{"id":107312,"date":"2010-07-05T00:00:00","date_gmt":"2010-07-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shaikh-zakir-shaikh-nasir-vs-7-i-am-afraid-that-i-cannot-accede-on-5-july-2010"},"modified":"2017-09-07T23:12:57","modified_gmt":"2017-09-07T17:42:57","slug":"shaikh-zakir-shaikh-nasir-vs-7-i-am-afraid-that-i-cannot-accede-on-5-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shaikh-zakir-shaikh-nasir-vs-7-i-am-afraid-that-i-cannot-accede-on-5-july-2010","title":{"rendered":"Shaikh Zakir Shaikh Nasir vs “7. I Am Afraid That I Cannot Accede … on 5 July, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shaikh Zakir Shaikh Nasir vs “7. I Am Afraid That I Cannot Accede … on 5 July, 2010<\/div>\n
Bench: Shrihari P. Davare<\/div>\n
                                                1\n\n                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY \n                               BENCH AT AURANGABAD\n\n\n\n\n                                                                                    \n                          CRIMINAL WRIT PETITION NO.28\/2010\n\n\n\n\n                                                            \n    Shaikh Zakir Shaikh Nasir,\n    age 38 years Occupation Business,\n    Resident of at Post Haldari Chowk,\n\n\n\n\n                                                           \n    Sindkhed, Taluka Sindkhed,\n    District Dhule.                                                         petitioner\n\n    V E R S U S \n\n\n\n\n                                            \n    1.     The State of Maharashtra\n                        \n           through P.I. Sindkhed Police Station,\n           and Inquiry Officer,\n           Sindkhed District Dhule.\n                       \n    2.     Navkar Gaushala \n           Panjara Pole Dhule through\n           its Secretary Rajendra Walchand Choudhary,\n      \n\n           age 49 years, Occ. Business,\n           R\/o. Dhule.                                                      Respondents.\n   \n\n\n\n                                      ....\n\n    Mrs. A.N.Ansari, Advocate for the petitioner.\n\n\n\n\n\n    Mr. S. D. Kaldate, APP for Respondent No. 1\n    Shri Joydeep Chaterjee Advocate for the respondent No.2.\n                                      ......\n\n                                                    CORAM          : SHRIHARI P. DAVARE, J.\n<\/pre>\n
                                      …….\n<\/p>\n
    DATE OF RESERVING JUDGMENT                      : 29.6.2010\n\n    DATE OF PRONOUNCING JUDGMENT                    : 05.07.2010\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 16:06:24 :::<\/span>\n                                                  2<\/span>\n\n    JUDGMENT :-\n\n\n\n\n                                                                                    \n    1.             Heard learned counsel for the parties.\n\n\n\n\n                                                            \n<\/pre>\n
    2.             Rule.  Rule made returnable forthwith and with the consent of the <\/p>\n
    parties, matter is taken up for final hearing.\n<\/p>\n
    3.             By the present petition, filed under Article 227 of the Constitution <\/p>\n
    of India, the petitioner prayed for quashment of the order passed by Adhoc <\/p>\n
    Additional   Sessions   Judge-1,   Dhule   in   Criminal   Revision   Application   No.<\/p>\n
    225\/2009 dated 14.12.2009 by releasing the cattle in favour of the petitioner <\/p>\n
    and upholding the judgment passed in Criminal  Miscellaneous   Application <\/p>\n
    No.188\/2009   dated   3.12.2009   by   the   learned   Judicial   Magistrate   First   Class, <\/p>\n
    Sindkheda.\n<\/p>\n
                   FACTUAL MATRIX :-\n<\/p>\n
    4.             It is the contention of the petitioner that he is dealing in business <\/p>\n
    of sale and purchase of animals since many years.   Sindkheda Police Station <\/p>\n
    has registered offence under CR No.19\/2009 against the petitioner for offences <\/p>\n
    under Sections 11 (d) (e) (f) of Prevention of Cruelty to Animals Act, 1960 and <\/p>\n
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\n                                                  3<\/span><\/p>\n
    Under   Section   5   (1)   11   of   Maharashtra   Animal   Preservation   Act,1976   on <\/p>\n
    13.11.2009 and seized 29 bullocks from the custody of the petitioner and the <\/p>\n
    said First Information Report is annexed herewith (Exh. ‘A’ page 11).\n<\/p>\n
