The petitioner has filed the revision aggrieved against the order passed in C.M.P No. 337/99 in O.R No. 9/98-99, dated 11-5-1999 by the learned Judicial Magistrate, Gudalur, Nilgiris District.
2. The case in brief for the disposal of the revision is as follows:
The petitioner is a German citizen, having her passport who came to India on a tourist visa. She came to Mudumalai on 19.3.99 She is a wild life lover, came to know through newspaper that a wild elephant (Makhna) is captured alive and is well maintained in Mudumalai Elephant Camp. She wanted to see the animal and went to the Elephant camp on the same day at about 5.00 p.m and saw the animal of different nature. She has also photographed the animal and also took video. She has entered the Elephant Camp with camera and Video with the full knowledge of the Forest Personnel and most of the tourists were also having camera and video. The officials have not prevented their entry and the Camp is free to tourists. At about 6.00 p.m one forester along with 20 others came and assaulted the petitioner, dragged her away and put her into a van and seized her camera. She came to know that the articles were handed over to the Court, alleging that she had committed the offences under Sections 27, 28, 29, 39 and 51 of the Wild Life (Protection) Act. She has not committed any offence and, as such, the seizure of the camera is illegal and as she has to return Germany for her job, she needs to get back the articles seized from her.
3. Learned Government Advocate (Crl. Side) opposed the application, stating that the petitioner has not obtained any permission for entering into the Elephant Camp in accordance with the provisions contained in the Wild Life (Protection) Act. The respondent also filed a counter affidavit that on 19-3-1999 at about 5.30 p.m while Mr. Babu, Forester, Theppakadu Elephant Camp and Mr. Sivakumar, Forest Watcher, Elephant Camp were on their regular official duty, they found that the petitioner was videographing the elephant viz., Makhna. She was also keeping Digital Video camera in her leather hand bag. It was found that the hand bag had a slit in order to ensure that the lens sticks out and the camera was inside the bag in order to videograph the elephant without the knowledge of others. The forest officials stopped the petitioner and on enquiry, they found that the petitioner was videographing the elephant. She also admitted the offence and stated that she videographed the elephant on the instigation of one Smt. Deena Krantz and one Ms. Nigel. Her video camera and the hand bag were seized under a cover of mahazar. She also entered into the Wild Life Sanctuary without proper permission. She was produced before the Deputy Superintendent of Police, Guddalore on the same day at 9.00 p.m and after getting an undertaking that she should appear on the next day at 10.00 a.m for further enquiry, she was dropped in the house of Deena Krantz at Mavanhallah. But she failed to appear. On 22-3-1999 the video camera and the accessories with bag were produced before the Court. The petitioner had violated the provisions of Sections 27, 28, 29 and 39 (d) of the Wild Life (Protection) Act. The videograph was also used for the commission of the offence and it was done for the commercial purpose and, as such, it is liable to be confiscated also. Now after completing the investigation, a complaint was filed before Judicial Magistrate I, Gudalore and the same was taken on file in C.C 109/99. If the videograph is returned to the petitioner, she will return back to her country and the proceedings will be totally frustrated. The Sanctuary was closed between March 1997, and 26.4.99 Even if it is admitted an invitation was given in newspaper to enter into the Wild Life Sanctuary as well as to take photographs, specific permission has to be obtained from the Chief Wild Life Warden. The petitioner has also given a complaint in Masinagudi Police Station against the forest officials and the same was registered in Crime No. 38/99 and the same was treated as mistake of fact.
4. Heard the learned counsel for both sides.
5. The petitioner is admittedly a German Citizen and she came to India on a tourist visa. She came to Mudumalai on 19-3-1999 and her camera and other accessories were seized by the forest officials on the ground that she entered the Wild Life Sanctuary without any permission. Further she had also taken video without any permission of the competent authority provided under the Act.
6. Petition filed under Section 451 of the Code of Criminal Procedure for getting back the camera Olympus and Sony digital video camera. Learned Magistrate dismissed the application on the ground that the property is required for the case. Now the forest officials, after investigation filed a complaint before the learned Magistrate and the same was taken on file in C.C 109/99. No doubt, these materials are the case properties. Learned Senior Counsel for the petitioner pointed out that there was all open invitation for persons to enter the camp sanctuary to see the elephant and persons like the petitioner went to the area and they have also taken videograph. However, the petitioner alone was singled out and she was also manhandled by the forest officials and she had sustained injuries and she had also given a complaint against the forest officials. He pointed out various sections under the Act in order to bring home the point that the camera and the Digital video cannot be considered as a tool for the purpose of the commission of the offence as provided under the Act.
7. Section 27 of the Wild Life (Protection) Act relates to restriction on entry in sanctuary. Apart from the persons mentioned in clauses (a) to (c), other persons have to get the necessary permission. Section 28 of the Act relates to grant of permit, which includes the photography also. Section 39 relates to Wild animals, etc. to be Government property. Clause (d) relates to 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. Section 50 relates to power of entry, search, arrest and detention.
8. Learned Senior Counsel for the petitioner relied upon publication made in ‘The Hindu’ dated 19.3.99, wherein Thiru A. Udhayan. I.F.S Wild Life Warden, Mudumalai Wild life Sanctuary and Mukuruthi National Park wrote an article. In the end it is stated as follows:
“People concerned about the condition of the elephant are welcome to see it at the Theppakkadu Camp. Anybody seeing the elephant now would not believe that he was a killer and crop raider just eight months ago.”
Based upon this open invitation only, the petitioner being a German Tourist went to the place for the purpose of seeing not only the elephant but also to take photos and also to take videograph. The question whether the camera or the videograph is a tool for the commission of the offence, can be considered only at the time of the trial of the case. Now, according to Sections 27 and 28 of the Wild Life (Protection) Act, there is a restriction on entry in Sanctuary and also permit is required not only for entry but also to take videograph. Prima facie it cannot be said that the petitioner has got a right to enter into the Wild Life Sanctuary and take a photograph or videograph without any permission.” Even assuming that there is an open invitation in the daily paper, it cannot be said that it would amount to giving indirect permission either for entry or for taking videographs. When the Act specifically provides for certain procedure, any person is bound to adhere to the same and further more, the tourist also cannot now say that she is not aware of all these rules and guidelines.
9. Learned Senior Counsel further stated that apart from petitioner, some other persons have also entered into the Sanctuary and took photographs as well as videographs. But, however, it is pertinent to point out that excepting the petitioner, none other persons have been secured or their camera or equipment was seized by the officials. Only the properties belonging to the petitioner have been seized.
10. The present application has been filed by the petitioner only to get back theproperties seized from her. The petitioner is a German National and if the properties are now released to her, there is every possibility that she may go back to her country with the properties and as a result of which, the trial of the case also would be stalled. Hence, I am of the view that the trial of the case can be expedited and the Order of properties can be passed by the learned Magistrate, according to law.
11. For the reasons stated above, the petition is dismissed. The trial Court is directed to expedite the trial in a period of one month from the date of receipt of a copy of this order.