Bombay High Court
Ujjawal Gorakshan Trust, Nagpur ... vs State Of Maharashtra, Through ... on 8 September, 2017
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.703 OF 2015
Ujjawal Gorakshan Trust, having
its registered Office at Bahadura Fata,
Umred Road, Nagpur {Public Trust
No. F-1425 (Nagpur)}, through its
Authorized Member Shri Shyam s/o
Ramchandra Kale, aged about 61 years,
occupation : private, r/o 5-F2, Satya Sai
Apartment, near Somalwar School,
Khamla, Nagpur. ... Petitioner
- Versus -
1) State of Maharashtra, through
Police Station Officer, Police
Station, Koradi, District Nagpur.
2) Raju s/o Pandhari Chahande,
aged about 44 years, occupation :
business, r/o Gadeghat, Gondegaon,
Juni Kamptee, District Nagpur. ... Respondents
-----------------
Shri R.M. Daga, Advocate for petitioner.
Shri S. Sirpurkar, Additional Public Prosecutor for respondent no.1.
----------------
CORAM : P.N. DESHMUKH, J.
DATED : SEPTEMBER 08, 2017
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ORAL JUDGMENT :
Heard Shri Daga, learned Counsel for petitioner, and
Shri Sirpurkar, learned Additional Public Prosecutor for respondent no.1.
None appears for respondent no.2 though served. Even on the earlier
date, none was present for respondent no.2 and with a view to give
opportunity to defend the petition on merits, the petition was adjourned
for today. Despite that, nobody appears for respondent no.2 even today.
2) Challenge in this petition is to order dated 27/8/2015 passed
by learned trial Court granting custody of 33 bullocks to respondent no.2
on his executing a supratnama bond of Rs.5 lakhs and by imposing
conditions not to sell animals and to produce the same as and when
directed during pendency of trial.
3) Petitioner is a registered public trust having Public Trust
No.F-1425 (Nagpur), which is dedicated for the welfare of animals and
engaged in taking care, preservation and protection of animals. It is noted
that on 3/7/2015 report came to be lodged by A.P.I. Laxman Kendre that
while he was on patrolling duty with other staff, they intercepted two
trucks bearing Registration No. MH-04-CG-3419 and MH-40-N-887, which
were found carrying cattle illegally. The total cattle were 33 in number
and they were found being illegally transported by respondent no.2
without valid permission from the Authorities including R.T.O. and in
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contravention of the provisions of Prevention of Cruelty to Animals Act,
1960 and, therefore, offences came to be registered under Section 11(3)
and 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 and
Sections 66, 192 and 130(1) of the Motor Vehicles Act vide Crime No.
3090/2015.
4) Thereafter, on an application made by respondent no.2,
impugned order came to be passed, thereby granting custody of seized
animals in his possession. It is noted that application made by petitioner
was rejected, however, on an application made by respondent no.2,
learned trial Court released the cattle on supratnama in his favour
observing that respondent no.2 is owner of the cattle. Shri Daga, learned
Counsel for petitioner, has submitted that by transporting 33 cattle in two
vehicles, they were found to be travelling by providing cruelty to them,
which aspect is also not considered by learned trial Court. According to
learned Counsel for petitioner, after seizure of cattle was effected, they
were given in the custody of petitioner Institute having sufficient
infrastructure to take care of them and as such, cattle are under due
protection. It is, therefore, submitted that pending trial, custody of such
animals should be kept with petitioner in their interest.
5) On perusal of the impugned order, it is noted that learned
Magistrate has not considered provisions of the Maharashtra Animal
Preservation Act, 1976 as amended in the year 2015 by which pending
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trial, custody of seized cattle is required to be handed over to the nearest
Goshala, Gosadan, Panjrapole, Hinsa Nivaran Sangh or such other Animal
Welfare Organizations willing to accept custody of animals. 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 while from the facts
involved in the present petition, it is found that 33 cattle were being
transported in two trucks at one time.
6) This Court after considering facts as aforesaid, had granted
stay to the impugned order dated 27/8/2015 on 1/9/2015, which is
in force today. Apart from above facts, it is noted that there is no valid
certificate issued by Veterinary Surgeon certifying that the cattle were in a
fit condition to be transported and were not suffering from any disease,
which is in breach of Rules 47(a) & (b), 96 and 98 of the Transport of
Animals Rules, 1978. It is pointed out that contravention of aforesaid
Rules is made separately punishable under Section 38(3) of the Prevention
of Cruelty to Animals Act, 1960. Moreover, even if it would be the case
of respondent no.2 that he is owner of said cattle and had purchased the
same, there could be no identification mentioned in any such receipt,
which should co-relate animals with such purchase by respondent no.2 as
perusal of such receipt would not ascertain whether cattle mentioned in
the purchase receipt of cattle involved in the present proceedings are one
and same and as such, even if any such purchase receipt is relied by
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respondent no.2, that cannot establish his case any further.
7) Admittedly, respondent no.2 has not chosen to defend the
petition and thus, there is nothing to establish that he is in a position to
make necessary arrangement for preservation of cattle, custody of which is
granted to him by the impugned order. The petition is thus liable to be
allowed.
8) In the result, impugned order dated 27/8/2015
passed by learned Judicial Magistrate, First Class, Nagpur in Miscellaneous
Criminal Application No.2526/2015 directing release of cattle in custody
of respondent no.2 is quashed and set aside. Needless to say that custody
of cattle involved in this case shall remain with petitioner till conclusion
of trial. The petition is accordingly allowed.
9) Rule is made absolute in the above terms. No order as to
costs.
JUDGE
khj
