Monu Singh Vs State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 4 Others

¶1

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

¶2

CRIMINAL MISC. WRIT PETITION No. - 6728 of 2024

Monu Singh

.....Petitioner(s)

Versus

State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And 4 Others .....Respondent(s) Counsel for Petitioner(s) : Manoj Kumar Dixit, Harpreet Singh Counsel for Respondent(s) : C.S.C.

¶7

Court No. - 13

¶8

HON'BLE SAURABH LAVANIA, J.

¶9

Heard Sri Harpreet Singh, learned counsel for the petitioner and Sri Amitabh Chaturvedi, learned counsel for the State.

¶10

By means of instant petition, petitioner has sought the following main relief:-

¶11

"i. Issue a writ, order or direction in the nature of certiorari quash the impugned order dated 03.07.2024 passed by Commissioner Ayodhya Division Ayodhya in Appeal No. 643/2024; Monu Singh versus State, under section 5A /8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, contained in Annexure No.1 to this writ petition.

¶12

ii. Issue a writ, order or direction in the nature of certiorari quash the impugned order dated 16.01.2023 passed by learned District Magistrate Barabanki in case No. 2713/2022 under section 5A/8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, contained in Annexure No.2 to this writ petition.

¶13

iii. Issue writ, order or direction in the nature of Mandamus to opposite party no. 2 to release the Truck of petitioner bearing No. UP 61T-1103 forthwith."

¶14

Vide impugned order dated 16.01.2023 passed by the opposite party No.2District Magistrate, Barabanki in Case No. 2713 of 2022 under Section 5(A) of the U.P. Cow Slaughter Act, 1955, (in short 'Act of 1955') confiscated the Truck of the appellant bearing No. UP-61 T-1103 seized by the police party on 03.06.2022. Relevant portion of the order dated 16.01.2023 reads as under:-

¶15

" मैन� उभय प� �ारा ��तुत तक� के पिर�े�य म� प�ावली पर उपल�ध सम�त सुसंगत �प�� का स�यक् अवलोकन एवं पिरशीलन िकया। पुिलस आ�या के अवलोकन से पाया जाता है िक वाहन सं�या UP 61T 1103 ( �क) से 19

¶16

CRLP No. 6728 of 2024

¶17

2

¶18

रािश गोवंशीय पशु� को कूू्ररता पूव�क लादकर अवैध �प से पिरवहन िकया गया, पंजीकृत अिभयोग मे िववेचनोपरा�त आरोप प� स�म �यायालय म� पे्रिषत िकया गया'िजससे यह िस� है िक उ� वाहन से गोवंशीय पशु� को कूरता पूव�क लादकर आिथक एवं भौितक लाभ �ा�त करने के िलये पिरवहन िकया गया। उ०�० गोवध िनवारण (संशोधन) अिधिनयम िदनांक 11 जून, 2020 से �वृ� उ�र �देश अिधिनयम सं�या-01 सन् 1956 की धारा 5क की उपधारा-5 के प�ात् बढाई गयी उपधारा 7 जो इस �कार विणत है '' इस अिधिनयम और सुसंगत िनयमावली के उपब�ध� का उ�लंघन करके गोमांस या गाय और उसके वंशज का पिरवाहन करने वाला यान, िविध �वत�न अिधकािरय� �ारा अिध�त तथा ज�त कर िलया जायेगा। स�बि�धत िजला मिज�टे ª ट/पुिलस आयु� अिधहरण तथा िनमु�ि� की सम�त काय�वािहयाॅ करेगा''। इस �कार उ� अिधिनयम की संशोिधत धारा 5क की यथा संशोिधत उपधारा 7 मे �ा�त शि�य� के अ�तग�त वाहन सं�या UP 61T 1103 ( �क) का अिधहरण िकया जाता है। िवप�ी �ारा दािखल आपि� मेिजन कथन� के आधार पर वाहन को उसके प� म� अवमु� िकये जाने का अनुरोध िकया गया है, उसके स�ब�ध मे ऐसा कोई पुि�कारक त�य अथवा सा�य ��तुत नही िकया गया है, िजससे यह िस� होता हो िक उ� वाहन से गोवंशीय पशु� का पिरवहन न िकया गया हो। अतः िवप�ी की आपि� िकसी पुि�कारक त�य/सा�य से �मािणत न होन� के कारण िनर�त की जाती है।

¶19

अतः उपरो� की गयी िववेचना के आलोक म यह िस� पाया जाता हे ै िक वाहन स�या ं UP 61T 1103 ( �क) से 19 रािश गोवंशीय पशु� को आिथक एवं भौितक लाभ �ा�त करन हे ते ु अवैध �प लादकर पिरवहन िकया गया, जो उ�र �देश गो-वध िनवारण (सशोधन) अिधिनयम 2020 कं े अ�तग�त द�डनीय है। अतः अिधिनयम क �ािवधान� के े � े जान योे े ै।

¶20

अ�तगत वाहन ज�त िकय� े जान योे �य पाया जाता है।

¶21

अतः बरामद वाहन सं�या UP 61T 1103 ( �क) को रा�य सरकार के प� मे ज�त िकया जाता है। आदेश की �ित पुिलस अधी�क बाराबंकी के मा�यम से थाना�य� लोनीकटरा कोसूचनाथ � ेिषत की जाय तथा आदेश की एक �ित िवप�ी ⁄ वाहन �वामी मोनू िसह पु� कैलाश िसह िनवासी �ाम सुजानपुर थाना सुहवल जनपद गाजीपुर को सूचनाथ� �ेिषत की जाय।बाद आव�यक काय�वाही प�ावली संिचत �याियक अिभलेखागार की जाय।"

