Syed Zakeer Syed Bhura And Others vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 9352 Bom

 0612WP143.17-Judgment                                                                        1/17


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


               CRIMINAL WRIT PETITION NO.  143   OF   2017


 PETITIONERS :-                 1. Syed   Zakeer   Syed   Bhura,   Aged   about   32
                                   years, Occu. Agriculturist, 

                                2. Mujahiduddin Rahimuddin, Aged about 23,
                                   Occu. Agriculturist, 

                                      Petitioner 1 & 2 are R/o Ward No.3, Chahal
                                      Pura, Tq. Mangrulpir, Dist.Washim. 

                                3. Sattar Khan S/o Akbar Khan, Aged about 28
                                   years, Occu. Labour, R/o Ward No.1, Behind
                                   Bus   Stand   at   Post   Mahan,   Tq.   Barshitakli,
                                   Dist. Akola.                              

                                         ...VERSUS... 

 RESPONDENTS :-                  1. The   State   of   Maharashtra,   through   Police
                                    Station, Buttibori, Dist. Nagpur.  

                                 2.  Kanji   House   (Kondwada),   at   post   Kapri
                                     (More), through its in charge (Sarpanch) at
                                     Post   Khapri   (More),   Tq.   Hingna,   Dist.
                                     Nagpur. 

                                 3. Gowshala   Pashupalan   Bahuudeshiya
                                    Sanstha,   through   its   President-   Munna
                                    Kamlaprasad Shukla, Aged about 46 years,
                                    Occu.   Nil,   Office   Address:   5/B   Bezonbagh
                                    Society, Bezonbagh, Nagpur-440004. 


 ---------------------------------------------------------------------------------------------------
                     Mr.A.M.Haque, counsel for the petitioners.
                 Mr.A.R.Chutake, A.P.P. for the respondent No.1.
                 Mr. G.M.Shitut, counsel for the respondent No.2.
                  Mr.R.M.Daga, counsel for the respondent No.3. 
 ---------------------------------------------------------------------------------------------------




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  0612WP143.17-Judgment                                                           2/17


                                    CORAM :  REVATI MOHITE DERE, J.

DATED : 06.12.2017

P. C.

Rule. Rule is made returnable forthwith with the consent

of the parties and is taken up for final hearing and disposal at the stage

of admission.

2. At the outset, learned counsel for the petitioners does not

press prayer clauses (iii), (iv) and (v) of the petition and seeks liberty to

file an appropriate application/proceedings before the appropriate

Court/ Authority with respect to the said prayers.

3. By this petition, the petitioners have impugned the

common order dated 19/11/2016 passed by the learned Judicial

Magistrate First Class, Court No.10, Nagpur in M.C.A. No.4326 of 2016

(filed by the petitioner No.1), M.C.A. No.4323 of 2016 (filed by the

petitioner No.2) and M.C.A. No.4322 of 2016 (filed by the petitioner

No.3) alongwith other connected M.C.As., by which the application

bearing M.C.A. No.4397 of 2016, preferred by the respondent No.3-

Gaushala Sanstha was allowed and the petitioners' applications were

rejected; as well as the order dated 03/01/2017 passed by the learned

Additional Sessions Judge-10, Nagpur in Criminal Revision No.273 of

0612WP143.17-Judgment 3/17

2016, by which the learned Additional Sessions Judge dismissed the

petitioners' revision application and accordingly, confirmed the order

dated 19/11/2016 passed by the learned Magistrate.

