# Yas Mohammad v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 955
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-02
- **Case number:** Application U/S 482. No. 12300 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yas-mohammad-v-state-of-u-p-anr-47423
- **Pages:** 8

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Section 451- Order for custody
and disposal of property pending trial in
certain cases - Section 452 - Order for
disposal of property at conclusion of trial -
Section 457 - Procedure by police upon
seizure of property - The Uttar Pradesh
Prevention of Cow Slaughter Act, 1955
(PCSA)

-
Sections
3/5-A/8
,
The
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Prevention of Cruelty to Animal Act, 1960
(PCAA) - Section 11(Para - 3)

Vehicle carrying animals seized - applicant
claimed to be owner of vehicle - application
before magistrate (ACJM-I) - release of vehicle
- application rejected - Criminal Revision - held -
no illegality or irregularity in the order passed by
the Magistrate - dismissed the revision - Hence
present application. (Para - 3 )

HELD:-Vehicle
in
question
having
been
confiscated and seized in exercise of powers
under Section 5-A of the PCSA, which is in the
nature of a special Act and a local law under
Section 5 of the Code, the same would clearly
have the effect of denuding the Magistrate of
his power to pass any order under Sections 451,
452 and 457 of the Code for release of the
vehicle seized for alleged violation of the
provisions of the Act. View taken by the courts
below in declining to entertain the application of
the applicant for release of the vehicle during
the pendency of proceedings under the PCSA
cannot be said to suffer from illegality so as to
warrant interference. (Para -21,22)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

9 All Yas Mohammad Vs. State of U.P. & Anr.
955
possess, shall be preserved. It was stated
thus :-

"It has sometimes been thought
that Section 561A has given increased
powers to the Court which it did not
possess before that section was enacted.
But this is not so. The section gives no new
powers, it only provides that those which
the Court already inherently possess shall
be preserved and is inserted, as their
Lordships
think,
lest
it
should
be
considered that the only powers possessed
by the Court are those expressly conferred
by the Criminal Procedure Code and that
no inherent power had survived the passing
of that Act."

10. It is, therefore, seen that the
inherent powers of the High Court under
Section 482 can be invoked only to make
such orders, as may be necessary, to give
effect to any order under the Code or to
prevent abuse of process of any Court or
otherwise to secure the ends of justice. The
inherent powers are coextensive with the
text of the Code and may be exercised only
in respect of any of the matters covered by
the Code. The expression "any Court"
under the section would refer to a Criminal
Court. The language and the phraseology
used under the section make it clear that the
powers are to be exercised in relation to
proceedings pending before or disposed of
by a Criminal Court and such powers
would not be exercisable in relation to an
order
passed
by
an
authority
not
functioning under the Code or in respect of
proceedings
which
are
not
criminal
proceedings.

11.

Applying
the
aforestated
principles, in the facts of the present case,
the order dated 25.03.2021 having been
passed in proceedings under section 9 of
the HMA, it would not be open to the
applicant to invoke the inherent powers of
this Court under section 482 of the Code,
seeking quashing of the aforesaid order.

12. Learned counsel for the applicant
has fairly submitted that he does not
dispute to the aforesaid legal position with
regard to the ambit and scope of exercise of
jurisdiction under section 482 of the Code.
He accordingly submits that he does not
wish to press the application.

13.

The
application
stands
accordingly dismissed.
----------
(2021)09ILR A955
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482. No. 12300 of 2021

Yas Mohammad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ramesh Kumar Chaurasia, Sri Harish Pratap
Singh

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power - Section 451- Order for custody
and disposal of property pending trial in
certain cases - Section 452 - Order for
disposal of property at conclusion of trial -
Section 457 - Procedure by police upon
seizure of property - The Uttar Pradesh
Prevention of Cow Slaughter Act, 1955
(PCSA)

-
Sections
3/5-A/8
,
The
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Prevention of Cruelty to Animal Act, 1960
(PCAA) - Section 11(Para - 3)