¶22

It is to be noted that on 03.06.2022 Truck of the appellant bearing No. UP-61 T-1103, which on relevant date was in the possession of driver Prashant Kumar, was apprehended by the police party. In the truck aforesaid total 19 cows were found (8 cows of black and while colour, 05 cows of Chawar colour, 04 cows of black, 01 cow of brown and white colour, and 01 cow of white colour) and out of which two cows were seriously injured and one was no more. Thereafter, an FIR was lodged, registered as Case Crime No. 0171 of 2022, under Sections 11, 3 of the Prevention of Cruelty to Animals Act, 1960 and 3/5A/8 of the Act of 1955.

¶23

Challenging the order dated 16.01.2023 passed by opposite party No.2District Magistrate, Barabanki petitioner preferred an Appeal No. 643 of 2024 before the Commissioner, Ayodhya Division, Ayodhya, (in short 'Appellate Authority'), who dismissed the appeal vide impugned order dated 03.07.2024 and affirmed the order of the Magistrate dated 16.01.2023. Relevant portion of the order dated 03.07.2024 reads as under:-

¶24

" ��नगत �करण म� उभय प�� के िव�ान अिधव�ागण �ारा ��तुत तक� एवं प�ावली पर उपल�ध सा�य� का स�यक �प से अनुशीलन एवं पिरशीलन िकया गया, िजससे िविदत होता है िक िदनांक 03.06.2022 को अपीलकता� के ��नगत वाहन से 19 अदद गोवंशीय पशु/गाय� (08 गाय� काली सफेद, 05 गाय� चावर रंग की, 04 गाय� काली, 01 गाय भूरी सफेद व 01 गाय सफेद) ठसाठस लदी �ई तथा उनका मूंह िनद�यतापूव�क बंधा �आ पाया गया, िजसम� से 02 गाय ग�भीर �प से घायल होकर िगरी दबी प�ी �ई व 01 गाय मृत अव�था म� पायी गयी है। उपरो� से �प� है िक 19 गोवंशीय पशु� को बेरहमी से लाद कर व �ूरता पूव�क बांध कर अवैध �प से त�करी/गोकशी के िलए ले जाते समय �थानीय पुिलस टीम �ारा अपीलकता� के वाहन से बरामद िकये जाने पर

¶25

CRLP No. 6728 of 2024

¶26

3

¶27

मु0अ0सं0 171/2022 अ�तग�त धारा 3/5क/8 गोवध िनवारण अिधिनयम व 3/11 पशु �ूरता अिधिनयम के तहत अ�ात के िव�� अिभयोग पंजीकृत िकया गया। दौरान पुिलस िववेचना अपीलकता� का नाम अपने सह अिभयु�ो के साथ �काश म� आने पर आरोप प� स�म �यायालय म� �ेिषत िकया गया है। अपीलकता� की ��य� संिल�तता िस� पाये जाने पर उनके िव�� उ� आपरािधक कृ�य� को िकए जाने के बाबत उपरो� कृ�य/पिरवहन िकये जाने म� �यु� अपीलकता� के वाहन सं�या यू0पी0-61टी1103 (�क) को िन��/सीज कर धारा-5(क) गोवध अिधिनयम के अ�तग�त रा�य सरकार के प� म� ज�त/अिधहरण िकये जाने की सं�तुित पुिलस �ारा की गयी है।

¶28

उ�लखनीय हे ै िक 2008 (63) ACC पेज 938 असफाक अहमद बनाम उ0�0 सरकार म माननीय उ�च � �यायालय �ारा �ितपािदत िविध�व�था है िक " However, while transporting or carrying these animals within the State of Uttar Pradesh, if any animal is killed or maimed or such physical injury is inflicted which in the ordinary course will cause death, then such acts would be deemed 'slaughtering' within the meaning of section 2(d) of Cow Slaughter Act, which is punishable under section 8 of this Act, being the contravention of section 3. If at the time of transporting or carrying these animals, any of them is offered for slaughtering

¶29

to any person, then also such act would be punishable under section 8, being the contravention of section 3. Attempt to commit the offences under Cow Slaughter Act is also punishable under section 8(2) of this Act. If neither any attempt for slaughtering the cow, bull or bullock is made, nor these animals are offered to any person for slaughtering and if all the animals are healthy and no injury is caused to them during transportation or carrying them on foot, then no offence under Cow Slaughter Act would be made out, even if these animals are being transported with the intention of slaughtering, because intention of any offence is not punishable under any law for the time being in force.

