Tahir A. Matin Sheikh vs State Of Mah. Thr. Pso, Lakhandur, ...
2023 Latest Caselaw 70 Bom

                                      1                            6 CRIWP685.22 (J).odt


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


            CRIMINAL WRIT PETITION NO. 685 OF 2022


PETITIONER                 : Tahir A. Matin Sheikh,
                             Aged about 32 years, Occupation : Transport,
                             R/o Sahayata Nagar, Adyal,
                             Tah. Paoni, Dist. Bhandara.

                                           VERSUS

RESPONDENTS                 : 1. State of Maharashtra,
                                 Through Police Station Officer,
                                 Police Station, Lakhandur,
                                 Tah. Lakhandur, Dist. Bhandara.

                              2. Gowardhan Gowansh Seva Anusandhan Kendra,
                                 (Dhyan Foundation), Baradkinhi,
                                 through its Authorized representative
                                 Smt. Asha Mahendra Dave, office at village -
                                 Baradkinhi, Tah. Sakoli, Dist. Bhandara.

----------------------------------------------------------------------------------------------
          Mr. U. K. Bisen, Advocate for the petitioner.
          Mr. S. A. Ashirgade, A. P. P. for the respondent no.1/State
          Mr. Raju Gupta, Advocate h/f Mr. Akshay H. Joshi, Advocate
          for the respondent no.2.
----------------------------------------------------------------------------------------------

                        CORAM : G. A. SANAP, J.

DATE : JANUARY 03, 2023.

ORAL JUDGMENT
                             2                       6 CRIWP685.22 (J).odt

1. Rule. Rule is made returnable forthwith. Heard finally by

consent of the learned advocates for the parties.

2. In this writ petition, challenge is to the order dated

05.07.2022 passed by the learned Sessions Judge, Bhandara in

Criminal Revision Application No. 37/2022, whereby the learned

Sessions Judge has dismissed the revision filed by the petitioner and

confirmed the order dated 02.05.2022 passed by the learned Judicial

Magistrate, First Class, Lakhandur in Criminal Misc. Application No.

59/2022. Learned Magistrate vide order dated 02.05.2022 had

rejected the prayer made by the petitioner for interim custody of seized

vehicle i.e. truck bearing registration No. MH-40/CD-1716.

3. A vehicle was found carrying 17 cattle for slaughtering.

The vehicle with cattle was apprehended by the police. A crime

bearing No. 111/2022 for the offence punishable under Section

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

(hereinafter referred to as "the Act of 1960" for short); under Section 9

of the Maharashtra Animal Preservation Act, 1976 (hereinafter referred 3 6 CRIWP685.22 (J).odt

to as "the Act of 1976" for short) ; and under Section 119 of the

Maharashtra Police Act, 1951 was registered against accused - Krishna

Ashok Deshmukh. The petitioner is not an accused in the crime.

Being the owner of the seized vehicle, he made an application being

Cri. Misc. Application No. 59/2022 for handing over temporary

custody of the vehicle/truck. The petitioner has stated in his

application that the vehicle was required for daily use. The vehicle was

lying idle. Custody of the vehicle by police was not required inasmuch

as the charge-sheet has been filed.

4. The application made by the petitioner was opposed by

the State as well as intervenor - Gowardhan Gowansh Seva

Anusandhan Kendra (Dhyan Foundation), a NGO. The common

ground of opposition to the application is that the vehicle was used for

transportation of 17 cattle in inhuman condition and the cattle were

being carried for illegal slaughtering. The petitioner was, therefore, not

entitled to get interim custody of the vehicle.

5. Learned Judicial Magistrate First Class, Lakhandur, on 4 6 CRIWP685.22 (J).odt

consideration of the material placed on record rejected the prayer of

seeking interim custody of the seized vehicle. However, the learned

Magistrate directed the petitioner to pay Rs.47,600/- to the intervenor/

respondent no.2 - Dhyan Foundation towards maintenance charges of

17 cattle within three days from the date of the order. The petitioner

was further directed to execute a bond of Rs.15,000/- with solvent

surety for further payment of maintenance amount in compliance with

Rule 5 of Prevention of Cruelty to Animals (Care and Maintenance of

Case Property Animals) Rules, 2017 (hereinafter referred to as "the

Rules of 2017" for short).

6. The petitioner challenged this order passed by the learned

Judicial Magistrate, First Class, Lakhandur before the Sessions Court in

revision. The learned Sessions Judge dismissed the revision.

7. I have heard Mr. U. K. Bisen, learned advocate for the

petitioner, Mr. S. A. Ashirgade, learned Additional Public Prosecutor

for respondent no.1/State and Mr. Raju Gupta, learned advocate

holding for Mr. Akshay H. Joshi, learned advocate for the respondent 5 6 CRIWP685.22 (J).odt

no.2. Perused the record and proceedings.