    5.             There   after   petitioner   herein   filed   Criminal   Miscellaneous <\/p>\n
    Application No.188\/2009 before learned Judicial Magistrate F.C. Sindkhed for <\/p>\n
    release of the said animals under section 457 of Code of Criminal Procedure <\/p>\n
    on 27.11.2009 (Exh B, page 15).   Accordingly say of the respondent-State was <\/p>\n
    called   for   and   said   application   was   contested   by   the   respondent-State.\n<\/p>\n
    Considering   the   rival   submissions,   learned   Judicial   Magistrate   First   Class, <\/p>\n
    Sindkheda,   allowed   said   application   by   order   passed   thereon   on   3.12.2009 <\/p>\n
    (page 18) and there by learned Judicial Magistrate F.C. Sindkheda directed to <\/p>\n
    release the seized 29 bullocks (oxen) on execution of Suprutnama bond of Rs.\n<\/p>\n
    1,50,000 (Exh ‘C’ page 22) and also imposing certain conditions as specified <\/p>\n
    therein.   It is the contention of the petitioner that accordingly, he complied <\/p>\n
    with the said conditions by executing the bond and also by giving undertaking <\/p>\n
    as per said order dated 3.12.2009, and on completion of the said formalities, <\/p>\n
    even   police   authorities   issued   letter   dated   4.12.2009   to   the   Director   of <\/p>\n
    respondent No.2 to release the seized animals.\n<\/p>\n
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\n                                                  4<\/span><\/p>\n
    6.             However,   the   petitioner   contends   that   instead   of   releasing   the <\/p>\n
    animals in favour of the petitioner, respondent No.2 approached to Court of <\/p>\n
    Sessions, Dhule by filing Criminal Revision Application No.225\/2009 and thereby <\/p>\n
    challenged the order dated 3.12.2009, passed by learned Judicial Magistrate <\/p>\n
    F.C. Sindkheda, releasing the animals in favour of the petitioner.   Hence, the <\/p>\n
    petitioner   appeared   in   the   said   Criminal   Revision   before   Adhoc   Additional <\/p>\n
    Sessions   Judge,   Dhule.     However,   after   hearing   both   the   parties,   learned <\/p>\n
    Adhoc   Additional   Sessions   Judge-1,   Dhule,   allowed   said   revision   by   order <\/p>\n
    passed on 14.12.2009 and thereby quashed and set aside the order passed by <\/p>\n
    learned   Judicial   Magistrate   First   Class   Sindkheda   in   Criminal   Miscellaneous <\/p>\n
    Application No. 188\/2009 on 3.12.2009, and further directed that custody of the <\/p>\n
    said cattle be given to the said  respondent No.2, herein.\n<\/p>\n
    7.             Being   aggrieved   and   dissatisfied   by   the   said   order,   passed   by <\/p>\n
    learned Adhoc Additional Sessions Judge-1, Dhule, on 14.12.2009, reversing the <\/p>\n
    order of learned Judicial Magistrate First Class Sindkheda dated 3.12.2009, the <\/p>\n
    petitioner herein approached to this Court, praying for quashment of the said <\/p>\n
    impugned   order   dated   14.12.2009,   passed   by   learned   Adhoc   Additional <\/p>\n
    Sessions Judge-1, Dhule in the said Criminal Revision Application No.225\/2009.\n<\/p>\n
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\n                                                     5<\/span><\/p>\n
                    SUBMISSIONS :-\n<\/p>\n
    8.              The   learned   counsel   for   the   petitioner   canvassed   that   the <\/p>\n
    petitioner   is   the   rightful   owner   of   the   bullocks   in   question   and   during   the <\/p>\n
    pendency of the criminal case, lodged against him, in pursuance of the First <\/p>\n
    Information   Report   under   CR   No.19\/2009,   the   petitioner   has   preferred <\/p>\n
    application under section 457 of Code of Criminal Procedure for the interim <\/p>\n
    custody of the said animals and since the petitioner is the rightful owner of the <\/p>\n
    said animals, he is entitled for the interim custody of the said animals, during <\/p>\n
    the pendency of the criminal case.  It is also submitted by the learned counsel <\/p>\n
    for the petitioner that the petitioner has got valid licence to sell and purchase <\/p>\n
    animals and he has purchased the oxen from village Khetiya, District Badwani, <\/p>\n
    which he was carrying to his field at village Sindkheda and at that time police <\/p>\n
