1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.28/2010
Shaikh Zakir Shaikh Nasir,
age 38 years Occupation Business,
Resident of at Post Haldari Chowk,
Sindkhed, Taluka Sindkhed,
District Dhule. petitioner
V E R S U S
1. The State of Maharashtra
through P.I. Sindkhed Police Station,
and Inquiry Officer,
Sindkhed District Dhule.
2. Navkar Gaushala
Panjara Pole Dhule through
its Secretary Rajendra Walchand Choudhary,
age 49 years, Occ. Business,
R/o. Dhule. Respondents.
....
Mrs. A.N.Ansari, Advocate for the petitioner.
Mr. S. D. Kaldate, APP for Respondent No. 1
Shri Joydeep Chaterjee Advocate for the respondent No.2.
......
CORAM : SHRIHARI P. DAVARE, J.
…….
DATE OF RESERVING JUDGMENT : 29.6.2010
DATE OF PRONOUNCING JUDGMENT : 05.07.2010
::: Downloaded on - 09/06/2013 16:06:24 :::
2
JUDGMENT :-
1. Heard learned counsel for the parties.
2. Rule. Rule made returnable forthwith and with the consent of the
parties, matter is taken up for final hearing.
3. By the present petition, filed under Article 227 of the Constitution
of India, the petitioner prayed for quashment of the order passed by Adhoc
Additional Sessions Judge-1, Dhule in Criminal Revision Application No.
225/2009 dated 14.12.2009 by releasing the cattle in favour of the petitioner
and upholding the judgment passed in Criminal Miscellaneous Application
No.188/2009 dated 3.12.2009 by the learned Judicial Magistrate First Class,
Sindkheda.
FACTUAL MATRIX :-
4. It is the contention of the petitioner that he is dealing in business
of sale and purchase of animals since many years. Sindkheda Police Station
has registered offence under CR No.19/2009 against the petitioner for offences
under Sections 11 (d) (e) (f) of Prevention of Cruelty to Animals Act, 1960 and
::: Downloaded on – 09/06/2013 16:06:24 :::
3
Under Section 5 (1) 11 of Maharashtra Animal Preservation Act,1976 on
13.11.2009 and seized 29 bullocks from the custody of the petitioner and the
said First Information Report is annexed herewith (Exh. ‘A’ page 11).
5. There after petitioner herein filed Criminal Miscellaneous
Application No.188/2009 before learned Judicial Magistrate F.C. Sindkhed for
release of the said animals under section 457 of Code of Criminal Procedure
on 27.11.2009 (Exh B, page 15). Accordingly say of the respondent-State was
called for and said application was contested by the respondent-State.
Considering the rival submissions, learned Judicial Magistrate First Class,
Sindkheda, allowed said application by order passed thereon on 3.12.2009
(page 18) and there by learned Judicial Magistrate F.C. Sindkheda directed to
release the seized 29 bullocks (oxen) on execution of Suprutnama bond of Rs.
1,50,000 (Exh ‘C’ page 22) and also imposing certain conditions as specified
therein. It is the contention of the petitioner that accordingly, he complied
with the said conditions by executing the bond and also by giving undertaking
as per said order dated 3.12.2009, and on completion of the said formalities,
even police authorities issued letter dated 4.12.2009 to the Director of
respondent No.2 to release the seized animals.
::: Downloaded on – 09/06/2013 16:06:24 :::
4
6. However, the petitioner contends that instead of releasing the
animals in favour of the petitioner, respondent No.2 approached to Court of
Sessions, Dhule by filing Criminal Revision Application No.225/2009 and thereby
challenged the order dated 3.12.2009, passed by learned Judicial Magistrate
F.C. Sindkheda, releasing the animals in favour of the petitioner. Hence, the
petitioner appeared in the said Criminal Revision before Adhoc Additional
Sessions Judge, Dhule. However, after hearing both the parties, learned
Adhoc Additional Sessions Judge-1, Dhule, allowed said revision by order
passed on 14.12.2009 and thereby quashed and set aside the order passed by
learned Judicial Magistrate First Class Sindkheda in Criminal Miscellaneous
Application No. 188/2009 on 3.12.2009, and further directed that custody of the
said cattle be given to the said respondent No.2, herein.