8. At the outset, relevant undisputed facts needs to be stated.

Seizure of 17 cattle in Crime No. 111/22 is not in dispute. The

accused in the said crime did not apply for custody of the cattle.

Learned Magistrate, by the impugned order, has handed over the

custody of the cattle to respondent no.2 - Dhyan Foundation, by

allowing Misc. Cri. Application No. 60/2022 filed by said Foundation.

It is further undisputed that in terms of the direction at clause (6) of

the order of learned JMFC, the petitioner has not so far executed the

bond with solvent surety for further payment of maintenance amount

in compliance of Rule 5 of the Rules of 2017. It is further undisputed

that the amount of Rs.47,600/- was deposited in this Court by demand

draft dated 05.12.2022. It, therefore, goes without saying that

respondent no.2 - Dhyan Foundation is incurring the expenses for

maintenance of the cattle. The cattle were seized on 06.10.2021.

Perusal of the order dated 02.05.2022 would further reveal that the

learned Magistrate did not direct the accused to jointly and severally

share the charges with the petitioner, who is the vehicle owner, for 6 6 CRIWP685.22 (J).odt

maintenance of the cattle till final disposal of the case. It is to be noted

that no grievance on that count has been made by the petitioner in this

petition. Similarly, no such grievance was made in the revision

application filed before the Sessions Court. In my view, above stated

undisputed facts would be required to be taken into consideration

while appreciating the submissions.

9. Learned advocate for the petitioner, relying upon the

judgment, rendered by the Coordinate Bench of this Court, dated

24.08.2022 in Criminal Writ Petition No. 304/2022 (Mohammad

Razique Mohammad Sabir .vs. State of Maharashtra, thru. P.S.O.,

Lakhandur, Dist. Bhandara), submitted that this Court has held that

there is no provision under the special statute namely the Act of 1960

for confiscation of the vehicle. In this case, in the similar situation,

relying upon the decision of the Hon'ble Apex Court in the case of

Sunderbhai Ambalal Desai .vs. State of Gujarat , reported at (2002) 10

SCC 283, the Coordinate Bench found the owner of the vehicle

entitled for temporary custody of the vehicle. Reliance is placed on this

decision to substantiate the submission that subject to appropriate 7 6 CRIWP685.22 (J).odt

conditions consistent with the Acts and Rules of 2017, temporary

custody of the vehicle can be handed over to the petitioner. Perusal of

the provisions of the Acts and the Rules would show that there is no

provision for confiscation of the vehicle involved in the crime

committed under the Acts. It is, therefore, apparent that disposal of

the property has to take place in terms of the provision of Section 457

of the Code of Criminal Procedure at the time of final disposal of the

case. On the basis of the material placed on record and the view taken

by the Coordinate Bench of this Court in the case of Mohd. Razique

Mohd. Sabir .vs. State of Maharasthra (supra) the prayer for temporary

release of the vehicle, subject to the appropriate conditions consistent

with the provisions of the Acts and the Rules, can be granted.

10. Learned advocate for the petitioner submitted that the

liability to pay maintenance charges for indefinite period cannot be

fastened on the petitioner. Learned advocate, by taking me through

the provisions of Rule 5 of the Rules of 2017, submitted that at the

most for a period of 10 days such liability can be fastened on the owner

of the vehicle. In order to meet this argument, learned advocate for 8 6 CRIWP685.22 (J).odt

the respondent no.2 placed heavy reliance on unreported decision of

the Coordinate Bench of this Court at Principal Seat at Bombay in the

case of Altaf Babru Sheikh .vs. State of Maharashtra and another in

Criminal Writ Petition No. 2466/2022 and submitted that the liability

to pay maintenance @ Rs.200/- per day per animal till the final

conclusion of the trial is the joint and several liability of the accused,

vehicle owner, consignor, consignee, transporter, agents and any other

parties involved in the crime. It is also submitted that the vehicle

owner is required to furnish a bond in terms of the directions of the

learned Magistrate and the vehicle has to be held as a security for

recovery of maintenance charges. In Altaf Babru's case (supra), the

Coordinate Bench has held that the liability to pay maintenance

charges of the seized cattle is a joint and several liability of all the

persons involved in commission of the crime, including the vehicle

owner, till final disposal of the case. The Coordinate Bench has also

held that the owner of the vehicle cannot be absolved of his

responsibility to pay the amount towards maintenance and health

inspection of animals in accordance with the Rules.