    personnel seized said animals, lodging the First Information Report against him <\/p>\n
    for the  offences  stated  therein.     The   learned  counsel   for  the   petitioner also <\/p>\n
    urged  that   in   pursuance   of   the   order   of   release   of   the   animals,   passed   by <\/p>\n
    learned   Judicial   Magistrate   First   Class   Sindkheda,   on   3.12.2009,   even   the <\/p>\n
    petitioner has executed the bond and undertaking as per the directions in the <\/p>\n
    said   order   and   thereby   the   petitioner   undertook   that   after   receipt   of   the <\/p>\n
    interim custody of the said animals, he shall provide medical treatment to the <\/p>\n
    said animals and shall submit the report thereof every month, before the Court <\/p>\n
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\n                                                      6<\/span><\/p>\n
    and shall not sale, alter or change the nature of the animals till the disposal of <\/p>\n
    the   case   and   further   undertook   that   he   shall   produce   the   said   animals <\/p>\n
    whenever   called   during   the   course   of   the   trial   and   further   stated   that   the <\/p>\n
    petitioner shall abide by the said conditions.\n<\/p>\n
    9.              To   substantiate   the   contention   of   petitioner,   Mrs.   Ansari,   relied <\/p>\n
    upon   the   observations   made   in   the   case  Manager,   Pinjrapole   Deudar   and  <\/p>\n
    another, Appellants V. Chakram Moraji Nat and Others, Respondents<\/a> reported  <\/p>\n
    at AIR 1998 Supreme Court 2769 as follows :\n<\/p>\n
                   “10. Now adverting to the contention that under Section
\n                   35 (2), in the event of the animal not being sent to infirmary,
\n                   the   Magistrate   is   bound   to   give   the   interim   custody   to
\n                   Pinjrapole, we find it difficult to accede to it.  We have noted  <\/p>\n
                   above the options available to the Magistrate under section
\n                   35 (2).  That sub-section vests in the Magistrate the discretion  <\/p>\n
                   to   give   interim   custody   of   the   animal   to   Pinjrapole.     The
\n                   material part of sub-section (shorn of other details) will read,
\n                   the Magistrate may direct that the animal concerned shall
\n                   be sent to a Pinjrapole.  Sub-section (2) does not say that the  <\/p>\n
                   Magistrate   shall   sent   the   animals   to   Pinjrapole.     It   is   thus
\n                   evident   that   the   expression   “shall   be   sent”   is   part   of   the
\n                   direction to be given by the Magistrate if in his discretion he
\n                   decides to give interim custody to Pinjrapole.   It follows that
\n                   under section 35 (2) of the Act, the Magistrate has discretion  <\/p>\n
                   to handover interim custody of the animal to Pinjrapole but
\n                   he   is   not   bound   to   handover   custody   of   the   animal   to
\n                   Pinjrapole in the event of not sending it to an infirmary.  In a
\n                   case where the owner is claiming the custody of the animal,
\n                   Pinjrapole has no preferential right.  In deciding whether the
\n                   interim custody of the animal be given to the owner who is  <\/p>\n
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\n                                                        7<\/span><\/p>\n
                  facing prosecution or to the Pinjrapole, the following factors
\n                  will be relevant : (1) the nature and gravity of the offence
\n                  alleged against the owner ; (2) whether it is the first offence  <\/p>\n
                  alleged or he has been found guilty of offences under the
\n                  Act   earlier   ;   (3)   if   the   owner   is   facing   the   first   prosecution  <\/p>\n
                  under the Act, the animal is not liable to be seized, so the
\n                  owner will have a better claim for the custody of the animal
\n                  during   the   prosecution   ;   (4)   the   condition   in   which   the
\n                  animal was found at the time of inspection and seizure ; (5)  <\/p>\n
                  the possibility of the animal being again subjected to cruelty.
