'Arbitrary' Confiscation Of Vehicle A 'Serious' Encroachment On Fundamental Right To Trade U/Art 19(1)(g): Allahabad HC

“The confiscation, by its very connotation, implies depriving a person of his property to which he is entitled to retain. Article 300A of the Constitution of India provides that no person shall be deprived of his property save by authority of law. Arbitrary confiscation of the property which he might be using for his trade, profession or occupation is a serious encroachment on the fundamental right of a citizen under Article 19(1)(g) of the Constitution of India to carry on his trade, occupation or business,” the Court remarked.

A bench of Justice Ram Manohar Narayan Mishra observed this while setting aside a vehicle confiscation order passed by the District Magistrate, Bhadohi, in October last year under the UP Prevention of Cow Slaughter Act 1955.

It was alleged that the vehicle was allegedly used for transporting three bulls, seven cows, one calf, and one dead bull, for slaughter purposes from West Bengal, and the vehicle was coming through Prayagraj.

The petitioner (de facto owner of the vehicle) moved an objection before the DM seeking the release of the vehicle, undertaking that he would ensure its upkeep and would not change its structure or colour.

He also undertook to produce the same before the court as and when required. In his objection, he also stated that no cow or progeny of cow was seized from the vehicle, and police seized it on account of non-fulfilment of their illegal monetary demand.

However, the DM concerned rejected his objection, and a confiscation order was passed, observing that the cow's progeny was actually seized from the vehicle and entrusted to Sugar Mill Auraiya's custody, which shows that the cow's progeny was indeed recovered from the vehicle.

Challenging the order of the DM concerned, the petitioner moved the HC wherein he argued that the order had been passed illegal and arbitrary manner and without as the FIR was lodged against unknown persons under various provisions of the 1955 Act.

It was also contended by the petitioner's counsel that there is no embargo on the release of the vehicle in favour of its registered owner under the provisions of newly amended Section 5A(7) of the U.P. Prevention of Cow Slaughter Act.

It was also argued that the confiscation order goes against the registered owner's right to property, which is a constitutional right under Article 300A. Lastly, it was submitted that the applicant is deprived of his right to occupation as the vehicle is the means of livelihood of its registered owner and his family.

On the other hand, the AGA submitted that the vehicle confiscated is involved in the illegal transportation of cows for the purposes of slaughter without any valid permit to another State, which is in violation of the Cow Slaughter Act.

It was also contended that the proceedings towards confiscation of the offending vehicle and also criminal prosecution against the accused are parallelly maintainable.

Against the backdrop of these submissions, when the Court examined the facts of the case as well as the arguments put forth by the counsel for both sides, it noted that the transportation of cows etc., is regulated by Section 5A and Section 5A(7) confers power upon the District Magistrate/Commissioner of Police to confiscate 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.

However, the Court further observed that a perusal of the FIR indicated that no cows were maimed or physically injured.

The Court further said that allegations of cattle being transported for slaughter from Prayagraj to West Bengal are irrelevant because the law requires that the cattle has to be transported from within Uttar Pradesh to outside the state; however, in this case, the seized cattle were apprehended in Bhadohi (within Uttar Pradesh), a place far away from the state border, and thus, it cannot be considered that the cattle were being transported outside the state.

“…even if the story of seizure of cattle is believed, then also 21 cattle are said to have been seized within the jurisdiction of Police Station Gopiganj, District Bhadohi namely within the State of Uttar Pradesh and admittedly, the border is far away. The fact remains that cattle were apprehended from within the State of U.P. and, therefore, it cannot be said that they were transported to a place outside the State of UP,” the Court said.

Referring to the mandate of Section 5A of the 1955 Act, the Court observed that no permit is required for transporting cow progeny within the State of UP from one place to another.

The Court also noted that in this case, there was no material supporting the allegation that the cattle were being transported from the State of U.P. to Westbengal in violation of relevant statutory provisions.

Further, the Court observed that allegations of the F.I.R. are yet to be established, and since the commission of offence is one of the requisite ingredients for passing an order of confiscation, the Court opined that an order of confiscation should not be passed automatically.

In view of this, the Court concluded that no material, as exists on record, justified the exercise of powers under Sub Section 7 of Section 5A and found the same to be clearly contrary to the mandates and powers conferred upon the District Magistrate.

“The procedure prescribed by law for confiscating the property, as contained in Section 5A(7) of the Cow Slaughter Act, empowers the District Magistrate/Commissioner of Police to confiscate/seize the vehicle only if the conditions so prescribed under Sub Section 7 of Section 5A are fulfilled,” the Court further held.

In view of this, the Court set aside the confiscation order by directing the DM concerned to pass an appropriate release order in regard to vehicle after taking personal bonds and surety each in the like amount from the registered owner of the vehicle to his/her satisfaction within a period of one week.

Case title - Kamare Alam vs. State Of U.P. And 2 Others

Case citation :

Click Here To Read/Download Order