9 6 CRIWP685.22 (J).odt

11. In view of the above settled position, the vehicle cannot

be confiscated as per the provisions of law. Disposal of the vehicle has

to take place at the time of final decision of the matter depending upon

the evidence. The vehicle at present is lying idle at police station. The

Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai

(supra), has held that it would serve no purpose to keep such seized

vehicle at police station for a long period. It is held that the learned

Magistrate shall pass appropriate orders immediately by taking

appropriate bond and guarantee as well as security for return of the

said vehicle, if required at any point of time. In view of this position, I

am of the view that the order rejecting temporary custody of the

vehicle in question by the petitioner needs to be set aside. However,

handing over of temporary custody of the vehicle must be subject to

appropriate conditions consistent with the Rules and the law.

12. Accordingly, the petition is allowed.

(i) The order passed by the learned Sessions Judge, Bhandara,

dated 05.7.2022 in Criminal Revision Application No. 37/2022,

confirming the order dated 02.05.2022 passed by the learned Judicial 10 6 CRIWP685.22 (J).odt

Magistrate, First Class, Lakhandur in Criminal Misc. Application No.

59/2022, is set aside. As a consequence of this, the order passed by the

learned Magistrate, dated 02.05.2022 is also set aside to the extent of

rejecting the prayer for handing over temporary custody of the vehicle

to the petitioner.

(ii) Petitioner - Tahir A. Matin Sheikh is held entitled to get

interim custody of seized vehicle i.e. truck bearing registration No.

MH-40/CD-1716, on following conditions :-

(a) The petitioner shall comply with the directions

issued by the learned Magistrate vide order dated 02.05.2022

with regard to execution of bond with solvent surety and

payment of maintenance charges in respect of 17 seized cattle

@ Rs.200/- per day per animal from the date of seizure of the

cattle till date, before release of vehicle.

(b) The amount of Rs.47,600/- already deposited

towards maintenance charges of the cattle shall be deducted

from the said amount.

(c) The petitioner shall execute a bond of Rs.15,000/-

with solvent surety for further payment of maintenance amount 11 6 CRIWP685.22 (J).odt

in compliance of Rule 5 of the Prevention of Cruelty to

Animals (Care and Maintenance of Case Property Animals)

Rules, 2017 @ Rs.200/- per day per cattle till disposal of the

case.

(d) The petitioner shall furnish solvent surety in the

sum of Rupees Seven Lakhs only for handing over custody of

the vehicle to him.

(e) Temporary release of the vehicle in question is

subject to the petitioner tendering photo copies of the

documents of ownership of the vehicle to the satisfaction of the

learned Judicial Magistrate, First Class, Lakhandur.

(f) Temporary custody is handed over to the

petitioner on a condition that the vehicle shall not be used in

similar crime or in any crime.

(g) The Investigating Officer, before handing over the

custody of the vehicle, shall take photographs of the vehicle

from all angles. A detail panchanama of the vehicle shall also be

drawn and the panchanama along with the photographs be

placed before the learned Magistrate.

12 6 CRIWP685.22 (J).odt

(h) The petitioner shall not handover possession of the

vehicle in question to any third party and shall not alienate or

change outer appearance of the vehicle till conclusion of the

trial.

(i) The petitioner shall produce the vehicle in the

Court as and when required.

(j) The vehicle be released immediately on the

petitioner's furnishing the bond with solvent surety and on

deposit of the arrears of maintenance charges up to date.

(k) The petitioner shall deposit the arrears and furnish

the bond within a period of 15 days from today in the Court of

learned Judicial Magistrate, First Class, Lakhandur.

(l) Liberty is granted to the petitioner/vehicle owner

to make appropriate application before the learned Magistrate

for fixing the joint and several liability of all the concerned.

(m) Liberty is granted to respondent no.2 -

Gowardhan Gowansh Seva Anushandhan Kendra (Dhyan

Foundation), Baradkinhi, Tah. Sakoli, Dist. Bhandara to

withdraw the maintenance charges. The amount of Rs.47,600/-

13 6 CRIWP685.22 (J).odt

is also allowed to be withdrawn by the respondent no.2.

(n) Learned Magistrate shall see that the trial is

disposed of expeditiously and in any case within a period of six

months from today.

(o) It is made clear that if the maintenance amount is

not paid as directed, then recovery of the same shall be made as

provided in Clause 8 of the order date 02.05.2022 passed by

the learned Magistrate.

(p) Learned Magistrate shall also see that all the steps

as provided under clauses 7, 8, and 9 of the order dated

02.05.2022, are taken at the earliest.

13. The criminal writ petition stands disposed of in above

terms. Rule is made absolute accordingly.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:06.01.2023 18:51