Vehicle carrying animals seized - applicant
claimed to be owner of vehicle - application
before magistrate (ACJM-I) - release of vehicle
- application rejected - Criminal Revision - held -
no illegality or irregularity in the order passed by
the Magistrate - dismissed the revision - Hence
present application. (Para - 3 )

HELD:-Vehicle
in
question
having
been
confiscated and seized in exercise of powers
under Section 5-A of the PCSA, which is in the
nature of a special Act and a local law under
Section 5 of the Code, the same would clearly
have the effect of denuding the Magistrate of
his power to pass any order under Sections 451,
452 and 457 of the Code for release of the
vehicle seized for alleged violation of the
provisions of the Act. View taken by the courts
below in declining to entertain the application of
the applicant for release of the vehicle during
the pendency of proceedings under the PCSA
cannot be said to suffer from illegality so as to
warrant interference. (Para -21,22)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. Sunderbhai Ambalal Desai Vs St. of Gujarat,
AIR 2003 SC 638

2. Maru Ram Vs U.O.I., (1981) 1 SCC 107

3. St. (U.O.I.) Vs Ram Sharan, (2003) 12 SCC
578

4. Vikki Vs St. of U.P. & anr., Application U/S
482 No. 17735 of 2020

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1.

Heard
Sri
Ramesh
Kumar
Chaurasia, learned counsel for the applicant
and Sri Vinod Kant, learned Additional
Advocate General appearing along with Sri
Pankaj
Saxena,
learned
Additional
Government Advocate-I for the Stateopposite party.

2. The present application under
Section 482 of the Code of Criminal
Procedure, 19731 has been filed with a
prayer
to
set-aside
the
order
dated
18.03.2021 passed by Additional Sessions
Judge, F.T.C-1, Ballia in Criminal Revision
No. 28 of 2021 (Yash Mohammad Vs.
State),
arising
out
of
order
dated
09.02.2021 passed in Case Crime No. 360
of 2020 under Sections 3/5-A/8 of The
Uttar Pradesh Prevention of Cow Slaughter
Act, 19552 and Section 11 of The
Prevention of Cruelty to Animal Act,
19603, Police Station-Bairiya, District
Ballia.

3. The pleadings of the case indicate
that pursuant to proceedings initiated with
lodging of an F.I.R. dated 21.9.2020 under
section 3/5-A/8 of the PCSA and Section
11 of the PCAA registered as Case Crime
No. 360 of 2020 at Police Station-Bairiya,
District-Ballia, the vehicle stated to be
carrying the animals was seized under
section 5-A of the PCSA. The applicant
claiming to be the owner of the vehicle in
question, filed an application before the
court of ACJM-I, Ballia, seeking release of
the vehicle. The learned Magistrate upon
taking into consideration the scheme of the
Act and in particular, sub-section (7) of
Section 5-A, which has been inserted by
U.P. Act No. 20 of 2020, rejected the
application. Aggrieved, against the order
the applicant preferred a revision being
Criminal Revision No. 28 of 2021 (Yash
Mohammad Vs. State) and the learned
Additional Sessions Judge/F.T.C.-1, Ballia
held that there was no illegality or
irregularity in the order passed by the
Magistrate and accordingly, dismissed the
revision by order dated 18.03.2021.
9 All Yas Mohammad Vs. State of U.P. & Anr.
957

4. Learned counsel for the applicant has
sought to assail the orders passed by the
revisional court and the Magistrate by
seeking to contend that since the vehicle of
the applicant had been confiscated, the courts
below have committed an error in rejecting
the application for release, ignoring the
powers exercisable under section 451 and
457 of the Code. He submits that the property
in question i.e. the vehicle which is lying with
the authorities is liable to be released.
Reliance is sought to be placed on the
judgement in the case of Sunderbhai
Ambalal Desai v. State of Gujarat4

5. Learned Additional Government
Advocate-I has controverted the aforesaid
contention
by
submitting
that
the
proceedings have been initiated under the
PCSA, which is a Special Act, and provides
a separate procedure with regard to
confiscation and seizure under Section 5-A
thereof, and in view of the provisions
contained under Section 5 of the Code, the
powers under Sections 451 to 457 relating to
disposal
of
property
would
not
be
applicable. Accordingly, he submits that the
orders passed by the Magistrate and the
revisional court cannot be said to be faulted
with.

