Petitioner sought bail under Section 439 CrPC for illegal possession of sea cucumber under the Wildlife Protection Act. Court dismissed petition citing petitioner's status as a repeat offender with 13 prior cases and the existence of Section 51-A conditions.
Petition for bail dismissed; no bail granted.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
( Criminal Jurisdiction )
Reserved on Pronounced on 12.07.2021 16.07.2021
PRESENT
The Hon`ble Mr.Justice G.CHANDRASEKHARAN CRL OP(MD). No.9011 of 2021
Vilayutham ... Petitioner/Accused No.1
Vs
The State represented by its The Inspector of Police, Jetty Police Station, Ramanathapuram District. Crime No. 95 of 2021. ... Respondent/Complainant
For Petitioner : Mr.S.Vidhyasagar Advocate. For Respondent : Mr.E.Antony Sahaya Prabahar, Additional Public Prosecutor
PETITION FOR BAIL Under Sec.439 of Cr.P.C.
PRAYER :- For Bail in Crime No.95 of 2021 on the file of the Respondent Police.
ORDER :The Court made the following order :-
The petitioner, who was arrested on 17.06.2021 for the offences punishable under Sections 9, 50, 39(1), 51(1) of the Wildlife (Protection) Act, 1972 in Crime No.95 of 2021 on the file of the respondent police, seeks bail.
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Totally, they found 2800kg of sea cucumber. Therefore, this case came to be registered.
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" Another interesting feature of Section 45 is that the twin conditions that need to be satisfied under the said Section are that there are reasonable grounds for believing that the accused is not guilty of “such offence” and that he is not likely to commit any offence while on bail. The expression “such offence” would be relatable only to an offence in Part A of the Schedule. Thus, in an application made for bail, where the offence of money laundering is involved, if Section 45 is to be applied, the Court must be https://hcservices.ecourts.gov.in/hcservices/ satisfied that there are reasonable grounds for believing that he is not guilty of the offence under Part A of the
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Schedule, which is not the offence of money laundering, but which is a completely different offence. In every other Act, where these twin conditions are laid down, be it the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985, the reasonable grounds for believing that the accused is not guilty of an offence is in relation to an offence under the very Act in which such section occurs. (See for example, Section 20(8) of TADA and Section 37 of the NDPS Act). It is only in the 2002 Act that the twin conditions laid down do not relate to an offence under the 2002 Act at all, but only to a separate and distinct offence found under Part A of the Schedule. Obviously, the twin conditions laid down in Section 45 would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. Bail would be denied on grounds germane to the scheduled or predicate offence, whereas the person prosecuted would ultimately be punished for a completely different offence - namely, money laundering. This, again, is laying down of a condition which has no nexus with the offence of money laundering at all, and a person who may prove that there are reasonable grounds for believing that he is not guilty of the offence of money laundering may yet be denied bail, because he is unable to prove that there are reasonable grounds for believing that he is not guilty of the scheduled or predicate offence. This would again lead to a manifestly arbitrary, discriminatory and unjust result which would invalidate the Section. "
Therefore, the Honourable Supreme Court found that the offences based on sentencing of the Scheduled offence would have no rational relation to the object of the 2002 Act and to the granting of bail for offences committed under the Act and therefore, have to be annulled on the basis of the equal protection clause.
https://hcservices.ecourts.gov.in/hcservices/ (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
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(ii) While the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Only if these two conditions are satisfied, the accused is entitled for bail.
(a) the Pubic Prosecutor has been given an opportunity of opposing the release on bail; and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
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(3) 37/2010, under Section 9, 39(1), 50, 51(1) of the Wild Life Protection Act.
(4) 26/2011, under Sections 9, 39(1), 50, 51(1) of the Wild Life Protection Act.
(5). 33/2011, under Sections 9, 39(1), 50, 51(1) of the Wild Life Protection Act.
(6) 13/2017, under Sections 9, 39(1), 50, 51(1) of the Wild Life Protection Act.
(7) 03/2004, under Section Tamilnadu of Wild Life Protection Act, 1972.
(8) Ramnad Range W.L.O.R.No.06/2009 U/S Schedule 1 (iv)C of Wild Life Protection Act 1972 Amendment Wild Life Protection Act 2002 Section 9, 39(1), 50, 51(1) of the Wild Life Protection Act.
(9) Ramnad Range W.L.O.R.No.07/2009 U/S Schedule 1 (iv)C of Wild Life Protection Act 1972 Amendment Wild Life Protection Act 2002 Section 9, 39(1), 50, 51(1) of the Wild Life Protection Act.
(10) Thangachimadam Forest W.L.O.R.No.06/2011 U/S Section 9, 39(1), 50, 51(1) of the Wild Life Protection Act 1972. Amendment Wild Life Protection Act 2002.
(11)Thirupalakudi PS Cr.No.96/2013, under Section 5(a) of Explosive Substances Act 1908, 9, 39(1), 50, 51(1) of the Wild Life Protection Act 1972. Amendment Wild Life Protection Act 2002.
(12) Q Branch Case 01/2008, under Section 13(1)(2) Unlawful Activities Prohibition Act and 10(a)(4) Unlawful Activities.
(13) Rameswaram Town PS Cr.No.96/2004, under Section 341, 332, 343, 323, 353 I.P.C., r/w 51(1) of Wild Life Protection Act 1972.
13.This list shows that the petitioner is a repeat offender under the Wild Life Protection Act. The investigation in this case is not completed. This Court finds merits in the submission of the learned Additional Public Prosecutor that if the petitioner is released on bail, there is possibility of his committing similar offence again. Taking all these facts and circumstances, this Court is not inclined to grant bail to the petitioner. If the petitioner has any health issues, he can avail treatment from prison hospital or Government Hospital on the advise of prison Doctor. In this view of the matter, this Criminal Original Petition is dismissed.
Sd/16/07/2021 / TRUE COPY / / /2021
Sub-Assistant Registrar (C.S.)
Madurai Bench of Madras High Court, Madurai - 625 023.
SSL
Note : In view of the present lock down owing to COVID-19 pandemic, https://hcservices.ecourts.gov.in/hcservices/ a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct
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copy, shall be the responsibility of the advocate/litigant concerned.
TO
CRL OP(MD) No.9011 of 2021
VB/JM/SAR.III/27.07.2021/7P/4C
2 issues framed by the court
Whether bail can be granted to a petitioner convicted under the Wildlife Protection Act with twelve prior pending cases under the same Act.
Whether Section 51-A of the Wildlife Protection Act, imposing twin conditions of prior conviction, is unconstitutional akin to Section 45 of PMLA.
Colour shows how this judgement treated each authority
Nikesh Tarachand Shah vs Union of IndiaReferred¶21
Nikesh Tarachand Shah vs Union of India 2018 11 SCC (Cri) 302 · Who else cites this
5 provisions across 3 enactments
Vilayutham
The State
G.CHANDRASEKHARAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
