6:,»?“ CLMJJ Ni}; Petitioner AppliCant ..... a‘giax'ia'db M VERgU§ ReSgendent Non Appiicant ‘1 Supurdginama Case No. Crime No. Police Station Off€nce Under Sectiau Status PETITION UNDER SECTION 4‘é/L3 PROCEDURE CQggLL Singio Bench ATTISGAEEH q?! /2011 Mohd. Hasim S/o Mahbub, Aged about 28 years, Caste Musalman, State of Chhattisgarh, through the >311ation House Officer, P.S. qx l. apkara District Jashpur (CG) 08/201 l 34/201Q Taplmra, Diss. Jashpur (C‘GJ L ’5,’ r 10f 1 fee. Krishak Pagim Parirakshan Adhiniyam 2004 Investigation is going on and Challan has not been filed and case is pending before court ol" J 1V1 FC Kunkuri q‘ashpur(C;G.). 01" CRIMINAL OF THE CRlMiNAi, “10R THE SUPURDGINAMA Distt. l ’s’i‘ fitLj-ESP‘GE? BARTJCULARS OF THE CASE }j H R / o Village Lulkidih, Tali. Balisank‘ra, District Sundargarh (Orissa) HIGH COURT OF CHHATI'ISGARH : BILASPUR Sin le Bench: Hon’ble Shri Manindra Mohan Shrivastava J. Cr.M.P.NO.27OI2011 Petitioners Respondents alil Ansari and others Versus State of Chhattisgarh and another Cr.M.P.N0.3911201 1 Ajim Ansari and others Versus State of Chhattisgarh Cr.M.P.N0.433I201 1 Naushad Versus State of Chhattisgarh Cr.M.P.N0.471I201 1 Mohd. Hasim Petitioners Responden‘ Petitioner Respondent Petitioner Applicant Responden‘ Non-applicant Petitioner Applicant Respondent Non-applicant Petitioner Applicant Respondent Non-applicant Mali Versus Sate of Chhattisgarh t Cr.M.P.N0.472/2011 Mahbub Versus State of Chhattisgarh Cr.M.P.N0.473/2011 Suresh Ram Versus State of Chhattisgarh J (Petition under Section 482 of the Criminal Procedure Code, 1973) Present: - Smt. Fouzia Mirza, Shri Jitendra Shrivastava, Shri Arun Shukla. counsel for the respective petitioners. Shri Vaibhav Gbverdhan, Panel Lawyer for the State. Shri 'Anurag Dayal Shrivastava, counsel for respondent No.2. (In Cr.M.P.No.27O of 201 1) ORDER (Pronounced on JrJ- 109/2011) wt The aforesaid petitions flied 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”). ln~ 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 committed / offence under Section 11 of the 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 Seetion 661192 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 11 of the Act of . 1960. 3. The petitioners in each of the aforesaid petitions filed an application for grant of interim custody of the came, aileged to have been seized in connection with ailegation of commission of offence as stated above. In all the aforesaid petitions, except Cr.M.P.No.391 of 201 1‘, application for grant of interim custody was rejected by the Jorisdictional Magistrate, whereupon revision was tiled and revision has also been dismissed ln Cr.M.P.No.391 of 2011, the application tiled 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 Act of 2004. 5. Learned counsel appearing for the respective petitioners made common submissions to the effect that the provisions contained in Section 7 of the Act of 2004, do not override or abridge the power of the Court to ‘ grant interim custody as provided under Section 451/457 of the Code. It has been submitted that the 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. lt is also submitted that as interim custody of cattle, which has been seized from the petitioners, have not been claimed by the nearest register:d Goshala/GosadanlGorakshan 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 or trial. 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 thew, 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 unabie to maintain those cattle and now some of the cattle have also died. ln support of the submissions, which have been,made, learned counsel appearing for the respective petitioners have placed reliance In the case of Hasmattullah vs State of Madhya Pradesh and others, AIR 4' 1996 Supreme Court 2076,'Manager, Pinjrapole Deudar and another v. Chakram Moraii Nat and others, AIR 1998 Supreme Court 2769, M. P. AIT Permit Owners Association vs. State of Madhya Pradesh, (2004) 1 SCC 320, State of Madhya Pradesh and Others vs. Madhukar Rao, (2008) 14 SCC 624, Sunderbhai Ambalal Desai v. State of Gujarat, 2003M M.P.W.N. [1], Gomukhi Sewa Dham Vs. State of Chhattisgarh and four others, 2005(1) M.P.H.T. 1 (CG) and Sonaram and others vs.. State of M.P. and others, 2006(3) M.P.H.T. 490. 7. On the other hand, learned State counsel would submit that as all the petitioners are alleged to have committed offence under the various provisions of the Act of 2004, the interim custody of the cattle is governed 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. lt 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 specit'Ied institutions as provided in Section 7 of the Act of 2004 and not to anybody else inciuding 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 alga draws attention of this Court to the provisions contained in Section 18 of the Act of 2004 to submit that the provisions of the Act have overriding ¢ 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 beenrenacted, to a r_ provide in the interest of general public and to maintain communali"-« harmony and peace, for prohibition of slaughter of Agriculture 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 Agriculture 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 knowiedge 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 agiculture cattle and Monthly reports.- 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. 