¶30

��नगत �करण म प� ुिलस आ�या अनसार अपीलकताु � के ��नगत वाहन स 19 अदद �ितबिे �धत गोवंशीय पशु� को एक-�सरे के ऊपर च�ा कर बेहरमी स लादा जाना व उनका मे ह िनदुं �यतापूव�क बंधा �आ पाया गया ह। बरामदगी ै के दौरान 02 गोवंशीय पशु ग�भीर �प स घायल होकर िगरी व दबी �ई तथा 01 गाय मे त अव�था मृ � पाई गयी ह। ै ऐस मे अपीलकता� � का कृ�य उ०�० गोवध िनवारण अिधिनयम म� उि�लिखत �ािवधान� का �प� उ�लघन हं । उ०�० ै गो-वध िनवारण अिधिनयम 1955 की धारा-5-क(7) म �ािवधािनत ह� ै िक गोमास या गाय अथवा उनकं े वंशज का पिरवहन करन वाला यान अिध�हीत एवे ं ज�त कर िलया जाएगा तथा िजला मिज��ेट, अिध�हण तथा िनमु�ि� से स�बि�धत सम�त कायवािहया� करं गा। ��नगत �करण मे � अधीन�थ �यायालय न अपीलकताे को सा�य व स� नवाई ु का समिचत अवसर �दान करतु े �ए प�ावली पर उपल�ध पिलस आ�या एवु ं ससु गत �प�� कं े पिरशीलनोपरा�त ��नगत आदश िदनाे क 16.01.2023 कं े मा�यम स िन��/सीज अपीलकताे का वाहन स� �या यं ू0पी0- 61टी1103 (�क) रा�य सरकार के प� म ज�त/अिधहरण िकय� े जान का आदे ेश उिचत �प स पािरत िकया हे ै, िजसम िकसी ह�त�� प की आव�यकता �तीत नह� होती हे ।ै

¶31

अतः उपरो� विणत िववेचना के आलोक म� ��नगत अपील बलहीन होने के कारण िनर�त की जाती है। इस आदेश की एक �ित के साथ अधीन�थ �यायालय की प�ावली वापस भेजी जाय। आव�यक काय�वाही उपरा�त इस �यायालय की प�ावली संिचत अिभलेखागार की जाय।"

¶32

In the aforesaid background of the case, present petition has been filed challenging the impugned order(s) aforesaid.

¶33

It is stated that the order of the confiscation passed by the opposite party No.2-District Magistrate, Barabanki dated 16.01.2023 and also the order

¶34

CRLP No. 6728 of 2024

¶35

4

¶36

dated 03.07.2024 passed by the Appellate Authority are not in consonance with law propounded by this Court in various pronouncements in which this Court took note of relevant provisions of the Act of 1955, including Section 5A(1) which has not been considered in the judgment place by the learned counsel for the State dated 29.09.2022 passed in Application U/S 482 No. 10041 of 2022 (Mohd Yasir vs. State of U.P. And 3 Others).

¶37

It has also been submitted that it is not the case of the prosecution that the cows and its progeny were transported out of State of U.P. and as such the indulgence of this Court is required in the matter. Prayer is to allow the petition and set aside the order of the impugned order(s) dated 16.01.2023 passed by the opposite party No.2-District Magistrate, Barabanki and order dated 03.07.2024 passed by the Appellate Authority released the vehicle in favour of the petitioner.

¶38

The relevant paras of the judgment passed in the case of Mohd Yasir (supra), referred by the learned counsel for the State, are as under:-

¶39

"5. However, while relying upon Kailash Yadav (supra), the coordinate Bench has missed that Section 5B was introduced in the Act by way of Amendment No. 20 of 2020 i.e. after the judgment was passed in Kailash Yadav (supra) and therefore the coordinate Bench have not considered the ingredients of Section 5B and simply followed Kailash Yadav (supra). For ready reference, Section 5B are quoted hereinbelow:-

¶40

"Section 5B :- Whoever causes any physical injury to any cow or its progeny so as to endanger the life thereof such as to mutilate its body or to transport it in any situation whereby endangering the life thereof or with the intention of endangering the life thereof does not provide with food or water shall be punished with imprisonment for a term which shall not be less than one year and which may extend to seven years and with fine which shall not be less than one Lakh rupees and which may extend to three Lakh rupees."

¶41

(emphasis supplied)

¶42

6. Considering the above provision, the proceedings initiated against the applicant under Section 5A (7) which provides as under are legally correct :-

¶43

"5A. Regulation on transport of cow, etc. - ......

¶44

(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

¶45

CRLP No. 6728 of 2024

¶46

5

¶47

enforcement officers. The concerned District Magistrate/Commissioner of Police will do all proceedings of confiscation and release, as the case may be."

¶48

7. Therefore, the observations of coordinate Bench that Section 5A of Act of 1955 shall not operate as a bar as against the result of vehicle seized under Section 5A of Act of 1955 is incorrect due to amendment whereby Section 5B was inserted.

¶49

8. In view of above, no case is made out for interference and the vehicle of applicant was used for the purpose of committing offence under Section 5-A and 5-B also, therefore, the proceedings initiated against the applicant under Section 5A (7) are legally correct as it provides transportation of beef or cow and its progeny in violation of provisions of the Act (i.e. violation of provisions of Section 5B also) whereby proceedings of confiscation and release can be undertaken as well are there are serious allegations that truck was playing with forged number plate and cow progeny was transported to West Bengal via Bihar for their slaughtering and progeny was found in bad conditions endangering the life thereof and, therefore, no interference is required in the impugned order passed by Magistrate as also passed in the revision petition by Sessions Judge.

¶50

9. The application stands rejected."

¶51

In the case of Kailash Yadav and others vs. State of U.P. and Another, 2008 SCC OnLine All 1167 passed in Criminal Revision No. 131 of 2005, this Court observed as under:-

¶52

"6. Section 3 of 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."

