Ram Lakhan Sharma vs State of U.P.

M.K. Mittal, J.—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, Govt of UP 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.

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 (herein after 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 registered owner thereof.

Learned AGA 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.

According to Section 2(4)(b)(iii) forest produce includes wild animals.

Section 52-A(5) as amended in Uttar Pradesh reads as under:

No order of confiscation of any tool, boat, vehicle, cattle, rope, chain or other article shall be made if any person referred to in Sub-section (4) proves to the satisfaction of the authorised officer that any such tool, boat, vehicle, rope, chain or other article was used without his knowledge or connivance or without the knowledge or connivance of his servant or agent, as the case may be, and that all reasonable precautions had been taken against use of the objects aforesaid for the commission of the forest offence.

It shows that the owner of the vehicle has to show that the forest produce was being transported by the vehicle without his knowledge or connivance or that of his servant or agent. In this case the petitioner could not show that the tortoise were being transported without his knowledge or that of his driver.

Section 39 of the Act provides that any vehicle which 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.

Schedule I part II (Amphibians and Reptiles) enumerates different kinds of turtle. Therefore, the turtles recovered were wild animals and their unauthorised transportation prima facie shows the commission of offence under the provisions of the Act. Earlier there was a provision in Section 50(2) of the Act which provided for release of the vehicle but the same provision has been omitted with from 2.10.1991 by amending Act No. 44/91. Therefore if the vehicle has been seized it cannot be released it being government property.

Learned Counsel for the petitioner has also contended that no offence under the Forest Act or the Wild Life Act is made out in the case. But it can be determined after the evidence is led by the prosecution in the case and no such finding can be recorded in the writ petition.

In the circumstances, the writ petition is devoid of merits and is liable to be dismissed and is hereby dismissed.