for such transportation.
50. Power of entry , search, arrest and detention. “
(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub- inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,--
(a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy or uncured trophy in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;
(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;
(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy in the possession of any person and appearing to him to be Government property, together with any trap, tool, vehicle, vessel or weapon used for committing any such offence, and unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him.
Provided that where a fisherman residing within ten kilometers of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized.
(2)...(deleted)
(3) It shall be lawful for any of the officers referred to in subsection (1) to stop and detain- any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.
(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or an Assistant Conservator of Forests, who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (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.
(4) Any person detained, or things seized under the foregoing power, shall forthwithbe taken before a Magistrate to be dealt with according to law.
(5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce under this section, shall be guilty of an offence against this Act.
(6) Where any meat or uncured trophy is seized under the provisions of this section, the Assistant Director of Wild Life Preservation or any other officer of a gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer may arrange for the sale of the same and deal with the proceeds of such sale in such manner as may be prescribed.
(7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance in the prevention or detection of an offence against this Act, or in apprehending persons charged with the violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of such person or persons to render such assistance.
(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of the Forests authorized by the State Government in this behalf shall have the powers, for purposes of making investigation into any offence against any provisions of this Act, -
(a) to issue a search warrant;
(b) to enforce the attendance of aiwntesses;
(c) to compel the discovery and production of documents and material obejects; and
(d) to receive and record evidence.
(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the prsence of the accused persons.
9. It is evident from sections 40, 42 and 48A of the Act that a certificate of ownership has to be obtained by the person owning the elephant. It has been submitted on behalf of the petitioner that he has submitted a declaration as required u/s 40 of the Act and the inventory has also been prepared by the Chief Wild Life Warden, NCT, Delhi, but he has not so far issued a certificate of ownership as per the provisions of section 42 of the Act. Similarly the provisions of section 48A of the Act have not been complied. It has not been shown that the son of the petitioner has exercised due care to ascertain that permission from the Chief Wild Life Warden or any other officer authorized by the State Government in this behalf has been obtained for such transportation.
10. The relevant provisions of the Act and the Code of Criminal Procedure have been examined by the Apex Court in the case of State of Madhya Pradesh Vs. Madhukar Rao AIR 2008 SC 1410. Although it was a case of release of vehicle seized under the Act for carrying 206 Kgs of antlers and the provisions of section 39 (1) (d) Act were attracted, but in the instant case the elephant had been been seized under section 50(1)(c) read with section 39(1)(a), (3) of the Act, as the same has been kept by the petitioner in contravention of the provisions of the Act i. e. without having any certificate of ownership or obtained permission for its inter-state transportation from Delhi to U.P. The Hon'ble Supreme Court after analyzing various provisions of the Code has concluded “
œWe have, therefore no doubt that the provisions of the Act 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 u/s 451 of the Code.?
11. Even the amended provisions of section 3A of the Act do not bar the jurisdiction of the Magistrate to entertain an application for interim custody of the animal seized under the provisions of the Act, because these provisions empower certain officers specified therein to give the animal for custody on the execution by any person 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. The above officers may give the custody of the animal to any person pending investigation, enquiry or trial only. If any person is aggrieved by the action of the officer, who had given the animal in custody of any person against the interest of true owner of the animal, then ultimately he has to approach the concerned Magistrate for proper relief. In such a situation the jurisdiction of the Magistrate to entertain an application for interim release of the captive animal is not at all barred.
12. The documents submitted by the parties clearly show that the petitioner has submitted a declaration in respect of the elephant inquestion to the Chief Wild Life Warden u/s 40 and the later has also prepared inventory after inquiry u/s 41 of the Act, but certificate of ownership u/s 42 has not been issued so far. Thus, the petitioner is not entitled to get its interim custody or keep the elephant without certificate of ownership.
13. In view of the foregoing discussion, I find that the Courts below have not at all erred in rejecting the application of the petitioner for interim custody of the elephant in question. No case for quashing the FIR is made out, as prima facie the offence under the Act and IPC had been committed by the accused persons. However, in the facts and circumstances of the case it is desirable that the Chief Wild Life Warden, NCT, Delhi should take an early decision u/s 42 of the Act on the fresh application of the petitioner with regard to the elephant in question, if it is filed by the petitioner. The application of the petitioner should be decided irrespective of pendency of the instant case. In case certificate of ownership is issued to the petitioner in respect of the animal in question, he may apply for its interim custody before the Court of Chief Judicial Magistrate, Gautam Budh Nagar. Such application should also be disposed expeditiously by the learned Magistrate after hearing the parties' counsel with a reasoned order. With these observations, the petition is finally disposed of.