Allahabad High Court
Mustakeem Begum vs State Of U.P. And 3 Others on 26 April, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:76867-DB A.F.R. Reserved on 18.4.2024 Delivered on 26.4.2024 Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 9028 of 2021 Petitioner :- Mustakeem Begum Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Akash Mishra,Mohd Haleem,Parth Sharma,Parvez Alam,Sanjay Kumar Dubey,Sanjay Vikram Singh,Saqib Meezan Counsel for Respondent :- G.A. Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Akash Mishra, learned counsel for the petitioner and learned A.G.A. for the State-respondents.
2. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India with the following prayer to :
(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.07.2021 passed by District Magistrate, Hathras (respondent no. 2) in Case No. 00440 of 2021 under Section 5A of U.P. Prevention of Cow Slaughter Act, 1955 (Annexure 9 to the writ petition).
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to release the vehicle (U.P. 86T 5519) of the petitioner, herewith.
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iv) award the cost of the writ petition to the petitioner.
3. The aforesaid Case No. 00440 of 2021 arises out of first information report dated 26.12.2020 registered as Case Crime No. 280 of 2020 u/s 411, 414, 429 I.P.C., Sections 3 and 11(1)(f) of Prevention of Cruelty to Animals Act and Section 3,5A,8 of U.P. Prevention of Cow Slaughter Act, 1955 (hereinafter referred to as the 'PCSA'), Police Station- Hasayan, District- Hathras.
4. By the impugned order, the District Magistrate, Hathras has confiscated the vehicle Max bearing registration no. U.P. 86T 5519 involved in the aforesaid case crime number.
5. It has been argued by learned counsel for the petitioner that the impugned order dated 19.07.2021 passed by the District Magistrate, Hathras is illegal, bad in the eyes of law and against the provisions of law which deserves to be set-aside by this Court. It has next been submitted that a false case based on concocted evidence has been registered as Case Crime No. 280 of 2020 against the petitioner and her husband Mohammed Shakir showing the alleged occurrence of transporting and selling of beef on 26.12.2020 at 09.15 p.m. It has also been submitted that the District Magistrate is not authorized to confiscate or auction any vehicle alleged to have been involved in a criminal case under the PCSA. It has also been submitted that the petitioner had filed an application before the Judicial Magistrate, Hathras for release of the vehicle. The Magistrate illegally rejected the application vide order dated 26.08.2021 on the ground that since confiscation proceedings against the vehicle is pending before District Magistrate, Hathras, he has no jurisdiction to release the vehicle. It has further been submitted that since there is no provision for appeal or revision against the order passed under PCSA and therefore, this writ petition is being filed.
6. Learned counsel for the petitioner has relied on following judgements of the Apex Court and this Court in support of his arguments :-
(i) Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638
(ii) Yas Mohammad Vs. State of U.P. and Another, Application U/S 482 No. 12300 of 2021 decided on 02.09.2021
7. Per contra, learned A.G.A. for the State has opposed the petition and has submitted that the District Magistrate, Hathras has rightly passed the impugned order dated 19.07.2021 u/s 5A of PCSA for which he is authorized by the Act. It has next been submitted that in the present case, a F.I.R. has been registered against unknown driver of vehicle no. U.P. 86T 5519 in Case Crime No. 279 of 2020 u/s 279, 427 I.P.C., P.S.- Hasayan , District- Hathras in which the name of the husband of the petitioner, Mohd. Shakir came into light who was driving the said vehicle on which beef was loaded and in this connection, another F.I.R. as Case Crime No. 280 of 2020 u/s 411, 414, 429 I.P.C., Sections 3 and 11(1)(f) of Prevention of Cruelty to Animals Act was registered. The police arrested Mohd. Shakir and Salman from the spot and recovery of beef has been made from the aforesaid vehicle. The petitioner, Smt. Mustakeem Begum is owner of the said vehicle. The recovered beef was sent to Veterinary College, Mathura for examination. The examination report confirmed that the recovered meat from the aforesaid vehicle was beef. Thereafter, the vehicle was seized and taken into custody by the police. On the report of S.H.O. concerned, confiscation proceedings were started by the District Magistrate, Hathras and after following due procedure vide order dated 19.07.2021, he confiscated the vehicle in favour of the State Government. Thereafter, the petitioner filed an application before the concerned Judicial Magistrate for release of the vehicle who vide order dated 26.08.2021 rejected the release application on the ground that since confiscation proceedings are continuing by the District Magistrate, Hathras under PCSA, he has no jurisdiction to release the vehicle. The District Magistrate, Hathras was competent to pass the impugned order. He has legally passed it under the provisions of Section 5 of PCSA. Therefore, there is no ground to set-aside it and release the vehicle in favour of the petitioner.
8. The Case Crime No. 280 of 2020 u/s 411, 414, 429 I.P.C., Sections 3 and 11(1)(f) of Prevention of Cruelty to Animals Act was registered on the basis of written report dated 26.12.2020 submitted by informant, Anmol Gupta, son of Murari Gupta at 23 o'clock in Police Station- Hasayan. The informant submitted written report to the effect that he is resident of Mohalla Dakhal, Kasba, Post and Police Station- Hasayan, District- Hathras. On 26.12.2020 at 9.15 p.m., he saw that two accused, namely, Salman and Mohd. Shakir were selling beef at Bharatpur Tiraha, which was kept inside Max vehicle no. U.P. 86T 5519. The accused were apprehended with the assistance of local people. It was found that large quantity of beef is kept in the aforesaid vehicle. The accused could not submit any license or receipt regarding sale of buffalo or other meat. They confessed that they had slaughtered animal near the shrubs of the canal and were selling the same. Sample of the meat was sent to Veterinary College, Mathura. The examination report was submitted to the effect that the specimen was that of beef.