4. Learned counsel for the petitioners submits, that both the

lower Courts had failed to consider that the prosecution case, that the

she-buffaloes were being taken to the slaughter house, on the face of it

was false and unbelievable, inasmuch as, all the seized 18 she-buffaloes,

who were being transported from the place of purchase to the

petitioners' residences, were in the advanced stage of pregnancy and

hence, the question of slaughtering them did not arise. He further

submitted, that the paramount consideration whilst deciding the

applications is the welfare of the buffaloes and, that who was in a better

position to take proper care of the buffaloes, during the pendency of the

trial. According to the learned counsel for the petitioners, the same was

not considered by both the Courts below in their proper perspective. He

submitted, that the petitioners have all the requisite amenities/facilities

to look after the buffaloes, including cattle pond and as such, all the

petitioners are, equipped to handle, possess and maintain the said

cattle. He further submitted, that as regards ownership of the buffaloes

is concerned, there is no dispute that the petitioners are owners of the

said buffaloes. According to the learned counsel for the petitioners, all

0612WP143.17-Judgment 4/17

the petitioners are agriculturists and are engaged in the business of

selling milk and as such, the she-buffaloes purchased by them, are

source of their livelihood. Learned counsel for the petitioners relied on

the additional affidavits filed by each of the petitioners to show, the

facilities available with them, to look after the buffaloes and their

competency to take care of the buffaloes. The petitioners have also

undertaken to take care of the health of the cattle; to protect and

preserve the cattle; to not sell or transfer the said cattle to any third

person till the conclusion of the trial; to strictly obey the conditions

stipulated in Rules 47 and 56 of the Transport of Animals Rules, 1978

while transporting the cattle; and to produce the cattle as and when

required during the course of the trial. Learned counsel has also

annexed photographs to show the facilities available to look after the

buffaloes. The petitioners have also agreed to pay the maintenance

charges of the respondent No.2, from the date of confiscation of the

buffaloes till the date of the impugned order, passed by the learned

Additional Sessions Judge, Nagpur, i.e. from 16/10/2016 till

03/01/2017. Learned counsel further submitted, that the Investigating

Officer had thrust the she-buffaloes on Kanji House i.e. respondent

No.2, despite respondent No.2 not having the required facilities to look

after the seized she-buffaloes. He further submitted, that though the

respondent No.3-Gaushala Sanstha had filed an application for custody

0612WP143.17-Judgment 5/17

of the she-buffaloes, which was allowed by the learned Magistrate and

confirmed by the learned Sessions Judge, no steps were taken by the

respondent No.3-Gaushala Sanstha, to take custody of the she-buffaloes

from the respondent No.2. He further submitted, that the callous

manner in which the Investigating Officer dealt with the pregnant 18

she-buffaloes in this case, resulted in the death of 18 calves and 2 she-

buffaloes. According to the learned counsel, due to negligence and

callousness of the respondents, 18 calves and 2 she-buffaloes died,

when they were in the custody of the respondent No.2 and, that all the

respondents were responsible for the same and as such, seeks

compensation and action against the respondents.

5. Learned counsel for the respondent No.2 submitted, that

the Investigating Officer had thrust the custody of the buffaloes on them

(respondent No.2), despite respondent No.2 having no facilities to look

after the she-buffaloes. He further submitted, that in fact, the

respondent No.2-Kanji House is not meant for looking after buffaloes

under the Maharashtra Village Panchayats Act. According to the learned

counsel, despite the order of the learned Magistrate and the Additional

Sessions Judge, directing the respondent No.3 to take custody of the

said buffaloes, the respondent No.3 had not come forward to take

custody of the said buffaloes from the respondent No.2-Kanji House.

0612WP143.17-Judgment 6/17

Learned counsel for the respondent No.2 does not deny, that 18 calves

and 2 she-buffaloes had expired in their custody. He submits, that even

today the respondent No.2 is unable to look after the buffaloes and

prays, that appropriate orders be passed with regard to handing over

custody of the buffaloes, either to the petitioners or to the respondent

No.3.

6. Learned counsel for the respondent No.3 vehemently

opposed the petition. He submitted, that it is only the respondent No.3-

Gaushala Sanstha, that was competent and had the requisite facilities to

look after the she-buffaloes. He submits, that the respondent No.2 did

not hand over the custody of the she-buffaloes to them as, they had not

received maintenance charges as directed by the learned Magistrate i.e.

the petitioners had not paid the maintenance charges to the respondent

No.2, as directed. He further submitted, that as the respondent No.2

was refusing to hand over custody of the she-buffaloes to the

respondent No.3, the respondent No.3 filed an appropriate application

before the learned Magistrate for taking action against the respondent

No.2. Learned counsel for the respondent No.2 refuted the said

submission advanced by the learned counsel for the respondent No.3.

He submits, that at no point of time, the respondent No.3 came to the

respondent No.2-Kanji House for seeking the custody of the said she-

0612WP143.17-Judgment 7/17

buffaloes. According to the learned counsel for the respondent No.3, no

interference was warranted in the impugned orders, by which custody

of the she-buffaloes was handed over to them, in writ jurisdiction.

