The Allahabad High Court has said the magistrate has the power to release the vehicle on which cow hide was being transported under Section 451 or Section 457 of CrPC.
A single-judge bench of Justice Mohd Aslam heard the petition filed by Manjeet Tanwar @ Manjeet Tankar.
The revision has been preferred against the order dated 11.11.2021 passed by the Special Chief Judicial Magistrate, Agra by which the application of the revisionist/applicant for release of Vehicle in Case under Sections 3/5A/8 Prevention of Cow Slaughter Act, Police Station Saiyan, District Agra was rejected.
The facts necessary for disposal of the case are that on 24.03.2021 Sub-Inspector Virendra Kumar along with his companion Constables Lalit Kumar, Ravi Kant Yadav and Saurabh Kumar and Driver Brij Kumar proceeded from Police Station Sainya vide entry in general diary report at about 14:10 hours and were busy in patrolling duty and when they reached at Saiyan crossing they were informed by the informer that a red colour Tata Eicher Canter loaded with banned cow hide was coming from the side of Dhaulpur, Rajasthan to Agra.
On the information, Sub-Inspector Virendra Kumar started checking the vehicles by putting barrier near Saiyan Toll for apprehending the aforesaid Canter and tried to take public witnesses, but none agreed to testify, under that compulsion the police party searched each other and no incriminating articles was found from any members of the police party.
As soon as the informer saw the red colour Tata Eicher Canter, he pointed out the police party and left from the place, thereafter, the policemen signalled the driver of the aforesaid Canter to stop the vehicle. On seeing the police party, the driver stopped the aforesaid vehicle some distance ahead and started turning back the Canter in a hurry, then the police party convinced that there were definitely some illegal goods in the Canter and they apprehended the driver who told his name as Akash, son of Man Singh, resident of Mohalla Maha Talee Lane, Police Station Shikohabad, District Firozabad and present address Tyagi Chaupal near Chhatarpur Temple, Police Station Mehrauli, New Delhi and he also told that his permanent address is village Jarar, Police Station Wah, District Agra and told that he is aged about 24 years. On his personal search, a mobile phone of Oppo company was recovered from the right pocket of his trousers.
The IMEI numbers of the phone were obtained and Rs 3100 and an Aadhar Card in the name of Akash Pratiman Singh resident of Mohalla Mahteli Gali, Shikohabad, District Firozabad were also recovered from him. On being asked about the reason for turning the vehicle back, he told that the vehicle was loaded with cow hide on which the policemen removed the tarpaulin and found 145 bundles of cow hides from which smell of rotten meat was coming and Dr. Mahendra Verma, Veterinary Medical Officer, Saiyan, Agra was asked to come at the spot over phone who came there in no time and after closely checking, he told that the bundles of hide loaded in the Canter is cow hide and took three pieces of hide from different bundles for sample which were separately kept in three jars and sealed and sample seal was prepared.
The accused Akash could not produce the papers of the vehicle, therefore, the aforesaid vehicle was seized under Section 207 of Motor Vehicle Act and the accused was arrested after informing him that his act is punishable under Sections 3/5Ka/8 of Uttar Pradesh Cow Slaughter (Prevention) Act. The recovery memo was prepared on the spot by Sub-Inspector Virendra Singh and companion police constables and Dr Mahendra Verma.
On the basis of recovery memo, Case under Sections 3/5Ka/8 was registered against the accused/Driver Akash, later on who was released by the coordinate Bench of the Court order dated 31.08.2021.
The revisionist is owner of the aforesaid vehicle who moved an application for the release of aforesaid Canter which was rejected by the Special Chief Judicial Magistrate, Agra vide impugned order dated 11.11.2021.
Feeling aggrieved by the aforesaid impugned order, the revisionist has preferred this revision.
Counsel for the revisionist submitted that the lower court has illegally held that in view of the law laid down by the Court in “Yaash Mohammad vs State of Uttar Pradesh and Others, reported in 2021 SCC Online Allahabad 608” that the Canter was seized under special criminal act and it has no jurisdiction to release the Canter under Sections 451, 452, 457 of Code of Criminal Procedure and has rejected his release application.