\n                  There cannot be any doubt that establishment of Pinjrapole
\n                  is with the laudable object of preventing unnecessary pain
\n                  or suffering to animals and providing protection to them and
\n                  birds.  But it should also be seen, (a) whether the Pinjrapole is  <\/p>\n
                  functioning   as   an   independent   organization   or   under   the
\n                  scheme of the Board and is answerable to the Board ; and  <\/p>\n<\/blockquote>\n
                  (b) whether the Pinjrapole has good record of taking  care of
\n                  the animals given under its custody.  A perusal of the order of  <\/p>\n
                  the High Court shows that the High Court has taken relevant
\n                  factors into consideration in coming to the conclusion that it
\n                  is   not   a   fit   case   to   interfere   in   the   order   of   the   learned
\n                  Additional   Sessions   Judge   directing   the   State   to   handover
\n                  the custody of the animals to the owner.”<\/p><\/blockquote>\n
                   Relying   upon   above   said   observations   Mrs.   Ansari,   learned <\/p>\n
    counsel for the petitioner submitted that since the petitioner\/owner is claiming <\/p>\n
    the   custody   of   the   animals,   respondent   No.2   has   no   preferential   right.\n<\/p>\n
    Moreover, she further urged that, while considering the interim custody of the <\/p>\n
    animals   to   be   given   to   the   owner   i.e.   petitioner   herein,   who   is   facing <\/p>\n
    prosecution or to the respondent No.2, it must be taken into consideration that <\/p>\n
    alleged offence is the first offence against the petitioner herein and therefore, <\/p>\n
    the animals are not liable to be seized and the petitioner shall have better <\/p>\n
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\n                                                     8<\/span><\/p>\n
    claim for the interim custody of the said animals as observed in the case cited <\/p>\n
    supra.\n<\/p>\n
    10.            Learned   counsel   for   the   petitioner   also   relied   upon   the <\/p>\n
    observations   made   in   the   case   of  Bharat   Amratlal   Kothari   V.   Dosukhan  <\/p>\n
    Samadkhan   Sindhi   and   others<\/a>   reported   at   AIR   2010   Supreme   Court   475  as <\/p>\n
    follows :-\n<\/p>\n
                   “17.      This takes the Court to answer the question whether  <\/p>\n
                   respondent   Nos.   1   to   6   are   entitled   to   relief   of   interim
\n                   custody   of   goats   and   sheep   seized   pursuant   to   filing   of
\n                   complaint No.II-C.R.3131 of 2008 registered with Deesa City  <\/p>\n
                   Police Station.   The fact that respondent Nos. 1 to 6 are
\n                   owners   of   the   goats   and   sheep   seized   is   not   disputed
\n                   either   by   the   appellant   No.1   or   by   the   contesting
\n                   respondents.   Though  the  respondent  No.8  has,  by  filing  <\/p>\n
                   counter reply, pointed out that the officials of Pinjarapole
\n                   at   Patan   are   taking   best   care   of   the   goats   and   sheep  <\/p>\n
                   seized in the instant case, this Court finds that keeping the
\n                   goats and sheep in the custody of respondent No.8 would
\n                   serve purpose of none.  Admittedly, the respondent Nos 1
\n                   to 6 by vocation trade in goats and sheep.   Probably a  <\/p>\n
                   period of more than one and half years has elapsed by
\n                   this   time   and   by   production   of   goats   and   sheep   seized
\n                   before the Court, the prosecution cannot prove that they
\n                   were   subjected   to   cruelty   by   the   accused   because   no
\n                   marks of cruelty would be found by this time.  The trade in  <\/p>\n
                   which   respondent   Nos.   1   to   6   are   engaged,   is   not
\n                   prohibited   by   any   law.     On   the   facts   and   in   the
\n                   circumstances of the case this Court is of the opinion that
\n                   respondent   Nos.   1   to   6   would   be   entitled   to   interim