¶53

7. Section 5-A of Cow Slaughter Act although is not relevant for the present case, but it will be useful to have a look on this section also, which read thus:—

¶54

5-A Regulation on transport of cow etc-(1)

¶55

"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."

¶56

8. The contravention of Sections 3, 5 & 5-A of Cow Slaughter Act is punishable under section 8 which reads thus:—

¶57

"(1) Whoever contravenes or abets the contravention of the provisions of Section 3, Section

¶58

5 or Section 5-A shall be punished with imprisonment for a term which may extend to seven years and with fine which may extend to ten thousand rupees.

¶59

CRLP No. 6728 of 2024

¶60

6

¶61

(2) Whoever attempts to commit an offence punishable under sub-section (1) shall be punished with imprisonment for a term which may extend to one-half of the longest term of imprisonment provided for that offence and with such fine as is provided for the offence."

¶62

9. As mentioned herein-above, the allegations made in the First Information Report lodged at P.S. Nanahra on 20-12-2004, in brief, are that the accused Radhey Shyam Yadav, Subhash Navik, Baladin Pasi, Ramesh Yadav and Chottey Lal Yadav were arrested by the police carrying fifteen bullocks for the purpose of slaughtering. Having regard to the term 'Slaughter' as defined in section 2(d) of Cow Slaughter Act and provisions of Section 3, even if the entire version of FIR is accepted to be true, no offence under Cow Slaughter Act would be made out in this case. Although merely due to carrying the bullocks by the accused persons named in the FIR, it can not be presumed that they were carrying the said cattle for slaughtering, but even if it is assumed for the sake of argument that the accused persons were carrying the bullocks for the purpose of slaughtering, then also no of fence under Cow Slaughter Act would be made out in present case, because all the bullocks were healthy and neither they were being offered to any other person for slaughtering nor any attempt for slaughtering was being made by the accused persons carrying them. No bullock was found maimed and no injury sufficient in the ordinary course of nature to cause death was caused to any bullock. If the entire version of the FIR is taken to be true on its face value, the case would not travel beyond the stage of preparation, which is not punishable under Cow Slaughter Act or any other law for the time being in force. There was no contravention of section 3 or any other section of Cow Slaughter Act and hence, no offence punishable under section 8 of the said Act would be made out in this case. Attempt to commit the offences described in section 3, section 5 and section 5-A of Cow Slaughter Act is punishable under section 8(2) of the Act. If neither any attempt of slaughtering the cow, bull or bullock is made nor these cattle are offered to any person for slaughtering and if all the cattle during transportation or carrying them on foot remained healthy and no cattle is killed or maimed and no injury sufficient in the ordinary course to cause death is caused to them, then no offence under the Cow Slaughter Act would be made out, even if these cattle are carried with the intention of slaughtering, because intention of the offence of slaughtering is not punishable under any law for the time being in force.

¶63

10. Mere transportation of cow, bull or bullock from one place to another place within the State of Uttar Pradesh or carrying them on foot can not amount to 'attempt' of slaughtering and this act at the most can be said to the 'preparation' of slaughtering, which is not punishable under Cow Slaughter Act or any other law for the time being in force. Reference in this regard may be made to the case of

¶64

11. The offence of 'abetment' of slaughtering would also not be made out in present case, as the accused persons at the time of their arrest were neither offering the bullocks to any other person for slaughtering, nor they were providing any other kind of aid to any person for the offence of slaughtering. Mere transporting the cow, bull or bullock or carrying them on foot from one place to another place within the State of Uttar Pradesh can not be said to the 'abetment' of any offence under Cow Slaughter Act, unless these cattle are

¶65

CRLP No. 6728 of 2024

¶66

7

¶67

either offered to any other person for slaughtering or any other kind of aid is provided to any person for the offence of slaughtering.

¶68

12. It is often seen now-a-days that whenever the cow, bull or bullocks are transported by any goods carriage or carried on foot, they are generally seized either by the police or some anti-social elements. The Uttar Pradesh Police also is helpless before such antisocial elements, who are violating the fundamental right of citizens to carry the trade of purchasing and selling the cattle. Cow Slaughter Act prohibits slaughter of cow and its progeny and possession of beef, but neither this Act, nor any other law for the time being in force prohibits the trade of cow or its progeny within the State of Uttar Pradesh. Unfortunately the police of Uttar Pradesh is also helping such anti-social elements by seizing the cattle and vehicles carrying them, even no offence under Cow Slaughter Act or Animals' Cruelty Act is made out. Even more unfortunate state of affairs in Uttar Pradesh is that the Magistrates and Judges in subordinate courts are also not looking to this matter and either due to excessive devotion to cow or lack of legal knowledge, they are not only declining to release the seized cattle or vehicles carrying them, but without applying their mind, they are rejecting the bail applications also in such cases, although no offence under Cow Slaughter Act is made out and all the offences under Animals' Cruelty Act are bail able. While making inspection of Rampur judgeship as Administrative Judge, I found that a large number of bail applications in such cases were rejected not only by the magistrates, but unfortunately the then Sessions Judge and some Additional Sessions Judges also did not care to see whether any offence under Cow Slaughter Act is made out or not and without applying the mind, the bail applications even in those cases were rejected where two or three bullocks were being carried on foot by the accused. This unfortunate practice of rejecting the bail applications without applying mind by merely seeing sections 3, 5, 5-A and 8 of Cow Slaughter Act in FIR is prevalent almost in the whole Uttar Prdesh, which is unnecessarily increasing the work-load of High Court. By declining bail to the accused persons under Cow Slaughter Act, although no offence under this act is made out and the offences punishable under Animals' Cruelty Act are bailable, the personal liberty of the accused protected under Article 21 of the Constitution of India is also unnecessarily curtailed till their release on granting bail by the High Court.

