Abu Saleem vs State Of U.P. And 3 Others
2023 Latest Caselaw 26739 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:188802
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 32894 of 2023
 

 
Applicant :- Abu Saleem
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Ashok Kumar Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicant, learned AGA and perused the record.

2. The present applicant has invoked the inherent power of this Court under Section 482 CrPC assailing the order dated 5.4.2023 passed by Special Judge (POCSO Act)/Criminal Revision Court, Chandauli in Criminal Revision No. 55 of 2022 (Abu Saleem Vs. State of UP) as well as impugned order dated 19.5.2022 passed by District Magistrate, Chandauli in Case No. 1017 of 2021, Computerized Case No. D202114180001017 (State Vs. Abu Saleem), under Section 5 (A) of UP Prevention of Cow Slaughter Act, 1955 arising out of Case Crime No. 127 of 2021, under Sections 3/5A/5B/8 of UP Prevention of Cow Slaughter Act (in brevity, Cow Slaughter Act) and Section 11 of Prevention of Cruelty to Animals Act, Police Station Syed Raza, District Chandauli.

3. As per FIR version, vehicle i.e. Truck No. UP70 CT 5957, coming from Bihar and Chandauli, was in queue along with other vehicle, while vehicles are being checked at Naubatpur Police Picket. The truck has been spotted while it was trying to avoid the checking. After search, 17 cow progeny i.e. 15 cows and 2 bullocks were found in pathetic condition wherein their mouth and legs were tied with ropes. On the pointed query, the driver has informed that these cow progenies were being transported to slaughter house in West Bengal. The vehicle was confiscated by the authorities under the provisions of Cow Slaughter Act. During the pendency of the proceedings, objection has been filed by the present applicant (who is owner of the vehicle in question) for release of the vehicle in question.

4. Learned counsel for the applicant submits that false and malicious prosecution has been instituted against the present applicant showing the involvement of the truck in question bearing registration No. UP70 CT 5957 transporting cow progeny for the purpose of illegal slaughtering. It has been submitted by the learned counsel for the applicant that no beef or any other objectionable material has been recovered from the vehicle in question. The police has made false recovery from the possession of the accused and the same has deliberately been planted for the purpose of making a false case. Learned counsel for the applicant submits that the vehicle of the applicant was not used in the alleged crime and has falsely been implicated in the matter. It is further submitted that the involvement of the vehicle in question in the commission of the alleged offence i.e. transportation of cow progeny for the purpose of slaughtering, in violation of the Cow Slaughter Act, is yet to be adjudicated upon by the trial court after thorough examination and appraisal of the evidence available on record. Therefore, till the pendency of the proceeding under the Cow Slaughter Act, there is no justification to keep the vehicle in question under the custody of the police. It is submitted that the vehicle in question (truck) is the sole means of sustenance and due to illegal seizure of the same, the applicant's family is teetering on the brink of starvation. It is further submitted that the vehicle in question has been left exposed in vulnerable state in the open field at the police station, rendering it susceptible to deterioration over time. Learned counsel for the applicant further submitted that the vehicle in question, which is a case property, may be released in favour of the owner of the vehicle and if the case property i.e. vehicle in question is required for any enquiry, the present applicant will produce the same before the court competent. Ultimately, learned counsel submits that the applicant is ready to deposit the surety against the confiscated vehicle, which is the case property. In support of his contention, learned counsel for the applicant has relied upon the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 Supreme Court 638.

5. Learned AGA has vehemently opposed the submission as raised by the learned counsel for the applicant and supported the judgment passed by the District Magistrate and the revisional court. It is contended that, prima facie, the involvement of the present vehicle in question in the commission of alleged crime cannot be ruled out.

6. Having considered the rival submissions advanced by the learned counsel for the parties and perusal the documents available on record, it reveals that no finding has been recorded by the court below questioning the ownership of the present applicant over the vehicle in question i.e. truck bearing registration No. UP70 CT 5957 and also keeping in view the fact that since the date of confiscation of the aforesaid vehicle, same is lying exposed in open area in the custody of police station and the possibility of deterioration of the vehicle due to passage of time cannot be ruled out and further adjudication of the matter with respect to violation of the provisions as enunciated under the Cow Slaughter Act is still pending consideration and also the ratio decided by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai (supra), I am of the view that there is no justification to keep the vehicle in question in the police custody and the same is liable to be released in favour the applicant, which is the case property in the aforementioned case crime, particularly considering the fact that no other person namely insurance company or any third party came forward to claim ownership of the vehicle in question. The relevant paragraphs of the case of Sunderbhai Ambalal Desai (supra) is quoted herein below:

"17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

7. In this conspectus, as above, I am of the considered view that the present application is liable to be entertained and the release order is liable to be passed to secure the ends of justice. Accordingly, the application is allowed and the order dated 5.4.2023 passed by the Special Judge, (POCSO Act) in Criminal Revision No. 55 of 2022 affirming the order dated 19.5.2022 passed by District Magistrate, District Chandauli in Case No. 1017 of 2021 (Computerized Case No. D202114180001017), State Vs. Abu Saleem), under Section 5 (A) of UP Prevention of Cow Slaughter Act, 1955 arising out of Case Crime No. 127 of 2021, under Sections 3/5A/5B/8 of UP Prevention of Cow Slaughter Act and Section 11 of Prevention of Cruelty to Animals Act, Police Station Syed Raza, District Chandauli are hereby quashed and vehicle in question is released with following conditions:

(i) Applicant shall produce the original registration certificate, insurance paper before the concerned Police Station which shall be verified properly and true attested copies thereof.

(ii) Applicant shall execute a bond as per market value of the vehicle with two solvent sureties to the satisfaction of the authorities/court concerned.

(iii) Applicant shall keep the vehicle insured at all times till the conclusion of the trial and produce the Insurance Certificate before the Trial Court as and when required; he must satisfy the Court that he is the registered owner of the vehicle.

(iv) Applicant shall not change the colour or any part of the engine and chassis number of the vehicle, without prior permission of the court concerned.

(v) Applicant shall produce the vehicle either before the Court or before such other authorities as the Court may direct.

(vi) Applicant will not transfer the vehicle to anybody else nor possession of the same be parted with until disposal of the case.

(vii) Applicant shall not allow the vehicle to be used in the commission of any offence.

Order Date :- 3.10.2023

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