Bombay High Court
Abdul Hafeez S/O. Shaikh Kareem ... vs State Of Maharashtra Thr. Police ... on 4 April, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 192 of 2017
Petitioner : Abdul Hafeez son of Shaikh Kareem, aged
about 62 years, Occ: business, resident of
Pagalkhana Chowk, Chindwara Road, Nagpur
through POAH Mohammad Imran Mohammad
Idris Quraishi, resident of Kolsatal,
Kamptee
versus
Respondent : State of Maharashtra, through Police
Station Officer, Police Station, Jaripatka,
Nagpur
Shri Laique Hussain, Advocate for petitioner
Shri J. Y. Ghurde, Addl. Public Prosecutor for respondent-State
Coram : S. B. Shukre, J
Dated : 4th April 2017
Oral Judgment
1. Rule. Heard forthwith by consent of parties.
2. Petitioner is one of the accused persons against whom Crime
No. 4500/2016 has been registered at Jaripatka Police Station for the
offences punishable under Sections 255, 420, 468 and 429 of the Indian
Penal Code and Section 5, punishable under Section 9 of the Maharashtra
Animal Preservation Act.
3. The allegations are that this petitioner was found to be in
possession of 4200 hides and skins of dead animals and 1500 tins of
processed fat. All these articles have been seized by the police. As major
part of the investigation was over, this applicant filed an application
under Section 457 Cr. P. C. for release of those articles in his custody on
furnishing supratnama on the ground that no offence was made out
against him and in any case, the seized articles were perishable. The
application was, however, rejected by the learned Magistrate by an order
passed on 14th February 2017 on the ground that there was prima facie
case made out against the petitioner and that the investigation was still in
progress. It is this order which is under challenge in the present writ
petition.
4. Sofar as the considerations for granting of interim custody of
the seized articles under Section 457 Cr. P. C. are concerned, I must say,
the Court must be mindful of the factors such as the nature of allegations;
nature of seized articles - whether perishable or not; likelihood of misuse
of the goods while in custody of the applicant; the prospects of the goods
being confiscated to the State on conviction and so on and so forth.
Keeping in mind these factors, the case of the petitioner would have to be
considered.
5. The investigating agency has not specified as to which
particular sub-section of Section 5 of the Maharashtra Animals
Preservation Act has been prima facie made out in the instant case. The
other offences which are alleged against the petitioner are under Sections
255, 420, 468 and 429 of the Indian Penal Code. But, given their nature,
they would not be of any relevance for the purpose of determining the
point of release of the seized articles to the applicant and it is mainly the
offence under Section 5 of the said Act which could be relevant for this
purpose. Since particular sub-section has not been mentioned in the First
Information Report, this Court would be required to go through the
provisions of Section 5 of the said Act and on carrying out such an
exercise, I find that at the most an offence as prescribed under Section 5D
of the said Act could be slapped against this applicant. It lays down that
no person shall have in his possession flesh of any cow, bull or bullock
slaughtered outside the State of Maharashtra. But, as pointed out by
learned counsel for the petitioner, this Section has been struck down
from the Statute Book by the Division Bench of this Court as
unconstitutional in the bunch of cases starting with the case of Sheikh
Zahid Mukhtar v. The State of Maharashtra (WP No. 1314 of 2015),
decided on 6th May 2016. So, no offence could have been registered
against this applicant under Section 5D of the said Act and if this is so, I
do not think that the interim custody of these articles to this applicant
could be denied on any legal ground.
6. Apart from what is stated above, I must say that I am in
disagreement with the submission of learned Additional Public Prosecutor
that the seized articles are by their very nature, perishable. Of course,
there is a report submitted by the State Animal Husbandry Department
which lays down that these articles are not perishable. However, it seems
that the Animal Husbandry Department is totally unmindful of the
observations of the Hon'ble Apex in M. C. Mehta v. Union of India
reported in 1993 Supp (1) SCC 434, which are based on a study report,
that hides and skins are obtained from either slaughtered or dead
animals. The raw hides and skins thus obtained are known to be in the
Sreen Statea. These are easily putrescible and if no proper precautions
are taken they would easily rot and decay. In the present case, it is not
known whether the seized articles consisting of animal skins are the
processed one or in raw form. Even if they are processed ones, if proper
precautions are not taken, they would be subject to natural decay and
would also be amenable to being consumed by ants, teats and other
similar insects. Therefore, it is better that they are released into the
custody of proper person which the applicant is, as early as possible.
7. All these aspects have not been considered by the trial Court
in any manner and, therefore, I find that the impugned order being
against the settled principles of law, calls for interference by this Court in
exercise of its extraordinary writ jurisdiction.
8. Accordingly, writ petition is allowed. Impugned order is
quashed and set aside. The application filed by the petitioner under
Section 457 Cr. P. C. is allowed. The seized articles be released by way
of interim custody to the applicant on his furnishing a supratnama of Rs. 2
lacs on the condition that he shall preserve the articles carefully and shall
produce the same before the trial Court as and when required. The order
of supratnama shall be valid subject to final outcome of the trial.
Rule is made absolute in the above terms.
S. B. SHUKRE, J
joshi