\n                   custody of goats and sheep seized in the case during the
\n                   pendency   of   the   trial,   of   course,   subject   to   certain
\n                   conditions.”<\/p><\/blockquote>\n
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\n                                                       9<\/span><\/p>\n
            Accordingly, learned counsel for the petitioner urged that the animals in <\/p>\n
    question be released in favour of the petitioner, since he is the rightful owner <\/p>\n
    having preferential right over respondent No.2, by way of interim custody and <\/p>\n
    undertook to abide by the conditions, if any, imposed therefor.\n<\/p>\n
    11.              Learned   APP   Mr.   Kaldate,   for   respondent   No.1   opposed   the <\/p>\n
    present petition vehemently and submitted that when the said animals were <\/p>\n
    seized,   the   driver   i.e.   petitioner   and   cleaner   ran   away,   since   they   were <\/p>\n
    transporting   the   said   animals   illegally,   subjecting   them   to   cruelty.     It   is   also <\/p>\n
    pointed   out   by   learned   APP   that,   had   the   petitioner   purchased   the   said <\/p>\n
    animals, he would not have tied the said animals tightly in cruel manner, that <\/p>\n
    too, 29 animals in one truck and he should  have produced the receipts, at the <\/p>\n
    time of seizure only, but so did not happen.   Learned A.P.P. also canvassed <\/p>\n
    that the animals are the national property and apprehension is posed that if <\/p>\n
    the   said   animals   are   released   in   favour   of   the   petitioner   by   way   of   interim <\/p>\n
    custody,   there   is   every   possibility   that   they   shall   be   taken   for   slaughtering <\/p>\n
    purpose, causing ir–reparable loss which cannot be compensated in terms of <\/p>\n
    money,   and   accordingly,   submitted   that   present   petition   deserves   to   be <\/p>\n
    dismissed.\n<\/p>\n
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\n                                                    10<\/span><\/p>\n
    12.             Mr.   Joydeep   Chaterjee,   learned   counsel   for   respondent   No.2 <\/p>\n
    countered the arguments canvassed by the learned counsel for the petitioner <\/p>\n
    and submitted that the contents of the First  Information Report are self explicit, <\/p>\n
    which   disclose   that   the   animals   in   question   were   subjected   to   cruelty   and <\/p>\n
    there was reliable information that said animals were being taken to Malegaon <\/p>\n
    for   slaughtering   purpose.    It   is   also   canvassed   by   learned   counsel   for <\/p>\n
    respondent No.2 that when the said truck containing animals was   accosted <\/p>\n
    by the police personnel, the petitioner therein ran away and said conduct of <\/p>\n
    the   petitioner   speaks   volumes   for   itself.     Moreover,   the   learned   counsel   for <\/p>\n
    respondent   No.2   submitted   that   respondent   No.2   is   a   Charitable   Trust,   and <\/p>\n
    respondent No.2 has undertaken that it shall not charge any amount for the <\/p>\n
    maintenance   of   the   said   animals,   if   the   interim   custody   is   handed   over   to <\/p>\n
    respondent No.2.   Learned counsel for respondent No.2 also canvassed that <\/p>\n
    the Rules have been framed under the Prevention of Cruelty to Animals Act, <\/p>\n
    1960 and said rules are known as “the Transport of Animals Rules, 1978”, and <\/p>\n
    Rule 56 thereof prescribes certain conditions    for transportation of cattle by <\/p>\n
    goods vehicle, which more particularly comprises that no goods vehicle shall <\/p>\n
    carry more than six cattle. However, in the instant case, about 29 cattles were <\/p>\n
    being   transported   in   the   said   truck   and   at   that   time,   police   personnel <\/p>\n
    apprehended   them   and   said   animals   were   seized,   whereas   the   petitioner <\/p>\n
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\n                                                       11<\/span><\/p>\n
    herein   ran   away,   and   accordingly,   learned   counsel   submitted   that   there   is <\/p>\n
    apparent breach of said rule  at the hands  of the  petitioner, and therefore, <\/p>\n
