Timir Chowdhury Vs. State of West Bengal and ors. - Court Judgment

Excerpt:
- s.p. talukdar, j.1. petitioner, sri timir chowdhury, filed an application under section 482 of the criminal procedure code, 1973, assailing the order dated 25th july, 2005 passed by the learned additional dristrict & sessions judge, 16th court, alipore, 24-parganas (south) in criminal motion no. 386 of 2005. by the said order, the learned court dismissed the revisional application which was preferred challenging the order dated 21st may, 2005 passed by the learned chief judicial magistrate, alipore, 24 parganas (south) in complaint case no. 3108 of 2005.2. grievances of the petitioner, as ventilated in the application, may briefly be stated as follows:the petitioner owns a fishing vessel namely, f.b. bumba, which is registered under section 9(1) of the west bengal marine fishing regulation act, 1973. he is a licence holder for zone (d) fishing and uses the vessel in order to carry out fishing and allied marine activities to earn a livelihood for his family.3. on 19th may, 2005, the opposite party no. 2 lodged a complaint before the court of learned chief judicial magistrate, alipore, 24-parganas (south), wherein it was alleged that on the said date at about 1 a.m., when the o.p. no.2 along with other forest officials was coming back after patrolling in saptamukhi block under namkhana range through hatania duania river, they cheeked the fishing boat named 'f.b. bumba' on suspicion. after inspecting the same it could be found that 41 sharks, of which 40 were gangetic shark and one guitar shark, which have been earmarked as 'schedule-1 part iia' animals as per the wild life (protection) act, 1972, were kept in the vessel. the forest officers directed the persons present in the vessels to produce valid document for possession of such animals but they failed to do so. all the 14 (fourteen) persons who are in the vessels were arrested. seizure list were prepared and arrested persons were forwarded to the court.4. on the basis of such complaint, case no. c-3108/2005 was registered under sections 9, 39, 44, 49b and 51(1) of the wild life (protection) act, 1972 against sri gurupada das and 13 (thirteen) others. the prosecuting agency sught for permission of the learned court for burial of the 40 sharks since the same are perishable and sent only one such shark to director of geological survey of india, kolkata, for proper identification.5. the bail application filed on behalf of the petitioner on 19lh may, 2005 which was rejected. thereafter, he was let out on bail by the learned court of additional sessions judge, alipore. on the said day, i.e., 19.05.2005, the petitioner claiming to be the owner of the seized trawler 'f.b. bumba', filed an application before the learned magistrate for return of the said vessel. learned court called for report from the forest range officer, namkhana range by 21.05.2005.6. opposite party no. 2, in response to such direction of the learned court, submitted a report thereby raising objection to the prayer for return of the seized trawler. learned court by order dated 21.05.2005 after taking into consideration all relevant facts and materials including the report submitted by present opposite party no. 2 rejected the prayer for return of the vessel.7. being aggrieved by such order dated 21st may, 2005, the petitioner approached the learned court of revision by filing a revisional application. learned court of revision subsequently by order dated 25th july, 2005 dismissed the application being criminal motion no. 386/05, thereby affirming the order dated 21st may, 2005 passed by the learned magistrate.8. the said trawler had been kept by the prosecuting agency in an uncared manner under the open sky on the beach. the manner in which it had been kept reflects total lack of concern on the part of the department. the condition of the same is bound to deteriorate gradually thereby making it unfit for any future use. petitioner as lawful registered owner of the said trawler, thus, sought for its custody. it is the settled position of law that any article/goods/vehicle which has been used directly and/or indirectly in the commission of an offence and has been seized by the investigating agency must be returned to tis lawful owner upon production of valid documents. in such circumstances, the petitioner approached this court by filing the present application.9. learned counsel, mr. sekhar basu, appearing on behalf of the petitioner first invited attention of the court to section 451 of criminal procedure code. he submitted that power under section 451 of the code should be exercised expeditiously and judiciously. according to him, in exercise of such power, the learned court of magistrate is required to hear in mind that the owners of the article would not suffer because of its remaining unused or by its misappropriation.10. on the other hand, learned public prosecutor, mr. safiullah, raised strong objection to such prayer for return of the trawler. he contended that such trawler, for being used for committing an effence, shall be the property of the state government.11. mr. basu, however, submitted that it is yet to be decided as to whether the trawler had actually been used for committing an offence under the wile life (protection) act, 1972 or not.12. mr. basu in this context referred to the