High Court
Case Details
Neutral Citation No. - 2024:AHC:169672 Court No. - 86 Case :- CRIMINAL REVISION No. - 1429 of 2024 Revisionist :- Munib Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Om Prakash Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. 1. Heard learned counsel for the revisionist and learned A.G.A. for the State-respondent and perused the material available on record. 2. On 04.09.2024, this Court had passed following order:- “On the matter being taken up, Mr. A.K. Sand, learned Government Advocate assisted by Mr. Deepak Mishra, learned Additional Government Advocate representing the State submits that Government of U.P. has issued notification No. U.O.-14/VI-P-9-2023 dated 14.02.2023 authorizing the Divisional Commissioner of the respective districts to satisfy himself at any time as to the legality or propriety of the action taken under Section 5-A of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 and call for the record, examine the same and pass orders thereon as he may deem fit. The aforesaid notification reads as under: "In exercise of the powers under sub-section (5) of section 5-A of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (U.P. Act No. 1 of 1956) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to authorise the Divisional Commissioner to satisfy himself at any time as to the legality or propriety of the action taken under the section 5-A of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (U.P. Act No. 1 of 1956), call for and examine the record of any case and pass such order thereon as he may deem fit. The aforesaid power shall be exercised within the limit of the respective districts of the Divisional Commissioner." On being confronted with the query of the Court whether the Divisional Commissioner is authorized to exercise his powers in appeal, revision or on representation preferred by the accused, he prays for some time to seek instructions in the matter and address the Court. As prayed by the learned Government Advocate, list this case as fresh on 16.10.2024.” 3. Learned counsel for the revisionist submitted that even after specific direction of this Court dated 04.09.2024, no compliance report has been filed on behalf of the State on 16.10.2024 and even till date. 4. Learned A.G.A. admitted that no report from the Government has been received as yet. 5. To the contrary learned A.G.A. submitted that although no specific instruction has been received with regard to query made by this Hon’ble Court on 04.09.2024, but from perusal of notification cited in the said order itself it is crystal clear that the Divisional Commissioner is empowered to exercise powers of revision, as to the legality and propriety of action taken under Section 5(A) of U.P. Prevention of Cow Slaughter Act, 1955. 6.
Legal Reasoning
Bench Judgment of this Court in Civil Misc. Writ Petition No.7938 of 2023, wherein it is held that revision is maintainable under Section 397 Cr.P.C. against the final order passed by District Magistrate, in proceedings under Section 5(A) (VII) of U.P. Prevention of Cow Slaughter Act, 1955, wherein a vehicle seized in the offence under the Act has been confiscated in favour of the State and the SHO concerned has been authorized to auction the vehicle and to deposit the sale proceeds in the revenue auction. 2 of 7 7. Instant Criminal Revision has been preferred against the order dated 26.09.2023 passed by District Magistrate, Mirzapur in Case No.1245 of 2022, under Section 5(A) of U.P. Prevention of Cow Slaughter Act, 1955. By the impugned order learned District Magistrate has confiscated seized Tata Yodha 1200 PIKKUP goods carriage vehicle bearing Registration No.UP67 AT-7449 and directed for supply of a copy of the order to S.P. Mirzapur and SHO, Lalganj for necessary action. 8. As per prosecution version the said vehicle was seized while transporting progeny of cow in illegal manner, as it was intercepted with the limits of district Mirzapur, Uttar Pradesh on 5/6.11.2022 six number of progeny of cow were found to be loaded and being transported by said vehicle. It is also alleged that the said cattle were loaded in the vehicle in cruel and over crowded manner with a view to smuggled them to gain illegal and unlawful gain. 9. Learned counsel for the revisionist submits that the impugned order passed by District Magistrate is against the principles of law. The revisionist is registered owner of the vehicle and he has granted anticipatory bail by orders of this Court dated 26.04.2023 passed in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. 10. The learned District Magistrate has failed to assign any reason for denying the release of vehicle in favour of revisionist, whereas there was no legal bar in release of a vehicle in favour of its registered owner. The revisionist is suffering great loss due to seizure of vehicle and keeping the same in open at Police Station since 22.11.2022 i.e. for a period of two years. The vehicle in question was financed by a financing Bank and substantial installments are due to be paid. The said vehicle was seized in an illegal manner and due to its parking at Police Station in unattended manner for such a long period its value being deteriorated rapidly, and 3 of 7 there is danger of its being rusted and in serviceable. Therefore, it is prayed that the vehicle may kindly be released in favour of the revisionist. Keeping in view the various orders passed by this Court as well as Hon’ble Apex Court in Sunderbhai Ambalal Desai vs State Of Gujarat reported in 2002 (10) SCC 283. 11. Per contra, learned A.G.A. submitted that there is no illegality or perversity in the impugned order passed by leaned District Magistrate is well within jurisdiction and vehicle was seized on charge of transporting progeny of cow, which is an offence under Section 5(A) of the Act, and there is ample provision for confiscation of vehicle and its sell. District Magistrate has acted in the case as competent officer designated under the Act. 12. Section 5A of the aforesaid Act, which is useful for the adjudication provides for the regulation on transport of cot. Section 5A is quoted herein below:- "Section 5A. Regulation on transport of cow, etc.