7. Being aggrieved and dissatisfied by the said order, passed by
learned Adhoc Additional Sessions Judge-1, Dhule, on 14.12.2009, reversing the
order of learned Judicial Magistrate First Class Sindkheda dated 3.12.2009, the
petitioner herein approached to this Court, praying for quashment of the said
impugned order dated 14.12.2009, passed by learned Adhoc Additional
Sessions Judge-1, Dhule in the said Criminal Revision Application No.225/2009.
::: Downloaded on – 09/06/2013 16:06:24 :::
5
SUBMISSIONS :-
8. The learned counsel for the petitioner canvassed that the
petitioner is the rightful owner of the bullocks in question and during the
pendency of the criminal case, lodged against him, in pursuance of the First
Information Report under CR No.19/2009, the petitioner has preferred
application under section 457 of Code of Criminal Procedure for the interim
custody of the said animals and since the petitioner is the rightful owner of the
said animals, he is entitled for the interim custody of the said animals, during
the pendency of the criminal case. It is also submitted by the learned counsel
for the petitioner that the petitioner has got valid licence to sell and purchase
animals and he has purchased the oxen from village Khetiya, District Badwani,
which he was carrying to his field at village Sindkheda and at that time police
personnel seized said animals, lodging the First Information Report against him
for the offences stated therein. The learned counsel for the petitioner also
urged that in pursuance of the order of release of the animals, passed by
learned Judicial Magistrate First Class Sindkheda, on 3.12.2009, even the
petitioner has executed the bond and undertaking as per the directions in the
said order and thereby the petitioner undertook that after receipt of the
interim custody of the said animals, he shall provide medical treatment to the
said animals and shall submit the report thereof every month, before the Court
::: Downloaded on – 09/06/2013 16:06:24 :::
6
and shall not sale, alter or change the nature of the animals till the disposal of
the case and further undertook that he shall produce the said animals
whenever called during the course of the trial and further stated that the
petitioner shall abide by the said conditions.
9. To substantiate the contention of petitioner, Mrs. Ansari, relied
upon the observations made in the case Manager, Pinjrapole Deudar and
another, Appellants V. Chakram Moraji Nat and Others, Respondents reported
at AIR 1998 Supreme Court 2769 as follows :
“10. Now adverting to the contention that under Section
35 (2), in the event of the animal not being sent to infirmary,
the Magistrate is bound to give the interim custody to
Pinjrapole, we find it difficult to accede to it. We have notedabove the options available to the Magistrate under section
35 (2). That sub-section vests in the Magistrate the discretionto give interim custody of the animal to Pinjrapole. The
material part of sub-section (shorn of other details) will read,
the Magistrate may direct that the animal concerned shall
be sent to a Pinjrapole. Sub-section (2) does not say that theMagistrate shall sent the animals to Pinjrapole. It is thus
evident that the expression “shall be sent” is part of the
direction to be given by the Magistrate if in his discretion he
decides to give interim custody to Pinjrapole. It follows that
under section 35 (2) of the Act, the Magistrate has discretionto handover interim custody of the animal to Pinjrapole but
he is not bound to handover custody of the animal to
Pinjrapole in the event of not sending it to an infirmary. In a
case where the owner is claiming the custody of the animal,
Pinjrapole has no preferential right. In deciding whether the
interim custody of the animal be given to the owner who is::: Downloaded on – 09/06/2013 16:06:24 :::
7facing prosecution or to 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 offencealleged or he has been found guilty of offences under the
Act earlier ; (3) if the owner is facing the first prosecutionunder 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.
There cannot be any doubt that establishment of Pinjrapole
is with the laudable object of preventing unnecessary pain
or suffering to animals and providing protection to them and
birds. But it should also be seen, (a) whether the Pinjrapole isfunctioning as an independent organization or under the
scheme of the Board and is answerable to the Board ; and
(b) whether the Pinjrapole has good record of taking care of
the animals given under its custody. A perusal of the order ofthe High Court shows that the High Court has taken relevant
factors into consideration in coming to the conclusion that it
is not a fit case to interfere in the order of the learned
Additional Sessions Judge directing the State to handover
the custody of the animals to the owner.”
Relying upon above said observations Mrs. Ansari, learned
counsel for the petitioner submitted that since the petitioner/owner is claiming
the custody of the animals, respondent No.2 has no preferential right.