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 u 1e' Section 1O for contravention of the provisions of Sections 4, 5 & 6 of min ‘ Act, the burden of proving that the slaughter, transport or sale of 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’ overriding effect notwithstanding anything contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act. The Act of 2004 seeks to repeal Agricultural Cattle Preservation A4,, 1959, which was enacted by the State of Madhya Pradesh. 12. The Act of 2004 is therefore, special enactment prohibiting slaughter, prohibition of possession and transport or sale of Agriculture cattle. The Act is applicable in respect of the Agriculture cattle 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 clearly mandates that till the conclusion of prosecution, seized Agricultural cattle will be under the custody of nearest registered Goshala, Gosadan, Gorakshan sansthan or other registered Sansthafi. a 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 l.P.C. and other laws. The same is extracted below- 4. Trial of offences under the Indian Penal Code and other laws.— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall 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, inquiring into, trying or otherwise dealing with such offences. Sub-Section(2) makes provision with regard to investige+ion, enqt Try. trial or otherwise dealing with according to the provisions ct; :gained in the Code. This general provision is however subject to any er rment tor the ’ time being in force regulating the manner or place a invesjgating, inquiring into, trying or otherwise dealing with such offenr 2s. " rerefore, if such procedure is prescribed under the special enarrmem it is th 1; procedure which has to be followed and not the one pm“ {ibet inder tt' Code, as held by the Supreme Court in the case of mate i .:'nion t‘ India) vs. Ram Saran, (2003) 12 SCC 578, where t; were is n tontli 1 between the special Act and the code or where the Special Act r sile; the procedure prescribed under the Code will apply. Howevei whr e 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. (Please see Maru Ram v. Union of India, (1 981) 1 SCC 107 8o Kaushalya Rani v. Gopal Singh, Am 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 not consistent” 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 overriding 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 the prosecution in the matter of commission of offence under the provisions off Y the Act of 2004, the interim custody of seized Agriculture cattle could be given only to nearest registered Goshala, Gosadan, Gorakshan sansthan 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 overriding effect to the provisions of the Act, as provided under Section 18 thereof. 11 14. Learned counsel for the respective petitioners have cited number of decisions before this Coun, which have been referred to above. In none of those decisions, provisions simiiar to that of Section 7 of the Act of 2004, was under examination. 15. ln the case of Hasmattullah (suprat, the Supreme Court examined the constitutional validity of the provisions contained in Section 4 (1)(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 Manager, Pirgrapole Deudar and another (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 ownerof the animal. The Supreme Court laid down relevant governing factors while deciding whether 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 pecuiiar 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 case of Sunderbhai Ambalal Desai (supra) and State of Madhya Pradesh and Others (supra), are also misplaced, as the issue before ' the Court related to scope and ambit of powers under Section‘451/457 of 12 the Code. As this Com 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 Permit Owners Association (supra), is also misplaced and it is clearly distinguishable. 18. ln the case of Gomukhi Sewa Dhdm (supra), this Court examined the claim of 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 examinedthe scheme of the Act of 1959 that no provisions have been made therein regarding safe custody of the cattle, which has been seizeo” nor any provisions have been made, as to whom the interim custody of the cattle will be handed over during the pendency of the 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, Pinirapole Deudar and another (supra), it was held that the owner will have a preferential right in the matter of custody of cattle during the pendency of trial. The aforesaid decision is cleariy‘ distinguishable because under the statutory scheme in the matter of interim custody of Agriculture cattle during the pendency of trial, unlike the MP. Agriculture CattlerPreservation 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 Nabbu vs. State of MR, 2005(3) M.P.L.J. 512, the High Coun of Madhya Pradesh has decided the case relying upon the decision in the case of ’ Gomukhi Sewa Dham (supra). _ 13 @ 19. Learned counse! for the respective petitioners however submitted that even though, the interim custody of the Agriculture cattle could not be given to the petitioners, it could not be given to the private individuals/villagers. ln this regard, it is suffice 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 other 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 only to the persons/institutions specmed 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 201 1') are without any basis and are hereby dismissed. Sd/— M.M.Shrivastava Judge Tumane