¶69

13. Certain guidelines were issued by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283 : AIR 2003 Supreme Court 638 regarding disposal of the property. While passing the impugned order, the learned Court below did not care to see those guidelines. When no offence under the Cow Slaughter Act is made out in the present case, then there was no justification for the court below to decline to release the seized bullocks merely on the assumption that the said cattle were being carried to Bihar for slaughtering.

¶70

14. The bullocks in question were seized from the possession of the accused persons named in the FIR, which was lodged at P.S. Nanahra, whereas the application for their re lease was moved by the Revisionists claiming themselves to be the owners of the said bullocks. The Court below while passing the impugned order has not decided the matter of

¶71

CRLP No. 6728 of 2024

¶72

8

¶73

ownership of bullocks. The accused per sons named in the FIR do not appear to have been heard at the time of passing the impugned order.

¶74

15. Therefore, the bullocks can not be released by this Court in favour of the Revisionists, as the matter of their ownership has to be decided by the Court below after giving opportunity to the accused persons named in the FIR. The Court below vide its impugned order appears to have declined to release the bullocks assuming that the said bullocks were being carried to Bihar for slaughtering. As I have stated above, mere carrying or transporting the cow, bull or bullock from one place to another place within the State of Uttar Pradesh does not constitute any offence under Cow Slaughter Act unless there is contravention of section 3 and 5-A of the Act. As stated herein-above, there was no contravention of section 3 or any other section of Cow Slaughter Act in the present case. Therefore, the impugned order being wholly illegal can not be sustained."

¶75

In the case of Mohd. Shakib vs. State of U.P., 2022 SCC OnLine All 568 passed in Application U/S 482 No. 23143 of 2021 this Court observed as under:-

¶76

"11. For deciding the instant application under Section 482 Cr.P.C., it is necessary to go through the relevant provisions of UP Cow Slaughter Act. Section 5-A of the Act provides for regulation on transport of cow, etc., which reads as under:—

¶77

"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.

¶78

(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:

¶79

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.

¶80

(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).

¶81

(4) The form of permit, the form of application therefore and the procedure for disposal of such application shall be such as may be prescribed.

¶82

(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, called for and examine the

¶83

CRLP No. 6728 of 2024

¶84

9

¶85

record of any case and pass such orders thereon as it or he may deemed fit.

¶86

[(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.

¶87

(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.

¶88

(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.

¶89

(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.

¶90

(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.

¶91

(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 Criminal Procedure Code, 1973 shall be effective thereto.]"

¶92

12. 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 v. State of U.P., 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. Sub-section 5A (6 to 8) reads as follows:—

¶93

(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

¶94

CRLP No. 6728 of 2024

¶95

10

¶96

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.

¶97

(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.

¶98

(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.

¶99

13. From the perusal of sub-section (1 to 5) of Section 5A of this Act and the law laid down by this Court in Kailash Yadav v. State of U.P. (supra), it is abundantly clear that there is no need of permit to transport cow and its progeny within the state of Uttar Pradesh. Therefore, transportation of a cow and its progeny within the state of Uttar Pradesh is not a violation of any of the provisions of the Cow Slaughter Act. Therefore, it cannot be said that the seized vehicle in question was used in violation of Section 5A (1) to (11) or any provisions of the Cow Slaughter Act, and therefore, police has no power or jurisdiction to seize or confiscate the vehicle in question. The District Magistrate, Varanasi has passed the impugned confiscation order dated 18.08.2021 in contravention of the law, as no permit is required to transport cow and its progeny within the state of Uttar Pradesh. In above circumstances, the impugned order dated 18.08.2021 passed by District Magistrate, Varanasi is without jurisdiction and the same is liable to be set-aside. Likewise, the revisional court has not considered the relevant provisions of Section 5A of Cow Slaughter Act while dismissing the criminal revision of the applicant, therefore, the impugned order dated 13.10.2021 passed by Special Judge (SC/ST Act), Chandauli is also against the provisions of law and is liable to be set-aside.

¶100

14. Accordingly, the instant application under Section 482 Cr.P.C. is allowed. The impugned orders dated 18.08.2021 passed by District Magistrate, Varanasi and the order dated 13.10.2021 passed by Special Judge (SC/ST Act) are, hereby, set-aside, consequently, the concerned court below is directed to release the vehicle in question forthwith, in accordance with law.

¶101

15. Let a copy of this order be transmitted to the concerned court below for necessary compliance forthwith."

¶102

In the case of Vaseem Ahmad vs. State of U.P. and Another, 2023 SCC OnLine All 2469 passed in Criminal Misc. Writ Petition No. 6826 of 2023, this Court observed as under:-

¶103

"7. To appreciate the issue at hand, it is essential to look into the provisions of the Cow Slaughter Act. Section 2(a) of the Cow Slaughter Act defines beef. Section 2a of the Cow

¶104

CRLP No. 6728 of 2024

¶105

11

¶106

Slaughter Act is being reproduced hereinunder:—

¶107

2….