Moreover, she further urged that, while considering the interim custody of the
animals to be given to the owner i.e. petitioner herein, who is facing
prosecution or to the respondent No.2, it must be taken into consideration that
alleged offence is the first offence against the petitioner herein and therefore,
the animals are not liable to be seized and the petitioner shall have better
::: Downloaded on – 09/06/2013 16:06:24 :::
8
claim for the interim custody of the said animals as observed in the case cited
supra.
10. Learned counsel for the petitioner also relied upon the
observations made in the case of Bharat Amratlal Kothari V. Dosukhan
Samadkhan Sindhi and others reported at AIR 2010 Supreme Court 475 as
follows :-
“17. This takes the Court to answer the question whether
respondent Nos. 1 to 6 are entitled to relief of interim
custody of goats and sheep seized pursuant to filing of
complaint No.II-C.R.3131 of 2008 registered with Deesa CityPolice Station. The fact that respondent Nos. 1 to 6 are
owners of the goats and sheep seized is not disputed
either by the appellant No.1 or by the contesting
respondents. Though the respondent No.8 has, by filingcounter reply, pointed out that the officials of Pinjarapole
at Patan are taking best care of the goats and sheepseized in the instant case, this Court finds that keeping the
goats and sheep in the custody of respondent No.8 would
serve purpose of none. Admittedly, the respondent Nos 1
to 6 by vocation trade in goats and sheep. Probably aperiod of more than one and half years has elapsed by
this time and by production of goats and sheep seized
before the Court, the prosecution cannot prove that they
were subjected to cruelty by the accused because no
marks of cruelty would be found by this time. The trade inwhich respondent Nos. 1 to 6 are engaged, is not
prohibited by any law. On the facts and in the
circumstances of the case this Court is of the opinion that
respondent Nos. 1 to 6 would be entitled to interim
custody of goats and sheep seized in the case during the
pendency of the trial, of course, subject to certain
conditions.”
::: Downloaded on – 09/06/2013 16:06:24 :::
9
Accordingly, learned counsel for the petitioner urged that the animals in
question be released in favour of the petitioner, since he is the rightful owner
having preferential right over respondent No.2, by way of interim custody and
undertook to abide by the conditions, if any, imposed therefor.
11. Learned APP Mr. Kaldate, for respondent No.1 opposed the
present petition vehemently and submitted that when the said animals were
seized, the driver i.e. petitioner and cleaner ran away, since they were
transporting the said animals illegally, subjecting them to cruelty. It is also
pointed out by learned APP that, had the petitioner purchased the said
animals, he would not have tied the said animals tightly in cruel manner, that
too, 29 animals in one truck and he should have produced the receipts, at the
time of seizure only, but so did not happen. Learned A.P.P. also canvassed
that the animals are the national property and apprehension is posed that if
the said animals are released in favour of the petitioner by way of interim
custody, there is every possibility that they shall be taken for slaughtering
purpose, causing ir–reparable loss which cannot be compensated in terms of
money, and accordingly, submitted that present petition deserves to be
dismissed.
::: Downloaded on – 09/06/2013 16:06:24 :::
10
12. Mr. Joydeep Chaterjee, learned counsel for respondent No.2
countered the arguments canvassed by the learned counsel for the petitioner
and submitted that the contents of the First Information Report are self explicit,
which disclose that the animals in question were subjected to cruelty and
there was reliable information that said animals were being taken to Malegaon
for slaughtering purpose. It is also canvassed by learned counsel for
respondent No.2 that when the said truck containing animals was accosted
by the police personnel, the petitioner therein ran away and said conduct of
the petitioner speaks volumes for itself. Moreover, the learned counsel for
respondent No.2 submitted that respondent No.2 is a Charitable Trust, and
respondent No.2 has undertaken that it shall not charge any amount for the
maintenance of the said animals, if the interim custody is handed over to
respondent No.2. Learned counsel for respondent No.2 also canvassed that
the Rules have been framed under the Prevention of Cruelty to Animals Act,
1960 and said rules are known as “the Transport of Animals Rules, 1978”, and
Rule 56 thereof prescribes certain conditions for transportation of cattle by
goods vehicle, which more particularly comprises that no goods vehicle shall
carry more than six cattle. However, in the instant case, about 29 cattles were
being transported in the said truck and at that time, police personnel
apprehended them and said animals were seized, whereas the petitioner
::: Downloaded on – 09/06/2013 16:06:24 :::
11
herein ran away, and accordingly, learned counsel submitted that there is
apparent breach of said rule at the hands of the petitioner, and therefore,
there is no guarantee that petitioner would take due and necessary care of
the animals, if the interim custody is handed over to him. Learned counsel for
respondent No.2 also posed the apprehension that if the animals in question
are released in favour of the petitioner, by way of interim custody, there is
every possibility that the petitioner would take the said animals for slaughtering
purpose, without abiding by the terms and conditions, if any, imposed upon
by the petitioner.
