1 Cri. W.P. No. 45.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 45 OF 2010 Shaikh Chand Shaikh Ayyub, Age : 50 years, Occu.: Cattle Trader, R/o. Lohari, Tq. Pachora, Dist. Jalgaon ... PETITIONER V E R S U S 1] The State of Maharashtra (Copy to be served on Public Prosecutor in the High Court of Judicature of Bombay, Bench at Aurangabad) 2] Shirpur Goshalla Shirpur through Secretary, Prabhakar Balwant Kulkarni near Balaji Mandir, Khalchaegaon, Shirpur, Dist. Dhule ... RESPONDENTS ... Mrs.Sabahat Tariquie Kazi,Advocate for Petitioner Mr.V.D.Rakh,A.P.P. for respondent No.1-State Mr.S.P.Brahme,Advocate for respondent No.2. ... CORAM : A.V. NIRGUDE, J. DATED : 26TH MARCH, 2010 ORAL ORDER : 1] Heard. 2] On 14th November,2009, the petitioner, while transporting 19 cattle heads (male cows) from a place in Madhya Pradesh to Shirpur, District Dhule, was intercepted at Shirpur by the Police. The police suspected that the petitioner was 2 Cri. W.P. No. 45.10 transporting the cattle for slaughtering purpose. The Police also found that two of the cattle were in injured condition and upon disembarkation one of the cattle died immediately. It is also fact that, one more cattle died within few days, due to the injuries etc. The Police immediately registered the offence against the petitioner under section 11(D)(G) of the Maharashtra Animal Preservation Act, 1976.(Hereinafter referred to as “Animal Preservation Act”) and under section 11 of the Prevention of Cruelty to Animals Act,1960, (Hereinafter referred to as “Cruelty to Animals Act”). The Police seized the cattle and eventually were sent to the cattle shed of respondent no.2, who runs charitable Cow Preservation and Protection Centre. The petitioner made an application under section 457 of the Code of Criminal Procedure seeking custody of the cattle head pending the trial. 3] The learned Magistrate rejected the application, mainly on the grounds that prima facie petitioner intended to use the animals for slaughtering and the allegations that they were going to slaughter house is believable. The matter was then taken to the Court of Ad-hoc Additional Sessions Judge-1 Dhule in Revision Application No. 224 of 2009. Even the learned Ad- hoc Additional sessions Judge rejected the petitioner's plea for following reasons- i]Th The Petitioner did not possess the license of the sale and 3 Cri. W.P. No. 45.10 purchase of the cattle head. ii] Whether the petitioner purchase the cattle head in the state of Madhya Pradesh is doubtful? iii] Having regard to the number of cattle, their sex and age, they could not have been acquired for the purpose of business of milk or for agricultural use. iv] The petitioner did not have permit under section 6(b) (Permit for export of cattle from Madhya Pradesh) required under the provisions of Madhya Pradesh Agricultural Cattle Preservation Act, 1959). v] The animals are of young age. 4] This order is being challenged in this Writ petition. 5] The learned Advocate appearing for the petitioner submitted that prima facie findings of the Courts below that the animals were brought to Shripur for slaughtering purpose is perverse. Secondly, she submitted that the animals were brought for the purpose of trade and the petitioner is a regular trader in cattle and is resident of nearby village. In order to apprerciate the arguments of the counsels of the parties one must keep in mind the relevant provisions of the statutes. Section 5 of the Animal Preservation Act prohibits slaughter of cows (both male and female). The provisions reads as under- Section 5: Notwithstanding anything contained in any other 4 Cri. W.P. No. 45.10 law for the time being in force or any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer for slaughter any cow, in any place in the State of Maharashtra. 6] Section 9 provides penalty for contravention of the provisions of Animal Preservation Act. Section 9: Whoever contravenes any of the provisions of this Act shall, on conviction, be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both. 7] The Act provides definition of the abetment and attempt for committing offence under section 11, it reads as under - Section 11 : Whoever abets any offence punishable under this Act or attempts to commit any such offence shall be deemed to have committed that offence and shall, on conviction, be punished with the punishment provided for such offence under section 9. 8] The first question is, whether act of the petitioner bringing cattle from a place in Madhya Pradesh, without securing transport permit referred to above, to the State of Maharashtra, more particularly to Shirpur prima facie amounted to abetment of the offence under section 9 read with section 5 of the Animal Preservation Act. The answer to this question is in negative. It is seen that the petitioner had loaded as many as (19) young oxes in a small Tempo. It is also an admitted fact that two of them were found in injured condition when they were unloaded at Shirpur and that one of them died instantly. This in itself can not lead to the conclusion that the 5 Cri. W.P. No. 45.10 oxes were intended to be sent to slaughter house or were intended to be sold to an an agent who would sell them to a slaughter