6. In order to appreciate the rival
contentions the provisions as contained under
Sections 5, 451, 452 and 457 of the Code
may be adverted to, and the same are as
under :-

"5. Saving.-Nothing contained in
this Code shall, in the absence of a specific
provision to the contrary, affect any special
or local law for the time being in force, or
any special jurisdiction or power conferred,
or
any
special
form
of
procedure
prescribed, by any other law for the time
being in force.

451. Order for custody and
disposal of property pending trial in
certain cases.-When any property is
produced before any Criminal Court during
an 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.

452. Order for disposal of
property at conclusion of trial.-(1) When
an inquiry or trial in any Criminal Court is
concluded, the Court may make such order
as it thinks fit for the disposal, by
destruction, confiscation or delivery to any
person claiming to be entitled to possession
thereof or otherwise, of any property or
document produced before it or in its
custody, or regarding which any offence
appears to have been committed, or which
has been used for the commission of any
offence.

(2) An order may be made under
sub-section (1) for the delivery of any
property to any person claiming to be
entitled to the possession thereof, without
any condition or on condition that he
958 INDIAN LAW REPORTS ALLAHABAD SERIES
executes a bond, with or without sureties,
to the satisfaction of the Court, engaging to
restore such property to the Court if the
order made under sub-section (1) is
modified or set aside on appeal or revision.

(3) A Court of Session may,
instead of itself making an order under subsection (1), direct the property to be
delivered to the Chief Judicial Magistrate,
who shall thereupon deal with it in the
manner provided in Sections 457, 458 and
459.

(4) Except where the property is
livestock or is subject to speedy and natural
decay, or where a bond has been executed
in pursuance of sub-section (2), an order
made under sub-section (1) shall not be
carried out for two months, or when an
appeal is presented, until such appeal has
been disposed of.

(5) In this section, the term"
property" includes, in the case of property
regarding which an offence appears to have
been committed, not only such property as
has been originally in the possession or
under the control of any party, but also any
property into or for which the same may
have been converted or exchanged, and
anything acquired by such conversion or
exchange,
whether
immediately
or
otherwise.

457. Procedure by police upon
seizure of property.-(1)Whenever the
seizure of property by any police officer is
reported
to
a
Magistrate
under
the
provisions of this Code, and such property
is not produced before a Criminal Court
during an inquiry or trial, the Magistrate
may make such order as he thinks fit
respecting the disposal of such property or
the delivery of such property to the person
entitled to the possession thereof, or if such
person cannot be ascertained, respecting
the custody and production of such
property.

(2) If the person so entitled is
known, the Magistrate may order the
property to be delivered to him on such
conditions (if any) as the Magistrate thinks
fit and if such person is unknown, the
Magistrate may detain it and shall, in such
case, issue a proclamation specifying the
articles of which such property consists,
and requiring any person who may have a
claim thereto, to appear before him and
establish his claim within six months from
the date of such proclamation."

7. The provisions contained under the
PCSA, would also be required to be
adverted to.

8. The PCSA is an Act to prevent the
slaughter of cow and its progeny in the
State of Uttar Pradesh. Section 5-A of the
Act which is with regard to regulation on
transport of cow, etc., and is relevant for
the purposes of the controversy involved in
the present case, is being extracted 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
9 All Yas Mohammad Vs. State of U.P. & Anr.
959
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
that such person has committed such
offence or attempt or abatement 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. It would be pertinent to note that
sub-sections (6), (7), (8), (9), (10) and (11)
960 INDIAN LAW REPORTS ALLAHABAD SERIES
have been inserted after sub-section (5) of
Section 5-A in terms of the Uttar Pradesh
Prevention of Cow Slaughter (Amendment)
Act, 2020. [U.P. Act no. 20 of 2020].

