SCR.A/138720/2008 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1387 of 2008 With CRIMINAL MISC.APPLICATION No. 16543 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1 & 2 YES; 3 to 5 NO ========================================================= DOSUKHAN SAMDAKHAN SINDHI - Applicant(s) Versus STATE OF GUJARAT & 7 - Respondent(s) ========================================================= Appearance : MR MUKUL SINHA for Applicant(s) : 1 - 6. MR RC KODEKAR ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, MR VIRAT G POPAT for Respondent(s) : 2, MR NS SHETH for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 30/12/2008 CAV JUDGMENT 1. The petitioners, claiming to be cattle breeders engaged in the business of breeding and trading sheep and goats from Rajasthan, have approached this Court to challenge SCR.A/138720/2008 2/31 JUDGMENT the order dated 05.07.2008 of learned Additional Chief Judicial Magistrate, Deesa in Criminal Misc. Application No.296 of 2008 whereby the application for returning their sheep and goats was rejected, but the cattle were ordered to be taken back from Rajpur-Deesa Panjrapole and to transfer them to any other panjrapole outside the district of Banaskantha. The parties having agreed and requested for final hearing and disposal of the matters, they are admitted and service of Rule is dispensed with. 2. According to the petitioners, petitioner No.6 was transporting from Sanjar in Rajasthan to Ahmedabad the petitioners' sheep and goats by six trucks after taking permit from the transport authority and for selling them at the market at Ranip in Ahmedabad. The journey started from a point seven kilometres inside Rajasthan and the trucks were driven to Dhanera to Deesa to Palanpur in Gujarat and they were to reach Ahmedabad via Sidhpur and Mehsana and the total distance of about 250 kms. was to be covered in 4 to 5 hours including a break near Nandasan village for feeding the cattle. Around 1515 sheep and goats totally valued at Rs.30,30,000/- were being so transported in the night of 16.6.2008 on National Highway No.8 when the trucks were stopped in the early hours of 17.6.2008 near Palanpur and were taken back towards Deesa where they were handed over to Rajpur-Deesa Panjrapole managed by respondent No.2. The cattle of the petitioners in six trucks alongwith 600 more sheep and goats carried in two other trucks were also seized by the respondents with the help of police and the trucks were forcibly taken to the panjrapole while the drivers of the trucks were arrested. While the trucks were so taken over and driven by the drivers SCR.A/138720/2008 3/31 JUDGMENT brought by respondent No.2, one of the trucks over-turned and six goats died on the spot. 2.1 Thereafter, an FIR was lodged by respondent No.2 and it was registered as Deesa City II-C.R.No.3131 of 2008 wherein the date and time of offences are shown to be 17.6.2008 at 03.30 and the date and time of information is stated to be 17.6.2008 at 1900. According to that FIR, offences under section 279 of IPC and section 11 (1) (d) under the Prevention of Cruelty to Animals Act, 1960 and Sections 5, 6 and 8 of the Bombay Animal Preservation Act, 1954 were committed by transporting total 1974 sheep and goats without permit and in a cruel manner due to which 99 animals had already died. It is stated by the complainant-respondent No.2 that, upon an advance information, he was, with three others, waiting in a watch on the highway near Jalaram Cross Road when, at 2.00 o clock in the early hours of 17.6.2008, the trucks in question had passed and they were intercepted by them and as the trucks did not stop at their instance, they chased the trucks in a car and informed the police by their mobile phones. Therefore, the police barricaded the road at a point ahead and seeing the police at that point, drivers of the truck stopped near Aroma Circle and escaped. On an average, more than 200 animals, mostly goats, were being carried in each vehicle and it was learnt from the drivers who were caught by the complainant that the cattle were being transported to Ranip cattle market for being slaughtered. Thus, the trucks and the cattle were taken to the panjrapole run by respondent No.2, the complainant, where 1875 sheep and goats were unloaded and 99 were found to have died on the SCR.A/138720/2008 4/31 JUDGMENT way. It is practically admitted in the FIR itself that the trucks, the cattle and the drivers were kept in the panjrapole by and at the instance of the complainant while Mr.J.K.Bhatti, Police Sub Inspector, Deesa had recorded and registered the FIR. 2.2 Another FIR was lodged on 17.6.2008 at 1430 hours at Palanpur Police Station by Govind R.Rabari, showing himself as accused person for the offence punishable under section 279 of IPC on the basis that while he was driving one of the aforesaid trucks carrying the cattle, at the instance of respondent No.2, he had lost control of the truck due to overweight of cattle and the truck had turned on its side when six cattle had died and the truck was damaged. 