¶108

[(a) "beef" means flesh of cow but does not include such flesh contained in sealed containers and imported as such into Uttar Pradesh;]

¶109

8. Section 3 of the said Act restrains the slaughter of cow, bull or bullock in any place in Uttar Pradesh. Section 5A(1) of the Act provides that no person shall transport or offer for transporting or cause to be transported any cow or bull or Bullock, the slaughter whereof is punishable under the Act from any place within the State to any place outside the State except on a permit issued by the State Government. Section 5A(7) of the Act states that 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 and the District Magistrate/Commissioner of Police is empowered to take proceedings of confiscation and release in respect of the said seized vehicle.

¶110

9. Section 5A(11) of the Cow Slaughter Act provides that the provisions of the Act or the related rules in the context of search, acquisition, disposal and seizure shall follow the Cr. P.C., where the rules in respect to the said are silent.

¶111

10. Section 5A is quoted herein below:—

¶112

"…5-A. Regulation on transport of cow, etc.-(1) No person shall transport or offer for transport or cause to be transported any cow, bull or bullock, the slaughter whereof in any place in Uttar Pradesh 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.

¶113

(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.

¶114

(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 Criminal Procedure Code, 1973 shall be effective thereto."

¶115

11. Section 8 of the said Act provides for penalty in respect of a person who contravenes Section 3, 5 or 5A.

¶116

12. In terms of the powers conferred by virtue of section 10 of the said Act, rules have been framed known as the Uttar Pradesh Prevention of Cow Slaughter Rules, 1964. Rule 16 of the said rules provide for the manner of grant of permit for transportation of any cow, bull or bullock, the slaughter whereof is punishable under the Act and provides that any cow,

¶117

CRLP No. 6728 of 2024

¶118

12

¶119

bull or bullock transported without a valid permit shall be confiscated and auctioned. Rule 16 is quoted hereinbelow:—

¶120

….16 (1) Any person intending to transport or to offer for transport or to cause to transport any cow, bull or bullock, the slaughter whereof is punishable under this Act in any place in Uttar Pradesh from any place within the State to any place outside the State shall apply for a permit to the licensing authority on prescribed Form "G".

¶121

13. On the plain reading of the provisions of the Act and the rules framed thereunder, it is clear that the vehicle on which the beef is alleged to be transported can be confiscated only in terms of the mandate of Rule 7 of section 5A.

¶122

14. To attract the power of confiscation conferred by virtue of Rule 7 of Section 5A, it is essential to allege and establish that the vehicle on which beef is being transported is done in violation of the provisions of this Act and the relevant rules. It is essential to note that for transportation of cow, bull or bullock specific rules for issuance of permit are prescribed under Rule 16, however, the transportation of the cow, bull or bullock, within the State of Uttar Pradesh (as is in the present case) does not require any permit as has also been held by this Court in the case of Ashfaq Ahmad v. State of UP, 9 (1) ACR 233.

¶123

15. Article 300-A of the Constitution of India prescribes that no one shall be deprived of his property except in accordance with law. The 'law', it is fairly well settled, should be a law framed by the Legislature. Thus, to deprive a person of his property (in the present case the motorcycle), it is essential that the Act framed by the Legislature prescribes for power of confiscation and subject to any limitations prescribed therein."

¶124

In the case of Kaliya vs. State of U.P. And 3 Others, 2023 SCC OnLine All 1974 passed in Criminal Misc. Writ Petition No. 6826 of 2023 this Court observed as under:-

¶125

"8. Before proceeding further, it would be appropriate to extract Section 5-A of the Act which is reproduced below :

¶126

"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.

¶127

(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:

¶128

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.

¶129

CRLP No. 6728 of 2024

¶130

13

¶131

(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).

¶132

(4) The form of permit, the form of application therefore and the procedure for disposal of such application shall be such as may be prescribed.

¶133

(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, called for and examine the record of any case and pass such orders thereon as it or he may deemed fit.

¶134

[(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.

¶135

(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.

¶136

(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.

¶137

(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.

¶138

(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.

¶139

(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.]"

¶140

9.A perusal of section 5-A(1) of the Act shows that the said provision shall come into place when the cow or its progeny is transported from within the State of U.P. to any other place outside the State and in that case, permit issued by the authorised officer of the State

¶141

CRLP No. 6728 of 2024

¶142

14

¶143

government shall be required.

¶144

There is nothing on record to show that the alleged recovered animals, i.e. the cows were being transported from within the State of U.P. to any other State. Therefore, from the plain reading of section 5-A of the Act, the permit is not required in the peculiar facts of this case.

¶145

10. The question involved in the case in hand has also come up for consideration before this court in Kailash Yadav and others versus State of U.P. and others 2008(10) ADJ 623 wherein it has been held that no permit is required for transportation of cow or its progeny within the State of U.P.. Section 5-A(6 to 8) provides for confiscation and release of vehicle by which beef or cow and its progeny is transported in violation of the provisions of the Act and relevant rules.

¶146

11.From perusal of sub sections (1 to 5) of section 5-A of the Act and the law laid down by this court in Kailash Yadav's case (supra), it is evident that there is no need of permit to transport cow(s) and its progeny within the State of U.P.. Hence, such transportation of cow and its progeny cannot be said to be in violation of the Act. Consequently, it can also not be said that the seized vehicle has been used in violation of Section 5-A or any other provision of the Act. Therefore, the police has no power or jurisdiction to seize or confiscate the vehicle in question and the District Magistrate also could not have issued notice under section 5-A of the Act when there is nothing to substantiate that the animals were being transported from within the State to some other State. In other words, in case the animals were being transported within the State of U.P., no show cause notice under section 5-A of the Act could have been given.

