MOHAMMAD Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Section 104-D of the Karnataka Forest Act, 1963 is challenged in this writ petition and the petitioner has sought for a declaration that the said provision is illegal and void in law. He has also asked for a direction to the Magistrate to release him on bail without reference to Section 104-D of the Karnataka Forest Act, 1963.

(2.) The contention of the petitioner is that Section 104-D of the Act offends Arts. 21 and 22 of the Constitution of India. The argument is that Section 104-D permits detention of a person even before a trial in regard to the allegation of commission of an offence. The said provision, according to the petitioner, affects the personal liberty. In short, the argument is that the impugned provision is unreasonable and highly arbitrary. The said provision reads as follows: - "104-D. Special provision regarding bail: - Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (Central Act 2 of 1974) no person accused of a forest offence, punishable under Section 86 or 87 or 104A or in respect of ivory, shall, if in custody, be released on bail or on his own bond unless, the prosecution has been given an opportunity to oppose the application for such release; and

(3.) Apparently this is a special provision incorporated in the Act with a specific purpose. The non obstante clause in S. 104-D takes away the effect of the provisions of Criminal Procedure Code making it imperative that a person accused of an offence punishable u/S. 86 or 87 of the Act or Section 104-A of the Act or in respect of an ivory shall not be released on bail or on his own bond if he is in custody unless the prosecution was afforded an opportunity to contest the application for release on bail and in the event of such an opposition, the Court has to satisfy itself about the existence for a reasonable ground for believing that the accused is not guilty of such an offence before proceeding to release the accused on bail.