3. It is alleged by the petitioners that respondent No.2 along with his headstrong associates illegally grabbed the consignment of sheep and goats by illegally stopping the trucks near Palanpur and forcing them to be taken to Deesa. It is alleged that not a single sheep or goat had died in the truck but large number of them were shown in the FIR to have died to straightaway appropriate them. It is also alleged that respondent No.2 had planned the entire operation of looting the trucks and the local police at Deesa were working hands in glove in tandem. Therefore, one of the petitioners had filed the complaint with Superintendent of Police at Palanpur on 17.6.2008 itself about forcible and violent taking over of the trucks and the cattle along with Rs.500 by respondent No.2. A regular criminal case was filed by that petitioner in the Court of learned Chief Judicial Magistrate, Palanpur and it was registered as Criminal Inquiry No.237 of 2008 on 18.6.2008 for SCR.A/138720/2008 5/31 JUDGMENT the offences punishable under sections 395, 506 (2), 427 and 34 of IPC. It is, inter alia, alleged in the complaint that the persons accused therein, including respondent No.2, had, with the help of police, taken over the trucks and beaten the drivers while thousands of rupees carried on the trucks were looted. According to the complaint, sheep and goats worth Rs.45,48,000/- and cash of Rs.1,11,000/- were looted by the accused persons. Learned Chief Judicial Magistrate has made an order below the complaint directing the District Superintendent of Police of Palanpur to make a report within seven days about investigation conducted pursuant to the earlier complaint dated 17.6.2008 of the complainant. 4. Thereafter, the petitioners made an application under sections 451 and 457 of Cr.P.C. for custody of the cattle, below which the impugned order was made denying custody of the animals to the petitioners. During hearing of that application, the Trust run by respondent No.2 was given sufficient opportunity of being heard and adjournments were granted on the ground that the application of the investigating officer to keep the cattle in question in custody of respondent No.2 was rejected by order dated 27.6.2008 and that order was challenged in a revision application in which an injunction was also sought from the Sessions Court. It is recorded in the impugned order that learned advocate for respondent No.2 tried to browbeat the Court after submitting that any citizen of India had the right to stop any illegal activity and the applicants, petitioners herein, were not dealers in cattle, but the cattle were carried to Ahmedabad for slaughter. It was recorded as a finding of fact that, in the facts of the case, the search and seizure of the sheep and goats was not carried out SCR.A/138720/2008 6/31 JUDGMENT by any police officer or in accordance with the provisions of section 102 of Cr.P.C., but the complainant appeared to have taken the law in his own hands and lodged the complaint thereafter. Even the Police Sub Inspector Mr.J.K.Bhatti had unloaded the cattle at Rajpur-Deesa Panjrapole and sought ex- post facto permission therefor under section 35(2) of the Act, and such unauthorized actions could not be approved. However, in view of the complaints and counter-complaint with allegations of loot and in view of the facts that reputation of he panjrapole of the respondent was bad and prima facie cruelty was committed by carrying excessive number of cattle in a truck, the impugned order rejecting the application for custody of the cattle was made with the direction that the cattle should be shifted within two days to another panjrapole in a nearly district. That was, however, not done till an interim order herein was made on 24.10.2008 in the following terms: "After hearing of the petition at some length, it was submitted by learned counsel Mr.Popat, appearing for respondent No.2 and acceded by learned counsel for the petitioner that pending hearing of the petition and final orders that may be made, order dated 05.07.2008 of learned Additional Chief Judicial Magistrate, Deesa was required to be properly and fully implemented. Accordingly, regardless of any other pending proceedings or orders of the other Courts, respondent No.2 shall, within a period of one week, i.e. on or before 31.10.2008, shift in the proper and legal manner the sheep and goats, 1325 in number, to Panjrapol at Patan. The shifting and transportation shall be carried out by respondent No.2 under the supervision and in presence of the investigating officer of Deesa City Police Station or such other officer as may be entrusted responsibility SCR.A/138720/2008 7/31 JUDGMENT by him. Respondent No.2 and the officer of Deesa police station, supervising the shifting of the cattle, shall make proper identification and Panchnama at the time of loading the cattle and at the time of unloading the cattle at Patan Panjrapol and submit a short report through learned A.P.P. on the next date of hearing. This interim arrangement is worked out and agreed upon without prejudice to the rights and contentions of the parties. The parties will be permitted to argue and take appropriate contentions in respect of the number of cattle which are alleged to have perished or to be missing after the initial seizure by the police. S.O. to 18.11.2008." 5. The net outcome of the proceedings so far was that, as against the claim of total 2115 sheep and goats being transported, 1325 sheep and goats were shifted to the panjrapole at Patan after more than 4 months and they were withheld in the meantime by respondent No.2. After the cattle being shifted as aforesaid, the manager of Patan Panjrapole has made an application for being joined as respondent and made further prayer to pay maintenance charges @ Rs.12/- per day per head of cattle or permit them to keep them during pendency of the matter which is obviously an indirect objection to the cattle being released to the petitioners. 