Gauhati High Court
Crl.Pet./619/2023 on 18 June, 2024
Page 1 of 19
GAHC010135162023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl. Pet /619/2023
Abdul Kadir
S/o Abdul Matin
R/o Vill- Soro Pur, Bhanga
P.S. Badarpur, Dist. Karimganj
Petitioner
-Versus-
The State of Assam
Represented by the PP, Assam
Respondent
For Petitioner : Mr. A. Ahmed, Advocate
For Respondent : Mr. D. Das, Additional Public Prosecutor
Date of hearing : 10.06.2024
Date of judgment : 18.06.2024
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
18.06.2024
(M.K. Kalita, J)
1) Heard Mr. A. Ahmed, learned counsel for the petitioner. Also
heard Mr. D. Das, learned Additional Public Prosecutor
representing the State of Assam.
Crl.Pet./619/2023 Page 1
2) This Criminal Petition has been registered on filing of an
application under Section 482 of the Code of Criminal
Procedure, 1973 read with Section 397/401 of the said Code
by the petitioner namely, Abdul Kadir impugning the order
dated 10.02.2023 passed by learned Session Judge
Karimganj in Criminal Appeal No. 14/2022, whereby the order
dated 20.08.2022, passed by learned Additional Chief Judicial
Magistrate, Karimganj in G.R. Case No.1088/2022 was
upheld. By the said order, the prayer for zimma, by the
petitioner, of his cattle, which were seized in connection with
the said case, was rejected by the learned Additional Chief
Judicial Magistrate, Karimganj.
3) The facts relevant for the consideration of the instant criminal
petition, in brief, are as follows:
(i) On 23.05.2022 one Sri Pranab Mili, SI of Police of
Malua PICP had lodged an FIR before the Officer-In-
Charge of Badarpur Police Station, inter-alia, alleging
that on 22.05.2022, at about 9.55 pm, an information
was received through reliable sources regarding illegal
smuggling and transportation of cattle from Makhibaha
to Bangladesh through Kushiyara River through
Krishnopur Ghat. Accordingly, a naka checking was
conducted at Sonapur at around 10.15 pm. Thereafter,
at around 10.45 pm, the accused persons named in
the FIR, namely, (1) Abdul Matin, and (2) Nazim Uddin
Crl.Pet./619/2023 Page 2
who were taking away 13 numbers of cows were
detained at this spot for enquiry.
(ii) During enquiry it was found that the accused persons
named in the FIR have stolen these cows from various
locality and were intending to smuggle the same to
Bangladesh. Apart from the above-named two accused
persons, names of four other accused persons are also
mentioned in the FIR, who were suspected to have
been involved in the alleged crime along with the
above-named two accused persons.
(iii) It is also stated in the FIR that the accused persons
also led the police to four other cows which were
recovered from nearby jungle.
4) The learned counsel for the petitioner has submitted that the
petitioner is the owner of the cattle which were recovered
from the grazing field which is stated to be jungle in the FIR.
5) The learned counsel for the petitioner has submitted that
during the last part of April 2022 till June 2022, there was a
devastating flood situation in the Karimganj district, and the
house of the petitioner was also inundated and therefore, he
along with other villagers took shelter near the National
Highway along with his cows and to keep the cows safe he
let them to be kept in high field where flood waters could not
reach. However, the police misconceived said cows to be
brought for illegal transportation and seized those cows from
the grazing field.
Crl.Pet./619/2023 Page 3
6) The learned counsel for the petitioner has also submitted that
the zimma petition filed by the present petitioner seeking
interim custody of his cows was rejected by the learned
Additional Chief Judicial Magistrate, Karimganj due to wrong
interpretation of the provision of Section 11 (5) of the Assam
Cattle Preservation Act, 2021.
7) It is submitted by the learned counsel for the petitioner that
the present petitioner is the owner of the seized cows and he
had produced documents in support of his claim of ownership
of the seized cattle, before the learned Magistrate. It is also
submitted by learned counsel for the petitioner that there is
no accusation against the present petitioner in the G. R. Case
No.1088/2022.
