Monday, 10 August 2015

When shebuffaloes can be released on supratnama to its owner?

I   am   completely   in   agreement   with   the   argument   so
advanced   on   behalf   of   respondent   No.2.     Once   it   is   found   that
respondent No.2 is prima facie owner of the seized cattle and it has

also   been   found   that   on   the   parameters   governing   discretion   for
release of custody of the seized articles or cattle under Section 457
Cr.P.C., respondent No.2 is entitled to the custody of the animals, the
Court cannot stand in between respondent No.2 and the animals on
the ground that trial is likely to be concluded in a shorter period of
time. Otherwise, it would only mean granting that relief quietly which
cannot be granted openly.  That apart, as submitted by learned A.P.P.
for the  State, statement of  the seller of she­buffaloes is yet to be
recorded.  This would mean that it cannot be said with any certainty
that trial of the case would be over very soon. 
16. Having regard to the aspect of ownership as well as the
parameters   governing   discretion   of   the   Court   under   Section   457
Cr.P.C., I am of the view that by and large the impugned order can be
seen to be in conformity with the law governing the discretionary
power under Section 457 Cr.P.C. and as such cannot be seen to be
perverse or arbitrary so as to warrant any interference in supervisory
jurisdiction   of   Article   227   of   the   Constitution   of   India.     There   is,
therefore, no merit in this petition and it deserves to be dismissed.
However,  I find it necessary to stipulate certain additional conditions
as a precautionary measure.   On re­custody, all the animals shall be
released   on  supratnama  of   Rs.1,00,000/­   (rupees   one   lac   only)   to
respondent No.2 subject to following conditions which will be read in

addition to the conditions imposed in the impugned order.
    It is directed that respondent No.2 shall comply with the
conditions stated in Rule 47 and Rule 56 of the Prevention of
Cruelty to transport of Animals Rule, 1978 and shall produce
appropriate certificates/transport permits as required under
these   Rules   before   the   Court  of   J.M.F.C.  before   claiming
custody of the seized animals before the Magistrate, who is
taking cognizance of this case. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 790 OF 2014

Sarvodaya Goshala Charitable Trust,

..   Versus ..
1. The State of Maharashtra

2. Mohd. Azam s/o Sk. Ibrahim Qureshi

CORAM :  S. B. SHUKRE, J.
DATED  :  16th JANUARY, 2015.
Citation;2015 ALLMR(CRI)2599

3. By these petitions the petitioner has challenged legality and
correctness   of   order   passed   on   22/9/2014   in   Misc.   Criminal
Application No. 453 of 2014 arising out of Crime No.3068 of 2014 by
the Judicial Magistrate, First Class, Wardha. 
4. By the order impugned herein, the learned Magistrate has
released the custody of 13 she­buffaloes to respondent No.2, who is
one of the accused persons in Crime No.3068 of 2014 for the offences
punishable under Section 11 of the Prevention of Cruelty to animals
Act, 1960 (hereinafter referred to as “the Act, 1960) read with Section
119 of the Bombay Police Act and also Sections 83 and 177 of the
Motor Vehicles Act.
5. The allegations made against the accused/respondent and
others   are   that   they   had   transported   in   a   motor   vehicle   13   shebuffaloes
in cruel manner by overloading them and packing them in an
unhygienic   manner   and   inappropriate   conditions.   While   the
investigation is still going on, the present respondent No.2, who has
been later­on added as accused No.3, claims himself to be the owner of
the   she­buffaloes,   which   were   seized   in   this   case.   During   the
investigation, respondent No.2 made an application under Section 457
of the Criminal Procedure Code that he is rightful claimant of the
custody of she buffaloes and was also in position to maintain them

properly   and,   therefore,   sought   for   release   of   their   custody   on
execution of supratnama.  The application was strongly opposed by the
prosecution as well as the petitioner.  However, the learned Magistrate
by his order impugned herein allowed the application. Not satisfied
with   the   same,   the   petitioner   has   filed  the   present  petition   under
Article 227 of the Constitution of India. 
6. According to learned Counsel for the petitioner, the offence
relating to transportation of she­buffaloes in a cruel manner has been
prima­facie established against respondent No.2 and other persons and
therefore, if  their custody is released to respondent No.2, there  is
likelihood of the animals being treated in a similar manner or perhaps
more   cruelly.     He   also   submits   that   there   are   some   more   crimes
registered against respondent No.2 in which same allegations have
been made against him.  Therefore, according to learned Counsel for
the petitioner even there is a good case for the prosecution to show
that the seized animals in this case are liable to be confiscated and on
this ground also their custody should not be released.
7.  Learned A.P.P. for the State has supported the arguments of
the learned Counsel for the petitioner.  However, learned Counsel for
respondent No.2 has submitted that even though respondent No.2 is
owner of the animals and has submitted documents showing primafacie
that he is purchaser, respondent No.2 is being deprived of the