6. The respondent No.2 has, by filing an affidavit, inter alia, submitted that he is Secretary and In-charge of Rajpur-Deesa Panjrapole which is actively involved in preservation of sick and infirm cattle. It is a public trust constituted with the object of nourishing old and infirm or strayed cattle and impeding illegal and unauthorised slaughtering of animals which are illegally transported to SCR.A/138720/2008 8/31 JUDGMENT slaughter houses. There are more than 500 cases wherein the deponent is a complainant or wherein the cattle is given to the panjrapole of the deponent. That he was once brutally attacked by certain butchers and his panjrapole was also targeted to see that he discontinued his activities. According to him, 1974 sheep and goats were seized on 16.6.2008 and, out of them, almost 100 were found dead inside the trucks due to overloading. Since the police officer concerned was not willing to file a complaint in that regard, the deponent had filed FIR being II-C.R.No.3131 of 2008 before Deesa City Police Station and, on 19.6.2008, the police had informed the J.M.F.C. concerned that the muddamal (cattle) was with his panjrapole. When learned J.M.F.C. rejected the request of the police to hand over custody of animals to the deponent, that order was challenged by the deponent as well as the State in a revision application wherein the order of learned Magistrate was stayed. It is further deposed that Hon'ble Governor had recognized the panjrapole of the deponent as one of the panjrapoles where animals were to be kept after their seizure; and the Government has also issued circular dated 29.1.2000 for that purpose. It is stated that the deponent had, in the year 2003, received Mahavir International Award for movement against cruelties towards animals and thereafter in May 2008, he was given Mahavir Award for his work in the field by Her Excellency Smt. Pratibha Patil, the President of India. It is further stated that, at present, more than 10,000 animals are being nourished by the panjrapole of the deponent and his role in the field of protection of animal rights was required to be appreciated. It may be noted here that the aforesaid circular dated 29.1.2000 was relating to care of cows and calves. SCR.A/138720/2008 9/31 JUDGMENT 7. Against the above backdrop of facts and contentions, it was argued for the petitioners that they have not committed any offence, as alleged , under section 11 (1) of the Act or under sections 5, 6 or 8 of the Bombay Animal Preservation Act. That offence under section 11 (1) (d) could be committed only if any person conveys or carries, whether in or upon any vehicle, any animal in such manner or position as to subject it to unnecessary pain or suffering and, in any case, the maximum punishment for the first offence could be fine of 50 rupees. For the purpose of constituting such offence, an owner could be deemed to have committed the offence if he has failed to exercise reasonable care and supervision for preventing the offence. And, nothing in section 11 could apply to commission or omission of any act in the course of destruction or preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by infliction of unnecessary pain or suffering. With that legal background, it was submitted that the animals in question were transported on a journey spanning only 4 to 5 hours, without violating the provisions of the Transport of Animals Rules, 1978. It was submitted that the offences alleged against the petitioners were not cognizable and the provisions of sections 5, 6 and 8 of the Bombay Animal Preservation Act did not apply at all to the sheep and goats. It was also submitted that since the petitioners were ordinary cattle breeders or traders of sheep and goats, they had a fundamental right under the Constitution to do their business and that right cannot be illegally undermined by an unauthorised person or even the State by just alleging offences and taking away the property and stock-in-trade of the petitioners. It was submitted that the petitioners had already SCR.A/138720/2008 10/31 JUDGMENT incurred huge losses and expenses on account of the wholly illegal and unauthorised acts and activities of the respondent and the petitioners were entitled to be compensated therefor under public law. 8. As against the above submissions for the petitioners, it was submitted for the respondent that the trucks were intercepted and seized by or at the instance of police officers on the highway while the animals were transported in violation of the Transport of Animals Rules, 1978. When the livestock was very likely to be taken to slaughter house, the Court was not required to return the muddamal to the owners, but they were required to be preserved in a panjrapole as, at the end of trial, an order for their confiscation could be made. It was submitted that the petitioners could have filed a revision application to challenge the impugned order and the present petition under Articles 226 and 227 of the Constitution was not maintainable. It was submitted that any police officer was entitled to seize the livestock under section 34 of the Act if it were illegally transported for slaughter and that under section 35 (1) of the Act, the animals could be kept in panjrapole without obtaining permission from the magistrate. It is held by this Court in Jiv Daya Mandal Panjrapol v. State of Gujarat [2008 (1) GCD 268] that loading of animals in a vehicle beyond its capacity is itself cruelty upon animals. It