ORDER
S.C. Vyas, J.
1. Heard finally at the motion hearing stage.
This is an application under Section 482 of the Cr.PC, praying for invoking extra-ordinary jurisdiction vested in this Court and pass order of the interim custody of the animals seized by police Bhagwanpura to the present applicants on the ground that they are the owners of those animals which are 835 bullocks and calves.
2. Learned Counsel for the applicants submitted that the applicants are in business of purchasing cows, buffaloes and calves from the fare of Rajasthan and selling them in Maharashtra and Madhya Pradesh. At the relevant time 2300 buffaloes and cows were taken by them after getting a valid permission from the concerning authority of Rajasthan towards Maharashtra for the purpose of selling them in the markets of Maharashtra, but some person committed criminal conspiracy against them and Crime No. 322/05 was registered at Police Station Bhagwanpura and these animals were sized by the police, and thereafter, were given in interim custody to respondent Nos. 2 to 5. He further submitted that the present applicants are the owners of the animals and the interim custody of the animals should be given to them. The Trial Court as well as the Revisional Court committed an error in giving custody to respondent Nos. 2 to 5 who claim to be Gaushalas and in their custody the animals are dying every day.
3. Learned Panel Lawyer submitted that as per the First Information Report the applicants were carrying the animals towards Maharashtra for the purpose of slaughtering, and therefore, to prevent this cruelty on animals, these animals were seized by the police of Bhagwanpura, District Khargone and now the case is pending against the applicants in the Competent Court of Khargone District. As the applicants are facing charge under the Provision of M.P. Gauvansh Adhiniyam and Prevention of Cruelty to Animals Act, 1960 as well as other provisions of some other Acts, therefore, they are not entitled to get even interim custody of these animals.
4. A report in this regard has been called from District Magistrate Khargone. The District Magistrate has not sent any report but a report has been received from the Office of the Deputy Director Veterinary Services to the effect that out of 835 animals, which were given on Supurdginama to respondent Nos. 2 to 4, 14 animals died in the way while they were being carried towards Gaushalas, thereafter, from the date of Supurdginama till today 76 animals have further died and now out of those 835 animals only 745 animals are there in the custody of Gaushalas.
5. This state of affairs is shocking. The animals were given to Gaushalas for proper care and feeding while appears that the Gaushalas failed to take proper care of the animals and that is why 14 animals died in the way and, thereafter, 76 died in Gaushalas. In the opinion of this Court looking to this mysterious act atleast these animals are not entitled to remain in custody of these Gaushalas.
6. Now the question is as to whom the interim custody of these animals should be given ? Learned Counsel for the applicants submitted that only the applicants are proper persons being the owner of these cattle. He has further submitted that applicants are ready to abide any conditions imposed by this Court.
7. Record shows that in the First Information Report, it is alleged that applicants were carrying these cattle towards Maharashtra for the purpose of slaughtering. In the FIR itself an admission has been recorded to the effect by the applicant to the police that they were carrying cattle towards Maharashtra for the purpose of slaughtering. Learned Counsel for the applicant submitted that this allegation is prima facie false and not acceptable in view of the fact that all the cattle are cow calves of about 2 to 5 years of age and they are only being used for the purpose of agricultural operations.
8. The contention of the learned Counsel for the applicants appears reasonable and prima facie it does not appear that the cattle were being carried towards Maharashtra for the purpose of slaughtering and assuming that after getting interim custody of these animals applicants will carry them again for the purpose of slaughtering, to prevent such situation suitable condition can also be imposed.
9. Learned Counsel for the applicants placed reliance on a judgment of the Supreme Court passed in case of Manager, Pinjrapole Deudar and Anr. v. Chakram Moraji Nat and Ors. , wherein, the Apex Court held that in a case where the owner is claiming custody of the animal, Pinjrapole has no preferential right and the order of the High Court confirming restoration of custody of animals to owners in preference to applicants Pinjrapole was confirmed. It has also been held in the case that to decide whether interim custody of the animals be given to the owner who is facing the prosecution from the Pinjrapole, the following factors will be relevant:
(1) The nature and gravity of the offence alleged against the owner.
(2) Whether it is the first offence alleged or he has been found guilty of offences under the Act earlier.
(3) If the owner is facing the first prosecution under the Act, the
animal is not liable to be seized, so the owner will have a better claim for the custody of the animal during the prosecution.
(4) The condition in which the animal was found at the time of inspection and seizure.
(5) The possibility of the animal being again subjected to cruelty.
10. When the facts of the present case are examined in the light of these relevant factors as enumerated by the Hon’ble Supreme Court then it appears that the nature and gravity of the offence alleged against the owner is severe, but at the same time it is doubtful that cow calves of age of 2 to 5 years were being transported for the purpose of slaughtering. It is also clear that this is the first offence alleged against the applicants and they were never found guilty for the offence of similar nature earlier. It is also clear that as the applicants are facing first prosecution under these Acts, therefore, the animals were not liable to be seized and because they were seized so the owners are having better claim for the custody of the animals during the prosecution. It is also clear that the possibility of animals being again subjected to cruelty is very remote as reasonable and necessary condition can be imposed and to rule out any such possibility.
11. In the facts and features of the case, the applicants appear to be proper persons for having interim custody of the cattle seized by the police Bhagwanpura and which have been given on Supiirdginama to respondent Nos. 2 to 5 who are not taking proper care of those animals and because of lack of care even during interim custody around 90 catties have died out of 835 cattle.
12. Therefore, the petition succeeds and is allowed. The order of the Trial Court as well as Revisional Court are hereby set aside and it is directed that the remaining seized cattle be given on Supurdginama to the present applicants on the amount which will be fixed by the Trial Court only on the following conditions:
(a) Seized cattle would be given to each of the applicant with reference to seizure from them.
(b) The learned Magistrate will determine the value of Supurdginama on which the seized cattle be handed over to the applicants on separate Supurdginamas. This valuation be done with reference to value of the cattle in question. The Supurdginamas be accompanied by solvent sureties of the same amount. The sureties may be from the places of residents of the applicants.
(c) The applicants shall not remove those cattle for the purpose of slaughter. They should not sale them also.
(d) The applicants shall submit monthly report relating to the health status of the cattle in question to the Trial Court through the concerned police station who shall verify, if necessary, before forwarding the same to the Magistrate.
(e) During the pendency of the trial, the applicants will not transfer the cattle in any manner.
(f) Before the cattle being handed over to the applicants on Supurdginamas, these cattle be identified by putting identification marks by concerned police through the applicants themselves.
13. It is further directed that the concerned police shall get the cattle in question handed over to the applicants from the possession of respondent Nos. 2 to 5 who shall make all necessary co-operation.
Accordingly, this revision petition stands allowed and disposed of.