10. A plain reading of the provisions
contained under Section 5-A of the PCSA
would indicate that the transportation of
cow, etc., is regulated in terms thereof.
Sub-section (1) of Section 5-A contains a
clear prohibition on transportation of any
cow or bull or bullock, the slaughter
whereof in any place in Uttar Pradesh is
punishable under the Act, from any place
within the State to any place outside the
State, except under a permit to be 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. Sub-section
(4) mandates that the form of permit, the
form of application therefor and the
procedure for disposal of such application
shall be such as may be prescribed.

11. In exercise of powers under
Section 10 of the PCSA read with Section
21 of the U.P. General Clauses Act, 1904,
and in supersession of Uttar Pradesh
Prevention of Cow Slaughter Rules, 1956,
the Uttar Pradesh Prevention of Cow
Slaughter Rules, 19645 were made. Rule
16 of the Rules, 1964 provides for issuance
of a permit in a prescribed form to any
person intending to transport or to offer for
transport or to cause to transport any cow,
bull or bullock, the slaughter whereof is
punishable under the Act in any place in
Uttar Pradesh from any place within the
State to any place outside the State. For
ease of reference, Rule 16 of the Rules,
1964 is being reproduced below:-

"16. (1) Any person intending to
transport or the offer for transport or to
cause to transport any cow, bull or bullock,
the slaughter whereof is punishable under
this Act in any place in Uttar Pradesh from
any place within the State to any place
outside the State shall apply for a permit to
the officer authorised under Section 5-A of
the Act on prescribed Form "G"."

12. In terms of Section 2 of the
Amending Act i.e. U.P. Act No. 20 of 2020
by means of which sub-sections (6), (7),
(8), (9), (10) and (11) have been inserted in
Section 5-A, the powers with regard to
confiscation and seizure of which vehicle
used in transportation of the beef or cow
and its progeny, in violation of the
provisions of this Act and the relevant rules
have been delineated.

13. As per terms of sub-section (7) of
Section 5-A, the vehicle by which the beef
or cow and its progeny are being
transported in violation of the Act and the
relevant rules is to be confiscated and
seized by the law enforcement officers and
concerned
District
Magistrate/Commissioner of Police are to
undertake proceedings of confiscation and
release, as the case may be.

14. Sub-section (11) of Section 5-A
provides that where the provisions of Act
or the related rules in context of search,
acquisition, disposal and seizure are silent,
the relevant provisions of the Code shall be
effective thereto. The provisions inserted
under Section 5-A in terms of the aforesaid
Amending Act, i.e. U.P. Act No. 20 of
2020 in respect of confiscation and release
of vehicle would therefore, go to show that
the scheme of the Act provides a complete
procedure with regard to proceedings
relating to confiscation and release. The
necessary
provisions
with
regard
to
confiscation, seizure and release of vehicle
9 All Yas Mohammad Vs. State of U.P. & Anr.
961
used for transportation in violation of the
provisions of PCSA and the Rules made
therein, having being provided for, and the
Act and the Rules not being silent in regard
thereto as per the stipulation under subsection (11) of Section 5-A, the provisions
of the Code would not be invocable in
matters relating to confiscation, seizure and
release under the PCSA.

15. Section 5 of the Code contains a
saving clause and as per terms thereof
nothing contained in the Code shall, in the
absence of a specific provision to the
contrary, affect any special or local law for
the time being in force, or any special
jurisdiction or power conferred, or any
special form of procedure prescribed, by
any other law for the time being in force.

16. The applicability of the provisions
of the Code in an area covered by a special
or local law, in the context of the saving
clause under section 5 of the Code was
considered in the Constitution Bench
judgment in the case of Maru Ram Vs.
Union of India6 and also in State (Union
of India) Vs. Ram Sharan7, and it was
held that the section consists of three
components: (i) the Code covers matters
covered by it; (ii) if a special or local law
exists covering the same area, the said law
is saved and will prevail; (iii) if there is a
special provision to the contrary, that will
override the special or local law.

17. The PCSA is a "local law" within
the meaning of Section 5 of the Code and
in view thereof, the general provisions
contained under Sections 451 of the Code
with regard to custody and disposal of the
property pending trial or the power for
making an order for disposal of property at
the conclusion of trial under Section 452 or
the procedure under Section 457 would
therefore, be subject to the powers
exercisable under Section 5-A of the PCSA
which makes a special provision with
regard to confiscation and seizure of the
vehicle used for transport in contravention
of the provisions of the Act.

