Bombay High Court
Mushtak Ibrahim Shaikh (Correct ... vs The State Of Maharashtra And ... on 3 August, 2022
Bench: V. V. Kankanwadi, Rajesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2465 OF 2021
Mushtak Ibrahim Shaikh (Correct Name)
Haji Mushtak (Name as per FIR),
Age-59 years, Occu:Business,
R/o-House No.1839, Subhedar Galli,
Bepari Mohalla, Opposite R.R. Bekry,
Ahmednagar, Tq. & Dist-Ahmednagar.
...APPLICANT
(Orig. Accused No.3)
VERSUS
1) The State of Maharashtra,
Through Investigation Officer,
Shrirampur City Police Station,
Tq. & Dist-Ahmednagar,
2) Amol S/o Vasant Gaikwad,
Age-34 years, Occu:Service,
R/o-Shrirampur City Police Station,
Shrirampur, Tq. & Dist-Ahmednagar.
...RESPONDENTS
(Resp. No.2 - Orig. Complainant)
...
Mr. R.V. Gore Advocate for Applicant.
Mr. R.V. Dasalkar, A.P.P. for Respondents.
...
CORAM: SMT. VIBHA KANKANWADI AND
RAJESH S. PATIL, JJ.
DATE : 3rd AUGUST, 2022
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JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel for the parties finally, by consent.
2. By invoking the inherent powers of this Court under
Section 482 of the Code of Criminal Procedure, the applicant,
who is original accused No.3, seeks quashment of the First
Information Report (for short "FIR") as well as the entire
proceedings, after the charge-sheet is filed by Shrirampur City
Police Station, District-Ahmednagar in connection with Crime
No.606 of 2021 dated 7th September 2021 for the offence
punishable under Sections 9(A), 5, 5(C) of the Maharashtra
Animal Preservation Act and Section 278 of the Indian Penal
Code, filed before the learned Judicial Magistrate First Class,
Shrirampur, District-Ahmednagar.
3. The First Information Report has been registered by Police
Constable Amol Gaikwad attached to Shrirampur City Police
Station on 6th September 2021 stating that he along with other
police persons while on duty with Police Station, were called by
Police Inspector and told that he has received secret information
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disclosing that raw skin of animals from the species of cow
(गोवंश) has been stored in a godown after slaughtering and
therefore, all of them were required to go to that place. The
panchas as well as veterinary doctor were taken along with them
and the raid was conducted at about 2.00 p.m. Two persons
were found loading skin in a Eicher Tempo but one of them
managed to flee away. The another person was caught. He told
his name as Chand Mehaboob Pathan and the person who fled
away, was Bablu Kureshi. When the site was inspected, they
found skin of slaughtered animals in the godown and it was
asked to the said accused as to who is the owner of the said
skin. It was disclosed that the said skin belongs to the present
applicant. According to the informant, the skin of animals and
vehicle worth Rs.16,05,000/- were seized from the said place
and he lodged the report.
4. Learned Advocate appearing for the applicant submitted
that the entire charge-sheet does not show any active
participation or even presence of the present applicant at any
point of time. Merely on the basis of the statement of the co-
accused the applicant has been involved. He relied on the
decision in Criminal Application (APL) No.664 of 2016 (Israrul
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Haq Nisar Ahmed and another vs. State of Maharashtra and
another) by the Division Bench of this Court at Nagpur Bench,
dated 1st July 2017. After considering various provisions under
the Maharashtra Animal Preservation Act, it has been held by the
Division Bench that the possession of skin of dead animals is not
prohibited. The same view was upheld again by this Court in
Criminal Application No.364 of 2018 (Shaikh Najir Shaikh Umar
vs. the State of Maharashtra and another) decided on 21st June
2018. Learned Advocate therefore, submits that possessing the
skin of dead animals was not prohibited and it does not amount
to any offence against the applicant and it would be futile
exercise to ask the applicant to face the trial.
5. Per contra, the learned APP strongly opposed the
Application and submitted that the skin was of slaughtered
animals and slaughtering is prohibited under the Maharashtra
Animal Preservation Act. The samples have been sent for DNA
testing and the report is not yet received. Therefore, it will not
be a proper stage where the entire proceedings should be
quashed.
6. At the outset it is to be noted that the FIR was lodged on
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6th September 2021 and the samples were sent for DNA testing
by letter dated 24th September 2021. Even after filing of the
present Application, it appears that no attempts were made to
get the report from the Forensic Laboratory. Under such
circumstance, the evidence that has been collected in the
charge-sheet is required to be considered. Statements of
witnesses would show that almost all of them are the Police
persons. The contents of the FIR are already narrated and
therefore, the same are not required to be reproduced here.
What was found at the place as per the FIR, statements of the
witnesses and spot panchnama, is the skin 2010 in numbers.
Though it is stated that it is of the animal slaughtered and the
animal is from cow species, the spot panchnama is absolutely
silent that there were instruments of slaughtering or any part of
flesh was found. On what basis then the informant and others
were saying that it is the skin of animal from the species of a
cow, is a question.
7. Another fact to be noted is that in the FIR as well as the
statements of witnesses, presence of the present applicant is not
at all stated. Only on the basis of the statement of co-accused,
which is basically inadmissible in nature, the applicant cannot be
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asked to face the trial. It would be a futile exercise to ask him to
face the trial and therefore, this is a fit case within the
parameters laid down in State of Haryana and others V/s Ch.
Bhajan Lal and others, AIR 1992 SC 604 to exercise powers
under Section 482 of the Code of Criminal Procedure. Hence, the
following order:-
O R D E R
(I) The Application stands allowed.
(II) The First Information Report bearing Crime
No.606 of 2021 dated 7th September 2021 registered
with Police Station, Shrirampur City, District-
Ahmednagar for the offence punishable under Sections
9(A), 5, 5(C) of the Maharashtra Animal Preservation
Act and Section 278 of the Indian Penal Code, so also
the consequent proceedings in S.C.C. No.812 of 2021
pending before the learned 2nd Judicial Magistrate First
Class, Shrirampur, District-Ahmednagar, are quashed
and set aside, to the extent of present applicant.
(III) Rule made absolute in above terms.
[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JULY22
