# Kaliya v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-06
- **Case number:** J. Criminal Misc. Writ Petition No. 6826 of 2023
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaliya-v-state-of-u-p-ors-49468
- **Pages:** 6

## Headnote

Law-Constitution
of
India,1950-Article 226 - U.P. Prevention of
Cow Slaughter Act,1955-Sections 3/5/8Petitioner is the owner of the vehicle and
he is not accused in FIR-nothing has been
recovered from the vehicle-no charge
sheet has been filed against the petitioner
and
the
alleged
cows
were
being
transported within the State of U.P.
therefore, the provisions of Section 5-A of
the Act are not attracted-there is no need
of permit to transport cows and its
progeny within the state of U.P.-Hence, it
cannot be said that the seized vehicle
has been used in violation of Section 5-A
or any other provision of the Act-Police
has no power or jurisdiction to seize or
confiscate the vehicle in question-Hence,
The show cause notice issued by the
District Magistrate, confiscation order and
appellate order are bad in law, and liable
to be set aside.(Para 1 to 14)

The writ petition is allowed. (E-6)

List of Cases Cited:

## Text

504 INDIAN LAW REPORTS ALLAHABAD SERIES
at the time of filing the writ petition, no
automatic benefit accrued to the petitioner
upon that deposit, in the absence of any
interim order granted by this Court.

88. At the same time, it is wholly
unacceptable that the revenue authorities
chose to thereafter recover the entire
disputed amount leading to recovery of
110% of the disputed amount. While
effecting
the
recovery,
the
revenue
authorities ought to have accounted for any
amount that may have been pre-deposited
by the petitioner against the disputed
demand of tax and penalty.

89. Accordingly, the impugned order
is quashed. The entire amount recovered
may be returned to the petitioner within a
period of six weeks from the date a copy of
this order is served on the proper officer, by
the petitioner. At the same time, the
petitioner would remain entitled to interest
that we provide @ 6% on the amount of
excess recovery of Rs. 11,00,69,010/-, from
the date of that excess recovery to the date
of its actual refund. It is left open to the
respondent State to recover up to 10% of
that interest amount from the erring field
officers
and
all
superior/supervisory
officers (who may have allowed such
grossly illegal excess recovery to be made
and withheld), in proportion to their
complicity or negligence in allowing that
excess recovery to arise and be withheld.

90. The writ petition is allowed. No
order as to costs.

----------
(2023) 10 ILRA 504
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2023
BEFORE
THE HON'BLE KARUNESH SINGH PAWAR,
J.

Criminal Misc. Writ Petition No. 6826 of 2023

Kaliya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Farhan Alam Osmany, Abdl Muqeet Khan

Counsel for the Respondents:
G.A.

A.
Criminal
Law-Constitution
of
India,1950-Article 226 - U.P. Prevention of
Cow Slaughter Act,1955-Sections 3/5/8Petitioner is the owner of the vehicle and
he is not accused in FIR-nothing has been
recovered from the vehicle-no charge
sheet has been filed against the petitioner
and
the
alleged
cows
were
being
transported within the State of U.P.
therefore, the provisions of Section 5-A of
the Act are not attracted-there is no need
of permit to transport cows and its
progeny within the state of U.P.-Hence, it
cannot be said that the seized vehicle
has been used in violation of Section 5-A
or any other provision of the Act-Police
has no power or jurisdiction to seize or
confiscate the vehicle in question-Hence,
The show cause notice issued by the
District Magistrate, confiscation order and
appellate order are bad in law, and liable
to be set aside.(Para 1 to 14)

The writ petition is allowed. (E-6)

List of Cases Cited:

1. Kailash Yadav & ors. Vs St. of U.P. & ors.
(2008) 10 ADJ 623

2. Mohd. Shakib Vs St. of U.P. Appl. U/s 482 No.
23143 of 2021

3. Sunderbhai Ambalal Desai & C.M. Mudaliar Vs
St.
of
Guj.
(2003)
AIR
SC
638
10 All. Kaliya Vs. State of U.P. & Ors.
505
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition has been filed under
Article 226 of the Constitution of India for
issuance of a writ in the nature of certiorari
quashing order dated 14.3.2023 passed by
District Magistrate, Hardoi whereby the
petitioner's vehicle UP16H/9922 has been
confiscated and the order dated 15.6.2023,
passed by the Commissioner, Lucknow
Mandal, Lucknow by which the appeal
filed by him against the order dated
14.3.2023 (Supra) has been rejected.

A further prayer for release of the said
vehicle has also been made.

2. Heard Mr. Farhan Alam Osmany,
learned counsel for the petitioner and Mr.
Alok Tiwari, learned A.G.A. for the State.

3. The facts relevant for disposal of
the case are that a first information report
No.508 of 2022 under sections 3, 5 and 8 of
U.P. Prevention of Cow Slaughter Act,
1955 (in short, Act) was registered on
2.11.2022 at police station Kachhauna,
district Hardoi against named accused
persons stating that seven persons were
caught red handed while carrying cow
and its progeny. Certain incriminating
articles such as two motorcycles, two
12 bore pistols, mobile phones etc were
also recovered from the named accused
persons. DCM truck No.UP16H9922 is
registered in the name of the petitioner.
Relevant
documents
relating
to
ownership of the vehicle in question,
such
as
registration
certificate,
certificate of fitness, insurance paper
etc are on record and in the name of the
petitioner.

