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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 685 OF 2022
PETITIONER : Tahir A. Matin Sheikh,
Aged about 32 years, Occupation : Transport,
R/o Sahayata Nagar, Adyal,
Tah. Paoni, Dist. Bhandara.
VERSUS
RESPONDENTS : 1. State of Maharashtra,
Through Police Station Officer,
Police Station, Lakhandur,
Tah. Lakhandur, Dist. Bhandara.
2. Gowardhan Gowansh Seva Anusandhan Kendra,
(Dhyan Foundation), Baradkinhi,
through its Authorized representative
Smt. Asha Mahendra Dave, office at village -
Baradkinhi, Tah. Sakoli, Dist. Bhandara.
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Mr. U. K. Bisen, Advocate for the petitioner.
Mr. S. A. Ashirgade, A. P. P. for the respondent no.1/State
Mr. Raju Gupta, Advocate h/f Mr. Akshay H. Joshi, Advocate
for the respondent no.2.
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CORAM : G. A. SANAP, J.
DATE : JANUARY 03, 2023.
ORAL JUDGMENT
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1. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned advocates for the parties.
2. In this writ petition, challenge is to the order dated 05.07.2022 passed by the learned Sessions Judge, Bhandara in Criminal Revision Application No. 37/2022, whereby the learned Sessions Judge has dismissed the revision filed by the petitioner and confirmed the order dated 02.05.2022 passed by the learned Judicial Magistrate, First Class, Lakhandur in Criminal Misc. Application No. 59/2022. Learned Magistrate vide order dated 02.05.2022 had rejected the prayer made by the petitioner for interim custody of seized vehicle i.e. truck bearing registration No. MH-40/CD-1716.
3. A vehicle was found carrying 17 cattle for slaughtering. The vehicle with cattle was apprehended by the police. A crime bearing No. 111/2022 for the offence punishable under Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as "the Act of 1960" for short); under Section 9 of the Maharashtra Animal Preservation Act, 1976 (hereinafter referred 3 6 CRIWP685.22 (J).odt to as "the Act of 1976" for short) ; and under Section 119 of the Maharashtra Police Act, 1951 was registered against accused - Krishna Ashok Deshmukh. The petitioner is not an accused in the crime. Being the owner of the seized vehicle, he made an application being Cri. Misc. Application No. 59/2022 for handing over temporary custody of the vehicle/truck. The petitioner has stated in his application that the vehicle was required for daily use. The vehicle was lying idle. Custody of the vehicle by police was not required inasmuch as the charge-sheet has been filed.
4. The application made by the petitioner was opposed by the State as well as intervenor - Gowardhan Gowansh Seva Anusandhan Kendra (Dhyan Foundation), a NGO. The common ground of opposition to the application is that the vehicle was used for transportation of 17 cattle in inhuman condition and the cattle were being carried for illegal slaughtering. The petitioner was, therefore, not entitled to get interim custody of the vehicle.
5. Learned Judicial Magistrate First Class, Lakhandur, on 4 6 CRIWP685.22 (J).odt consideration of the material placed on record rejected the prayer of seeking interim custody of the seized vehicle. However, the learned Magistrate directed the petitioner to pay Rs.47,600/- to the intervenor/ respondent no.2 - Dhyan Foundation towards maintenance charges of 17 cattle within three days from the date of the order. The petitioner was further directed to execute a bond of Rs.15,000/- with solvent surety for further payment of maintenance amount in compliance with Rule 5 of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 (hereinafter referred to as "the Rules of 2017" for short).
6. The petitioner challenged this order passed by the learned Judicial Magistrate, First Class, Lakhandur before the Sessions Court in revision. The learned Sessions Judge dismissed the revision.
7. I have heard Mr. U. K. Bisen, learned advocate for the petitioner, Mr. S. A. Ashirgade, learned Additional Public Prosecutor for respondent no.1/State and Mr. Raju Gupta, learned advocate holding for Mr. Akshay H. Joshi, learned advocate for the respondent 5 6 CRIWP685.22 (J).odt no.2. Perused the record and proceedings.
