M.K.Mittal - (1.) -This writ petition has been filed for quashing the order dated 21.5.2007 passed by Divisional Director, Forest Department, Forest Division, Kanpur and the order dated 16.10.2007 passed by Prescribed Authority / Special Secretary, Government of U. P., in Appeal No. 25 of 2007. The order dated 21.5.2007 has been passed by the Divisional Director whereby he confiscated the Tata 2007 Jeep Registration No. UPW 9859. The appeal filed against this order was dismissed by the Special Secretary.
(2.) HEARD Sri Rajesh Yadav, learned counsel for the petitioner, learned A.G.A. and perused the material on record. Brief facts of the case are that this jeep was intercepted by the Police and on checking it was found that 275 live tortoise were loaded in six gunny bags weighing 300 kilograms. This jeep was being driven by Pradeep son of Ram Prakash Tripathi and three persons were also sitting who all were arrested and were challaned. After investigation the police submitted the charge-sheet in the matter. Petitioner who is the registered owner of the vehicle moved an application for release but it was rejected and vehicle was directed to be confiscated and against that order the petitioner preferred the appeal which was also dismissed. Feeling aggrieved, the present petition has been filed. According to the petitioner no offence under the Forest Act or Wild Life (Protection) Act, 1972 (hereinafter referred as Act) was made out. According to him the tortoise were not forest produce and therefore, no offence under the Forest Act was made out. The tortoise were described by the forest officer as Indian Saw Back Terrapin and this category is not included in the schedule 1` to 4 of Section 9 of the Act. The prescribed authority as well as the special secretary erred in confiscating the vehicle and in dismissing the appeal. It has also been contended on behalf of the petitioner that he lives at Ghaziabad and at the relevant time his driver Pradeep Kumar had loaded six gunny bag packed goods at Kanpur which turned out to be tortoise. The petitioner had no knowledge that the goods contained in the packets were tortoise nor he had given any such permission to transport the tortoise. In the circumstances the learned counsel for the petitioner has contended that the confiscation order is not legal and the vehicle is liable to be released in favour of the petitioner who happens to be a reregistered owner thereof.
(3.) LEARNED A.G.A. has contended that the recovered tortoise are protected under the Act and the vehicle has been rightly confiscated and after confiscation it has become State property and it cannot be released in favour of the petitioner. He has also contended that the confiscation proceedings were correctly drawn and there is nothing illegal in it. The confiscation order shows that one Regional Forest Officer, Vilhore range had recommended for confiscation of the vehicle which was involved in forest offence as well as the offence under the Act. Notice was issued to Ram Lakhan Sharma the owner of the vehicle. The driver was also interrogated. The petitioner had also filed a release application in the Court of Magistrate which was rejected and a revision filed against that order was also dismissed on 8.3.2007. The vehicle was seized on 26.1.2007 at about 9.00 a.m. According to the driver of the vehicle he had loaded 6 bags as he was told that the bags contained vegetables and spices. He had no knowledge about the presence of tortoise in the bags. The vehicle owner gave his reply before the prescribed authority and contended that he had no knowledge about the transportation of the tortoise and he even did not know as to who was driving his vehicle on the date of incident. It was found that the driver and the owner of the vehicle had given contradictory statements and concealed the correct facts. It was not probable that the driver would have loaded bags considering that they contained vegetables and spices. Since the bags contained live tortoise, he could have seen the movement in the bags and the version as given by the driver was not acceptable. It was also not probable that the petitioner who is the owner of the vehicle was not aware as to who was driving the vehicle on the date of incident. On this account the owner was also not held to be reliable. The driver had also told that he had loaded these bags at the house of Chhiddu Kanjar in village Makka-Purva and when he was taking them towards Gursahaiganj and had reached Beritiraha crossing the vehicle was seized. During enquiry it also came to light that on the complaint made by Chhiddu, the arrest was made. The driver Pradeep had also stated that the tortoise were loaded at the instructions of the vehicle owner. The prescribed authority came to conclusion that the vehicle was used for committing the offence covered under Wild Life Act and the Forest Act. The tortoise are included in Schedule 1 of the Act and are wild animals. The appellate authority also dismissed the appeal.;