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2024 DIGILAW 316 (ALL)

Sachitanand Rai v. State Of UP

2024-01-30

PRASHANT KUMAR

body2024
JUDGMENT : Prashant Kumar, J. 1. Heard Shri Rajendra Singh, learned counsel for the applicant and Sri Abhishek Tripathi, learned AGA for the State-opposite parties. 2. The instant application has been preferred under Section 482 of Cr.P.C. by the applicant challenging the order dated 25.07.2022 passed by the District Magistrate, Chandauli in Case No. 00050 of 2021 (State Vs. Sachidanand Rai and others) u/s 5A of U.P. Prevention of Cow Slaughter Act, 1955 (hereinafter referred to as the 'Act, 1955'), whereby, the vehicle bearing No. UP-65-JT-6056 of the applicant has been confiscated in connection with Case Crime No. 0126 of 2020, under Section u/s 3/5A/8 of Act, 1955 and Section 11 of Prevention of Cruelty to Animals Act, 1960, Police Station- Balua, District Chandauli. Applicant has also challenged the order dated 20.12.2023 passed by Additional Sessions Judge/FTC-1, Chandauli whereby the Revision preferred by the applicant challenging the order dated 25.07.2022 has been dismissed. 3. A bare perusal of the FIR shows that information was received from the informer that three Pick Up vehicles were carrying cows, calves and bulls for slaughtering. When the Police tried to catch the vehicles, 6-7 persons taking the advantage of the darkness fled away. On search of the vehicles, 29 cows and their progeny were found stuffed in the vehicles. They were in a very bad condition and white froth was coming out of their mouth. 4. The vehicles were seized under Section 3, 5A, 8 of Act, 1955 and also under Section 11 of Prevention of Cruelty to Animals Act, 1960. Thereafter, the District Magistrate passed an order in Case No. 00050 of 2021 confiscating all the vehicles used in the offence including that of the applicant. The order of the confiscation of the vehicle was challenged in the criminal revision, which was also dismissed. The confiscation order as well as the revisional order have been challenged by the applicant in the instant application. 5. Learned counsel for the applicant submits that transporting cows and other animals is not an offence per se, and he further submitted that it will be of nobody's use to keep a vehicle seized at the police station for a long period. The vehicle ought to have been released by taking appropriate bonds and guarantees as well as security. 5. Learned counsel for the applicant submits that transporting cows and other animals is not an offence per se, and he further submitted that it will be of nobody's use to keep a vehicle seized at the police station for a long period. The vehicle ought to have been released by taking appropriate bonds and guarantees as well as security. In support of his arguments, he has cited a judgement of the Hon'ble Apex Court in Sunder Bhai Amba Lal Desai v. State of Gujarat, AIR 2003 SC 638 . He also cited judgements of this Hon'ble Court passed in the matter of Naushad Khan v. State of U.P. & 02 Others (Cri. Misc. Application No. 8782 of 2023) and Meraj Qureshi v. State of U.P. & 02 Others (Criminal Revision No. 3941 of 2022). He also contended that confiscation of the vehicles in question is in violation of Article 19(1)(g) and Article 300-A of the Constitution of India. 6. Learned counsel for the applicant further submits that the vehicle ought have been released as per Section 451 of Cr.P.C. 7. Per contra, Mr. Abhishek Tripathi, learned AGA submitted that the vehicle confiscated is involved in illegal transportation of cow progeny for the purposes of slaughtering and was without any valid permit which is in violation of provisions of Act, 1955. He further contended that proceedings towards confiscation of the offending vehicle and also criminal prosecution against the accused are parallelly maintainable. He further submitted that the confiscation order dated 25.07.2022 has been passed by the District Magistrate in exercise of powers conferred upon it by virtue of Section 5A(7) of the Act, 1955. 8. I have carefully considered the submissions advanced by learned counsel for the respective parties. With the able assistance, I have perused the pleadings, grounds taken in the application and annexures thereto. 9. Section 451 of Cr.P.C. is as follows:- "451. Order for custody and disposal of property pending trial in certain cases. 8. I have carefully considered the submissions advanced by learned counsel for the respective parties. With the able assistance, I have perused the pleadings, grounds taken in the application and annexures thereto. 9. Section 451 of Cr.P.C. is as follows:- "451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of Explanation. - For the purposes of this section, "property" includes - (a) property of any kind or document which is produced before the Court or which is in its custody; (b)any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence." 10. Hon'ble the Supreme Court in the matter of Sunder Bhai Amba Lal Desai's case (supra) has held that the seized property, in normal circumstances, should be released by the Magistrate by passing appropriate orders, but the same would be applicable in an offence under the Indian Penal Code. However, for an offence under a Special Act, the provisions of the Special Act would prevail. 