# Mohd. Shakib v. State of U.P

- **Citation:** (2022) 10 ILRA 556
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-25
- **Case number:** Application U/S 482 No. 23143 of 2021
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-shakib-v-state-of-u-p-47757
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 451,457 & 482
- Inherent power - - U.P. Cow Slaughter
Act, 1955 - Sections 3/5A/8, 5B -
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
- The Prevention of Cruelty to Animals Act,
1960 - Section 11 - Treating animals
cruelly
- no permit is required for
transportation of cow or its progeny
within the State of Uttar Pradesh.(Para -
12,13 )

Applicant transporting cow and its progeny by
the vehicle in question - impugned orders
passed District Magistrate - confiscating the said
vehicle - revision filed before Special Judge
(SC/ST Act) - dismissed revision of applicant -
are according to law or not - question -
whether applicant violated any provision of law
or not. (Para -10)

HELD:-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. Seized vehicle in question was
not used in violation of Section 5A (1) to (11) or
any provisions of the Cow Slaughter Act. Police
has no power or jurisdiction to seize or
confiscate the vehicle in question. District
Magistrate
passed
confiscation
order
in
contravention
of
the
law
&
is
without
jurisdiction. Revisional court not considered
relevant provisions of Section 5A of Cow
Slaughter Act while dismissing criminal revision
of the applicant.(Para -13 )

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

556 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 556
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2022 &
07.09.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Application U/S 482 No. 23143 of 2021

Mohd. Shakib ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mani Shanker Tripathi

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 451,457 & 482
- Inherent power - - U.P. Cow Slaughter
Act, 1955 - Sections 3/5A/8, 5B -
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
- The Prevention of Cruelty to Animals Act,
1960 - Section 11 - Treating animals
cruelly
- no permit is required for
transportation of cow or its progeny
within the State of Uttar Pradesh.(Para -
12,13 )

Applicant transporting cow and its progeny by
the vehicle in question - impugned orders
passed District Magistrate - confiscating the said
vehicle - revision filed before Special Judge
(SC/ST Act) - dismissed revision of applicant -
are according to law or not - question -
whether applicant violated any provision of law
or not. (Para -10)

HELD:-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. Seized vehicle in question was
not used in violation of Section 5A (1) to (11) or
any provisions of the Cow Slaughter Act. Police
has no power or jurisdiction to seize or
confiscate the vehicle in question. District
Magistrate
passed
confiscation
order
in
contravention
of
the
law
&
is
without
jurisdiction. Revisional court not considered
relevant provisions of Section 5A of Cow
Slaughter Act while dismissing criminal revision
of the applicant.(Para -13 )

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-
1. Sunderbhai Ambalal Desai & C.M. Mudaliar Vs
St. of Guj. ,AIR 2003 SC 638 Criminal Revision
No. 131 of 2005

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

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Shri Mani Shanker Pandey,
learned counsel for the applicant, Shri L.D.
Rajbhar, learned A.G.A. for the Stateopposite party no.1 and perused the record.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the impugned order dated
18.08.2021 passed by District Magistrate,
Varanasi in Case No. 00054 of 2021 (State
vs. Mohammad Shakib), under Section 5A
U.P. Cow Slaughter Act, 1955, as well as
order dated 13.10.2021 passed by Special
Judge (SC/ST Act), Chandauli in Criminal
Revision No. 54 of 2021 (Shakib vs. State
of U.P.).

3. Brief facts of the case are that
applicant is registered owner of vehicle no.
UP-70ET/2667 which is duly registered in
the
Transport
Department,
U.P,
the
photostat copy of registration certificate has
been annexed as Annexure No.2 to the
affidavit. The aforesaid vehicle was insured
with Oriental Insurance Company Ltd. for
10 All. Mohd. Shakib Vs. State of U.P.
557
the period of 15.07.2020 to midnight
14.07.2021, photostat copy whereof has
been annexed as Annexure No.3 to the
affidavit.
The
aforesaid
vehicle
was
purchased by the applicant with the
financial assistance of MAGMA Fincrop
Ltd., 11 MG Habibullah Estate, Hazratganj,
Lucknow w.e.f. 21.10.2019 which is
endorsed in the registration paper of
aforesaid vehicle itself. The vehicle is used
to run on the road in transport business by
the applicant and monthly installment of
the financer of Rs.35,000/- is being paid by
the applicant. During the course of business
on 12.12.2020 the vehicle was caught by
the police of police station Sayaidaraja,
District Chandauli at about 20:50 P.M. and
was seized in favour of government for
illegally carrying the transport business of
cow without any legal authority and first
information report was lodged under
Sections 3/5A/8, 5B of Cow Slaughter Act
and Section 11 Prevention of Animal
Cruelty Act.

