Allahabad High Court
Phool Chand Shahu vs State Of U.P. And 2 Others on 21 February, 2023
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- CRIMINAL REVISION No. - 748 of 2022 Revisionist :- Phool Chand Shahu Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Vijay Mani Tiwari Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh,J.
Heard learned counsel for the revisionist, learned A.G.A. and perused the record.
The challenge in the present revision is the confiscation order dated 25.11.2021 pursuant to FIR dated 18.07.2021, passed by District Magistrate, Ghazipur in Case No.1481 of 2021, (Phool Chand Sahu vs State of U.P.) under section 5-KA) of U.P. Prevention of Cows Slaughter Act, 1955.
As per the prosecution story the alleged occurrence is said to have taken place on 18.07.2021 and the first information report was lodged on the same day at 18.20 P.M. by the informant Hari Narayan Shukla, S.I., Police Station Gahamar, District Ghazipur against AjayYadav and Hansraj Maurya, the owner of the Vehicle No. UP-62 BT 3573 and it was mentioned in the FIR that when the informant carried out raid, one cow and one calf in the Vehicle No. UP-62 BT 3573 was present. Thereafter, the aforesaid vehicle was taken to police station.
The learned counsel for the revisionist contended that the revisionist is neither named nor there is any allegation against him in the first information report. He further submits that there is no public witness of the alleged recovery of one cow and one calf. He further submits that no beef has been recovered from the vehicle in question or from the place of occurrence. Further contention is that the vehicle of the revisionist is lying at the police station in an open space and would be destroyed due to lack of maintenance. Learned counsel further contended that the order impugned dated 25.11.2021 passed by the District Magistrate, Ghazipur, is arbitrary and illegal in as much as the revisionist has not committed any offence under the Cow Slaughter Act. Further submission is that the revisionist himself is the owner of the vehicle, which is the only source of livelihood and its confiscation violates Article 19(1)(g) and Article 300-A of the Constitution of India.
Per contra, learned A.G.A. submitted that the vehicle confiscated is involved in illegal transportation of cow for the purposes of slaughter without any valid permit to another State, which is in violation of Cow Slaughter Act. Learned A.G.A. further contended that proceedings towards confiscation of the offending vehicle and also criminal prosecution against the accused are parallely maintainable.
Confiscation order dated 25.11.2021 has been passed by the District Magistrate, Ghazipur, in exercise of powers under Section 5A(7) of the Cow Slaughter Act.
The present order dated 25.11.2021 has been passed in a case instituted on the police report dated 24.09.2021 submitted by the Inspector In-charge/Circle Officer, Ghazipur, stating inter-alia that on 18.07.2021, Sub Inspector, Hari Narayan Shukla has intercepted the vehicle being Vehicle No. UP-62 BT 3573 and has recovered one cow and one calf from the vehicle. Thereafter, Case No.1481 of 2021, (Phool Chand Sahu vs State of U.P.) under section 5-KA) of U.P. Prevention of Cows Slaughter Act, 1955 was lodged, and prayed for its confiscation.
The Uttar Pradesh Prevention of Cow Slaughter Act was enacted to prohibit and prevent the slaughter of cow and its progeny in Uttar Pradesh. Slaughter has been defined in Section 2(d) of the Cow Slaughter Act, which reads thus:-
"Slaughter means killing by any method whatsoever and includes maiming and inflicting of physical injury which in the ordinary course will cause death."
Section 3 of the Cow Slaughter Act lays down that "no person shall slaughter or cause to be slaughtered, or offer or cause to be offered for slaughter, a cow, bull or bullock in any place in Uttar Pradesh, anything contained in any other law for the time being in force or any usage or custom, to the contrary notwithstanding.
Section 5A of the said Act, which is useful for the adjudication provides for the regulation on transport of cow. Section 5A is quoted 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 authorized 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) 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.]."
Now, it is to be considered whether permit is required for transportation of the cow or its progeny within the State of Uttar Pradesh. This question came up for consideration before this Court in Criminal Revision No. 131 of 2005 (Kailash Yadav and others vs. State of U.P. and others, 2008 (10) ADJ 623), wherein it is held that no permit is required for transportation of cow or its progeny within the State of Uttar Pradesh. Sub-section 5A (6 to 8) provides for confiscation and release of vehicle by which beef or cow and its progeny is transported in violation of the provision of this Act and the relevant rules.
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 one cow and one calf are said to have been seized within the jurisdiction of Police Station Gahamar, District Ghazipur 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. Admittedly, the criminal proceedings initiated in terms of the F.I.R. have not culminated or attained finality 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.
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 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.
In view of the foregoing discussion, the confiscation order of the District Magistrate dated 15.11.2021 cannot be sustained and is, accordingly, set aside. The revision succeeds and is allowed.
However, it is directed that the trial court will pass appropriate order for releasing of the vehicle in favour of the revisionist after taking adequate surety bond.
Order Date :- 21.2.2023 Jitendra