- (1) No person shall transport or offer for transport or cause to be transported any cow, or bull or bullock, the slaughter whereof in any place in Uttar Pradesh is punishable under this Act, from any place within the State to any place outside the State, except under a permit issued by an officer authorised by the State Government in this behalf by notified order and except in accordance with the terms and conditions of such permit. (2) Such officer shall issue the permit on payment of such fee not exceeding five rupees for every cow, bull or bullock as may be prescribed : Provided that no fee shall be chargeable where the permit is for transport of the cow, bull or bullock for a limited period not exceeding six months as may be specified in the permit. (3) Where the person transporting a cow, bull or bullock on a permit for a limited period does not bring back such cow, bull or bullock into the State within the period specified in the permit, he shall be deemed to have contravened the provision of sub-section (1). 4 of 7 (4) The form of permit, the form of application therefor and the procedure for disposal of such application shall be such as may be prescribed. (5) The State Government or any officer authorised by it in this behalf by general or special notified order, may, at any time, for the purpose of satisfying itself, or himself, as to the legality or propriety of the action taken under this section, call for and examine the record of any case and pass such orders thereon as it or he may deem fit]. [(6) Where the said conveyance has been confirmed to be related to beef by the competent authority or authorised laboratory under this Act, the driver, operator and owner related to transport, shall be charged with the offence under this Act, unless it is not proved that the transport medium used in crime, despite all its precautions and without its knowledge, has been used by some other person for causing the offence. (7) The vehicle by which the beef or cow and its progeny is transported in violation of the provisions of this Act and the relevant rules, shall be confiscated and seized by the law enforcement officers. The concerned District Magistrate/Commissioner of Police will do all proceedings of confiscation and release, as the case may be. (8) The cow and its progeny or the beef transported by the seized vehicle shall also be confiscated and seized by the law enforcement officers. The concerned District Magistrate/ Commissioner will do all proceedings of the confiscation and release, as the case may be. (9) The expenditure on the maintenance of the seized cows and its progeny shall be recovered from the accused for a period of one year or till the release of the cow and its progeny in favour of the owner thereof whichever is earlier. (10) Where a person is prosecuted for committing, abetting, or attempting to an offense under Sections 3, 5 and 8 of this Act and the beef or cow- remains in the possession of accused has been proved by the prosecution and transported things are confirmed to be beef by the competent authority or authorised laboratory, then the court shall presume that such person has committed such offence or attempt or abetment of such offence, as the case may be, unless the contrary is proved. (11) Where the provisions of this Act or the related rules in context of search, acquisition, disposal and seizure are silent, the relevant provisions of the Code of Criminal Procedure, 1973 shall be effective thereto.]." 5 of 7 12. Thus transportation of cow etc. is regulated by Section 5A and Section 5A(7) confers power upon the District Magistrate/Commissioner of Police to confiscate the vehicle by which the beef or cow and its progeny is transported in violation of the provisions of this Act and the relevant Rules. A perusal of the F.I.R. indicates that none of the cow were maimed nor physically injured. Further, the allegation that they were being transported to West Bengal from Prayagraj for slaughtering requires no consideration as the condition precedent for the application of the section is that the cattle described in the Act should have been transported from any place in the State of U.P. to any place outside the State. Even if the story of seizure of cattle is believed then also 06 cattle are said to have been seized within the jurisdiction of Police Station Lalganj, District Mirzapur namely within the State of Uttar Pradesh and admittedly, the border is far away. The fact remains that cattle were apprehended from within the State of U.P. and, therefore, it cannot be said that they were transported to a place outside the State of U.P. 13. Admittedly, the criminal proceedings initiated in terms of the F.I.R. have not culminated, thus, the allegations of the F.I.R. are yet to be established. Commission of offence is one of the requisite ingredients for passing an order of confiscation and an order of confiscation should not be passed automatically. Thus, there is no material, as exist on record, to justify the exercise of powers under Sub Section 7 of Section 5A. The same is clearly contrary to the mandates and powers conferred upon the District Magistrate. 14. The confiscation by its very connotation implies depriving a person of his property to which he is entitled to retain. Article 300A of the Constitution of India provides that no person shall be deprived of his property save by authority of law. Arbitrary confiscation of the property which he might be using for his trade, profession or occupation is a serious encroachment on the fundamental right of a citizen under Article 6 of 7 19(1)(g) of the Constitution of India to carry on his trade, occupation or business. The procedure prescribed by law for confiscating the property, as contained in Section 5A(7) of the Cow Slaughter Act, empowers the District Magistrate/Commissioner of Police to confiscate/seize the vehicle only if the conditions so prescribed under Sub Section 7 of Section 5A are fulfilled. 15. Consequently it is directed that the District Magistrate may pass an appropriate orders for release of the vehicle in favour of the revisionist after taking adequate surety bonds to his/her satisfaction within a period of one week on production of a certified copy of this order. 16. Accordingly, the criminal revision succeeds and is allowed. Order Date :- 23.10.2024 Ashish/- 7 of 7
Arguments
Learned counsel for the revisionist placed reliance on a Division