4. As per the first information report,
it was informed by the informer that the
alleged Truck bearing registration No. UP70ET/2667 is carrying animals for the
purpose of cow slaughtering without valid
permission and on that information the
concerned police caught the aforesaid
vehicle
and
recovered
16
bullocks,
whereas, the driver of the vehicle had ran
away. Thereafter, the aforesaid vehicle was
taken to police station and first information
report was lodged on 12.12.2020 at 22:48
hrs. as Case Crime No. 235 of 2020, under
Sections 3/5A/8, 5B Cow Slaughter Act
and Section 11 Prevention of Cruelty to
Animals Act and seized the aforesaid
vehicle in favour of government. The
aforesaid vehicle is a heavy vehicle and
national permit has also been issued by
Transport Department, UP, Allahabad and
authorized certificate to national permit is
also issued, copies whereof have been
annexed as Annexure No.4 to the affidavit.
The Pollution Under Control Certificate is
also issued by Transport Department, UP,
Allahabad till 05.01.2021, copy of the same
has been annexed as Annexure No.5 to the
affidavit. The aforesaid vehicle is in
custody of police authority of Police
Station Saiyadraja since 12.12.2020. The
concerned police informed the applicant at
the time of seizing of the Truck that driver
of the Truck had ran away from the spot.
Thereafter, applicant produced the driver
before the court below who was released on
bail by the court below. The applicant was
granted anticipatory bail by this Court vide
order dated 18.03.2021 passed in Criminal
Misc. Anticipatory Bail Application No.
1854 of 2021, the copy of the order has
been annexed as Annexure No.6 to the
affidavit. The applicant had purchased the
aforesaid Truck in the year, 2015 and since
then there was no complaint regarding
carrying of cow or its progeny. Prior two
days of the incident, the driver of the
aforesaid Truck had gone to carry paddy in
district
Chandauli
without
giving
information to the applicant, and thereupon,
the aforesaid Truck was caught by the
police of police station Saiyadraja who
informed the applicant about the seizure of
Truck.
The
aforesaid
offence
was
committed by the driver of Truck without
knowledge of the applicant and applicant
has no role in this regard. The applicant
was unaware about committing of offence
by the driver of the Truck. Due to seizure
of Truck, the parts and tools of it are
damaging and the aforesaid Truck is
standing in the open place at concerned
police station. In case, the aforesaid Truck
is released by this Court, the applicant
undertakes not to transfer the Truck to
third-party. The applicant had also moved
558 INDIAN LAW REPORTS ALLAHABAD SERIES
an application for release of the Truck in
question
before
District
Magistrate,
Varanasi which was rejected vide impugned
order dated 18.08.2021 without considering
the release application of the applicant,
copy of the impugned order has been
annexed as Annexure No.7 to the affidavit.
Thereafter, the applicant filed a criminal
revision against the impugned order dated
18.08.2021 before District and Sessions
Judge, Chandauli on the aforesaid ground
which was registered as Criminal Revision
No. 54 of 2021, copy of the memo of
revision has been annexed as Annexure
No.8 to the affidavit. The aforesaid revision
was transferred to the court of Special
Judge (SC/ST Act), Chandauli and the
revisional court also without considering
the record of the case in a routine manner
rejected the revision vide order dated
13.10.2021,
copy
whereof
has
been
annexed as Annexure No.9 to the affidavit.

5. In this case no counter affidavit has
been filed on behalf of the State-opposite
party no.1.

6. Learned counsel for the applicant
submits that the applicant has moved
release application before the District
Magistrate, Varanasi stating therein that
applicant is a registered owner of the
vehicle in question which is duly registered
at Transport Department, UP and is
involved in transport business. When the
alleged incident took place, the said vehicle
was being driven by the driver who was
carrying cow and its progeny without the
knowledge of applicant. It is further
submitted that applicant has no concern
with the recovered cow progeny. The
release application of the applicant has
been rejected by District Magistrate vide
order dated 18.08.2021 only on the ground
that applicant has not taken reasonable care
for the use of vehicle by which cow
progeny were being illegally transported
and has illegally confiscated the Truck
under the proceeding of Section 5A UP
Prevention of Cow Slaughter Act, 1955.
The revision of the applicant has illegally
been rejected vide order dated 13.10.2021.
It is further submitted that the impugned
orders of District Magistrate as well as of
revisional court are illegal and liable to be
set-aside and he has placed reliance on the
law laid down by the Hon'ble Apex Court
in Sunderbhai Ambalal Desai and C.M.
Mudaliar vs. State of Gujarat [AIR 2003
SC 638]. Learned counsel of the applicant
has also drawn the attention of the Court
regarding the provisions of Sections 451
and 457 of Cr.P.C. He has also submitted
that the applicant is ready to comply with
all the conditions imposed upon him while
releasing the vehicle.