13. Learned counsel for respondent No.2 also submitted that the
cruelty alleged against the petitioner is under section 11 (1) (d) (e) (f) of the
Prevention of Cruelty to Animals Act, 1966 and also under clause (a) thereof,
since although petitioner, who allegedly is owner of the said animals,
subjected said animals to the torture, while transporting them.
14. To substantiate the contention of respondent No.2, learned
counsel relied upon the observations in the case of :
1) Akhil Bharat Krishi Go Seva Sangh Vs. State of Maharashtra and anr.
reported at 1997 ALL MR (Cri) 1740 as follows:-
::: Downloaded on – 09/06/2013 16:06:24 :::
12
“7. I am afraid that I cannot accede to the submission
canvassed by Mr. A.R. Shaikh because as observed by
the Division Bench in para 5 in 1988 MLJ page 293 supra,an order pertaining to the custody could not be passed in
a manner in which the very object of the Act namelyprotection and preservation of animals and not their
slaughter would be defeated. Since the allegation in the
F.I.R. was that the cattle belonged to respondent No.2
and were being taken for slaughter, the impugned ordergranting respondent No.2 their interim custody cannot be
sustained and has to be quashed.”
2) Learned counsel for respondent No.2 also relied upon the order
passed by Honourable Supreme Court in Criminal Appeal Nos. 283-287/2002
(arising out of SLP (CRI) Nos. 2790, 2793, 2795, 2797, 2800/1999) on 22 February,
nd
2002.
” The State of Uttar Pradesh is in appeal against the
direction of the Court directing release of the animals infavour of the owner. It is alleged that while those
animals were transported for the purpose of beingslaughtered, an FIR was registered for alleged violation
of the provisions of Prevention of Cruelty to Animals Act,
1960, and the specific allegation in the FIR was that the
animals were transported for being slaughtered, and theanimals were tied very tightly to each other. The criminal
case is still pending. On an appeal for getting the
custody of the animals was filed, the impugned order
has been passed. We are shocked as to how, such an
order could be passed by the learned Judge of the HighCourt in view of the very allegations and in view of the
charges, which the accused may face in the criminal
trial. We therefore, set aside the impugned order and
direct that these animals be kept in the Goshala and the
State Government undertakes to take the entire
responsibility of the preservation of those animals so long
as the matter is under trial.”
::: Downloaded on – 09/06/2013 16:06:24 :::
13
Accordingly learned counsel for respondent No.2 urged that interim
custody of the animals in question be handed over to respondent No.2 during
the pendency of the aforesaid case for proper preservation, maintenance
and medical assistance to the said animals.
