1. The present writ petition has been filed challenging the order dated 05.10.2020 as well as the order dated 09.03.2021 passed in revision whereby the revision filed by the petitioner challenging the order dated 05.10.2020 has been dismissed.
2. The facts in brief are that on 17.06.2020, an FIR was lodged as Case Crime No.417 of 2020, under Section 3/5/8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (in short ''the Cow Slaughter Act') as well as under Section 11 of the Prevention of Cruelty to Animals Act, 1960. The FIR in question (Annexure-3 to the writ petition) indicates that an information was received that five persons named in the FIR (does not include the name of the petitioner) were taking a Cow towards Gomti river with a view to slaughter it. Out of the said five persons, two were carrying weapons for the purpose of slaughter. On the basis of the said information, a raid was conducted and the information was found to be correct. On challenge to the said five persons, they run away and from the site, the weapons were recovered and a motorcycle U.P. 31 BH 4280 bearing Chassis No.MBLJAW062K9E07926 and Engine No.JA06EHK9E08120 was also recovered. The FIR also indicates that when information was sought with regard to the persons, who were eloped, it was revealed that the said persons would slaughter the animals and will divide the proceeds from sale which is punishable under Sections 3/5/8 of the Cow Slaughter Act read with Section 11 of the Animals Cruelty Act.
3. The petitioner claiming himself to be the owner of the vehicle moved an application for release of the vehicle mainly on the ground that he was neither named in the FIR nor was there any allegation against him on which the District Magistrate proceeded to pass an order dated 05.10.2020 confiscating the vehicle i.e. motorcycle in purported exercise of power under Section 5-A (7) of the Cow Slaughter Act. The said order was challenged by the petitioner by filing a criminal revision before the District Magistrate, Lakhimpur Kheri which was dismissed on the ground that no revision lies against an order passed under Section 5-A(7) of the Cow Slaughter Act.
4. The Counsel for the petitioner argues that the Cow Slaughter Act, 1955 was enacted with a view to prevent the slaughter of cows. Section 2 (a) defines the beef and is as under:
"2(a). "beef" means flesh of cow but does not include such flesh contained in sealed containers and imported as such into Uttar Pradesh."
5. Section 2(b) defines ''Cow' and Section 3 of the Cow Slaughter Act bars any person from slaughtering cow, bull and bullock in any place of Uttar Pradesh.
6. Section 5 of the said Act prohibits the sale of beef and specifically prevents any person from selling or transporting or offering for sale or transport beef or beef products in any form except for medical purposes as may be prescribed.
7. Section 5-A for which we have concern provides for regulation on transport of cow. Section 5-A is quoted herein below:
"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."
8. The scheme of Section 5-A of the Cow Slaughter Act reveals that the transport of cow, bull or bullock is regulated under Section 5-A and Section 5-A(7) specifically confers the power on the District Magistrate/ Commissioner of Police to confiscate and seize the transport vehicle if the beef or cow or its progeny is being transported in violation of the provisions of the said Act and the relevant Rules.
9. A plain reading of sub-Section 7 of Section 5-A makes it clear that power of seizure and confiscation can be exercised only when it is established that the vehicle by which the beef or cow or its progeny is being transported contrary to the Act and the Rules framed under the Act. The said provision is clearly expropriatory in nature and has to be interpreted strictly.
10. A perusal of the FIR as well as the order of the District Magistrate does not even record that motorcycle in question which has been confiscated was being used for transport of either beef or cow or its progeny. Admittedly, the criminal proceedings initiated in terms of the FIR have not culminated, thus, it is yet to be established that the allegations as contained in the FIR related to beef, cow or its progeny. The FIR allegation only states that intention of the five accused in the FIR was to slaughter the cow and divide the proceeds thereafter.
11. Admittedly there is no slaughter of the cow, there is no recovery of beef and the recovery of the cow which is said to be measuring 4.5 feet is not even alleged to be transported by the motorcycle in question. Thus there is no material as exists on record to justify the exercise of power under sub-Section 7 of Section 5-A. The same is clearly contrary to the mandates and the powers conferred upon the District Magistrate.
12. At this stage, the Counsel for the petitioner has relied upon the judgment of this Court passed in Criminal Revision No. 141 of 2005 (Asfaq Ahmad and another vs State of U.P. and another) decided on 07.11.2008 wherein the Court was considering the power of seizure in respect of a transport vehicle as prohibited under the Act. The said judgment, I am afraid to note, has no applicability to the facts of the present case as the present case relates to confiscation and not seizure.
13. The learned A.G.A. has also relied upon an order dated 18.03.2021 passed in Criminal Misc. Writ Petition No.1721 of 2021 (Mohd. Saddam vs State of U.P. ad others) wherein a writ petition was filed before this Court challenging the order of the seizure, the Court was of the view that the order of seizure of vehicle can be challenged by filing an appropriate application before the court concerned. The said judgment also, I am afraid to note, has no applicability to the facts of the present case as the present case relates to confiscation of vehicle and not seizure alone.
14. The confiscation by its very connotation implies depriving a person of his property to which he is entitled to retain. In term of mandate of Article 300-A of the Constitution of India any person can be deprived of his property only by and under the procedure established by law. The procedure prescribed by law for confiscating the property as contained in Section 5-A (7) of the Cow Slaughter Act empowers the District Magistrate/ the Commissioner of Police to confiscate/ seize the vehicle only if the condition so prescribed under sub-Section 7 are fulfilled.
15. In the present case, as recorded above, none of the conditions existed so as to empower the exercise of power of confiscation as has been done by the District Magistrate in the order impugned. The order is clearly not sustainable and is set aside with a direction to the District Magistrate to release the vehicle of the petitioner forthwith without any bond or sureties as none of the conditions for seizure/ confiscation exists in the present case.
16. I am not going to the question of maintainability of the revision in view of the fact that the order dated 05.10.2020 passed by the District Magistrate is clearly not sustainable and has been set aside by this Court.
17. The writ petition stands allowed in terms of the said order. No order as to costs.