# Arsad v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-02
- **Case number:** Misc. Single No. 13693 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arsad-v-state-of-u-p-anr-46440
- **Pages:** 5

## Headnote

Act, 1955 - Section 5A &7, Regulation on
transport of cow, etc - District Magistrate/
Commissioner of Police has power to
confiscate and seize the transport vehicle
only if it is established that the beef or cow
or its progeny is being transported by
vehicle in violation of the provisions of the
Act and the relevant Rules - said provision is
expropriatory in nature & has to be
interpreted strictly (Para 8, 9)

Allegation in F.I.R. that five persons were taking a
Cow towards Gomti river with a view to slaughter
it - raid was conducted - from the site a
motorcycle was recovered - owner of motorcycle
moved application for release of the vehicle -
District Magistrate passed an order confiscating the
motorcycle - Held - FIR as well as the order of the
D.M. 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 - there is no slaughter of the cow, there is
no recovery of beef - no allegation that cow was
been transported by the motorcycle in question -
there is no material to justify the exercise of power
under sub-Section 7 of Section 5-A - impugned
order quashed (Para 2, 3, 10, 15)

Allowed.(E-5)

List of Cases cited:

## Text

996 INDIAN LAW REPORTS ALLAHABAD SERIES
19 and 17(1A) of the respective Acts as
redundant or nugatory ?

(D) Whether the judgment in
Saurabh Gupta (supra), which lays down
that
the
Debts
Recovery
Tribunal,
Allahabad shall have exclusive jurisdiction
to entertain and decide the applications
arisen from 55 districts specified in the
notification dated 05.12.2017, without
noticing Section 19 of the Recoveries of
Debts Due to Banks and Financial
Institutions Act, 1993 and Section 17(1A)
of the SARFAESI Act, as also the
judgment of Hon'ble Supreme Court in case
of Sri Nasiruddin (supra) lays down the
law correctly ?

(E) Whether the judgment in
Saurabh Gupta (supra) is contrary to the
law laid down by the Hon'ble Supreme
Court in the case of Sri Nasiruddin
(supra) and is liable to be declared as not
good law ?

59. Let necessary papers be placed
before Hon'ble The Chief Justice for
necessary orders.

60. List this case before appropriate
Bench after the reference is answered by
the Larger Bench.

61.

The
interim
order
dated
02.07.2021 is extended till the next date of
listing.
----------
(2021)10ILR A996
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Misc. Single No. 13693 of 2021

Arsad ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Devendra Pratap, Shashank Skekhar

Counsel for the Respondents:
G.A.

Uttar Pradesh Prevention of Cow Slaughter
Act, 1955 - Section 5A &7, Regulation on
transport of cow, etc - District Magistrate/
Commissioner of Police has power to
confiscate and seize the transport vehicle
only if it is established that the beef or cow
or its progeny is being transported by
vehicle in violation of the provisions of the
Act and the relevant Rules - said provision is
expropriatory in nature & has to be
interpreted strictly (Para 8, 9)

Allegation in F.I.R. that five persons were taking a
Cow towards Gomti river with a view to slaughter
it - raid was conducted - from the site a
motorcycle was recovered - owner of motorcycle
moved application for release of the vehicle -
District Magistrate passed an order confiscating the
motorcycle - Held - FIR as well as the order of the
D.M. 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 - there is no slaughter of the cow, there is
no recovery of beef - no allegation that cow was
been transported by the motorcycle in question -
there is no material to justify the exercise of power
under sub-Section 7 of Section 5-A - impugned
order quashed (Para 2, 3, 10, 15)

Allowed.(E-5)

List of Cases cited:

1. Asfaq Ahmad & anr. Vs State of U.P. & anr
Cri. Rev No. 141 of 2005 dt 07.11.2008

2. Mohd. Saddam Vs State of U.P. & ors. passed
in Cri. Misc. W.P. No.1721 of 2021 dt
18.03.2021
10 All. Arsad Vs. State of U.P. & Anr.
997
(Delivered by Hon'ble Pankaj Bhatia, J.)

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 (Annexure3 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 5A (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
998 INDIAN LAW REPORTS ALLAHABAD SERIES
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 cowremains 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
10 All. Arsad Vs. State of U.P. & Anr.
999
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 5A(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 subSection 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
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------

(2021)10ILR A1000
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.10.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
Misc. Single No. 14258 of 2021
and
Misc. Single No. 14381 of 2021
and
Misc. Single No. 14473 of 2021

Ram
Avatar
Kalyani
Devi
Kanya
Mahavidyalay & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Lalit Kishore Tiwari, Himanshu Shukla

Counsel for the Respondents:
C.S.C., Savitra Vardhan Singh

Civil Law - Examination fee - Late Fee -
Colleges collect fee from students for
entire year, including examination fee
required to be deposited by College with
the University - However, examination
fee is not deposited by College with
University in time - Universities charge
late fee from the erring colleges - Colleges
transfer the said late fee upon the
students - Court directed the Universities
to frame specific provision providing that
in such cases late fee and penalty would
be imposed upon the colleges only, which
they would be barred from recovering
from their students (Para 4)

Allowed. (E-5)

(Delivered by Hon'ble Vivek Chaudhary, J.)

1.

Heard
learned
counsel
for
petitioner
colleges,
learned
Standing
Counsel for the State and Sri Savitra
Vardhan
Singh,
learned
counsel
for
respondent University.

2. Present writ petitions are filed by
the petitioner colleges for quashing of the
order dated 04.07.2021 whereby a penalty
of Rs. 500/- per student was imposed by the
University upon the colleges for deposit of
late fee as the examination fee was