was prayed that even if the animals were to be ordered to be released, it should be on very stringent conditions of not selling, transporting or slaughtering them and of producing them as and when directed by the Court concerned, under a bank guarantee or cash security of the amount equivalent to the value of the livestock and with conditions to ensure their proper SCR.A/138720/2008 11/31 JUDGMENT preservation. Learned A.P.P. appearing for the State, has submitted, without any affidavit being filed by any police officer, that the Court may make appropriate final order in respect of the remaining sheep and goats and if the complaint of respondent No.2 were found by this Court to be untenable and if no cognizable offence were made out, it may be quashed in exercise of inherent jurisdiction of this Court under section 482 of Cr.P.C., in order to end the criminal proceedings. It was specifically clarified by him that the State would have no objection if the Court were to impose appropriate amount of fine upon the petitioners, to end the proceedings, if any non- cognizable or cognizable offence were found by this Court to have been committed by the petitioners. 9. Before discussing the judgments cited at the bar, it would be advantageous to extract relevant provisions of the Act. The Prevention of Cruelty to Animals Act, 1960 is enacted with the avowed object of preventing infliction of unnecessary pain or suffering on animals and for that purpose to amend the law relating to the prevention of cruelty to animals. Chapter III of the Act entitled "Cruelty to Animals Generally" defines in section 11 the offence of treating animals cruelly. Relevant part of section 11 reads as under: “11(1) If any person- (a) to (c) ... ... (d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or (e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, SCR.A/138720/2008 12/31 JUDGMENT length and breadth to permit the animal a reasonable opportunity for movement; or (f) to (g) ... ... (h) being the owner of any animal, fails to provide such animal with sufficient food, drink or shelter; or (i)& (j) ... ... (k) offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment; or (l) mutilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; (m) to (o) ... ... he shall be punishable, in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both. (2) For the purpose of sub-section (1), an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence: Provided that where an owner is convicted of permitting cruelty by reason only of having failed to SCR.A/138720/2008 13/31 JUDGMENT exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine. (3) Nothing in this section shall apply to- (a) to (d) ... ... (e) the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering. S.12 ... ... S.13 Destruction of suffering animals (1) Where the owner of an animal is convicted of an offence under section 11, it shall be lawful for the court, if the court is satisfied that it would be cruel to keep the animal alive, to direct that the animal be destroyed and to assign the animal to any suitable person for that purpose, and the person to whom such animal is so assigned shall, as soon as possible, destroy such animal or cause such animal to be destroyed in his presence without unnecessary suffering, and any reasonable expense incurred in destroying the animal may be ordered by the court to be recovered from the owner as if it were a fine. Provided that unless the owner assents thereto, no order shall be made under this section except upon the evidence of a veterinary officer in charge of the area. (2) When any magistrate, commissioner of SCR.A/138720/2008 14/31 JUDGMENT police or district superintendent of police has reason to believe that an offence under section 11 has been committed in respect of any animal, he may direct the immediate destruction of the animal, if in his opinion, it would be cruel to keep the animal alive. (3) Any police officer above the rank of a constable or any person authorised by the State Government in this behalf who finds any animal so diseased or so severely injured or in such a physical condition that in his opinion it cannot be removed without cruelty, may, if the owner is absent or refuses his consent to the destruction of the animal, forthwith summon the veterinary officer in charge of the area in which the animal is found, and if the veterinary officer certifies that the animal is mortally injured or so severely injured or in such a physical condition that it would be cruel to keep it alive, the police officer or the person authorized, as the case may be, may, after obtaining orders from a magistrate, destroy the animal injured or cause it to be destroyed, in such manner as may be prescribed. (4) No appeal shall lie from any order of a magistrate for the destruction of an animal. S.29 Power of Court to deprive person convicted of ownership of animal. (1) If the owner of any animal is found guilty of any offence under this Act, the court, upon his conviction thereof, may, if it thinks fit, in addition to any other punishment, make an order that the animal with respect to which the offence was committed shall be SCR.A/138720/2008 15/31 JUDGMENT forfeited to Government and may, further, make such order as to the disposal of the animal as it thinks fit under the circumstances. (2) No order under sub-section (1) shall be made unless it is shown by evidence as to a previous conviction under this Act or as to the character of the owner or otherwise as