¶147

12.A coordinate Bench of this Court vide judgment and order dated 25.8.2022 passed in Mohd. Shakib versus State of U.P. Application under section 482 CrPC No.23143 of 2021 has held that no permit is required to transport cow and its progeny within the State of U.P. and therefore, it cannot be said that the seized vehicle in question was used in violation of section 5A(1) to (11) or any provisions of the Cow Slaughter Act. Relevant paras 12 and 13 of the judgment in Mohd. Shakib's case (supra) is reproduced as below :

¶148

"12. 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. & 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. Sub-section 5A (6 to 8) reads as follows:-

¶149

(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

¶150

CRLP No. 6728 of 2024

¶151

15

¶152

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.

¶153

(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.

¶154

(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.

¶155

13. From the perusal of sub-section (1 to 5) of Section 5A of this Act and the law laid down by this Court in Kailash Yadav and Others vs. State of U.P. & Others (supra), it is abundantly clear that there is no need of permit to transport cow and its progeny within the state of Uttar Pradesh. Therefore, transportation of a cow and its progeny within the state of Uttar Pradesh is not a violation of any of the provisions of the Cow Slaughter Act. Therefore, it cannot be said that the seized vehicle in question was used in violation of Section 5A (1) to (11) or any provisions of the Cow Slaughter Act, and therefore, police has no power or jurisdiction to seize or confiscate the vehicle in question. The District Magistrate, Varanasi has passed the impugned confiscation order dated 18.08.2021 in contravention of the law, as no permit is required to transport cow and its progeny within the state of Uttar Pradesh. In above circumstances, the impugned order dated 18.08.2021 passed by District Magistrate, Varanasi is without jurisdiction and the same is liable to be set-aside. Likewise, the revisional court has not considered the relevant provisions of Section 5A of Cow Slaughter Act while dismissing the criminal revision of the applicant, therefore, the impugned order dated 13.10.2021 passed by Special Judge (SC/ST Act), Chandauli is also against the provisions of law and is liable to be set-aside."

¶156

Supreme Court in Sunderbhai Ambalal Desai and C.M. Mudaliar versus State of Gujarat [AIR 2003 SC 638] has deprecated the practice of police authorities by keeping the seized vehicles at the police station and has set out time limit for release of such vehicles within a maximum period of one month. It is said that the articles are not kept for a long time at the police station, in any case for not more than fifteen days to one month.

¶157

13.In the case in hand, it is evident that the cow and its progeny were not being transported from within the State to outside State, therefore, the provisions of section 5-A of the Act are not attracted. Consequently, the show cause notice dated 13.12.2022 (supra) issued by the District Magistrate, confiscation order dated 14.3.2023 (supra) and the appellate order dated 15.6.2023 (supra) are bad in law, and liable to be and are set aside.

¶158

The opposite parties are directed to release the vehicle forthwith in accordance with law on such terms which are deemed appropriate."

¶159

CRLP No. 6728 of 2024

¶160

16

¶161

In the case of Yas Mohammad v. State of U.P., 2021 SCC OnLine All 608, this Court after considering the relevant provisions including languages concluded under Section 5-A(7) of the Act of 1955 and also the relevant provisions of CrPC i.e. Section(s) 5, 451, 452 and 457 as also Rule 16 of U.P. Prevention of Cow Slaughter Rules, 1964 (in short 'Rule of 1964') held that the Act of 1955 is special Act and therefore declined to interfere in the order passed by ACJM-I, Balia dated 09.02.2021, affirmed vide order dated 18.03.2021 passed by Additional Sessions Judge, FTC-I, Balia, whereby the ACJM-I, Balia rejected the application seeking release of vehicle. The relevant para(s) are extracted here-in-under:-

¶162

"9. It would be pertinent to note that sub-sections (6), (7), (8), (9), (10) and (11) have been inserted after sub-section (5) of Section 5-A in terms of the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Act, 2020. [U.P. Act no. 20 of 2020].

¶163

10. A plain reading of the provisions contained under Section 5-A of the PCSA would indicate that the transportation of cow, etc., is regulated in terms thereof. Sub-section (1) of Section 5-A contains a clear prohibition on transportation of any cow or bull or bullock, the slaughter whereof in any place in Uttar Pradesh is punishable under the Act, from any place within the State to any place outside the State, except under a permit to be 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. Sub-section (4) mandates that the form of permit, the form of application therefor and the procedure for disposal of such application shall be such as may be prescribed.

¶164

11. In exercise of powers under Section 10 of the PCSA read with Section 21 of the U.P. General Clauses Act, 1904, and in supersession of Uttar Pradesh Prevention of Cow Slaughter Rules, 1956, the Uttar Pradesh Prevention of Cow Slaughter Rules, 19645 were made. Rule 16 of the Rules, 1964 provides for issuance of a permit in a prescribed form to any person intending to transport or to offer for transport or to cause to transport any cow, bull or bullock, the slaughter whereof is punishable under the Act in any place in Uttar Pradesh from any place within the State to any place outside the State. For ease of reference, Rule 16 of the Rules, 1964 is being reproduced below:—

¶165

"16. (1) Any person intending to transport or the offer for transport or to cause to transport any cow, bull or bullock, the slaughter whereof is punishable under this Act in any place in Uttar Pradesh from any place within the State to any place outside the State shall apply for a permit to the officer authorised under Section 5-A of the Act on prescribed Form "G"."