benefits   of   ownership   of   those   animals.     He   submits   that   the
prosecution has not produced on record any evidence indicating that
respondent No.2 has been previously convicted and therefore, in view
of Section 29 of the Act, 1960, there would be no possibility of the
seized animals being confiscated in this case.  As regards the possibility
of respondent No.2 exposing the seized cattle to further cruelty or
transporting   them   in   a   cruel   manner,   he   submits   that   appropriate
conditions should be imposed and only because of registration of some
other   crimes,   respondent   No.2,   respondent   No.2   should   not   be
deprived of  the  custody of seized animals, of which is he   lawful
owner.  
8. So far as the aspect of possibility of seized animals being
confiscated at the end of trial is concerned, I am of the view that
Section 29 of the Act requires some evidence as to conviction or some
material indicating that the character of the accused or behaviour of
the accused is such that it is likely to give an impression that the
custody   of   animals   when   given   to   him,   would   be   misused   by   his
treating the animals with further cruelty and this material, at this
stage, is not available on record.   Only because some other crimes
levelling similar allegations have been registered against respondent
No.2, it cannot be said that respondent No.2 is likely to expose the
animals to further cruelty as allegations in those crimes only relate to

transportation of cattle in crowded conditions and do not point out
handing out of further cruelty to them by subjecting them to severe
beating, lashing, injuring, maiming, etc.  Besides, if the custody of the
animals is to be given to respondent No.2, same can be made subject
to   strict   conditions   as   regards   compliance   with   the   mandatory
requirements of the Transport of Animal Rules, 1978.  Therefore, on
this count, I do not see any difficulty in releasing the animals to the
custody of respondent No.2.  
9. It is also the  contention  of  the  learned Counsel  for  the
petitioner that the learned Magistrate has not considered appropriately
the objection raised by the prosecution that respondent No.2 has not
prima­facie   established   his   ownership   of   the   seized   animals.     He
submits   that   the   Agricultural   Produce   Market   Committee's   receipt
produced by him before the Investigating Officer indicates that the
purchase   price   of   13   she­buffaloes   was   Rs.50,000/­   and   this   price
being   very low, the Investigating Officer doubted correctness of the
receipt and, therefore, it was proposed by the Investigating Officer to
further investigate this matter.  All these facts, learned Counsel for the
petitioner further submits, were brought to the notice of the learned
Magistrate but those were not considered.  
10. Upon perusal of the impugned order, I find that the learned
Magistrate has considered one objection taken by the learned A.P.P.

during the course of the argument and it was to the effect that no
document of ownership has been produced by the owner and it was
found to be baseless by the learned Magistrate upon perusal of receipt
issued by the A.P.M.C., which was forming part of the case papers. Of
course,   in   the   say   of   the   prosecution   filed   before   lower   Court,
Investigating Officer had submitted that the price of she­buffaloes was
shown   to   be   very   low,   and   so   he   was   entitled   to   make   further
investigation in the matter so as to verify the contention of respondent
No.2 that he was the owner of the cattle. This specific submission of
the   Investigating   Officer   has   not   been   considered   by   the   learned
Magistrate. But, what has been considered by the learned Magistrate is
one receipt issued by the A.P.M.C. This document has not been alleged
to be false and, therefore, it's contents can be considered for making
prima­facie conclusion.  It prima­facie shows that respondent No.2 is
the owner of seized cattle.  If this document, prima­facie, establishes
the claim of ownership of respondent No.2, and there is no material
produced on record by the Investigating Officer showing that primafacie
  the   receipt   depicts   incorrect   price,   there   is   no   need   to   give
importance   to   subjective   opinion   called   doubt   of   the   Investigating
Officer about low price of the cattle shown in the A.P.M.C. receipt.
Ultimately,   it   has   to   be   seen   as   to   whether   or   not   there   is   some
material   to   prima­facie   show   ownership   of   the   cattle   and   if   that

material has been properly considered, ignoring the unsubstantiated
doubt of the Investigating Officer would not render the order of the
Magistrate as being against well settled principles of law or perverse.  I
must say it here that the Investigation Officer only expressed a doubt
about price of the cattle but placed no material before the learned
Magistrate showing that one buffalo of same variety, age, health and
productivity, would have generally fetched an 'X' amount of  price.
Therefore, it was neither possible nor expected of learned Magistrate
to prefer Investigating Officer's doubt over objectively available primafacie
 evidence of  the  price. Therefore, I find no merit in  the  said
submission of the learned Counsel for the petitioner.  
11. Learned Counsel for the petitioner has relied upon the case
of  Deorao s/o Sadashivji Navghare Vs. State of Maharashtra & Anr.
Reported in  2010 ALL MR (Cri) 45  and   has submitted that while
refusing custody of the seized cattle, it is also necessary for the Court
to consider as to whether the claimant is well equipped to handle,
possess and maintain the seized animals and in this case, no material
has been produced on record by respondent No.2 about his capacity to
properly maintain and care for the animals.
12. No doubt, the factor of capacity of the claimant in such a
case is important and the Court must satisfy itself in this regard.  But,
as rightly submitted by learned Counsel for respondent No.2, some