    there is no guarantee that petitioner would take due and necessary care of <\/p>\n
    the animals, if the interim custody is handed over to him.  Learned counsel for <\/p>\n
    respondent No.2 also posed the apprehension that if the animals in question <\/p>\n
    are   released   in   favour   of   the   petitioner,   by   way   of   interim   custody,   there   is <\/p>\n
    every possibility that the petitioner would take the said animals for slaughtering <\/p>\n
    purpose, without abiding by the terms and conditions, if any, imposed upon <\/p>\n
    by the petitioner.\n<\/p>\n
    13.              Learned   counsel   for   respondent   No.2   also   submitted   that   the <\/p>\n
    cruelty alleged against the petitioner is under section 11 (1) (d) (e) (f) of the <\/p>\n
    Prevention of Cruelty to Animals Act, 1966 and also under clause (a) thereof, <\/p>\n
    since   although   petitioner,   who     allegedly   is   owner   of   the   said   animals, <\/p>\n
    subjected said animals to the torture, while transporting them.\n<\/p>\n
    14.              To   substantiate   the   contention   of   respondent   No.2,   learned <\/p>\n
    counsel relied upon the observations in the case of :\n<\/p>\n
    1)      Akhil   Bharat   Krishi   Go   Seva   Sangh   Vs.   State   of   Maharashtra   and   anr.\n<\/p>\n
    reported at 1997 ALL MR (Cri) 1740  as follows:-\n<\/p>\n
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\n                                                   12<\/span><\/p>\n
                   “7.       I am afraid that I cannot accede to the submission
\n                   canvassed   by   Mr.   A.R.   Shaikh   because   as   observed   by
\n                   the Division Bench in para 5 in 1988 MLJ page 293 supra,  <\/p>\n
                   an order pertaining to the custody could not be passed in
\n                   a   manner   in   which   the   very   object   of   the   Act   namely  <\/p>\n
                   protection   and   preservation   of   animals   and   not   their
\n                   slaughter would be defeated.  Since the allegation in the
\n                   F.I.R.   was   that   the   cattle   belonged   to   respondent   No.2
\n                   and were being taken for slaughter, the impugned order  <\/p>\n
                   granting respondent No.2 their interim custody cannot be
\n                   sustained and has to be quashed.”\n<\/p><\/blockquote>\n
    2)           Learned counsel for respondent No.2 also relied upon the order <\/p>\n
    passed by Honourable Supreme Court in Criminal Appeal Nos. 283-287\/2002 <\/p>\n
    (arising out of SLP (CRI) Nos. 2790, 2793, 2795, 2797, 2800\/1999) on 22  February,
\n                                                                                         nd<\/p>\n
    2002.\n<\/p>\n
                   ”        The State of Uttar Pradesh is in appeal against the
\n                   direction of the Court directing release of the animals in  <\/p>\n
                   favour   of   the   owner.     It   is   alleged   that   while   those
\n                   animals   were   transported   for   the   purpose   of   being  <\/p>\n
                   slaughtered, an FIR was registered for alleged violation
\n                   of the provisions of Prevention of Cruelty to Animals Act,
\n                   1960, and the specific allegation in the FIR was that the
\n                   animals were transported for being slaughtered, and the  <\/p>\n
                   animals were tied very tightly to each other.  The criminal
\n                   case   is   still   pending.     On   an   appeal   for   getting   the
\n                   custody   of   the   animals   was  filed,   the   impugned   order
\n                   has been passed.   We are shocked as to how, such an
\n                   order could be passed by the learned Judge of the High  <\/p>\n
                   Court in view of the very allegations and in view of the
\n                   charges,   which   the  accused  may   face   in   the  criminal
\n                   trial.   We therefore, set aside the impugned order and
\n                   direct that these animals be kept in the Goshala and the
\n                   State   Government   undertakes   to   take   the   entire
\n                   responsibility of the preservation of those animals so long