8) The learned counsel for the petitioner has also submitted that
no satisfaction was recorded by the learned Additional Chief
Judicial Magistrate, Karimganj in the impugned order that
there is enough material to presume that a prima facie
offence under the Act has been committed by the present
petitioner and mechanically declined to release the seized
cows to the petitioner, in spite of the fact that the petitioner
is the owner of the said cows. Learned counsel for the
petitioner has also submitted that after rejection of the
zimma prayer by the Court of learned Additional Chief Judicial
Magistrate, Karimganj, the petitioner preferred an appeal
under Section 12 of the Assam Cattle Preservation Act, 2021
Crl.Pet./619/2023 Page 4
to the Court of learned Sessions Judge, Karimganj against
the aforesaid order. However, it is submitted by the learned
counsel for the petitioner that the learned Sessions Judge,
Karimganj also misread the provision of Section 11(5) of the
Assam Cattle Preservation Act, 2021 and upheld the
impugned order of learned Additional Chief Judicial
Magistrate.
9) It is also submitted by the learned counsel for the petitioner
that the appellate Court, while dismissing the appeal, has
also observed, in the impugned order, that no valid permit
was shown by the petitioner, however, it totally missed the
fact that the cattle of the petitioners were not meant for any
transportation and it was not seized from any vehicle during
transportation, rather those were seized from jungle on being
shown by the FIR named accused. Learned counsel for the
petitioner has also submitted that as the cows belonging to
the petitioners were only grazing in the jungle, the question
of obtaining permit under Section 7 of the Assam Cattle
Preservation Act, 2021 does not arise in this case. It is also
submitted that both the Courts namely, the Court of
Additional Chief Judicial Magistrate, Karimganj as well as the
Court of learned Session Judge, Karimganj mechanically
rejected the zimma prayer of the petitioner ignoring the
object of the Assam Cattle Preservation Act, 1921.
10) The learned counsel for the petitioner has also submitted that
under similar circumstances a Coordinate Bench of this Court
Crl.Pet./619/2023 Page 5
in the case of "Md. Sirajul Islam Vs. The State of Assam"
(Order dated 20.10.2022 passed in the Criminal Revision
Petition No. 429/2022) as well as in the case of "Alfaruqure
Faraji @ Alfaruk Foraji Vs The State of Assam And Anr" (Order
dated 17.08.2022 passed in Criminal Revision Petition
No.321/2022) had directed to give interim custody of the
seized cattle in favor of the owners of the said cattle.
11) The learned counsel for the petitioner has also submitted that
in both the above cited cases, the Court relied on the
judgment of the Supreme Court of India in the case of
"Manager, Pinjarapol, Deudar and another v. Chakram, Moraji
Nat and others" reported in 1998 (6) SCC 520, wherein the
interim custody of seized goats and sheep were given to the
owners of the said animals during the pendency of the case.
12) On the other hand, Mr. D. Das, learned Additional Public
Prosecutor, has submitted that in view of the provisions of
Section 11(5) of the Assam Cattle Preservation Act, 2021
where there is a clear embargo on release of the seized
cattle, there is no illegality or impropriety committed by the
Court of the learned Additional Chief Judicial Magistrate,
Karimganj or by the Court of learned Sessions Judge,
Karimganj in rejecting the prayer of the zimma of the seized
cows in favor of the present petitioners.
13) I have considered the submissions made by learned counsel
for both the sides and have perused the materials available
Crl.Pet./619/2023 Page 6
on record, including the scanned copy of the case records of
Criminal Appeal Case No. 14/2022 as well as Badarpur P.S.
Case No. 121/2022, which were called for in connection with
the instant criminal petition.
14) On perusal of the available records, it appears that on
27.05.2022, the petitioner, namely, Abdul Kadir, had filed an
application before the Court of learned Additional Chief
Judicial Magistrate, Karimganj, seeking zimma of the nine
cattle out of seventeen cattle, which were seized in
connection with the said case, claiming himself to be the
owner of these said cattle. It appears that on the same day,
one Arun Chandra Das had also filed an application before
the said court seeking zimma of eight numbers of cattle
seized in connection with the case, also claiming himself to
be the owner. It also appears from the record that one
zimma petition for the seized cattle was also filed on behalf
of one Dhyan Chand Foundation Goshala, which claimed to
be a registered trust having been recognized by Animal
Welfare Board of India.
