IN THE HIGHCOURT OF CHHATTISGARH AT BILASPUR CRIMINAL MISC. PETITION N0. ^'a, QF 2011 PETITIONERS 4. 6. Jalil Ansari, S/o Mostkeem Ansari, aged about 48 years, ;Qccupation Agriculturist/ Gattle Business, R/o village Dahejwar, Police Station & Tahsil Balrampur, District Sarguja (CG). Amanath Ali, S/o Juldhan, aged about 25-^Js;ea?s, R/6 village Vijaynagar, Police Station . & Tahsil ' Rainanujganj, District Sarguja (CG). Ilfaj Ansari, S/o Hussain Arisari, aged about 35 years, R/o village Vijaynagar, Police Station SE Tahsil Ramanujganj, District Sarguja (GG). Alamgir, S/o Aminuddin, aged about 40 years, Occupation Agriculturist, R/o village Vijaynagar, Police Station 8s Tahsil Rcunanujganj, District Sarguj'a(CG). Gayasuddin Ansari, S/o Abdul Gani, aged about 60 years, Occupation Agriculturist, R/o village Aara, Police Station & Tahsil Daurpur, District Sarguja(CG). Abdul Sammad, S/o Peer Mohammad, aged about 35 years, Occupation Agriculturist, R/o village Vijaynagar, Police Station & Tahsil RamaDujganj, Disfrict Sarguja (CG). <^=. r 7. Idarish Ansari, S/o Yasin Ansari, aged about 45 years, Occupation Agriculturist, R/o village Aara, Police Station SE- Tahsil Daurpur, District Sarguja (CG). 8. Zakir Ansari, S/o ^ Pir Mohammad, aged about 35 years, Occupation Agriculturist, R/o village Aara, Police Station SE Tahsil Daurpur, District Sarguja (CG). 9. Aabid Ansari, S/o ,-Diljan Ansari, aged about 60 years, Occupation Agriculturist & Business, R/op village Kalikapur, Police Station Ramchandrapur, Tashil Pal (Ramanujgan), Dist. Sargi.y'a (CG). 10. Mohd. Abrar, S/o Ishrad Ansari, aged about 30 years, Occupation Agriculturist, R/'o village Vijaynagar, Police Station & Tahsil Ramanujganj, District Sarguja (CG). 11. Hamid Ansari, S/o Nadir Miya, aged about 50 years, Occupation Agriculturist, R/o village Vijaynagar, Police Station SE Tahsil Ramanujganj, District Sarguja (CG). RESPONDENTS Versus 1. State of Chhattisgarh, through the Station House Officer, Police Station Lundra, District Sarguja (CG). ^ t^ •;^5''^;,^3^: •^ ::iA- 2. Seva Ram Agrawal, Director, Agrasen Gau Seva Sadan, Chatrima (Ambikapur), Dist. Sarguja (CG). ^" PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 Resnondents 4^ mOH COURT OF CHHAmSGARH : SILASTVR Sinele Beacb: Hon'ble Sbri Manindra Mohan Sbrivastava. J. Cr.M.P.NO.270/3011 JalU Ansari and others Respondent Non-appUcant Petltipner AppUcant Resoondent Non-appUcant Versus State of Chbattisgarh and another Cr.M.P.NO.391/2011 Ajim Ansari and others Versiis State of Chhattisgarh CT.M.P.NO.433/2011 Naushad Veisus State of Chhattisgarh Cr.M.P.NO.471/2011 Mohd. Hasim Versus State of Chhattisgarh Cr.M.P.NO.472/2011 Mahbub Versus State of Chhattisgarb r^5?Srai^i^S'Sft'-l--J-!l^-^4^rf^ ^f^S»jSii-s!!h5^ff'!s^ff^f\sv- ^:?'^SJ:<T F PetiUoner AppUcaat Resnondent Non-appUcant Cr.M.P.NO.473/2011 Suresh Ram Venus State of Chhattisgarh .«/- FOR PRONOimCBMENT OF ORDER ON 2.' SEPTBMBER, 2011 Sd/- Manindra Mohan Shrivastava Judge \ "< ^ ^flt Respondents HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. Cr.M.P.NO.270/2011 Jalil Ansari and others Versus State of Chhattisgarh and another Cr.M.P.NO.391/2011 Ajim Ansari and others Versus State of Chhattisgarh Cr.M.P.NO.433/2011 Naushad Versus State of Chhattisgarh Cr.M.P.NO.471/2011 Mohd. Hasim Versus State of Chhattisgarh Cr.M.P.NO.472/2011 Mahbub Versus State of Chhattisgarh Cr.M.P.NO.473/2011 Suresh Ram Versus State of Chhattisgarh Respondent Petitjoner Respondent Petitioner Applicant Respondent Non-applicant Petitioner Applicant Respondent Non-applicant Petitioner Applicant Respondent Non-applicant (Petition under Section 482 oftheCriminal Procedure Code, 1973) Present: - Smt. Fouzia Mirza, Shri Jitendra Shrivastava, Shri Arun Shukla, counsel for the respective petitioners. Shri Vaibhav Goverdhan, Panel Lawyer for the State. Shri Anurag Dayal Shrivastava, counsel for respondent No.2. (In Cr.M.P.No.270of2011) ORDER (Pronounced on -2-1/09/2011) The aforesaid petitions filed by the respective petitioners under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") are being disposed of by this common order as common question of law arises for consideration. 