No prohibition on possession of dead cows or bullocks skin: Bombay High Court

 on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 1 10 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPUR.CRIMINAL APPLICATIONNO.688 OF 2018Shafiqullaha Kha Ashfaqullha Kha aged about 28 years Occ. Driver R o. Indira Nagar Hiwarkhed Tah. Telhara District Akola. …. APPLICANT VERSUS 1) State of Maharashtra through Police Station Officer Shivaji Nagar Khamgaon District Buldhana. 2)Nilesh Chapalal Bardiya aged about 28 years Occ. Business R o. Satifail Khamgaon District Buldhana. …. NON APPLICANTSShri A.V. Bhide Advocate for applicant.Shri N.S. Rao Addl.P.P. for State.______________________________________________________________ CORAM : V. M. DESHPANDE AND ANIL S. KILOR JJ. DATE :14th DECEMBER 2020.JUDGMENT:559 9of the Maharashtra Animal Preservation Act 1976read with Section 188 of theIndian Penal Code and Section 105 117 of the Bombay Police Act ispraying for quashing the aforesaid first Information Report by thepresent application filed under Section 482 of the Code of CriminalProcedure.3.It is the case of the prosecution that the Pick Up Bolerovan bearing No.MH 37 J 1153 was found carrying animal’s skinand therefore on a complaint lodged by non applicant No2 whoclaims to be a President of Bajrang Dal Khamgaon the firstInformation Report in question was registered. 4.It is the further case of the prosecution that onverification it was found that the vehicle was carrying 187 skins ofcow species which was verified by the Animal HusbandaryDepartment.5.We have heard Shri A.V. Bhide the learned counsel forthe applicant Shri N.S. Rao the learned Additional PublicProsecutor for the State. None for the non applicant No.2 thoughhe was served long back in the month of February 2019. on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 3 10 6.Shri Bhide the learned counsel for the applicantsubmits that the applicant is a driver on a Pick UP van MH 37 J 1153 which is involved in the present crime and owned by ShaikhSuleman Shaikh Chand. It is submitted that the skins were ownedby Mohamad Ayub Shaikh Hussain the Skin Merchant and Tradersat Khamgaon. 7.It is further submitted that at the time of moving theapplication for release of the property on the Suprutnama underSection 457 of the Code of Criminal Procedure Mohamad AyubSheikh Hussain had produced the necessary documents includingUddyog Aadhar Memorandum license under the Maharashtra Shopsand Establishment Act and a bill prepared for selling of raw hide.Thus he submits that there was no contravention of any provision ofthe Act of 1976. 8.Shri Bhide the learned counsel for the applicantsubmits that from the First Information Report and from the reply ofthe prosecution it has come on record that the said vehicle wascarrying 187 skins of animal. He further submits that in view of thesaid undisputed fact the provisions of Section 5559 9of the Act of 1976 would not attract in the present case. on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 4 10 9.To fortify his submission the learned counsel for theapplicant has relied upon the unreported judgment of the DivisionBench of this Court in Criminal Application No.3618 decidedon 21.06.2018 in the case of Shaikh Najir Shaikh Umar Vs. TheState of Maharashtra and another.10.Per contra Shri N.S. Rao the learned Additional PublicProsecutor for the State strongly opposes the present application andprays for dismissal of the same.11.The material allegations levelled against the applicantare for the offences under Section 5559 9of theAct 1976. Thus it is necessary to refer to the said provisions: “Section 5......5A.Prohibition on transport and export of cow bull or bullock forslaughter:No person shall transport or offer for transport or cause to betransported cow bull or bullock from any place within theState to any place outside the State for the purpose of itsslaughter in contravention of the of provisions of this Act or withthe knowledge that it will be or is likely to be so slaughtered.