8. At the outset, relevant undisputed facts needs to be stated. Seizure of 17 cattle in Crime No. 111/22 is not in dispute. The accused in the said crime did not apply for custody of the cattle. Learned Magistrate, by the impugned order, has handed over the custody of the cattle to respondent no.2 - Dhyan Foundation, by allowing Misc. Cri. Application No. 60/2022 filed by said Foundation. It is further undisputed that in terms of the direction at clause (6) of the order of learned JMFC, the petitioner has not so far executed the bond with solvent surety for further payment of maintenance amount in compliance of Rule 5 of the Rules of 2017. It is further undisputed that the amount of Rs.47,600/- was deposited in this Court by demand draft dated 05.12.2022. It, therefore, goes without saying that respondent no.2 - Dhyan Foundation is incurring the expenses for maintenance of the cattle. The cattle were seized on 06.10.2021. Perusal of the order dated 02.05.2022 would further reveal that the learned Magistrate did not direct the accused to jointly and severally share the charges with the petitioner, who is the vehicle owner, for 6 6 CRIWP685.22 (J).odt maintenance of the cattle till final disposal of the case. It is to be noted that no grievance on that count has been made by the petitioner in this petition. Similarly, no such grievance was made in the revision application filed before the Sessions Court. In my view, above stated undisputed facts would be required to be taken into consideration while appreciating the submissions.
9. Learned advocate for the petitioner, relying upon the judgment, rendered by the Coordinate Bench of this Court, dated 24.08.2022 in Criminal Writ Petition No. 304/2022 (Mohammad Razique Mohammad Sabir .vs. State of Maharashtra, thru. P.S.O., Lakhandur, Dist. Bhandara), submitted that this Court has held that there is no provision under the special statute namely the Act of 1960 for confiscation of the vehicle. In this case, in the similar situation, relying upon the decision of the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai .vs. State of Gujarat , reported at (2002) 10 SCC 283, the Coordinate Bench found the owner of the vehicle entitled for temporary custody of the vehicle. Reliance is placed on this decision to substantiate the submission that subject to appropriate 7 6 CRIWP685.22 (J).odt conditions consistent with the Acts and Rules of 2017, temporary custody of the vehicle can be handed over to the petitioner. Perusal of the provisions of the Acts and the Rules would show that there is no provision for confiscation of the vehicle involved in the crime committed under the Acts. It is, therefore, apparent that disposal of the property has to take place in terms of the provision of Section 457 of the Code of Criminal Procedure at the time of final disposal of the case. On the basis of the material placed on record and the view taken by the Coordinate Bench of this Court in the case of Mohd. Razique Mohd. Sabir .vs. State of Maharasthra (supra) the prayer for temporary release of the vehicle, subject to the appropriate conditions consistent with the provisions of the Acts and the Rules, can be granted.
10. Learned advocate for the petitioner submitted that the liability to pay maintenance charges for indefinite period cannot be fastened on the petitioner. Learned advocate, by taking me through the provisions of Rule 5 of the Rules of 2017, submitted that at the most for a period of 10 days such liability can be fastened on the owner of the vehicle. In order to meet this argument, learned advocate for 8 6 CRIWP685.22 (J).odt the respondent no.2 placed heavy reliance on unreported decision of the Coordinate Bench of this Court at Principal Seat at Bombay in the case of Altaf Babru Sheikh .vs. State of Maharashtra and another in Criminal Writ Petition No. 2466/2022 and submitted that the liability to pay maintenance @ Rs.200/- per day per animal till the final conclusion of the trial is the joint and several liability of the accused, vehicle owner, consignor, consignee, transporter, agents and any other parties involved in the crime. It is also submitted that the vehicle owner is required to furnish a bond in terms of the directions of the learned Magistrate and the vehicle has to be held as a security for recovery of maintenance charges. In Altaf Babru's case (supra), the Coordinate Bench has held that the liability to pay maintenance charges of the seized cattle is a joint and several liability of all the persons involved in commission of the crime, including the vehicle owner, till final disposal of the case. The Coordinate Bench has also held that the owner of the vehicle cannot be absolved of his responsibility to pay the amount towards maintenance and health inspection of animals in accordance with the Rules.