2. The respective petitioner, in all the above petitions, are alleged to have committed offence under the Chhattisgarh Agricultural Cattle Preservation Act, 2004 (hereinafter referred to as "the Act of 2004"). In addition to allegation of commission of offence under the Act of 2004, the ^ petitioner in Cr.M.P.No.433 of 2011, is also alleged to have committe^ offence under Section-11 ofthe Prevention of Cruelty to Animal Act, 1960 (hereinafter referred to as "the Act of 1960") and under Section 47 ABC, 48, 49 ABC, 50, 59, 53, 54(1) (2) (3) of Transportation of Cattle Act as also under Section 66/192 of the Motor Vehicles Act and the petitioners in Cr.M.P.No.270 of 2011 are alleged to have committed offence under Section 11 of the Act of 1960. The petitioners in Cr.M.P.No.391 of 2011, are also alleged to have committed offence under Section 1 1 of the Act of 1960. SS^ J ^.../^ 'y.^f ^~w^' 3. The petitioners in each of the aforesaid petitions filed an application for grant of interim custody of the cattle, alleged to have been seized in connection with allegation of commission of offence as stated above. In all the aforesaid petitions, except Cr.M.P.No.391 of 2011, application for grant of interim custody was rejected by the Jurisdictional Magistrate, yhereupon revision was filed and revision has also been dismisssd. In 'Cr.M.P.No.391 of 2011, the application filed by the petitioners in their respective cases for grant of interim custody was allowed by the Magistrate, against which, the State preferred revision. The revision filed by the State, has been allowed and the order of grant of interim custody in favour of the petitioners has been set aside, against which, petitioners have been filed the instant petition. 4. ln all the cases, application for grant of interim custody of cattle filed by the petitioners, who are facing prosecution for commission of offence under the Act of 2004 and in some cases under other enactments also, has been rejected on a common ground that in view of the provisions contained in Section 7 of the Act of 2004, interim custody of the cattle could not be given to the applicants, who are facing prosecution, during the pendency of the trial for alleged commission of offence under the A"t of 2004. 5. Leamed counset appearing for the respective petitioners i adt common submissions to the effect that the provisions contained in Se aor 7 of the Act of 2004, do not override or abridge the power of the Court tc grant interim custody as provided under Section 451/457 of the Cod.... It has been submitted that ffite provisions under Section 451 of the Code alone are applicable in the matter of grant of interim custody during the pendency of investigation, enquiry and trial; The Code of Criminal Procedure, 1973, being a central enactment, would override the provisions contained in the Act of 2004, and therefore, to the extent of inconsistency, the provisions contained in Section 7 of the Act of 2004 are not applicable. It is also submitted that as interim custody of cattle, which has been seized from the petitioners, have not been claimed by the nearest registeied Goshala/Gosadan/Gorakshan sansthan or any other registered Sansthan, provisions of Section 7 will have no application, and therefore, the petitioners, who are the owners of the cattle, in respect of which, the receipts of purchase of cattle have been submitted, have a preferential right and are entitled for interim custody during the pendency of investigation, enquiry ortrial.It has also been contended that unless prima facie case of commission of offence under Section 4, 5 &6 of the Act of 2004 are made out, the petitioners application for grant of interim custody could not be rejected by applying the rigour of Section 7 of the Act of 2004, and in those cases, the power of the Magistrate under Section 451 of the Code is not taken away. 6. In case, where offence under other enactment, other than the Act of 2004, has been registered, it is contended that as there are no such provision with regard to interim custody of cattle during the pendency of investigation, enquiry of trial, general provisions contained in Section 451 of the Code would become applicable. Lastly, it is contended that the cattle, which have been seized for alleged commission of offence under ^ the Act of 2004 and other enactments, have neither been given to the petitioners for interim custody nor to the institution mentioned under the Act of 2004, but the custody has been given to the villagers, who are unable to maintain those cattle and now some of the cattle have also died. In support of the submissions, which have been made, learned counsel appearing for the respective petitioners have placed reliance in the case of Hasinattullah vs. State of Uadhya Prddesh and others, AOt 2996 Supreme Court 2076, ISanager, Pir^rapole Deudar and fuwther v. Chafcram Morc^ji Nat cmd others, AIR 1998 Supreyie Court 2769, M. P. AIT Permit Owners Association vs. Stdte of Uadhya Pradesh, (2004) 1 SCC 320, State ofMadhya Prddesh and Others vs. Mctdhukar Rao, (2008) 14 SCC 624, Sunderbhai Ambalal Desai v. State of O^jarat, 2003(0) M.P.W.N. [l], Gomukhi Sewa Dham Vs. State of Chhattisgarh and four others, 2005(1) M.P.H.T. 1 (CG) and Sonaram cmd others vs. State o/MP. and others, 2006(3) M.P.H.T. 490. 