JUDGMENT
1. The applicant, Baijnath Dube, is a pony contractor, whose animals work on the road between the Brewery near Naini Tal and Ranikhet. He has been tried for an offence under Section 6 of Act XI of 1890 (Prevention of Cruelty to Animals Act) on the ground that he permitted unfit animals in his possession and under his control to be employed or worked, which by reason of wounds, diseases and other causes were unfit for work. The evidence for the prosecution shows that on the 21st of July last, an Inspector of Police and a Veterinary Assistant Surgeon visited various stables in which the applicant’s ponies were kept. In those stables certain ponies were found to be unfit for work. Only one pony, a flea-bitten grey, was found harnessed in a carriage, was galled and unfit for work. In so far as the prosecution evidence goes and as the Magistrate in his judgment has to admit, there is no evidence to show that any unfit animal was being worked except the above mentioned pony. From certain evidence given for the defence, the Magistrate has concluded that in all probability the unfit ponies had been worked while they were unfit, though the witnesses for the defence deny this. It is clearly established that the applicant lives at Kathgodam and that he employed two European supervisors to superintend the work on the Ranikhet road in order to see that the ponies were properly kept and properly worked. It is the duty of these Inspectors to report all animals which are unfit to work, and according to their evidence fresh animals are sent to re-place animals. In our opinion the applicant cannot be said to have permitted the working of any unfit animals. He has taken every reasonable precaution to prevent unfit animals being worked. Where a man takes all precautions to prevent the doing of an act, and in spite of his precautions such act is done, it cannot be said that he has permitted the doing of that act. In our opinion, the evidence on the record is insufficient to establish the offence of which the applicant has been convicted. We accordingly allow the application, set aside the conviction and sentence and direct the fine, if paid, be refunded.