Since the date of seizure, i.e.
2.11.2022, the DCM vehicle is standing
at the police station Kachhauna, district
Hardoi. On the basis of the first
information report No.508 of 2022,
proceedings under section 5-A(7) of the
Act against the petitioner were initiated
and show cause notice dated 13.12.2022
calling for the reply was served on the
petitioner. The petitioner submitted his
reply dated 17.2.2023 to the show cause
notice denying the incident and the
allegations levelled against him. In the
reply, it has been stated that he is not
named accused in the case nor charge
sheet has been filed against him. The
vehicle in question has not been used
for transportation of the cows and its
progeny. No beef has been recovered
from the vehicle. He is the registered
owner of the vehicle and has been
falsely implicated as he opposed the
illegal extortion committed by the
police and thus it is prayed that the
vehicle be released.

The District Magistrate vide
impugned order dated 14.3.2023 (supra)
in exercise of powers under section 5A(7) has confiscated the vehicle in
favour of the State Government while
recording a finding that the aforesaid
vehicle was being used for slaughtering
the cows and its progeny and were
being transported for the aforesaid
purpose, hence, provisions of the Act
have been violated. The appellate court
did not find any illegality in the
impugned order and upheld the order
passed by the District Magistrate.

4. Admitted facts according to
prosecution case are that the petitioner
is
the
owner
of
the
vehicle
No.UP16H9922. The petitioner is not
accused in the first information report
506 INDIAN LAW REPORTS ALLAHABAD SERIES
No.508 of 2022. No charge sheet has been
filed against the petitioner and the alleged
cows were being transported within the
State of U.P.

5. Learned counsel for the petitioner
submits that the petitioner has been falsely
implicated. Nothing has been recovered
from the vehicle. The impugned orders
have been passed without application of
mind. The provisions of Section 5-A of the
Act are not applicable in the facts of the
present case.

6. Learned A.G.A., on the other hand,
opposed the submission and contended that
the impugned orders have been passed
strictly in accordance with Section 5-A(7)
of the Act. The vehicle was involved in
inter-State transportation of cows and its
progeny and thus, provisions of Section 5A of the Act have been violated and
therefore, the vehicle has rightly been
seized. It is submitted that the cows or its
progeny cannot be transported inter state,
for the purpose of slaughtering without
grant of permit as per section 5-A of the
Act.

7. Having heard learned counsel for
the petitioner, learned A.G.A. and going
through the record as well as provisions of
the Act, I find that the moot question
involved in this case is whether the present
petitioner has violated any provision of law
in transportation of cows and its progeny
by the aforesaid vehicle and whether the
impugned
orders
have
been
passed
confiscating the said vehicle in accordance
with law.

8. Before proceeding further, it would
be appropriate to extract Section 5-A of the
Act which is reproduced 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 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, called
for and examine the record of any case and
pass such orders thereon as it or he may
deemed fit.

[(6) Where the said conveyance
has been confirmed to be related to beef by
the competent authority or authorised
10 All. Kaliya Vs. State of U.P. & Ors.
507
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
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.]"

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 government
shall be required.

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.

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.

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
508 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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 :

"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. Subsection 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:-

(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. 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.

13. From the perusal of subsection (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
10 All. Madhyanchal Vidyut Vitran Nigam Ltd. Vs. M/s Shashi Cable
509
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 setaside. 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 setaside. "

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.

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.

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

14. The petition is allowed in above
terms.
----------
(2023) 10 ILRA 509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.10.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Matter Under Article 227 No. 3384 of 2023

Madhyanchal Vidyut Vitran Nigam Ltd.
 ...Petitioner
Versus
M/S Shashi Cable ...Respondent

Counsel for the Petitioner:
Manish Jauhari

Counsel for the Respondent:
Amit Kumar Singh, Utkarsh Srivastava

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
Micro, Small and Medium Enterprises
Development Act, 2006 - Section 19 -
Application
for
setting
aside
decree,
award or order , The Arbitration and
Conciliation Act, 1996 - Section 34 -
Application
for
setting
aside
arbitral
award - the enforcement of an award
through its execution can be initiated
anywhere in the country where the decree
can
be
executed
and
there
is
no
requirement of obtaining a transfer of the
decree from the court which would have
jurisdiction
over
the
arbitral
proceedings.(Para -9,7)

Petitioner challenged an award under the MSME
Act and Arbitration and Conciliation Act -
application was rejected by Commercial Court,
Kanpur - not paying a Rs.75% predeposit -
petitioner filed an application for recall -
rejected - respondent filed an application for