7. On the other hand, learned State counselwould submit that as all the petitioners are alleged to have <ximmitted offence under the various provisions of the Act of 2004, the interim custody of the cattle is govemed by the provisions contained in Section 7 of that Act, according to which, till the conclusion of prosecution, seized agriculture cattle will be under custody of nearest registered Goshala, Gosadan, Gorakshan sansthan or any other registered Sansthan. It is submitted by the learned State counsel that in view of the aforesaid provisions contained in special enactment, the power of the Magistrate under Section 451 of the Code is circumscribed and the interim custody of cattle could be given only to the specified institutions as provided in Section 7 of the Act of 2004 and not to anybody else including petitioners, who are accused and/or owner of those cattle. He submits that there is no discretion left with the Magistrate as to whether cattle should be given to the specified institution or to the owner of the cattle or anybody else including the petitioners/accused, under such circumstances Section 7 of the Act of 2004 permits grant of interim custody ^ only to specified institutions and nobody else. Learned State counsel also draws attention of this Court to the provisions contained in Section 18 of the Act of 2004 tosubmit that the provisions of the Act have ovemding effect notwithstanding anything contained in any other law for the time being in force. 8. In order to appreciate the submission of learned counsel for the respective parties, it is relevant to examine the provisions contained in the Chhattisgarh Agricultural Cattle Preservation Act, 2004. The Act of 2004, as stated in its preamble, has been enacted, to provide in the interest of general pubtic and to maintain communal harmony and peace, for prohibition of slaughter ofAgriculture cattle and for matters connected thereto. Section-4, 5 & 6 of the Act of 2004 prohibit slaughter of Agriculture cattle, possession of beef of any Agriculture cattle slaughtered in contravention of the provisions of the Act of 2004 and prohibition of sale, or transport of any Agricutture cattle from any place within the State to any place other than the State or outside the State for the purposes of its slaughter in contravention of the Act or with the knowledge that it will be or is likely to be, so slaughtered. 9. Section 7 of the Act of 2004 being extremely relevant for decision of the controversy involved in this case, is extracted as below:- 7. Possession of seized agriculture cattle and Monthly reports.- TU1 fhe conclusion of prosecution, seized Agricultural catfle will be under custody of nearest registered Goshala, Gosadan, Gorakshan sansthan or other registered Sansfhan and they are reqiiired to provide inonthly report to concemed court in prescribed proforma. ?- 10. The provisions contained in Section 7 of the Act of 2004 in unequivocal terms, clearly provide that till the conclusion of prosecution, seized Agricultural cattle will be under custody of nearest registered Goshala, Gosadan, Gorakshan sansthan or other registered Sansthan and they are required to provide monthly report to concerned court in prescribed proforma. 11. Section 10 of the Act of 2004 provides for penalty that whoever contravenes or attempt to contravene or abets the contravention of the provisions of Section 4, 5 and 6 shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees or with both. Section 11 of the Act of 2004 provides that in any trial for an offence punishable under Section 10 for contravention of the provisions of Sections 4, 5 & 6of this Act, the burden of proving that the slaughter, transport or sale of Ss 6i>i •s:i Agricultural cattle was not in contravention of the provisions of this Act shall be on the accused. Offences under the Act have been made cognizable and non-bailable notwithstanding anything contained in the Code of Criminal Procedure. Section 18 of the Act of 2004 importantly provides that the provisions of the Act shall have an ovemding effect notwithstanding anything contained in any other law for the time being in force or any instrument tiaving effect by virtue of any law other than this Act. The Act of 2004 seeks to repeal Agricultural Cattle Preservation Afct, 1959, which was enacted by theState of Madhya Pradesh. 