SHAKEEL Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision under Section 397/401 of the Code of Criminal Procedure, 1973, (for short the Code), is directed against the order dated 14-10-86 passed by the 1st Judicial Magistrate, Varanasi, directing the bulls sought to be transported to be confiscated and auctioned in a proceeding under Section 3/8 of the U. P. Prevention of Cow Slaughter Act, 1955 (U. P. Act No. 1 of 1956), (for short the Act),

(2.) IT appears that the applicants were prosecuted for an offence under Section 3/8 of the Act. The offence under Section 5-A of the Act, as added by U. P. Act No. 24 of 1979, was to the effect that the applicants were trying to transport the bulls etc. To a place outside U. P. without any valid permit issued by an officer authorised by the State Government. In view of Rule 16(3) of the U. P. Govadh Niwaran Niyamavali, 1964, (for short the Rules), the bulls were confiscated and were ordered to be auctioned according to rules and the amount received after the auction sale was directed to be deposited in the Government Treasury. This order of confiscation and auction sale has been challenged by the present revision.

(3.) AS regards the first point whether Rule 16 of the Rules was invalid and ultra vires, Section 5-A was added by U. P. Act No. 24 of 1979 and it provides that no person shall transport or offer to 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 autho rised by the State Government in this behalf. AS this provision was a part of the Act, a sentence of one year or with fine has been provided under Section 8(2). 6 Section 10(1) is general and comprehensive in nature providing that the State Government may make rules for the purpose of carrying into effect the provisions of this Act. Even though Section 5-A was not mentioned in the rule making power to the effect that Rules under Section 5-A rules may also be framed. But as Section 10(1) was quite comprehensive, rules can be framed under Section 5-A. Even though the legislature did not mention Sec 5-A after Section 10(2)(d) of the Act, but nevertheless the general provisions of Section 10(1) would apply. The elementary principle in such matters is that the general power would include special power. The general power to make rules has been provided under Section 10(1), whereas special power under certain Sections has been mentioned under Section 10(2). There is a maxim that whole include a part. If the general provisions have been provided under Section 10(1) to make rules to carry out the effect of the Section, I am of the view that that power would extend and would authorise the State Government to make rules even under Section 5-A of the Act, even though the said Section was not mentioned. I am accordingly of the view that Rule 16, particularly Rule 16(3) is not violative or ultra vires of the rule-making power. 7. AS regards the second point about the applicant having notice about auction sale, it has been stated in para 8 of the affidavit filed in support of Criminal Misc. Application No. nil of 1987 on behalf of the applicants that the auction sale proceedings were conducted in violation of the provisions of natural justice. Further once the stay order was granted by this Court by order dated 5-12-86 and the same was to continue till 19-12-86. Thereafter the High Court remained closed for winter vacation and the applicants could not know about the auction sale proceedings. These facts have not been positively rebutted on behalf of the State of U. P. Even though in proceedings under Rule 16(3) of the Rules, the right of hearing to the person from whose possession the bulls were recovered has not been provided, but as the rights of the appli cants were affected, consequently I am of the view that before making auction sale it must have been ensured by the learned Magistrate or the officer concerned that the applicants have been served. Apart from statutory requirement of principles of natural justice, or in other words, right of hearing before passing an order affecting rights of any person, this right of hearing is recognised wherever any order of any authority affects the rights of any individual. In the instant case after perusing the record and hearing the learned counsel for the parties, I am satisfied that the applicants were not informed about the date fixed for auction sale proceedings. In this view of the matter the auction-sale proceedings were conducted without the knowledge of the applicants and without affording any opportunity of being heard to the applicants. 8. But there is another aspect of the matter. Nothing has been shown in the affidavit filed on behalf of the applicants as to how bolls were sold at the auction sale, to whom and what was his address and for what amount the said bulls have been sold. The whereabouts of those persons are not known and even if the order for auction sale is set aside as the same was barred by principles of natural justice, the next inescapable corollary must be that the said auction sale was held in favour of auction purchaser, but they have not been made parties. But the details or the where about of the persons who have purchased at the auction sale ha/e not been given, nor it has been stated that the bulls are still traceable, hence even if some relief is granted to the applicants that would be in the form of an in fructuous relief. It is better that the amount received by the auction sale may be kept in the Govt. Treasury and in case the applicant succeeds on merits of the case or in case they are acquitted of the charge under Section 3/8 of the Act, the said amount can be returned to the applicants. 9. In view of the discussions made hereinbefore, 1 do not find any merit in the present revision and the same is accordingly dismissed. Revision dismissed.