fundamental right of the citizen under article 19 of the constitution. according to him, article 19(1)(g) gives all the citizens the right to practise any profession or to carry on any occupation, trade or business. mr. basu enlarging the scope and ambit of such article 19 of the constitution laid emphasis on the need for protection of such right in a free society like that of ours. he expressed concern and anxiety over the manner in which the trawler was seized by the officials of the forest department on the pretext that the same was used for the commission of an offence.13. mr. basu referred to the decision in the case of balkuntha bihari mohapatra v. state of oriasa reported in 2001 cr.lj 4151, in support of his contention that the court is very much empowered to order release of the seized trawler since no finding has yet been recorded that the trawler has been used for the commission of an offence. an unreported judgment of this court in c. r. r. no. 1158 of 2006 was also relied upon by mr. basu.14. on the other hand, learned counsel for the o.p./state relying upon the decision in the case of state of m.p. v. sayed yahya ali reported in 1996 cr. lj 3660, submitted that the power of return under the indian forest act was expressly removed by omitting sub-section (2) of section 50 of the indian forest act. it was held that in contrast with the provisions of the wild life (protection) act, the forest act does not contain a similar provision that the vehicle involved in the offence should be treated as the property of the government.15. no doubt, there is scope under the forest act to confiscate a vehicle in a similar situation. true, any vessel, vehicle, weapon, trap or tool that has been used for committing an offence shall be the property of the state government but not so, even prior to finding of guilt of the accused person or irrespective of proof as to whether the same was actually used for the commission of offence or not. our system of administration of justice does not give any power without imposing reasonable restrictions. it is said that absolute power in a democratic society is a misconceived notion. its abuse cannot also be ruled out.16. in my opinion, it will not be just and proper to hold that the legislature intended to equip the executive authority with such a power without imposing any restriction whatseover. the principle of 'check and balance' will inevitably suffer serious setback if law is so interpreted that the trawler in question can be held as a property of the state right at this stage. the court may at best be cautious and careful while directing its release on bond so that no one taking advantage of the situation can really frustrate the process of law.17. significantly enough, the expression used under section 39(1)(d) of the said act being 'has been used for committing an offence', it will perhaps be premature for the court to hold right at this stage that such trawler shall be the property of the state government. the case has not reached the stage of trial. it is for the prosecution to establish on the basis of sufficient evidence and materials and to the satisfaction of the learned court that such 'trawler' was used for the commission of the offence under the act and was seized in connection with the same. mere fact that it was 'allegedly used' does not and cannot make it the property of the state.18. law in this regard certainly does not permit putting the curt before the horse. the anxiety that such trawler if allowed to remain uncared for and unprotected for a long time will inevitably be damaged cannot just be brushed aside under the carpet. mere fact that such trawler may ultimately be found to have been used for commission an offence under the act and, in that event, it would become the property of the state cannot certainly stand in the way of its release on execution of a proper bond.19. this court, however, finds it difficult to appreciate the grievances, as ventilated by learned counsel mr. basu, referring to article 19(1)(f) of the constitution of india. it cannot be denied that such fundamental right of the citizens of the country are certainly subject to reasonable restrictions. in the backdrop of the present case, i, however, do not think that there is any need for any further extended discussion on the aspect.20. considering all such facts and relevant materials and having regard to the discussion as made above, the present application being c.r.r. no. 2445 of 2005 is disposed of with a direction upon the learned court to release the trawler in question on execution of a proper bond subject to the satisfaction of the learned court. the learned court may very well impose reasonable counditions and restrictions as may deem fit and proper in the interest of justice while accepting such bond.21. the petititioner is directed to approach the learned court in this regard by filing a fresh application and if an application is filed, learned court must pass necessary order in the light of observation made hereinbefore within a period of one week from the date of such filing.22. send a copy of this order to the learned trial court for information and necessary action.23. criminal department is directed to supply urgent certified copy of this judgment, if applied for, to the learned counsel for the parties after due compliance with the legal formalities.