12. The Act of 2004 is therefore, speciat enactment prohibiting slaughter, prohibition of possession and transport or sale of Agriculture cattle. The Act is applicable in respect of the Agriculture cattte being animal specified under the schedule appended to the Act. The Act contains special provision with regard to interim custody/possession of seized Agriculture cattle. It cleariy mandates that till the conclusion of prosecution, seized Agricultural cattle will be under the custody of nearest registerea Goshala, Gosadan, Gorakshan sansthan or other registered Sansthan. Therefore, till the conclusion of prosecution, interim custody of seized Agriculture cattle could only be given to specified institutions. The provision contained in Section 7 of the Act of 2004 therefore, impliedly prohibits interim custody of Agriculture custody to any person or institution other than those specified in Section 7 of the Act. In view of the provisions contained in Section 18 of the Act, provisions of Section 7 will have overriding effect notwithstanding anything contained in any other law for the time being in force. 13. Section 4 of the Code makes provision with regard to trial of offence under the I.P.C. and other laws. The same is extracted below- 4. Trial of offences under the Indian Penal Code and other laws.—(1) AU ofFences iinder the Indian Penal Code (45 of 1860) shaU be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) AU offences iinder any other law shaU be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inqiuring into, trying or otherwise dealing wifh such offences. Sub-Section(2) makes provision with regard to investigation, enquiry, trial or otherwise dealing with according to the provisions contained in the Code. This general provision is however subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore, if such procedure is prescribed under the special enactment, it is that procedure which has to be followed and not the one prescribed under the Code, as held by the Supreme Court in the case of State (Union of India) vs. Ram Saran, (2003) 12 SCC 578, where there is no conflict between the special Act and the code or where the Special Act is silent, the procedure prescribed under the Code will apply. However, where different procedures has been prescribed in the special enactment, in view 10 of the provisions contained in Section 4(2) of the Code, provisions contained in the special enactment will be applicable. The provisions contained in the Code shall apply to the extent that it is not consistent with the provisions contained in the special enactment. Furthermore, provision contained in Section 5 of the Code, leave no doubt that special provisions contained in special law will prevail and override provision of the Code. (Pleasg see Maru Ram v. Union of India, (1981) 1 SCC 107 & Kavshalya Rani v. Gopal Singh, AIR 1964 SC 260) Therefore, the provisions contained in Section 451 of the Code will apply in the matter of interim custody to the extent that it is notconsistent with the provisions contained in Section 7 of the Act of 2004, moreover, so because, by virtue of provisions contained in Section 18 of the Act of 2004, it will have an ovemding effect. The power of the Magistrate to provide interim custody, is therefore, circumscribed and limited by the provisions contained in Section 7 of the Act of 2004. The result is that while granting interim custody of the Agriculture cattle during the pendency of prosecution in the matter of commission of offence under the provisions oF the Act of 2004, the interim custody of seized Agriculture cattle could be given only to nearest registered Goshala, Gosadan, Gorakshan sansthan y or other registered Sansthan. Grant of interim custody to other person including accused or owner is impliedly prohibited. This is clear from the mandate of Section 7 and the ovemding effect to the provisions of the Act, as provided under Section 18 thereof. 