11. The questions involved in this case are that whether the applicant has violated any provision of law by transporting cows and their progeny by the vehicles in question and the impugned order dated 25.07.2022 passed by District Magistrate, Chandauli confiscating the said vehicles and the impugned order dated 20.12.2023 passed by revisional court dismissing the revision of the applicant are in accordance to law or not. 12. For deciding the instant application under Section 482 Cr.P.C., it is necessary to go through the relevant provisions of Act, 1955. Section 5A of the Act, 1955 provides for regulation on transport of cow, etc., and reads as under: "Section 5A. 12. For deciding the instant application under Section 482 Cr.P.C., it is necessary to go through the relevant provisions of Act, 1955. Section 5A of the Act, 1955 provides for regulation on transport of cow, etc., and reads as under: "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) The form of permit, the form of application therefore 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." 13. Thus transportation of cow etc. is regulated by Section 5A. Section 5A(7) confers power upon the District Magistrate/Commissioner of Police to confiscate or release 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. 14. Section 5A(viii) of the Act, 1955 lays down that any vehicle in which cow and its progeny are being transported shall be seized and be confiscated by the law enforcement officer and the District Magistrate/Commissioner of Police would do all proceedings either to confiscate the vehicle or to release of the vehicle. It is the discretion of the concerned officer to take a call whether to release or confiscate the vehicle. 15. It is the discretion of the concerned officer to take a call whether to release or confiscate the vehicle. 15. Section 5A(x) of the Act, 1955 further provides that any person, who is committing, abetting or attempting to commit an offence under Section 3, 5 and 8 of the Act, 1955 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. Here the onus lies on the accused to prove that he was not committing such offence or was not abetting or attempting to commit such offence. 16. The Hon'ble Supreme Court in the catena of judgments has laid down that the High Court should sparingly use the inherent powers granted under Section 482 Cr.P.C. The Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 has laid down the guidelines on the basis of which an application under Section 482 Cr.P.C. could be entertained. 17. The Hon'ble Supreme Court in the matter of Kurukshetra University v. State of Haryana (1977) 4 SCC 451 has held that the inherent powers under Section 482 Cr.P.C. had to be exercised sparingly with circumspection and in the rarest of rare cases. 18. The Hon'ble Supreme Court in the matter of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, reported in (2005) SCC (Cr.) 283 has held that the allegations of malafide against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. 19. A perusal of the FIR shows that the accused had stuffed 29 cows and their progeny in the seized vehicles in such a condition which fell under the ambit of prevention of cruelty against animals. As per FIR these cows and its progeny were being transported for slaughtering and hence, Sections 3, 5A, 8 of Act, 1955 have rightly been invoked. 20. Considering the factum of the controversy, the District Magistrate has passed an order for confiscation of the vehicle under Act, 1955. The order dated 25.07.2022 passed by the District Magistrate was subject matter of challenge in the revision which was dismissed and the order passed by the District Magistrate was confirmed. The bone of contention was whether the vehicle was used in a crime or not. The order dated 25.07.2022 passed by the District Magistrate was subject matter of challenge in the revision which was dismissed and the order passed by the District Magistrate was confirmed. The bone of contention was whether the vehicle was used in a crime or not. The said finding of fact was returned by the District Magistrate in the order impugned and the same has also been reiterated by the revisional Court. Such finding of fact cannot be looked into and examined by this Court under Section 482 Cr.P.C. 21. The revisional court has jurisdiction to satisfy itself as to correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. As per Section 401 Cr.P.C, even the High Court under the revisional jurisdiction can exercise at the instance of private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce; (2) where the admissible evidence is wrongly brushed aside as inadmissible; (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused; (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence; and (5) where the acquittal is based on the compounding of the offence, which is invalid under the law. (Ref.: Sheetala Prasad Vs. Sri Kant AIR 2010 SC 1140 . 22. The finding of fact was recorded by the District Magistrate and the revisional Court did not find any infirmity in the said order. Moreover, the evidence has been adduced before the District Magistrate under the Act. Even though the said finding of fact cannot be upset by the revisional court but moreover, the same has been approved by the impugned order. Therefore, this court does not find any infirmity or illegality in the orders impugned passed by the District Magistrate and revisional court. 23. Since the vehicle of the applicant has been used for an offence under Sections 3, 5A, 8 of Act, 1955 and also Section 11 of Prevention of Cruelty to Animals Act, in view of the aforesaid offences, the impugned order passed by the District Magistrate dated 25.07.2022 confiscating the vehicle and the order dated 20.12.2023 passed by Addl. Sessions Judge rejecting applicant's revision cannot be faulted in any manner. Sessions Judge rejecting applicant's revision cannot be faulted in any manner. 24. Accordingly, the instant application filed under Section 482 Cr.P.C. is dismissed.