9. In the present writ petition, the petitioner has not assailed the order dated 26.08.2021 passed by Judicial Magistrate, Hathras. Therefore, that order has become final.
10. Learned counsel for the petitioner has sought to assail the order passed by District Magistrate, Hathras contending that in PCSA, the District Magistrate is not authorized to confiscate the vehicle involved in offence under the aforesaid Act. He has also argued that the Magistrate without considering the provisions of Section 5 Cr.P.C., rejected the application filed for the release of the aforesaid vehicle.
11. Section 5 of Cr.P.C. is as follows :
5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
12. The applicability of the provisions of the Code in an area covered by a a special or local law, in the context of the saving clause under Section 5 of the Code was considered in the Constitution Bench judgment in the case of Maru Ram Vs. Union of India, (1981) 1 SCC 107 and also in State (Union of India) Vs. Ram Sharan, (2003) 12 SCC 578 and it was held that the section consists of three components : (i) the Code covers matters covered by it; (ii) if a special or local law exists covering the same area, the said law is saved and will prevail; (iii) if there is a special provision to the contrary, that will override the special or local law.
13. The PCSA is an Act to prevent the slaughter of cow and its progeny in the State of Uttar Pradesh. Section 5-A of PCSA is reproduced as hereunder :
"5-A. 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 hundred 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) 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 offence 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."
14. Section 5-A of PCSA authorizes the law enforcement officers to seize any vehicle by which the beef or cow and its progeny is transported in violation of the provisions of the Act and the rules made thereunder. The District Magistrate/Commissioner of Police is authorised to do all proceedings of confiscation and release, as the case maybe.
15. The PCSA is a "local law" within the meaning of Section 5 of the Code and in view thereof, the general provisions contained under Sections 451 of the Code with regard to custody and disposal of the property pending trial or the power for making an order for disposal of property at the conclusion of trial under Section 452 or the procedure under Section 457 would therefore, be subject to the powers exercisable under Section 5-A of the PCSA which makes a special provision with regard to confiscation and seizure of the vehicle used for transport in contravention of the provisions of the Act.
16. The provisions under Section 451 to 457 of the Code are in the nature of general provisions whereas the provisions relating to seizure, confiscation and release as contained under Section 5-A of the PCSA which expressly deal with these matters would be in the nature of special provisions contained under a special Act and in view thereof, the normal rule of interpretation that the special provision must prevail over the general and if a case is covered by a special provision, the general provision would not be attracted, would be applicable.
17. In the case of Sunderbhai Ambalal Desai (supra), which is sought to be relied upon on behalf of the applicant, the subject matter of consideration was a challenge which had been raised to an order of police remand granted to the prosecuting agency for the petitioners therein, who were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477-A and 114 of the Indian Penal Code, 1860 on allegations that they had committed offences during a period of time by replacing valuable articles retained as case property by other spurious articles, misappropriation of the amount which was kept at the police station, unauthorised auction of the property which was seized and kept in the police custody pending trial and tampering with the records of the police station. The offences which were subject matter of the case were under the penal code and not under a special Act, and accordingly, the provisions under Sections 451 and 457 were applicable. The judgment in the case Sunderbhai Ambalal Desai (supra), which is an authority relating to release of vehicles seized in connection with criminal proceedings under general law would not be applicable under the facts of the present case which relate to proceedings under a special Act, particularly in view of the provisions under Section 5 of the Code.
18. Section 5-A of PCSA defines the provisions under the Act and provides procedures for seizure and confiscation of the vehicle and animals beef or cow progeny, seized under the Act. It does not provide any forum of appeal or revision against the order of confiscation regarding the seized vehicle passed by the District Magistrate. Therefore, the provisions of criminal revision u/s 397 Cr.P.C. shall be applicable. Section 397 Cr.P.C. provides for institution of criminal revision in the court of Sessions against the order passed by the District Magistrate and other Executive Magistrate supporting to the District magistrate. Thus, the petitioner has been provided suitable and appropriate forum u/s 397 Cr.P.C. to seek remedy against the impugned order passed by the District Magistrate. The provisions of this writ petition filed under Article 226 of the Constitution of India is an extraordinary jurisdiction which can be exercised when the petitioner cannot obtain suitable relief from any other forum. There is no extraordinary circumstance shown by the petitioner which may entitle him to obtain relief from this writ court.
19. There is no merit in this writ petition and the same is liable to be dismissed.
20. Accordingly, the writ petition is dismissed.
21. In case the petitioner files criminal revision before the Sessions Judge within one month from the date of this order, the learned Sessions Judge shall entertain the revision notwithstanding the lapse of limitation period for filing of the same.
22. The interim order, if any, granted earlier, shall stand vacated.
Order Date :- 26.4.2024
KS/Akbar
(Surendra Singh-I,J.) (Siddharth,J.)