material ought to have been produced on record by the Investigating
Officer in this regard so as to create a doubt about the lack of facilities
with respondent No.2 for maintaining the cattle.  On the other hand,
respondent   No.2   has   produced   on   record   a   copy   of   his   licence
regarding sale and purchase of the cattle. The fact that respondent
No.2 possesses such a licence, it can be prima facie presumed that he is
well equipped to deal in the cattle.   Now, the question would be
whether the cattle that he would be allowed to retain the possession of
would be properly taken care of by him or not and even though there
is no material produced on record by the Investigating Officer to create
any doubt about the capacity of respondent No.2 in this regard, still
out of caution, this aspect of the matter can be taken care of by calling
upon respondent No.2 to furnish an undertaking about the same by
way of an additional condition.
13. Learned Counsel for the petitioner has also referred to me
case of Jivdaya Pashupakashi Saurakshan and Sanwardhan Sanstha Vs.
State of Maharashtra & anr. ­ 2009 ALL MR (Cri) 3230 and submits
that as respondent No.2 does not possess valid licence, and as no
material   has   been   placed   by   him   before   Court   about   proper
arrangements, custody of the cattle should not be released to him.  I
have already observed that respondent No.2 has produced on record a
copy of his licence and it has not been shown to me by the petitioner

as how and why it should not taken as prima­facie evidence of his
licence.  I have also found that Investigating Officer has not shown by
placing any material on record that respondent No.2 lacks capacity or
has no arrangements to maintain the cattle.  Therefore, the argument
deserves rejection and it is rejected accordingly.  
14. Learned Counsel for the petitioner has further submitted
that the investigation in this case is almost over and since the cattle are
already in possession of the petitioner for a long period of time, the
petitioner should be allowed to retain their possession as the possibility
of charge­sheet being filed in near future is very much there and it
would not take much time for trial of the case to conclude.  He further
submits   that   such   an   arrangement   would   cause   no   prejudice   to
respondent No.2.  The prayer has been strongly opposed by respondent
No.2, who submits that even though respondent No.2 has been found
to be prima facie owner of the cattle, respondent No.2 is being sought
to be deprived of the custody of the cattle in the name of conclusion of
the trial within a short period of time.  According to him this would
only amount to granting something by extra­legal mode which cannot
be granted by legal mode.
15. I   am   completely   in   agreement   with   the   argument   so
advanced   on   behalf   of   respondent   No.2.     Once   it   is   found   that
respondent No.2 is prima facie owner of the seized cattle and it has

also   been   found   that   on   the   parameters   governing   discretion   for
release of custody of the seized articles or cattle under Section 457
Cr.P.C., respondent No.2 is entitled to the custody of the animals, the
Court cannot stand in between respondent No.2 and the animals on
the ground that trial is likely to be concluded in a shorter period of
time. Otherwise, it would only mean granting that relief quietly which
cannot be granted openly.  That apart, as submitted by learned A.P.P.
for the  State, statement of  the seller of she­buffaloes is yet to be
recorded.  This would mean that it cannot be said with any certainty
that trial of the case would be over very soon. 
16. Having regard to the aspect of ownership as well as the
parameters   governing   discretion   of   the   Court   under   Section   457
Cr.P.C., I am of the view that by and large the impugned order can be
seen to be in conformity with the law governing the discretionary
power under Section 457 Cr.P.C. and as such cannot be seen to be
perverse or arbitrary so as to warrant any interference in supervisory
jurisdiction   of   Article   227   of   the   Constitution   of   India.     There   is,
therefore, no merit in this petition and it deserves to be dismissed.
However,  I find it necessary to stipulate certain additional conditions
as a precautionary measure.   On re­custody, all the animals shall be
released   on  supratnama  of   Rs.1,00,000/­   (rupees   one   lac   only)   to
respondent No.2 subject to following conditions which will be read in

addition to the conditions imposed in the impugned order.
    It is directed that respondent No.2 shall comply with the
conditions stated in Rule 47 and Rule 56 of the Prevention of
Cruelty to transport of Animals Rule, 1978 and shall produce
appropriate certificates/transport permits as required under
these   Rules   before   the   Court  of   J.M.F.C.  before   claiming
custody of the seized animals before the Magistrate, who is
taking cognizance of this case. 
           The condition of payment of maintenance charges of
Rs.125/­ per day as imposed by the learned Magistrate is
modified by the condition that maintenance charges at this
rate shall be payable by respondent No.2 only from the date
of seizure of the animals till the date of the impugned order.
       Petition is dismissed in above terms.
       Rule is discharged.
                                                            JUDGE

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