\n                   as the matter is under trial.”<\/p><\/blockquote>\n
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\n                                                    13<\/span><\/p>\n
            Accordingly   learned   counsel   for   respondent   No.2   urged   that   interim <\/p>\n
    custody of the animals in question be handed over to respondent No.2 during <\/p>\n
    the   pendency   of   the   aforesaid   case   for   proper   preservation,   maintenance <\/p>\n
    and medical assistance to the said animals.\n<\/p>\n
                    CONSIDERATION :-\n<\/p>\n
    15.             I   have   perused   the   documents   and   papers   annexed   with   the <\/p>\n
    present petition, as well as perused the contents of the First Information Report <\/p>\n
    and also perused order passed by learned Judicial Magistrate F.C. Sindkheda <\/p>\n
    as well as order passed by Adhoc Additional Sessions Judge-1 Dhule and also <\/p>\n
    considered   the   observations   made   in   the   above   referred   Rulings   cited   by <\/p>\n
    learned counsel for the petitioner as well as for respondent No.2  and gave <\/p>\n
    anxious   consideration   to   the   submissions   advanced   by   learned   respective <\/p>\n
    counsel for the parties. and I am inclined to accept the submissions advanced <\/p>\n
    by learned counsel for the petitioner   since as observed by learned Judicial <\/p>\n
    Magistrate First Class, Sindkheda in the order dated 3.12.2009, the petitioner <\/p>\n
    herein   is   having   a   valid   licence   to   sell   and   purchase   the   animals   and   he <\/p>\n
    purchased the said oxen from Khetiya, District Badwani, which he was carrying <\/p>\n
    to his field at village Sindkheda and the learned Judicial Magistrate First Class, <\/p>\n
    Sindkheda   also   verified   original   receipts   which   revealed   that   the   petitioner <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:06:24 :::<\/span>
\n                                                     14<\/span><\/p>\n
    herein is the rightful owner of the said oxen i.e. 29 animals as well as learned <\/p>\n
    Judicial Magistrate First Class, Sindkheda also perused the licence produced <\/p>\n
    by the petitioner which revealed that petitioner herein has valid licence to sell <\/p>\n
    and purchase the animals, and hence, there is no dispute that the petitioner is <\/p>\n
    the rightful owner of the animals in question.  It also appears that the alleged <\/p>\n
    charges     levelled   against   the   petitioner   herein   is   the   first   offence   and <\/p>\n
    respondent   No.1   has   nowhere   pointed   out   that   there   are   any   criminal <\/p>\n
    antecedents against the petitioner herein, and therefore, when the petitioner <\/p>\n
    herein i.e. owner is claiming interim custody of the said animals, respondent <\/p>\n
    No.2   has   no   preferential   right   and   the   petitioner   herein   shall   have   a   better <\/p>\n
    claim for the interim custody of the said animals, during the pendency of the <\/p>\n
    prosecution, but certainly by imposing  conditions upon the petitioner.  In this <\/p>\n
    context, reliance can be very well placed on the observations reported in the <\/p>\n
    case Manager, Pinjrapole Deudar and another, Appellants V. Chakram Moraji  <\/p>\n
    Nat and Others, Respondents<\/a> reported at AIR 1998 Supreme Court 2769 as well <\/p>\n
    as    Bharat   Amratlal   Kothari   V.   Dosukhan   Samadkhan   Sindhi   and   others<\/a>  <\/p>\n
     reported at AIR 2010 Supreme Court 475    (cited supra), by Mrs. Ansari, learned <\/p>\n
    counsel for the petitioner.\n<\/p>\n
    16.             As regards the apprehension posed by the learned counsel for <\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 16:06:24 :::<\/span>
\n                                                    15<\/span><\/p>\n
    respondents in respect of taking said animals to slaughtering house after their <\/p>\n
    release in favour of the petitioner, in fact, the learned Judicial Magistrate First <\/p>\n
    Class,   Sindkheda   has   already   imposed   necessary   conditions   upon   the <\/p>\n
    petitioner while granting interim custody in favour of the petitioner by way of <\/p>\n
    order dated 3.12.2009, and in addition to that, certain other conditions also <\/p>\n