15) However, it appears that by order dated 26.07.2022, learned
Additional Chief Judicial Magistrate, Karimganj had rejected
the prayer for zimma by the Dhyan Chand Foundation
Goshala and directed the Investigating Officer to find out the
ownership of the seized cattle and also directed the present
petitioner to cooperate with the Investigating Officer and
produce the documents of ownership of the cattle before the
Crl.Pet./619/2023 Page 7
Investigating Officer. A report was also called for from the
Investigating Officer in this regard.
16) It also appears from the record that by order dated
20.08.2022, which has been impugned in the instant criminal
petition, the learned Additional Chief Judicial Magistrate,
Karimganj has observed that the Investigating Officer had
submitted that no person could produce any valid document
regarding ownership of the seized cattle, therefore, he could
not ascertain as to who is the actual owner of the seized
cattle. It also appears that the seized cattle are kept in the
cow shelter at Katigora and it is reported by the Investigating
Officer to the learned Additional Chief Judicial Magistrate that
all the necessary amenities for survival of the cattle has been
provided there. However, it appears that without giving any
finding regarding the claim of ownership of the nine numbers
of seized cattle by the present petitioner, the learned
Additional Chief Judicial Magistrate, Katigora had rejected the
prayer for zimma, mainly on the ground that during inquiry or
trial, the giving of cattle on zimma to anyone including the
owner is strictly prohibited under the said provision.
17) For the sake of convenience, the operative part of the
impugned order passed by learned Additional Chief Judicial
Magistrate, Karimganj is reproduced herein below:
"However, as the offence is registered
under section 13 of the Assam Cattle
Preservation Act 2021, before deciding
zimma the court must have to consider
Crl.Pet./619/2023 Page 8
the provision under Section 11(5) of the
Act which provides that the Magistrate
may release other articles and
conveyance except the cattle on zimma.
Thus, during enquiry or trial giving the
cattle on zimma to anyone including the
owner is strictly prohibited. Hence, the
zimma prayer of the petitioner is hereby
rejected."
Thus, it appears that by impugned order dated 20.08.2022,
the learned Additional Chief Judicial Magistrate, Karimganj
had rejected the prayer for zimma of the seized cattle to the
present petitioner mainly on the ground that, the said court
was of the view that as per provision of Section 11 (5) of the
Assam Cattle Preservation Act 2021, during enquiry or trial,
giving the cattle on zimma to anyone, including the owner, is
strictly prohibited.
18) On the other hand, learned Sessions Judge, Karimganj, while
considering the appeal preferred under Section 12 of the said
Act, has observed in the impugned judgment dated
10.02.2023, that as the accused persons have failed to show
any valid permit for transportation of the seized cattle, there
are materials to presume that an offence under Section 7
read with Section 13 of the Act has been committed. The
learned Sessions Judge, Karimganj has held that the
Magistrate Court was correct in rejecting the prayer for
zimma of the seized cattle in the light of the provisions of
Section 11(5) of the Act. Thus, basically, it appears that both
Crl.Pet./619/2023 Page 9
the courts have rejected the prayer for zimma of the seized
cattle to the petitioner citing the embargo provided in Section
11(5) of the Assam Cattle Preservation Act, 2021.
19) Now, let us examine, as to whether such a strict prohibition,
as viewed by both the above-mentioned courts, has been
envisioned by the statute or not.
20) If we look at the preamble of the Assam Cattle Preservation
Act, 2021, it would make clear that the said Act was enacted
to provide for the preservation of cattle by regulating their
slaughter, consumption, illegal transportation and the matter
connected and incidental therewith. Thus, the main object of
the Act is the preservation of cattle and what has been
regulated is the illegal slaughter, consumption and illegal
transportation of the cattle. Section 13, read with Section 4,
5, 6, 7 and 8 of the aforesaid Act penalises the act of illegal
slaughter, consumption and illegal transportation of the
cattle. Section 11(5) and Section 11(7) of the said Act
prescribes the enabling provisions for giving the interim
custody of the seized materials, including cattle, during the
pendency of the criminal proceedings.