18. The provisions under Section 451
to 457 of the Code are in the nature of
general provisions whereas the provisions
relating to seizure, confiscation and release
as contained under Section 5-A of the
PCSA which expressly deal with these
matters would be in the nature of special
provisions contained under a special Act
and in view thereof, the normal rule of
interpretation that the special provision
must prevail over the general and if a case
is covered by a special provision, the
general provision would not be attracted,
would be applicable.

19. In the case of Sunderbhai Ambalal
Desai (supra), which is sought to be relied
upon on behalf of the applicant, the subject
matter of consideration was a challenge
which had been raised to an order of police
remand granted to the prosecuting agency
for the petitioners therein, who were police
personnel involved in offences punishable
under Sections 429, 420, 465, 468, 477-A
and 114 of the Indian Penal Code, 18608
on allegations that they had committed
offences during a period of time by
replacing of valuable articles retained as
case property by other spurious articles,
misappropriation of the amount which was
kept at the police station, unauthorised
auction of the property which was seized
and kept in the police custody pending trial
and tampering with the records of the
police station. The offences which were
subject matter of the case were under the
penal code and not under a special Act, and
accordingly, the provisions under Sections
962 INDIAN LAW REPORTS ALLAHABAD SERIES
451 and 457 were applicable. The judgment
in the case Sunderbhai Ambalal Desai
(supra), which is an authority relating to
release of vehicles seized in connection
with criminal proceedings under general
law would not be applicable under the facts
of the present case which relate to
proceedings
under
a
special
Act,
particularly in view of the provisions under
Section 5 of the Code.

20. A similar question as to whether the
Magistrate would have jurisdiction to exercise
powers under Sections 451, 452 and 457 of the
Code to direct release of any property which
was subject matter of confiscation proceedings
under Section 72 of the U.P. Excise Act, 19109
before the Collector, was considered in a recent
judgement of this Court in the case of Vikki Vs
State of U.P. and Another10 and taking into
consideration that the Excise Act is a local law
within the meaning of Section 5 of the Code, it
was held that the provisions contained under
Section 72 of the Excise Act would have the
effect of denuding the Magistrate of his power
to pass any order under Section 457 of the Code
for release of any article seized in connection
with an offence purporting to have been
committed under the Act.

21. Applying the aforesaid principle to the
facts of the present case, the vehicle in question
having been confiscated and seized in exercise
of powers under Section 5-A of the PCSA,
which is in the nature of a special Act and a
local law under Section 5 of the Code, the same
would clearly have the effect of denuding the
Magistrate of his power to pass any order under
Sections 451, 452 and 457 of the Code for
release of the vehicle seized for alleged
violation of the provisions of the Act.

22. Having regard to the aforesaid, the
view taken by the courts below in declining
to entertain the application of the applicant
for release of the vehicle during the
pendency of proceedings under the PCSA,
cannot be said to suffer from illegality so as
to warrant interference.

23. The application under section 482
of the Code is thus, dismissed.
----------
(2021)09ILR A962
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Application U/S 482. No. 16310 of 2020
With
Application U/S 482. No. 14919 of 2020

Hasae @ Hasana Wae & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Adeel Ahmad Khan

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 188, 269, 270, 271 -
Epidemic Diseases Act, 1897 - Section 3 -
Foreigners Act, 1946 - Section 14B -
Summoning - Once the government is
seized of the matter, the Court does not
deem it appropriate to say anything which
may fetter the lawful discretion of the
State - Statements made by high officials
on behalf of the Government in Court have
highest sanctity and full weight have to be
given to the same.(Para -64 )

Applicants are foreigners - application registered
- directed against the chargesheet - against the
applicants and the proceedings before the trial
court initiated in pursuance thereof - personal
appearance of the Principal Secretary/Legal
Remembrancer,
Department
of
Law,
Government of U.P., Lucknow to explain the