7. Learned A.P.P. for the respondent-State also opposes the

petition. He submits, that as the petitioners had not paid the requisite

maintenance charges to the respondent No.2, respondent No.2 did not

permit respondent No.3 to take custody of the said buffaloes in

compliance with the order passed by the learned Magistrate and

confirmed by the learned Sessions Court. The said statement is again

disputed by the learned counsel for the respondent No.2. Learned A.P.P.

denies, that the Investigating officer was in any way responsible for

thrusting the she-buffaloes on the respondent No.2-Kanji House.

Learned A.P.P. on instructions of the concerned officer, however, does

not dispute the fact, that the petitioners have the requisite facilities i.e.

place, cattle pond, cattle shed, food, fodder and water etc. to look after

the she-buffaloes.

8. Perused the papers including the impugned orders.

Admittedly, the petitioner No.1 is the owner of 5 buffaloes; the

petitioner No.2 is the owner of 4 buffaloes and the petitioner No.3 is the

owner of 1 buffalo. Admittedly, on 16/10/2016 all the buffaloes were

0612WP143.17-Judgment 8/17

purchased by the petitioners from the A.P.M.C. Market Bramhapuri,

District Chandrapur for a valuable consideration. The purchase receipts

issued by the A.P.M.C. Market Bramhapuri in favour of the petitioners

are placed on record. After purchasing the said buffaloes, the petitioners

alongwith other owners of buffaloes were transporting the said she-

buffaloes from Bramhapuri, District Chandrapur (place of purchase) to

Mangrulpir, District Washim (to their respective residences) in

commercial vehicles, when the said vehicles were intercepted by the

Police. It is alleged, that 8 she-buffaloes were being transported in 2

Mahindra Bolero bearing registration No.MH-29-T-5622 and MH-37-J-

1883 and 10 she-buffaloes were being transported in Eicher truck

bearing registration No.MH-26-S-7845. The Police personnel seized all

18 buffaloes and the 3 vehicles. Accordingly, the Police registered

Crime No.734 of 2016 with Butibori Police Station, Nagpur as against

the petitioners, for the alleged offences punishable under sections 11

(1) (a) (d) (e) and (f) of the Prevention of Cruelty to Animals Act, 1960

and sections 83 and 177 of Motor Vehicles Act. The principal allegation

as against the petitioners and others was, that she-buffaloes were

transported in a crowded condition and cruel manner, in clear violation

of the provisions of the Prevention of Cruelty to Animals Act and the

Rules thereunder. Pursuant to the registration of the aforesaid crime,

the Police handed over all the 18 she-buffaloes to the respondent No.2-

0612WP143.17-Judgment 9/17

Kanji House (Kondwada), At Post-Khapri (More), Tahsil Hingna,

Nagpur (Rural). The petitioners, thereafter, preferred separate

applications before the learned Judicial Magistrate First Class, Nagpur

under section 457 of Criminal Procedure Code and sought release of

their she-buffaloes on supratnama. It appears that the respondent No.3-

Gaushala Sanstha also preferred an application bearing M.C.A. No.4397

of 2016 and sought custody of all the 18 she-buffaloes and 18 calves.