house. The prosecution case does not indicate that the vehicle was intercepted near a slaughter house or for that matter a well known slaughter house is situated at Shirpur. Shirpur is neither a well known place where trade of cattle meant for slaughter takes place. A similar situation had arisen before this court, in the case of Shaikh Ahmed Hussain Vs. State of Maharashtra (1992(2) BCR Page 392. The Ld. Single Judge of this court held in that case, “before an accusation can be levelled under the provisions of section 11 of the Animal Preservation Act, it must be demonstrated that accused had brought the cattle for slaughtering purpose. The prosecution has to show special circumstance, such as the fact that the accused, the persons who had the custody of the animals are regular and habitual traders in meat business and that the animals were kept at such a place where slaughter normally takes place”. 9] I think the learned Judge of the lower Court as well as the learned Magistrate got undue influenced by the fact that large number of oxes were transported in a small vehicle and while they in transit their proper care was not taken. Besides two of them died. Unfortunately, the Courts below were not shown the judgment referred to above. 1o] The Second question that arose for consideration is “whether the petitioner had prima facie committed the offence punishable under 6 Cri. W.P. No. 45.10 section 11 of “Cruelty to Animals Act”. S.11 provides the definition of the term treating the animals to cruelty, it reads as under - 11] Treating animals Cruelty:-(1) If any person- (a) beats, kicks overrides, overdrives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated ; or (b) [employs in any work or labour or for any purpose any animal which, by reason of its age or any disease], infirmity, wound, sore or other cause, is unfit to be so employed, or being the owner, permits any such unfit animal to be so employed; or (c) Wilfully and unreasonably administers any injurious drug or injurious substance to (any animal) or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by ( any animal); or (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, length and breadth to permit the animal a reasonable opportunity for movement; or (f) keeps for an unreasonable time any animal chained or tethered upon on unreasonably short or unreasonably heavy chain or cord; or (g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or (h) being the owner of (any animal), fails to prove such animal with sufficient food,drink or shelter; or (i) without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst; or (j) willfully permits any animal, or which he is the owner, to go at large in any street while the animal is affected with contagious or infectious disease or without reasonable excuse permits any diseased or disabled animal, of which he is the owner to die in any street; or (k) offers for sale or, without reasonable cause, has in his possession 7 Cri. W.P. No. 45.10 any animal which is suffering pain by reason of mutilation, starvation, thirst, over-crowding or other ill-treatment; or (l) mutilates any animals or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; or (m) solely with a view to providing entertainment- (i) confines or causes to be confined any animal(including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or (ii) Incites any animal to fight or bait any other animal; or] (n) [****] organises, keeps,uses or acts in the management of, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such purposes; or (o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting 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 purposes 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 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) The dehorning of cattle, or the castration or branding or nose- roping of any animal,in the prescribed manner; or (b) The destruction of stray dogs in legal chambers or [by such other methods as may be prescribed]; or (c) The extermination or destruction of any animal under the authority of any law for the time being in force; or (d) Any matter dealt with in Chapter IV; or 8 Cri. W.P. No. 45.10 (e) The commission or omission of any act in the course of 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. 11] Clause (d) of sub Section 1 of S. 11 would certainly apply to the facts of the case. The petitioner prima facie treated the animals with cruelty, because he was found carrying the animals in a vehicle in such a manner so as to subject them to unnecessary pain and suffering. Section 29 of the Cruelty to Animals Act provides that upon conviction for the offence under the provisions of this Act the Courts if thinks fit in addition to other punishment, make an order that the animal with respect to which the offence was committed should be forfeited to the Government etc. Now the question is what order is required to be passed u/s 457/451 of Cr. P.C.? 12] While dealing with such application there is no doubt that the Court should ensure that even after the cattle are released from the custody, they are provided proper protection and preservation. In this regard reliance can be placed on the judgment of Division Bench of our