¶166

12. In terms of Section 2 of the Amending Act i.e. U.P. Act No. 20 of 2020 by means of which sub-sections (6), (7), (8), (9), (10) and (11) have been inserted in Section 5-A, the powers with regard to confiscation and seizure of which vehicle used in transportation of

¶167

CRLP No. 6728 of 2024

¶168

17

¶169

the beef or cow and its progeny, in violation of the provisions of this Act and the relevant rules have been delineated.

¶170

13. As per terms of sub-section (7) of Section 5-A, the vehicle by which the beef or cow and its progeny are being transported in violation of the Act and the relevant rules is to be confiscated and seized by the law enforcement officers and concerned District Magistrate/Commissioner of Police are to undertake proceedings of confiscation and release, as the case may be.

¶171

14. Sub-section (11) of Section 5-A provides that where the provisions of Act or the related rules in context of search, acquisition, disposal and seizure are silent, the relevant provisions of the Code shall be effective thereto. The provisions inserted under Section 5-A in terms of the aforesaid Amending Act, i.e. U.P. Act No. 20 of 2020 in respect of confiscation and release of vehicle would therefore, go to show that the scheme of the Act provides a complete procedure with regard to proceedings relating to confiscation and release. The necessary provisions with regard to confiscation, seizure and release of vehicle used for transportation in violation of the provisions of PCSA and the Rules made therein, having being provided for, and the Act and the Rules not being silent in regard thereto as per the stipulation under sub-section (11) of Section 5-A, the provisions of the Code would not be invocable in matters relating to confiscation, seizure and release under the PCSA.

¶172

15. Section 5 of the Code contains a saving clause and as per terms thereof nothing contained in the 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.

¶173

16. The applicability of the provisions of the Code in an area covered by 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 v. Union of India6 and also in State (Union of India) v. Ram Sharan7, 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.

¶174

17. 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.

¶175

18. The provisions under Section 451 to 457 of the Code are in the nature of general

¶176

CRLP No. 6728 of 2024

¶177

18

¶178

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.

¶179

19. 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 Penal Code, 1860 on allegations that they had committed offences during a period of time by replacing of 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.

¶180

20. A similar question as to whether the Magistrate would have jurisdiction to exercise powers under Sections 451, 452 and 457 of the Code to direct release of any property which was subject matter of confiscation proceedings under Section 72 of the U.P. Excise Act, 19109 before the Collector, was considered in a recent judgment of this Court in the case of Vikki v. State of U.P.10 and taking into consideration that the Excise Act is a local law within the meaning of Section 5 of the Code, it was held that the provisions contained under Section 72 of the Excise Act would have the effect of denuding the Magistrate of his power to pass any order under Section 457 of the Code for release of any article seized in connection with an offence purporting to have been committed under the Act.

¶181

21. Applying the aforesaid principle to the facts of the present case, the vehicle in question having been confiscated and seized in exercise of powers under Section 5-A of the PCSA, which is in the nature of a special Act and a local law under Section 5 of the Code, the same would clearly have the effect of denuding the Magistrate of his power to pass any order under Sections 451, 452 and 457 of the Code for release of the vehicle seized for alleged violation of the provisions of the Act.

¶182

22. Having regard to the aforesaid, the view taken by the courts below in declining to entertain the application of the applicant for release of the vehicle during the pendency of proceedings under the PCSA, cannot be said to suffer from illegality so as to warrant

¶183

CRLP No. 6728 of 2024

¶184

19

¶185

interference."

¶186

Learned counsel for the State opposed the present petition. However, he could not dispute the aforesaid legal proposition.

¶187

Considered the aforesaid and perused the record.

¶188

Upon due consideration aforesaid, this Court is of the view that the present petition is liable to be allowed for the reason(s) that it is not the case of the prosecution that cows or its progeny found in the vehicle in issue were transported outside the State of U.P., which ought to be in view of Section 5- A(1) of the Act of 1955 read with Rule 16 of Rule of 1964 as also the observation made by this Court in the judgment(s), referred above. It is accordingly allowed. The impugned order(s) dated 16.01.2023 and and 03.07.2024 passed by the opposite party No.2-District Magistrate, Barabanki and the Appellate Authority, respectively, are hereby set aside.

¶189

The opposite party No.2-District Magistrate, Barabanki is directed to release the vehicle bearing No. UP-61 T-1103 in favour of the petitioner, in case he establishes his ownership, imposing appropriate terms/conditions.

¶190

November 19, 2025 Vinay/-

¶191

(Saurabh Lavania,J.)

¶192

Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Monu Singh v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

Monu Singh v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Arif Anwar Hashmi and Others Vs State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Radha Devi and 2 Others Vs Dinesh Kumar

Monu Singh vs State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 4 Others

Gokul Prasad Jaiswal vs Sri Kumar Prashant, Director, Social Welfare Deptt. U.P. Kalyan Bhawan Lko.

Manoj Kumar Tripathi and 17 Others vs Dr. Ram Chandra, Presently Posted as Dist. Inspector of Schools Dist. Gonda

Ayodhya Prasad vs State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko and Another