CONSIDERATION :-
15. I have perused the documents and papers annexed with the
present petition, as well as perused the contents of the First Information Report
and also perused order passed by learned Judicial Magistrate F.C. Sindkheda
as well as order passed by Adhoc Additional Sessions Judge-1 Dhule and also
considered the observations made in the above referred Rulings cited by
learned counsel for the petitioner as well as for respondent No.2 and gave
anxious consideration to the submissions advanced by learned respective
counsel for the parties. and I am inclined to accept the submissions advanced
by learned counsel for the petitioner since as observed by learned Judicial
Magistrate First Class, Sindkheda in the order dated 3.12.2009, the petitioner
herein is having a valid licence to sell and purchase the animals and he
purchased the said oxen from Khetiya, District Badwani, which he was carrying
to his field at village Sindkheda and the learned Judicial Magistrate First Class,
Sindkheda also verified original receipts which revealed that the petitioner
::: Downloaded on – 09/06/2013 16:06:24 :::
14
herein is the rightful owner of the said oxen i.e. 29 animals as well as learned
Judicial Magistrate First Class, Sindkheda also perused the licence produced
by the petitioner which revealed that petitioner herein has valid licence to sell
and purchase the animals, and hence, there is no dispute that the petitioner is
the rightful owner of the animals in question. It also appears that the alleged
charges levelled against the petitioner herein is the first offence and
respondent No.1 has nowhere pointed out that there are any criminal
antecedents against the petitioner herein, and therefore, when the petitioner
herein i.e. owner is claiming interim custody of the said animals, respondent
No.2 has no preferential right and the petitioner herein shall have a better
claim for the interim custody of the said animals, during the pendency of the
prosecution, but certainly by imposing conditions upon the petitioner. In this
context, reliance can be very well placed on the observations reported in the
case Manager, Pinjrapole Deudar and another, Appellants V. Chakram Moraji
Nat and Others, Respondents reported at AIR 1998 Supreme Court 2769 as well
as Bharat Amratlal Kothari V. Dosukhan Samadkhan Sindhi and others
reported at AIR 2010 Supreme Court 475 (cited supra), by Mrs. Ansari, learned
counsel for the petitioner.
16. As regards the apprehension posed by the learned counsel for
::: Downloaded on – 09/06/2013 16:06:24 :::
15
respondents in respect of taking said animals to slaughtering house after their
release in favour of the petitioner, in fact, the learned Judicial Magistrate First
Class, Sindkheda has already imposed necessary conditions upon the
petitioner while granting interim custody in favour of the petitioner by way of
order dated 3.12.2009, and in addition to that, certain other conditions also
can be imposed upon the petitioner including the condition that petitioner
shall not take said animals to the slaughtering house and shall not subject the
said animals for slaughtering and shall not sale or change the nature of the
said animals till the disposal of the case, while releasing the said animals in
favour of the petitioner, and imposition of such conditions upon the petitioner,
shall meet the said apprehension posed by the learned counsel for the
respondents.
17. In the circumstances, the petitioner herein shall have better claim
over the animals in question, in respect of interim custody and shall have
preferential right over respondent No.2, since the petitioner herein is rightful
owner thereof, whereas respondent No.2 is a Charitable Institution and has no
preferential right over the owner of the animals i.e. petitioner herein and
hence, the impugned order dated 14.12.2009, passed by learned Adhoc
Additional Sessions Judge-1, Dhule is required to be quashed and set aside
::: Downloaded on – 09/06/2013 16:06:24 :::
16
whereas the order passed by learned Judicial Magistrate First Class, Sindkheda
on 3.12.2009 is required to be restored, but by imposing additional conditions
as mentioned below :
18. In the result, present petition is allowed in terms of prayer Clause
‘B’ thereof and impugned order dated 14.12.2009, passed by learned Adhoc
Additional Sessions Judge-1, Dhule in Criminal Revision Application No.
225/2009 stands quashed and set aside, whereas the order dated 3.12.2009
passed by learned Judicial Magistrate First Class, Sindkheda in Criminal
Miscellaneous Application No.188/2009 stands restored, on the following
additional conditions :-
a) The petitioner herein shall furnish fresh Suprutnama bond in the
sum of Rs.1,50,000/- (Rs. One lac Fifty Thousand only), specifying
and undertaking the conditions mentioned in the order dated
3.12.2009 and also in the present order meticulously and shall
observe the said conditions scrupulously.
b) The petitioner shall not subject the 29 oxen/bullocks in question
for slaughtering purpose and shall not cause damage or injury
to lives and limbs of the said animals in any manner what so ever
till the disposal of the said case.
::: Downloaded on – 09/06/2013 16:06:24 :::
17
c) The petitioner herein shall not transfer, sale and / or change the
nature of the said animals in any manner till the disposal of
the case.
d) The petitioner herein shall provide the necessary Medical
treatment / assistance, water and food to the said animals
properly and shall maintain and preserve the said animals with
care diligently.
19. Rule is made absolute in aforesaid terms.
( SHRIHARI P. DAVARE )
JUDGE
…..
AAA/
::: Downloaded on – 09/06/2013 16:06:24 :::