7. Learned A.G.A. has vehemently
opposed the prayer for release of the
vehicle
and
submitted
that
before
confiscation proceedings applicant has not
taken plea that the transport medium (the
Truck in question) was used in the
commission of crime despite all its
precaution and without its knowledge by
the driver of the Truck. For the first time, in
the present application it has been stated
that the Truck was used for transportation
of cow and its progeny without his
knowledge. It is further submitted by
learned A.G.A. that in objection before
District Magistrate applicant had denied
involvement of his vehicle in transporting
of cow and its progeny and had taken the
stand
that
his vehicle
was
8falsely
implicated in transportation of cow and its
progeny. He had pleaded before District
Magistrate that transportation of cow and
its progeny within the State of UP requires
no permit and it does not amount to an
10 All. Mohd. Shakib Vs. State of U.P.
559
offence. He had further pleaded that he is a
registered owner of the vehicle and all
papers relating to vehicle are valid and he
has no concern with the recovered cow and
its progeny from his vehicle, thus, if the
vehicle is not released it will get damaged
as it is kept in the open space at the
concerned police station. Learned A.G.A.
has further submitted that cow and its
progeny cannot be transported within the
State of UP without permit as per Section
5A of Cow Slaughter Act which regulates
transport of the cow etc. It is further
submitted that by UP Act the sub-clauses
(6), (7), (8), (9), (10) and (11) were inserted
after sub-clause 5 to Section 5A which deal
with the seizure of the cow and transport
medium 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
law enforcement officers. The District
Magistrate/or Commissioner of the police
will do all proceedings of confiscation and
release, as the case may be, unless it is not
proved that the transport medium used in
crime, despite all its precaution and without
its knowledge, has been used by some other
person for causing the offence.

8. Learned A.G.A. has further
submitted that it cannot be alleged by the
applicant
under
the
confiscation
proceedings before the District Magistrate
that despite of all his precaution and
without his knowledge, the said vehicle
was used by some other person for causing
the offence. In above circumstances, the
impugned orders passed by the District
Magistrate, Varanasi as well as revisional
court are according to law, which warrant
no interference by this Court.

9.

I
have
given
thoughtful
consideration to the contentions raised by
the counsel of the applicant as well as
learned A.G.A. and gone through the file,
relevant provisions of Cow Slaughter Act
and the provisions of Code of Criminal
Procedure.

10. Here the question involved in this
case is that whether the applicant has
violated
any
provisions
of
law
in
transporting cow and its progeny by the
vehicle in question and the impugned
orders of the District Magistrate, Varanasi
dated 18.08.2021, confiscating the said
vehicle and the impugned order passed by
Special Judge (SC/ST Act), Chandauli
dated 13.10.2021, dismissing the revision
of the applicant, are according to law or
not.

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:-

"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:
560 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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.]"

12. Now, it is to be considered
whether
permit
is
required
for
10 All. Mohd. Shakib Vs. State of U.P.
561
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.

(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.

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 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.

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
562 INDIAN LAW REPORTS ALLAHABAD SERIES
the vehicle in question forthwith, in
accordance with law.

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

Order on Criminal Misc. Correction
Application dated 06.09.2022.

Learned counsel for the applicant
prays for and is permitted to make
correction of district in the memo as well as
in the prayer clause of the Application U/S
482 during the course of the day.

Heard
learned
counsel
for
the
applicant as well as learned A.G.A. for the
State.

The instant correction application has
been moved by the applicant with the
prayer to correct the District Chandauli in
place of District Varanasi in the paragraph
nos.2, 10 and 14 of the judgement and
order dated 25.08.2022.

In view of the above, the instant
correction application is allowed.

Accordingly,
the
words
"District
Varanasi" transcribed in paragraph nos.2,
10 and 14 of the judgement and order dated
25.08.2022 be corrected and read as
"District Chandauli".
----------
(2022) 10 ILRA 562
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE RAJENDRA KUMAR - IV, J.

Application U/S 482 No. 23342 of 2011

Smt. Madhu Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri A.K. Updhyaya, Sri Anil Kumar Mishra,
Sri Arun Kumar Tripathi, Sri Mohammad
Mustafa, Sri Vijay Prakash Chaturvedi, Sri
Vinay Kumar Singh Chandel

Counsel for the Opposite Parties:
Govt.
Advocate,
Sri
Rajesh
Kumar
Chitragupt, Sri Sanjai Kumar Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468 & 471 - Will is
always subject to proof - If it is not
proved, it becomes of no importance - a
civil dispute should not be given the
colour of criminal offence - if there is no
legal evidence adduced in support of the
case or evidence adduced clearly or
manifestly
fails
to
charge,
then
proceedings of such cases can be quashed
while exercising the power under Section
482 Cr.P.C. - Any effort to settle civil
disputes and claims, which do not involve
any criminal offence, by applying pressure
though criminal prosecution should be
deprecated and discouraged. (Para
-
9,23,27,28 )

Originally property recorded in the name of
father of opposite part no. 2 - registered Will
deed in favour of applicant no.- 2 and Others -
mutation order in favour of applicant no.- 2 -
long litigation between Informant and applicant
no. 2 - mutation made by Tehsildar in favour
of applicant No.3 - objection made by Informant
- dispute mainly of civil nature - registered saledeed in favour of applicant-no. -1 executed by
applicant no.3 recorded tenure holder of the
property - Informant moved an application,
under Section 156(3) Cr.P.C. against applicants
- FIR does not disclose any offence against
applicants - no whisper of how and in what