High Court in the case of Krushi Goseva Sangh and another Vs. The State of Maharashtra and others reported in 1987(3) Bombay C.R.713. The Division Bench held as under : 9 Cri. W.P. No. 45.10 “It is no doubt true that no provision is made in the act about the custody and disposal of the property pending the trial. However, recourse could be taken to section 451 of the Criminal Procedure Code for seeking a direction from the competent Court of law for the custody and disposal of the property pending trial. The competent Court is expected to pass an order which will be in tune with the Legislation. An order cannot be passed which will defeat the very object of the Act. The order should be for preservation and protection of the cow or schedule animals and not for its slaughter or destruction. It is by now well settled that what is directly forbidden cannot be indirectly permitted”. 13] The learned Advocate appearing for the respondent No.2 also placed reliance on the judgment of our High Court in the case Jivdaya PashuPashkhi Saurakshan and Sanwardha Santsha Vs. State of Maharashtra and another reported in 2009 All MR (Cri)3230. I am afraid, the ratio of this judgment is not applicable to the facts of the case, because the question before the learned single Judge of this court was as to who would be able to take better care of seized animals during the pendency of the trial. The Court held on facts that, it would be the petitioner and not the accused, who would take better care of the animals. Based on this, the learned advocate appearing for the respondent No.2 also tried to argue that the petitioner neither had permit for transportation of the animals, but even did not possess the license for purchase or sell of bullocks. Transporting bullocks or animals without obtaining permit required under the provisions of Madhya Pradesh Act, is not an offence alleged 10 Cri. W.P. No. 45.10 against the applicant, so I am not required to go into the such violation and its consequences. 14] However, I asked both the learned Advocate appearing for the respondents, as to whether any provision of any law requires obtaining of license or permit for carrying of business of trade of cattle or for purchase or sale of bullocks or such animals. The learned APP for respondent No.1 came up with the provisions of Bombay Essential Commodities and Cattle Control Act 1958 (Hereinafter referred to as “Cattle Control Act”). The section 4 of the Cattle control Act, provides that, the State Government may by order provide amongst other things for regulating by license, permit or otherwise the movement, transportation disposal, acquisition, use and keeping of cattle. 15] The learned APP appearing for respondent no.1 also placed reliance on the provisions of schedule annexed to the Cattle Control Act, which mentioned the bullocks amongst other type of cattle. He then placed reliance on the Bombay Cattle (Licensing and Maintenance) Order 1958, to suggest that the license for keeping cattle as required by this order was necessary for the purpose of trading of the bullocks. However, the provision of the order do not cover bullocks or bulls but covers and takes care only of cows and she buffaloes or calves. The cattle Control Act and the Order referred to above were mainly 11 Cri. W.P. No. 45.10 concerned with equitable distribution of milk and dry cows and buffaloes. The Act was passed for control, regulation and protection of supply and distribution of trade and commerce in certain areas and maintenance and movement of cattle. I am afraid, the provision did not require license or permit for the purpose of trade, sale or purchase of the oxes, bullocks and steers in the State of Maharashtra. 16] In this case though the offence under section 5 read with section 9 of Preservation Act does not prima facie appear to have been committed, but facts clearly make out prima facie an offence under section 11 of the Cruelty to Animals Act. 17] In my view, the petitioner is entitled to return all cattle on usual bond, but there shall be further conditions imposed on him to protect and for preservation of the cattle during the pendency of the case. 18] The observation made in this judgment shall not influenced the Courts below while deciding the case on merits. Hence the following order- ORDER 1] The Criminal Writ Petition is allowed. 2] On the petitioner's executing a Bond of Rs.50,000/-(Rs. Fifty Thousand) to 12 Cri. W.P. No. 45.10 the satisfaction of the learned Magistrate, the cattle shall be returned to him. 3] The petitioner shall take adequate care of the cattle and shall produce them as and when required by the Court. 4] The volunteers of the respondent no.2 shall visit the cattle-shed of the petitioner, at the address which shall be supplied by the petitioner to the respondent No.2 within one week from the date of the signing of the order and periodically examine the health of the cattle through a Veterinary surgeon. 5] The respondents are at liberty to make application to the learned Magistrate, if need arises. 6] The learned Magistrate is directed to dispose of the criminal case, as far as possible within two months from the date of signing of the order. Sd/- (A.V. NIRGUDE, J.) MTK/ok