(2) No person shall export or cause to be exported outside theState of Maharashtra cow bull or bullock for the purpose ofslaughter either directly or through his agent or servant or anyother person acting on his behalf in contravention of the on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 5 10 provisions of this Act or with the knowledge that it will beor is likely to be slaughtered.5B.Prohibition on sale purchase disposal in any other mannerof cow bull or bullock:No person shall purchase sell or otherwise dispose of or offer topurchase sell or otherwise dispose of any cow bull or bullock forslaughter or knowing or having reason to believe that such cow bull or bullock shall be slaughtered.5C.Prohibition on possession of flesh of cow bull or bullock: Notwithstanding anything contained in any other law for thetime being inforce no person shall have in his possessionflesh of any cow bull or bullock slaughtered in contraventionof the provisions of this Act.”Section 5(D) to 8....9.Penalties for contravention of Sections 5 5A or 5B: Whoever contravenesor with fine which mayextend toor with both:[Provided thatexcept for special and adequate reasons to be recorded in thejudgement of the court such imprisonment shall not be of lessthan six months and such fine shall not be less than onethousand rupees.]9A.Penalty for contravention of Sections 5C 5D or 6: Whoever contravenes the provisions of sections 5C 5D or 6shall on conviction be punished with imprisonment for a termwhich may extend to one year or fine which may extend to twothousand rupees.”12.The interpretation basically involves an act ofdiscovering the true meaning of the language which has been used on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 6 10 in the statute. The purpose behind interpretation is to clarify themeaning of the words used in the statute which might not be thatclear. The first rule of interpretation is that the words used in thetext are to be given or interpreted in their nature or ordinarymeaning. 13.On the aforesaid touchstone from the reading ofProvision of Section 5it is clear that it prohibits transfer withinthe State or export outside the State cow bull or bullock for thepurpose of its slaughter in contravention of the provisions of the Actof 1976. Section 5prohibits purchase sell or otherwise dispose ofor offer to purchase sell or otherwise dispose of any cow bull orbullock for slaughter. Section 5prohibits possession of flesh of any cow bull orbullock slaughtered in contravention of the provision of the Act 1976. 14.In the present matter the allegations are that theapplicant was carrying 187 skins of cows in the van. There are noallegations that the applicant was transporting or exporting cow bullor bullock for the purpose of slaughter in contravention of provisionof the Act 1976. There are also no allegations that the applicant on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 7 10 purchased or sold or otherwise disposed of or offered to purchase orsell or dispose of cow bull or bullock for slaughter. Thus no offenceconstitutes against the applicant either under Section 5or 5is concerned the expression usedin the said Section is ‘flesh of any cow bull or bullock slaughtered’.It is therefore necessary to consider whether ‘flesh’ includes theskin.16.The flesh is the soft substance consisting of muscle andfat that is found between the skin and bones of a human or ananimal. The main difference between ‘skin’ and ‘flesh’ is that the‘skin’ is a soft outer covering organ of vertebrates and the ‘flesh’ is asoft substance of an animal body that consists of muscle and fat. 17.Having considered the difference between ‘skin’ and‘flesh’ and having considered the basic rule of interpretation it cannot be said that the word ‘flesh’ used under Section 5of the Act 1976 covers the skin of animal. The legislature has expressed itsintention through the word ‘flesh’ used under Section 5of theAct 1976 and therefore the said word needs to be interpretedaccordingly as per the intention of the legislature. on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 8 10 18.This Court in Criminal Application No.3618 Shaikh Najir Shaikh Umar Vs. The State of Maharashtra andanother decided on 21.06.2018 by relying upon the judgment inthe case of Israrul Haq Nisar Ahmed and Ors. Vs. State ofMaharashtra and Ors. and Abdul Hafeez Vs. State of Maharashtra has held thus: “4)The proceeding is filed on the ground that therewas no contravention of provisions of the aforesaid specialenactment. The learned counsel for the applicant took thisCourt through relevant provisions of the Act and submittedthat the raw skin of cattle is not covered undertheaforesaid Act. Learned counsel for the applicantsubmitted that this Court had occasion to consider similarcase and this Court has held that the skin is not coveredunder the provisions of aforesaid Act. Copies ofthe