WP/29353/2021 of L. Venkateswarlu Vs The State of Telangana on 30 December 2021

ORDER

This writ petition, under Article 226 of [the ][Constitution ][of]India, is filed by the [petitioner, wherein, ][the ][following ][prayer ][is]made.

"...to issue a Writ, Order or Direction, [particularly one ][in ][nature]of Writ of Mandamus, declaring [the ][se,zure ][of ][the ][petitioner]vehicle bearing No.TS 05 FG 6759 [Chasis Number ][RAI30XSS]A2942252, a 2020 model colour [yellow is ][in with the ][office ][of ][the]3'd respondent as illegal, arbitrary, [unjust, ][unreasonable ][and]unconstitutional and consequently, [direct ][the ][respondent ][Nos ][2, ][3]& 4 to release the vehicle bearing [No.TS ][05 ][FG ][6759 in favour ][of]the petitioner and [pass ][such ][other order or orders.."]

2. Heard the learned counsel for the [petitioner, ][learned]Government Pleader for [Forests appearing ][for ][the ][respondent]Nos.1 to 3 and [perused ]the [record.]

3. The learned counsel for the [petitioner would ][submit ][that ][the]subject ICB vehicle bearing [No.TS ]05 [FG ][6759 ][belonging ][to ][the]petitioner was hired by one Gundala Chandraiah and [surprisingly,]on 08.09.2021, the subject [vehicle was seized ][by ][the ][respondent]No.3 and the Forest Beat Officer, [Kothapally, alleging ][that ][Gundala]Chandraiah, illegally trespassed [into ][RF ][clearance ][of ][jungle ][growth]and tampering RF boundary [for the ][purpose ][of ][cultivation and ][a]case in Preliminary Offence [Report ][(POR) ][No.OI/71/2021-22 ][dated]28.09.202t was registered against [the ][said Gundala Chandraiah ][for]the offences under Sections 20(1)(c)(ii)(iii) [& ][(vii) of ][A.P. ][Forest]Act, 1967, Sections 27,29 of [Wild Life (Protection) ][Act, ][7972 ][r/w]Section 52(d) of A.P. Forest Acl, [1967, Section ][51(1) of ][Wild ][Life](Pl,otection) Acl, t972 and Section 2(ii) & (iii) of the [Forest]t(Conservation) Act, 1980. It is submitted that a [perusal ][of]

Preliminary Offence Report dated 08.09.2021 issued by therespondent No.3 reveals that no notice was given nor anyexplanation was called for either from the [petitioner ]or the accusedand it is nothing but violation of Section 44 of A.P. Forest Act,7967. Il is also submitted that there is every likelihood of thesubject vehicle being damaged on account of keeping it idle andexposing to sun and sky and ultimately, [prayed ]to allow the WritPetition, as prayed for.

4. On the other hand, learned Government Pleader for Forestswould submit that in terms of Section 39 (1)(d) of the Wild Life(Protection) Act, t972, the subject vehicle is liable for confiscationand the power to release the subject vehicle lies with theMagistrate having jurisdiction of the subject criminal case.Therefore, it is not appropriate to this Court to concede to theprayer of the petitioner and ultimately, prayed to dismiss the WritPetition. The Iearned Government Pleader, in support of hissubmissions, placed reliance on the decision of the HonourableApex Court in State of M.P. and others v. Madhukar Raol .

5, Under these circumstances, it is appropriate to refer to thedecision of the Honourable Apex Court in Madhukar Rao's case(supra), wherein, in paragraph No.21, it is held as follows:

"21. Learned Counsel submitted that Section [j9(1)(d) ]of theAct made the articles seized under Section 50(1)(c) of theAct as Government property and, therefore, there was noquestion of their release. The submission was carefullyconsidered by the Full Bench of the High Court and on anexamination of the various provisions of the Act it was held ' [zoos ][(:) ][elo ][o: ][(sc)]

that the provision of Section 39(1)(d) would come into playonly after a Court of competent jurisdiction found theaccusation and the allegations made against the accused astrue and recorded the finding that the seized article was, as amatter of fact, used in the commission of offence, Anyattempt to operationalise Article 39(1)(d) of the Act merelyon the basis of seizure and accusations/a llegations levelledby the departmental authorities would bring it into conflictwith the constitutional provisions and would render itu nconstitutiona I and invalid. In our opinion, the High Courthas taken a perfectly correct view and the provisions ofSection 39(1)(d) cannot be used against exercise of theMagisterial power to release the vehicle during pendency ofthe trial."

6. In view of the aforesaid decision of the Honourable ApexCourt, the power to release the subject vehicle lies with theMagistrate concerned. Under these circumstances, it is left open tothe petitioner to work out the remedies, in terms of the decisionrendered by the Honourable Apex Court in Madhukar Rao's case(supra), before the Magistrate concerned.

7. With the above observation, the Writ Petition is disposed of"

Miscellaneous Petitions, if any, pending in this Writ Petitionshall stand closed. There shall be no order as to costs.shall stand closed. There shall be no order as to costs.

SD/.R.KARTHIKEYANASSISTANT REGISTRAR//TRUE COPY'\

SECTION OFFICER

To,1. The Divisional Forest Officer, [Devarakanda Range Nagarjuna ][Sagar ][WLM]Division, Nalgonda District.

Z. ihe For6st R"ange Officer, [Kasaraj Pally Range, Nalgonda District ]. .

3. The Station Hou-se Officer, [Neredugomhu ][Mandal, Nalgonda District']. .

4. One CC to Sri Bhaskar Gorla [Advocate ][OPUC]

5: iwo Ccs to Gp For Forests, [High Couri ][for ][the ][State of ][Telangana--[OU]l]O. two CCs to GP For [Home, ][HigE ][Court for the ][State of ][Telangana ][[OUT]]7. Two CD Copies8. One Spare CopyMBC SWJ_,,O. two CCs to GP For [Home, ][HigE ][Court for the ][State of ][Telangana ][[OUT]]7. Two CD Copies8. One Spare CopyMBC SWJ_,, DATED: 3011212021

II1ae [S1l1 ]r€..,.-B [4 ][JAN ][2O?2]l:, [-t',]r-t?--!)

ORDER

WP.No.29353 of 2021

DISPOSING OF THE WRIT PETITION

WITHOUT COSTS