The learned Magistrate rejected the petitioners' applications seeking

release of their she-buffaloes and allowed respondent No.3-Gaushala

Sanstha's application seeking custody of the 18 she-buffaloes and the 18

calves. The learned Magistrate handed over the custody of all the 18

she-buffaloes and the 18 newly born calves to the respondent No.3-

Gaushala Sanstha, till the conclusion of the trial on certain terms and

conditions. By the said order dated 19/11/2016, the learned

Magistrate while releasing the buffaloes in favour of respondent No.3,

also directed the owners of the buffaloes to pay maintenance charges to

the respondent No.2-Kanji House, till the date of handing over the

custody of the buffaloes. Being aggrieved by the said order dated

19/11/2016, the petitioners herein, filed a revision application, bearing

Criminal Revision No.273 of 2016 and sought quashing and setting

aside of the impugned order dated 19/11/2016. The learned Additional

Sessions Judge, after hearing the parties, was pleased to dismiss the

0612WP143.17-Judgment 10/17

said revision application preferred by the petitioners. It appears, that

during the pendency of the revision application, 18 calves and 2 she-

buffaloes expired at Kanji House (respondent No.2). It appears, that

only postmortem of 2 she-buffaloes was done, whereas the postmortem

of 18 calves was not done. The question, that arises for consideration, is

whether the impugned orders are erroneous and unsustainable, in the

facts, considering the material on record. A perusal of the impugned

orders show, that both the Courts below had failed to consider the

competency of the petitioners to look after the cattle and whether they

had the requisite facilities to look after the cattle under section 35(2) of

the Prevention of Cruelty to Animals Act. Needless to state, that in

cases, where the owners seek custody of the animals, neither the

Pinjrapole nor the Gaushala can be said to have a preferential right. In

such cases, i.e. where the question of handing over interim custody of

the cattle/animals to the owners, who are facing prosecution, or

Pinjrapole/Guashala arises, the Magistrate has to consider certain

relevant factors; (1) the nature and gravity of the offence alleged

against the owner; (2) whether it is the first offence alleged or he has

been found guilty of offences under the Act earlier; (3) if the owner is

facing the first prosecution under the Act, the owner will have a better

claim for the custody of the animal during the prosecution; (4) the

condition in which the animal was found at the time of inspection and

0612WP143.17-Judgment 11/17

seizure; (5) the possibility of the animal being again subjected to

cruelty.

9. Although, it is vaguely alleged, that the she-buffaloes were

being taken to the slaughter house, prima facie it is doubtful,

considering the fact, that all the 18 she-buffaloes were in the advanced

stage of pregnancy at the relevant time and had in fact delivered within

a few days, after they were seized. Admittedly, all she-buffaloes were

purchased on the very same day i.e. on 16/10/2016 from the A.P.M.C.

Market, Bramhapuri and were being transported in vehicles, where the

petitioners were residing, when the vehicles were intercepted and the

buffaloes were seized. The principal allegation against the petitioners is

that the buffaloes were being transported in contravention of section

11 of the Act (i.e. overcrowding, in a cruel manner etc.). Admittedly,

the seized she-buffaloes were not examined by a Veterinary Officer, as

contemplated under the Prevention of Cruelty to Animals Act, 1960.

Neither any photos of the she-buffaloes taken to show the condition in

which they were found i.e. whether there were any injuries on their

body, etc.

10. The petitioners have placed on record the facilities that are

available at their respective residences i.e. cattle pond, cattle shed, food,

fodder and water etc. All the three petitioners have shown their

0612WP143.17-Judgment 12/17

preparedness and capability to maintain the she-buffaloes during the

pendency of the trial. The said fact with regard to the capability,

preparedness and ownership of the petitioners is also not disputed by

the learned A.P.P. Both, the lower Courts failed to assess the

preparedness and capability of the petitioners to maintain the she-

buffaloes during the pendency of the trial. The petitioners are

agriculturists by profession and supply milk door to door and the

she-buffaloes purchased by them, are their source of income. The

petitioners have undertaken in their additional affidavits to abide all the

conditions that may be imposed by this Court, if the custody of the said

she-buffaloes is handed over to them.

11. Prima facie, it appears, that the Investigating Officer had

thrust all the 18 pregnant she-buffaloes at Kanji House i.e. with the

respondent No.2, despite the respondent No.2 having no facilities to

look after them, whether the Investigating Officer was justified in

thrusting/ keeping the she-buffaloes at a place, having no proper

facilities, is a matter which raises serious concern, as it is not in keeping

with the object/purpose of the said Act. It is not in dispute, that 18

calves and 2 she-buffaloes died whilst in the custody of the respondent

No.2. It is informed by the learned counsel for the respondent No.2,

that the respondent No.2 was not authorized to look after the she-

0612WP143.17-Judgment 13/17

buffaloes, under the Maharashtra Village Panchayats Act and, that Kanji

House was meant only for stray cattle and, that despite informing the

Investigating Officer, the Investigating Officer kept the she-buffaloes

with them. It appears, that in the said process for no fault of theirs, the

petitioners lost 18 calves and 2 she-buffaloes. It is not necessary to go

into the said question, as to who was responsible for the death of the 18

calves and 2 she-buffaloes and, that the said question is kept open for

agitating the same before the appropriate forum.

12. Considering the aforesaid, the following order is passed.

ORDER

(1) The petition is allowed and the impugned order dated

19/11/2016 passed by the learned Judicial Magistrate First Class,

Court No.10, Nagpur below M.C.A. No.4326 of 2016 (filed by

petitioner No.1), M.C.A. No.4323 of 2016 (filed by petitioner

No.2) and M.C.A. No.4322 of 2016 (filed by petitioner No.3) as

well as M.C.A. No.4397 of 2016 (preferred by the respondent

No.3-Gaushala), inasmuch as, it dismisses the petitioners' M.C.A's

and allows the M.C.A. preferred by the respondent No.3 as well as

the impugned order dated 03/01/2017 passed by the learned

Additional Sessions Judge, Nagpur in Cri.Revision No.273 of 2016

are quashed and set aside.