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11. In view of the above settled position, the vehicle cannot be confiscated as per the provisions of law. Disposal of the vehicle has to take place at the time of final decision of the matter depending upon the evidence. The vehicle at present is lying idle at police station. The Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai (supra), has held that it would serve no purpose to keep such seized vehicle at police station for a long period. It is held that the learned Magistrate shall pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicle, if required at any point of time. In view of this position, I am of the view that the order rejecting temporary custody of the vehicle in question by the petitioner needs to be set aside. However, handing over of temporary custody of the vehicle must be subject to appropriate conditions consistent with the Rules and the law.
12. Accordingly, the petition is allowed.
(i) The order passed by the learned Sessions Judge, Bhandara, dated 05.7.2022 in Criminal Revision Application No. 37/2022, confirming the order dated 02.05.2022 passed by the learned Judicial 10 6 CRIWP685.22 (J).odt Magistrate, First Class, Lakhandur in Criminal Misc. Application No. 59/2022, is set aside. As a consequence of this, the order passed by the learned Magistrate, dated 02.05.2022 is also set aside to the extent of rejecting the prayer for handing over temporary custody of the vehicle to the petitioner.
(ii) Petitioner - Tahir A. Matin Sheikh is held entitled to get interim custody of seized vehicle i.e. truck bearing registration No. MH-40/CD-1716, on following conditions :-
(a) The petitioner shall comply with the directions issued by the learned Magistrate vide order dated 02.05.2022 with regard to execution of bond with solvent surety and payment of maintenance charges in respect of 17 seized cattle @ Rs.200/- per day per animal from the date of seizure of the cattle till date, before release of vehicle.
(b) The amount of Rs.47,600/- already deposited towards maintenance charges of the cattle shall be deducted from the said amount.
(c) The petitioner shall execute a bond of Rs.15,000/-
with solvent surety for further payment of maintenance amount 11 6 CRIWP685.22 (J).odt in compliance of Rule 5 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 @ Rs.200/- per day per cattle till disposal of the case.
(d) The petitioner shall furnish solvent surety in the sum of Rupees Seven Lakhs only for handing over custody of the vehicle to him.
(e) Temporary release of the vehicle in question is subject to the petitioner tendering photo copies of the documents of ownership of the vehicle to the satisfaction of the learned Judicial Magistrate, First Class, Lakhandur.
(f) Temporary custody is handed over to the petitioner on a condition that the vehicle shall not be used in similar crime or in any crime.
(g) The Investigating Officer, before handing over the custody of the vehicle, shall take photographs of the vehicle from all angles. A detail panchanama of the vehicle shall also be drawn and the panchanama along with the photographs be placed before the learned Magistrate.
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(h) The petitioner shall not handover possession of the vehicle in question to any third party and shall not alienate or change outer appearance of the vehicle till conclusion of the trial.
(i) The petitioner shall produce the vehicle in the Court as and when required.
(j) The vehicle be released immediately on the petitioner's furnishing the bond with solvent surety and on deposit of the arrears of maintenance charges up to date.
(k) The petitioner shall deposit the arrears and furnish the bond within a period of 15 days from today in the Court of learned Judicial Magistrate, First Class, Lakhandur.
(l) Liberty is granted to the petitioner/vehicle owner to make appropriate application before the learned Magistrate for fixing the joint and several liability of all the concerned.
(m) Liberty is granted to respondent no.2 -
Gowardhan Gowansh Seva Anushandhan Kendra (Dhyan Foundation), Baradkinhi, Tah. Sakoli, Dist. Bhandara to withdraw the maintenance charges. The amount of Rs.47,600/-
13 6 CRIWP685.22 (J).odt is also allowed to be withdrawn by the respondent no.2.
(n) Learned Magistrate shall see that the trial is disposed of expeditiously and in any case within a period of six months from today.
(o) It is made clear that if the maintenance amount is not paid as directed, then recovery of the same shall be made as provided in Clause 8 of the order date 02.05.2022 passed by the learned Magistrate.
(p) Learned Magistrate shall also see that all the steps as provided under clauses 7, 8, and 9 of the order dated 02.05.2022, are taken at the earliest.
13. The criminal writ petition stands disposed of in above terms. Rule is made absolute accordingly.
( G. A. SANAP, J. ) Diwale Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:06.01.2023 18:51