    can be imposed upon the petitioner including  the condition that petitioner <\/p>\n
    shall not take said animals to the slaughtering house and shall not subject the <\/p>\n
    said animals for slaughtering and shall not sale or change the nature of the <\/p>\n
    said animals till the disposal of the case, while releasing the said animals in <\/p>\n
    favour of the petitioner, and imposition of such  conditions upon the petitioner, <\/p>\n
    shall   meet   the   said   apprehension   posed   by   the   learned   counsel   for   the <\/p>\n
    respondents.\n<\/p>\n
    17.             In the circumstances, the petitioner herein shall have better claim <\/p>\n
    over   the   animals   in   question,   in   respect   of   interim   custody   and   shall   have <\/p>\n
    preferential right  over  respondent  No.2,  since   the  petitioner herein  is  rightful <\/p>\n
    owner thereof, whereas respondent No.2 is a Charitable Institution and has no <\/p>\n
    preferential   right   over   the   owner   of   the   animals   i.e.   petitioner   herein   and <\/p>\n
    hence,   the   impugned   order   dated   14.12.2009,   passed   by   learned   Adhoc <\/p>\n
    Additional Sessions Judge-1, Dhule   is required to be quashed and set aside <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:06:24 :::<\/span>
\n                                                 16<\/span><\/p>\n
    whereas the order passed by learned Judicial Magistrate First Class, Sindkheda <\/p>\n
    on 3.12.2009 is required to be restored, but by imposing additional conditions <\/p>\n
    as mentioned below :\n<\/p>\n
    18.            In the result, present petition is allowed in terms of prayer Clause <\/p>\n
    ‘B’ thereof and impugned order dated 14.12.2009, passed by learned Adhoc <\/p>\n
    Additional   Sessions   Judge-1,   Dhule   in   Criminal   Revision   Application   No.<\/p>\n
    225\/2009 stands quashed and set aside, whereas the order dated 3.12.2009 <\/p>\n
    passed   by   learned   Judicial   Magistrate   First   Class,     Sindkheda   in   Criminal <\/p>\n
    Miscellaneous   Application   No.188\/2009   stands   restored,     on   the   following <\/p>\n
    additional conditions  :-\n<\/p>\n
           a)      The petitioner herein shall furnish fresh Suprutnama bond in the <\/p>\n
                   sum of Rs.1,50,000\/- (Rs. One lac Fifty Thousand only), specifying<\/p>\n
                   and undertaking the conditions mentioned in the order dated<\/p>\n
                   3.12.2009 and also in the present order meticulously and shall<\/p>\n
                   observe the said conditions scrupulously.\n<\/p><\/blockquote>\n
           b)      The petitioner shall not subject the 29 oxen\/bullocks in question<\/p>\n
                   for slaughtering purpose and shall not cause damage or injury <\/p>\n
                   to lives and limbs of the said animals in any manner  what so ever<\/p>\n
                   till the disposal of the said case.\n<\/p><\/blockquote>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:06:24 :::<\/span>
\n                                              17<\/span><\/p>\n
           c)   The petitioner herein shall not transfer, sale and \/ or change the <\/p>\n
                nature of the said animals in any manner till the disposal of <\/p>\n
                the case.\n<\/p><\/blockquote>\n
           d)   The petitioner herein shall provide the necessary Medical <\/p>\n
                treatment \/ assistance, water and food to the said animals<\/p>\n
                properly and shall maintain and preserve the said animals with <\/p>\n
                care diligently.\n<\/p><\/blockquote>\n
    19.         Rule is made absolute in aforesaid terms.\n<\/p>\n
                                                            ( SHRIHARI P. DAVARE )
\n                                                                    JUDGE<\/p>\n
                                           …..\n<\/p>\n
    AAA\/<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:06:24 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shaikh Zakir Shaikh Nasir vs “7. I Am Afraid That I Cannot Accede … on 5 July, 2010 Bench: Shrihari P. Davare 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-107312","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShaikh Zakir Shaikh Nasir vs "7. 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