Bombay High Court
Dhyan Foundation Thr. Its Authorized ... vs State Of Mah. Thr. Pso, Mouda, Ps, Nagpur ... on 31 January, 2024
Author: M.W. Chandwani
Bench: M.W. Chandwani
2024:BHC-NAG:1558
10.cwp.575.23.jud.doc 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.575 OF 2023
Petitioner : Dhyan Foundation,
Chikhli road, Kharbi (Highway Touch),
Dist. Bhandara, Maharashtra,
Through its authorized representative,
Sudhir Natwar Purohit,
Age 50 years, Occ. Business.
- Versus -
Respondents : 1. State of Maharashtra,
Through Police Station Officer,
Mouda Police Station, Nagpur Rural.
2. Mohammad Taufeeque Qureshi,
Aged 45 yrs. Occ. Business,
R/o 866, Hansapuri, Quasabpura,
Near Qureshi Jamatkha, Mahatma Fule Bazar,
Nagpur.
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Mr. Raju Gupta, Advocate for the Petitioner.
Mr. N.B. Jawade, A.P.P. for Respondent No.1.
Mr. M.S. Afsar, Advcoate for Respondent No.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : M.W. CHANDWANI, J.
DATE : 31st JANUARY, 2024.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel for the parties.
02] The petition challenges the order dated 07/08/2023 passed by
the learned Additional Sessions Judge, Nagpur in Criminal Revision
No.191/2023, thereby directing the interim custody of 42 goats kept with the
petitioner be handed over to respondent No.2 on his executing an indemnity
bond of Rs.5,00,000/-.
03] The facts relevant for the decision of this petition can be culled
out as under :
On 25/06/2023, Police Station Mouda, registered an offence
under Section 11(1), 11(1)(g), 11(1)(j) and 11(1)(k) of the Prevention of
Cruelty to Animals Act, 1960 (hereinafter referred to as "the Act" for short)
against one Sheikh Inayat Nammiulhha Khan, a driver of vehicle
No.MH-31/DS/2468 on a suspicion that a vehicle was carrying 43 goats
illegally. They were without food and water and they were kept in a
congested manner. During investigation, those 43 goats were seized and their
custody was handed over to the petitioner, a social organization engaged in
looking after the welfare of the Cows, its progenies, buffaloes and other
animals. After completion of the investigation, charge-sheet came to be filed.
Pending the charge-sheet, respondent No.2 moved an application before the
learned Judicial Magistrate First Class, Mouda for temporary custody of 43
goats. The learned Magistrate rejected the application of respondent No.2, the
owner of the goats, vide order dated 06/07/2023 below Exh.10. The order
was carried in revision before the learned Additional Sessions Judge, Nagpur.
By the impugned order, the learned Additional Sessions Judge set aside the
order of the learned Magistrate and directed the interim custody of 42 goats to
be given to respondent No.2. Feeling aggrieved with the impugned order, the
present writ petition came to be filed.
04] A doubt was raised about the authority of the petitioner and by
order dated 26/10/2023, this Court has directed the learned A.P.P. to file a
detail report, whether the Gaushala run by the petitioner is certified by the
Animal Welfare Board of India (A.W.B.I.) Pursuant to the said direction, the
Investigating Officer filed affidavit informing that the Gaushala of the
petitioner is registered and recognized by A.W.B.I. and its registration number
is ND054/19. In this case, initially the custody of these 42 goats, out of 43
goats, were given directly to the petitioner for care and maintenance and
subsequently that interim custody was continued with the petitioner by order
dated 06/07/2023 of the learned Magistrate, Mouda.
05] It is necessary to mention here that in the intervening period, out
of 43 goats, 40 goats died while they were in custody of the petitioner.
According to the petitioner, those 40 goats died due to infection, as they have
been brought in unhealthy condition to the Gaushala run by the petitioner.
The learned Counsel for the petitioner submits that the postmortem reports of
the goats are sent to the Investigating Officer. The petitioner is coming with a
case that those 40 goats are died of infection, since they were unhealthy at the
time of taking custody by the petitioner.
06] It is a common ground that till the trial is concluded, the
temporary custody of the animals remains with the Pinjjrapole, Gaushala,
Infirmary or SPCA, as the case may be. In case of conviction, those animals
are to be forfeited to the said organizations and in case of acquittal, it will be
handed over to the owner of the animals. The provision is also made for
making payment by the owner of the animals or owner of the vehicle, in
which they were being transported, for treatment, care and maintenance of
those animals by the said organizations. Therefore, it is clear that the
impugned order directing to hand over custody of 43 goats to respondent No.2
pending the trial is against the provisions of the Act.
07] As far as the death of 40 goats while in custody of the petitioner is
concerned, it is submitted by the learned Counsel for respondent No.2 that all
goats were healthy, whereas the learned Counsel for the petitioner submits
that when the custody of the said goats was handed over to the Gaushala
managed by the petitioner, they were unhealthy and infected. In views of
rival stands taken by the parties, the matter needs an enquiry, which has to be
done during trial. The learned Magistrate, after conclusion of the trial, will
have to deal with the disposal of the said animals. Therefore, without going
into that aspect, at this stage, particularly in writ jurisdiction, the petition can
be disposed of with certain directions to the learned Magistrate. Hence, the
order :
ORDER
i. The order impugned is set aside.
ii. The custody of remaining goats will remain with the Goushala run
by the petitioner, till the conclusion of trial.
iii. It is directed that the learned Magistrate shall hold an enquiry with
regard to the death of 40 goats, which have died in the intervening
period and pass appropriate orders while dealing with the issue of
disposal of the animals seized in the crime, at the time of conclusion
of the trial.
iv. The learned Magistrate, Mouda to see that the trial should be
concluded as expeditiously as possible or preferably within four
months from the date of this order.
v. With the aforesaid directions, the criminal writ petition is disposed
of. Rule accordingly.
(M.W. CHANDWANI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 08/02/2024 16:43:33