It is further submitted that the facts of the aforesaid case referred by the lower court while rejecting the application do not apply in the case.
Counsel has submitted that the Court in Criminal Misc Application (Mohd Haneef vs State of UP and Others) decided on 08.01.2010 relying upon the order passed by the Court dated 06.01.2005, the hide to be released in favour of the accused revisionist wherein it is also held, “A perusal of above order passed in Criminal Revision goes to show that 456 pieces of leather were recovered from possession of one Babu and a case under Section 3/5/8 of Cow Slaughter Act was registered. The applicant/revisionist who is the owner of above leather, approached the lower court for release of the above leather pieces, which was rejected by the court below.
The submission was made by the counsel for the revisionist in that case that no offence under section 3/5/8 of Cow Slaughter Act was made out as the leather pieces were recovered and the recovery of said leather pieces was not an offence under the Act and only slaughtering and keeping the beef is an offence under the Cow Slaughter Act. Considering the facts and circumstances of the case and without going into the merits of the same, the Court allowed the said revision and directed the Magistrate to release 456 pieces of leather in favour of the revisionist.”
Counsel for revisionist has submitted that on the above analogy and the above law laid down by the Court, the order dated 11.11.2021 passed by the Special Chief Judicial Magistrate, Agra in in Case (State vs. Manjeet Tanwar) is liable to be quashed and the lower court may be directed to release the aforesaid Eicher Canter in favour of revisionist/applicant.
It is further submitted that leather does not fall within the definition of ‘Beef’, therefore, Canter cannot be seized under Prevention of Cow Slaughter Act. It is further submitted that the aforesaid Canter was transporting the leather hide of cows which is not prohibited by the provisions of Cow Slaughter Act. In above circumstances, the lower court has illegally held that it was contravention of cow slaughter and it has no jurisdiction to release the Canter.
AGA opposed the release of the vehicle Eicher Canter and submitted that learned lower court has rightly held that it has no jurisdiction to decide the release application of the revisionist/ applicant and rejected the release application according to law vide impugned order dated 11.11.2021 which requires no interference by the Court.
“I have given thoughtful consideration to the contentions raised by the counsel for the applicant as well as AGA. In the case, it is admitted to the parties that the Eicher Canter is seized in Crime under Section 3/5A/8 of Uttar Pradesh Cow Slaughter Act. It is also admitted to the parties that the revisionist is the registered owner of the aforesaid vehicle.
In above circumstances, the Judicial Magistrate has jurisdiction to release the Canter as being the case property. The ruling of Single Bench of the Court in Yaash Mohammad vs State of UP (supra) on which the lower court has relied and held that the lower court has no jurisdiction to release the Canter in question is not applicable in the case because in the aforesaid case the application for the release of vehicle was rejected on the ground that the cow or its progeny was transported in contravention of Section 5A of Uttar Pradesh Cow Slaughter Act regarding which special provisions were prescribed and only District Magistrate/Commissioner of the Police was authorised to pass order for confiscation in the event of seizure of cow or its progeny and transport medium.
It is further provided that in case where the provisions of this Act or the related rules in context of such, acquisition, disposal and seizure are silent, the provision of Criminal Procedure Code, 1973 shall be affected thereto.
From above discussion, it is, prima facie, established that the hide leather of cow was not transported in contravention of the provisions of Cow Slaughter Act or rule of Uttar Pradesh Cow Slaughter Rules. In above circumstances, the Special Magistrate, Agra has jurisdiction to decide the release of the vehicle in question by which the hide leather of cow or its progeny was transported. The Magistrate has jurisdiction to decide the release application of the revisionist/ applicant and the lower court has illegally held that he has no jurisdiction to hear on the release application of Canter, hence, the revision is liable to be allowed and order of the lower court is liable to be set-aside,” the Court observed while allowing the criminal revision.
“The order dated 11.11.2021 passed by Special Chief Judicial Magistrate, Agra is set-aside and the Special Chief Judicial Magistrate, Agra is directed to decide the release application of applicant within a period of one month from the date of production of the certified copy of the order,” the Court ordered.