decisions given by this Court in CriminalApplication No.148 2017 at Nagpur Bench and CriminalApplication No.664 2016at Nagpur Bench are produced. This Courthas considered the provisions of the Act including theaforesaid provisions and this Court has held that for thepossession of skin of dead animals there is no prohibition.By making such observations the F.I.R.was quashed in thoseproceedings. This Court holds that no different view ispossible in the present matter also. So the application isallowed. Relief is granted in terms of prayer clausethere is nodoubt that the skin is not covered under the provisions of the Act ofMaharashtra Animal Preservation Act 1976. Thus there is noprohibition for the possession of skin of dead animals and in absenceof such prohibition we have of a convinced view that no offenceunder Section 555attracts in the present matter andconsequently Section 9 and 9also would not attract.20.Moreover in absence of any statutory provision whichprohibits possession of skin of a dead animal even if any circular ornotification or order has been issued by the State Government prohibiting possession of skin such circular notification or orderwhich has no statutory force will not prevail over the provisions ofthe statute and to that extent it would be in contravention with thestatute. Thus the contravention of any such notification or circularor order as regards possession of skin will not attract Section 188 ofthe Indian Penal Code.21.In view of the aforesaid discussion as no offenceconstitutes against the applicant as alleged we are of the opinionthat the present case is a fit case to exercise jurisdiction under on 21 12 2020 on 05 01 26 APL 688 2018(J).odt 10 10 Section 482 of the Code of Criminal Procedure for quashment of theFirst Information Report in question. Accordingly we pass thefollowing order: ORDERi)The Criminal Application is allowed.ii)The First Information Report No.2618 registered withPolice Station Shivaji Nagar Khamgaon District Buldhana for theoffences punishable under Section 5559 9ofthe Maharashtra Animal Preservation Act read with Section 188 ofthe Indian Penal Code and Section 105 117 of the Bombay PoliceAct is hereby quashed and set aside. iii)The application is disposed of no order as to costs. JUDGE JUDGEnd.thawre 

Summary: There is no prohibition in possessing skins of dead animals and the intention of the Parliament in the relevant statue is clear regarding in by only focusing on the word ‘flesh’ and not ‘skin’. This ratio was laid down by the Bombay High Court presided over by J. V.M. Deshpande &amp; J. A.S. Kilor in the case of Shafiquallah Kha Ashfaqullha Kha Vs. State of Maharashtra &amp; Anr., [Criminal Application (APL) No. 688 of 2018]. The brief facts of the case are that an FIR was lodged by the Bajrang Dal president alleging that the Applicant’s vehicle was found to be carrying 187 skins of cow species. The animal husbandry confirmed that the skin was of different cow species. The FIR consisted that the possession of skin was illegal. Aggrieved by the FIR of the Police the Applicant filed the present application to quash the FIR. The Applicant contended that the Applicant was merely a driver who was transporting the skin to a Merchant who had a valid license for selling raw hide. Further, there was no contravention of any section of the Maharashtra Animal Preservation Act, 1976. The Prosecution’s case is that the Applicant is liable for the alleged crimes committed under Section 5-(A), 5-(B), 5-(C) and 9-(A) of the Maharashtra Animal Preservation Act 1976. The division bench of the Bombay High Court allowed the Application in the present case and quashed the FIR. The Court firstly analyzed the relevant section of the Maharashtra Animal Preservation Act, 1976. The Court was of the opinion that the Sections cited by the Prosecution prohibit transfer and sale of cows or bullocks for the slaughter but in this case only skin of the dead cows was being transported there was no contravention of the above given sections. Further, there was no contravention of Section 5-(C) of the Act as it only prohibited possession of the ‘flesh’ of cows, bulls and bullocks and in the present case the Applicant was just in possession of the cow skins. The intention of the legislature was quite clear when they included and focused on the words ‘flesh’ hence the Applicant is not in contravention of any section of the statue and has not carried out any illegal activity.