0612WP143.17-Judgment 14/17

(2) The learned Magistrate to hand over the custody of 5 she-buffaloes

to the petitioner No.1; the custody of 4 she-buffaloes to the

petitioner No.2; and the custody of 1 she-buffalo to the petitioner

No.3, on the following terms and conditions:-

(i) The petitioner No.1 shall execute supratnama bond for 5

she-buffaloes in the total sum of Rs.50,000/-; the

petitioner No.2 shall execute supratnama bond for 4 she-

buffaloes in the total sum of Rs.40,000/-; and the

petitioner No.3 shall execute supratnama bond for 1 she-

buffalo in the sum of Rs.10,000/-.

(ii) The petitioners shall not sell or transfer the she-buffaloes

to any third person till the conclusion of the trial.

(iii) The petitioners shall comply with the conditions stipulated

in Rules 47 and 56 of the Transport of Animals Rules 1978

as well as the provisions of the Prevention of Cruelty to

Animals Act, 1960 while transporting the she-buffaloes

and even otherwise, at all times.

(iv) The petitioners shall take care of the she-buffaloes and

provide good facilities and take all steps to protect and

preserve them.

        (v)       The petitioners to produce the she-buffaloes as and when





  0612WP143.17-Judgment                                                                15/17


                  required during the course of the trial.

        (vi)      In case, there is demise of any of the she-buffaloes, the

petitioners shall inform the Trial Court as well as the

concerned Investigating Officer of the same.

(vii) The petitioners shall file periodic health report of the she-

buffaloes so released, every six months, in the Trial Court.

(viii) The petitioners shall give 48 hours notice to the

Investigating Officer as well as the respondent No.2,

before taking the custody of the said buffaloes from the

respondent No.2.

(4) The petitioners shall file separate undertaking with respect to the

aforesaid clause Nos.(i) to (viii) in the Trial Court before the

release of the she-buffaloes.

(5) The Investigating Officer shall hand over the she-buffaloes to the

petitioners in presence of panchas, after the she-buffaloes of the

respective petitioners are identified.

(6) The petitioners shall deposit the maintenance charges from the

date of seizure till the date of criminal revision application was

rejected i.e. 03/01/2017, as under :-

The Petitioner No.1 shall deposit Rs.33,575/-,

0612WP143.17-Judgment 16/17

The Petitioner No.2 shall deposit Rs.26,860/- and

The Petitioner No.3 shall deposit Rs.6,715/-.

The aforesaid amounts shall be deposited by the petitioners in the

Trial Court before the release of the she-buffaloes. On depositing

the said amounts, the Trial Court shall release the said amounts in

favour of the respondent No.2. The respondent No.2 is at liberty

to claim the balance maintenance charges i.e. from the date of the

order dated 03/01/2017 till the date the she-buffaloes are handed

over to the petitioners, either from the petitioners, or from the

State or from the respondent No.3.

(7) As far as remaining 6 she-buffaloes are concerned, the respondent

No.3 shall forthwith take custody of the remaining she-buffaloes

from the respondent No.2 in the presence of Investigating Officer

on 23/12/2017, after preparing a panchanama.

(8) The respondent No.2 shall not insist on payment of charges by the

respondent No.3, at the time, the custody of the balance she-

buffaloes are handed over to them. However, the respondent No.2

will be at liberty to recover the maintenance charges either from

the respondent No.1 or from the respondent No.3 or from the

owners of the she-buffaloes.

0612WP143.17-Judgment 17/17

(9) As far as prayer clauses (iii), (iv) and (v) of the petition are

concerned, liberty is granted to the petitioners to file appropriate

application/ proceedings before the appropriate Court/Authority

for seeking the very same reliefs.

(10) It is made clear, that the order with respect to the balance 6

she-buffaloes has been passed, as the impugned order of the Trial

Court has not been challenged by the owners of the said she-

buffaloes.

Rule is made absolute in the aforesaid terms. There shall

be no order as to costs.

13) All the parties to act upon the authenticate copy of this

order.

JUDGE

KHUNTE