Bhavani Bahudhesiya Gau ... vs The State Of Maharashtra Through ...
2017 Latest Caselaw 6479 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                   NAGPUR BENCH : NAGPUR



                     CRIMINAL WRIT PETITION NO.517 OF 2013


Bhavani Bahudhesiya Gau Sourakshan Sounstha, 
Pimpadgaon-Sadak, Reg. No. Mah. 115/12(B),  
F/14420(B), through its Secretary 
Shri Nanaji s/o Ntthu Jivatode, aged about 
major, occupation : cultivator, r/o
Pimpadgaon-Sadak, Tahsil Lakhani, 
District Bhandara.                          ...                           Petitioner

                                  - Versus -

1)      The State of Maharashtra, through
        Police Station Officer, Police Station, 
        Sakoli, District Bhandara. 

2)      Rajpal s/o Abhairam Choudhari,
        aged about major, r/o Sariana, 
        P.S. Dindayal Nagar, Raipur
        (Chhatisgarh).                                     ...            Respondents

                                   -----------------
Shri R.M.Daga, Advocate for petitioner. 
Ms. S. Jachak, Additional Public Prosecutor for respondent no.1. 
                                   ----------------

                                           CORAM :   P.N. DESHMUKH, J.

DATED : AUGUST 23, 2017

ORAL JUDGMENT :

Heard Shri Daga, learned Counsel for petitioner and

Ms. Jachak, learned Additional Public Prosecutor for respondent no.1.

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None for respondent no.2 though served. Record reveals that even on the

earlier date, none was present for respondent no.2 and matter was

adjourned for today with a view to give one more opportunity to said

respondent to defend the petition on merits. Despite that, nobody appears

for respondent no.2.

2) Challenge in this petition is to order dated 6/8/2013 passed

by learned Judicial Magistrate, First Class, Sakoli in Miscellaneous

Criminal Case Nos.93/2013 and 86/2013 arising out of Crime

No.3045/2013 registered for the offences punishable under Section

11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 and Section 9

of the Maharashtra Animal Preservation Act, 1976. Miscellaneous

Criminal Application No.93/2013 was filed by respondent no.2 and

Miscellaneous Criminal Application No.86/2013 was filed by petitioner

seeking custody of 53 cattle, which came to be seized in the present crime.

3) It is noted that on 4/7/2013 at about 1 p.m. one truck

bearing Registration No.CG--4/9065 was intercepted as was found having

transported 53 cattle, who were tied in a cruel manner and were

suspected to be carried for the purpose of slaughtering. Cattle were thus

seized and handed over to petitioner Goshala for proper care and

treatment. Respondent no.2 filed Miscellaneous Criminal Application

No.93/2013 for custody of said cattle claiming to be owner thereof, which

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came to be allowed by learned Magistrate, against which present petition

is filed.

4) It is the case of petitioner that while rejecting petitioner's

application being Miscellaneous Criminal Application No. 86/2013 for

release of cattle in its favour, learned Magistrate by passing the common

order has failed to consider the relevant Rules imposing limitation on

transporting more than a particular number of cattle in one vehicle at a

time and that pending trial, custody of cattle needs to be given to a social

Organization like that of petitioner.

5) According to Rule 56(c) of the Transport of Animals Rules,

1978, there is restriction to carry more than six cattle in a vehicle at a

time. Rule 50 provides that the average space for each cattle shall not be

less than 2 square meter for proper ventilation. In the present case, it is

noted that 53 cattle were transported in one truck and as such, they are

found to be transported without taking proper care as required under law.

Moreover, from the documents made available by learned Additional

Public Prosecutor, there is nothing to point out that any valid certificate

was issued by the competent Authority establishing fitness of cattle for

being transported and that cattle were not suffering from any disease,

which is in contravention of Rules 47(a) and (b) of the Transport of

Animals Rules, 1978.

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6)               From   the   impugned   order,   it   appears   to   be   the   case   of

respondent no.2 while seeking custody of cattle that he is owner of the

same and alleged to have purchased from cattle market at Raipur and is

running business of selling animals. Perusal of record, however, does not

establish that respondent no.2 has placed on record any receipt in respect

of purchase of animals and as such, has any right over cattle nor there is

any licence placed on record entitling respondent no.2 to transport the

cattle.

7) In view of above facts and relevant provisions of the

Prevention of Cruelty to Animals Act, 1960 and the Transport of Animals

Rules, 1978 together with amended provisions for giving custody of seized

cattle to petitioner establishment being a social Organization, the petition

succeeds.

8) In the result, impugned order dated 6/8/2013 passed by

learned Judicial Magistrate, First Class, Sakoli in Miscellaneous Criminal

Application Nos.93/2013 and 86/2013 granting custody of 53 cattle in

favour of respondent no.2 is quashed and set aside. Needless to say that

53 cattle shall remain with petitioner till conclusion of trial. The petition

is accordingly allowed.

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9)               Rule is  made absolute  in  the  above  terms.    No  order  as  to

costs.




                                                                         JUDGE




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