11 14. Learned counsel for the respective petitionere have cited number of decisions before this Court, which have been referred to above. In none of those decisions, provisions similar to that of Section 7 of the Act of 2004, was under examination. 15. In the case of flasmattultah (supra), the Supreme Court examined the constitutional validity of the provisions contained in Section 4 (^)(a) of the M. P. Agriculture Cattle Preservation Act, 1959, as to whether it seeks to impose unreasonable restriction on the fundamental rights of the butchers. 16. In the case of ISanager, Pinjrapole Deudcir and cmother (supra), the scope, purport and object of Section 35 of the Act of 1960, relating to interim custody of the animal was examined. It was held that though Magistrate has discretion to hand over the animal to Pinjrapole, the Pinjrapole have no preferential right over the owner of the animal. The Supreme Court laid down relevant goveming factors while deciding ^yhether the interim custody of the animal be given to the owner, who is facing prosecution, or to the Pinjrapole. However, in the present case, the element of discretion has been completely taken away in view of the peculiar provisions contained in Section 7 of the Act of 2004. Therefore, the aforesaid decision does not help the petitioners. 17. For the reasons stated above, reliance placed on the decision in the -icase of Sunderbhai Ambalal Desai (supra) and State of Ucidhya [pradesh cmd Others (supra), are also misplaced, as the issue before ^he Court related to scope and ambit of powers under Section 451/457 of -^ v 12 the Code. As this Court is not examining constitutional validity of the provisions contained in the Act of 2004, reliance upon the decision in the case of M. P. AIT Permlt Owners Associatlon (supra), is also misplaced and it is clearly distinguishable. 18. In the case of Gomukhi Sewa Dhcmi (supra), this Court examined the claimof the owner to take interim custody of the cattle in question during the pendency of the trial, for alleged commission of offence under the M.P. Agriculture Cattle Preservation Act, 1959. Having examined the scheme of the Act of 1959 that no provisions have been made therein regarding safe custody of the cattle, which has been seized nor any provisions have been made,as to whom the interim custody ofthe cattle will be handed over during the pendency ofthe investigation or trial, it was held that general provisions of Section 451 of the Code will be applicable. Relying upon the decision of the Supreme Court in the case of Manager, Pinjrcyiole Deudar and another (supra), it was held that the owner will have a preferential right in the matter of custody of cattl| during the pendency of trial. The aforesaid decision is clearl^ distinguishable because under the statutory scheme in the matter of interim custody of Agriculture cattle during the pendency of trial, unlike thp; M.P. Agriculture Cattle Preservation Act, 1959, there is specific provision now made in the Section 7 of the Act of 2004. The aforesaid decision therefore does not help the case of the petitioners. In the case of Nabbv. vs. State of M.P., 2005(3) M.P.L.J. 512, the High Court of Madhya Pradesh has decided the case relying upon the decision in the case of / Gomufcht Seu>u J?ham(supra). ^. y^'\ ^ ••'. :< ,;>/'-^ " «-_'<;• • ^ N y 13 19. Learned counsel for the respective petitioners however submitted that even though, the interim custody ofthe Agriculture cattle could not be given to the petitioners, it could not be given to the private individuals/villagers. In this regard, it is sufRce to say that the provisions contained in Section 7 are unambiguous and interim custody of Agriculture cattle could be granted only to those institutions, which have been specified in Section 7 and to none other. The petitioners in the aforesaid case shall be at liberty to move application before the Court below, if in any case, interim custody of the cattle has been granted to any person ofher than those specified in Section 7 of the Act of 2004. On such applications being filed, the trial Court shall pass necessary order ensuring that interim custody of Agriculture cattle is granted onty to the persons/institutions specified in Section 7 of the Act of 2004. 22. Subject to the aforesaid observations, all the aforesaid petitions (Cr.M.P.No.270, 391, 433, 471 , 472 & 473 of 2011) are without any basis and are hereby dismissed. ^anindra MsodhanShriv^ava Judge Tumane