21) Section 11 (5) of the Assam Cattle Preservation Act 2021
provides as follows:
"11(5). On receipt of the report, the
Judicial Magistrate First Class may, on
his being satisfied that there is
enough material to presume that a
Crl.Pet./619/2023 Page 10
prima facie offence under this Act has
been committed or intended to be
committed, release the seized
materials including vehicle
/conveyance except cattle on
furnishing of a bank guarantee equal
to the value of the material or vehicle
/conveyance except, to the
satisfaction of the Court pending
disposal of the criminal proceeding
instituted in respect of the alleged
offence"
Whereas, Section 11 (7) of the Assam Cattle Preservation Act
2021 provides as follows:
"11(7). The cattle so seized may be
handed over to an institution
established under Section 20 of this Act
or any existing Goshala or similar
institution after value assessment by
Animal Husbandry and Veterinary
Department".
A plain reading of above provisions would clearly
indicate that both are enabling provisions dealing with
custody of seized materials including
vehicle/conveyance/cattle during the pendency of the
criminal proceeding instituted in respect of the alleged
offence under the said Act. It also appears that whereas
Section 11(5) deals with the interim custody of seized
Crl.Pet./619/2023 Page 11
materials including vehicle and conveyance, Section 11(7)
deals with the interim custody of cattle.
22) In a catena of judgments [for example in "New India Sugar
Mills Ltd Vs. Commissioner of Sales Tax, Bihar" reported in AIR
1963 SC 1207 and in "Kanwar Singh and Others Vs. Delhi
Administration, reported in "AIR 1965 SC 871", etc.], the Apex
Court has observed as follows:
"It is a recognized rule of
interpretation of statute that
expressions used therein should
ordinarily be understood in a sense in
which they best harmonize with the
object of the statute and which
effectuate the object of legislature".
23) As already discussed herein above, the object of the Assam
Cattle Preservation Act, 2021, as appears from its preamble,
is the preservation of cattle by regulating illegal slaughter,
illegal transportation and consumption. Various provisions of
the Assam Cattle Preservation Act, 2021 has to be
interpreted harmoniously so as to further the object sought
to be achieved by the said Act. In any criminal proceeding
which is initiated under the said Act, where any allegation of
commission of an offence under the Act has been made and
where seizure of any cattle has been made, one of the prime
concerns for the court would be to ensure the welfare of the
Crl.Pet./619/2023 Page 12
seized cattle. As the retention of the seized cattle by the
seizing authority, during the pendency of the criminal
proceedings, may not be conducive for the welfare of the
seized cattle, the provision for interim custody of the seized
cattle has been made in the Section 11(7) of the said Act.
In the above-mentioned background, if the words "except
cattle" appearing in Section 11(5) of the Act is interpreted to
mean as an absolute bar in giving zimma of the cattle to
anyone including the owner, it would frustrate the very
object of the Act regarding the preservation and welfare of
the cattle.
24) This Court is of the view that the Section 11(5) of the Act has
to be interpreted as an enabling provision regarding the
interim release of the seized material, including vehicle and
conveyance only, which were seized in a criminal proceeding
instituted in respect of the alleged offence under the
aforesaid Act. As regards the interim release of cattle is
concerned, the enabling provision is provided in Section
11(7) of the Act, which enables the handing over of the
seized cattle to an institution established under Section 20 of
the Act or to existing Goshalas or similar institutions during
the pendency of the criminal proceeding instituted in respect
of the alleged offence.
25) The question which arises at this stage is, as to whether
there is any provision in the Assam Cattle Preservation Act,
2021 which imposes an absolute bar in giving interim zimma
Crl.Pet./619/2023 Page 13
of the seized cattle to its owner during the pendency of the
criminal proceeding. This Court does not find any such
absolute bar in any of the provision of the Assam Cattle
Preservation Act 2021.
26) While considering a similar question in respect of
interpretation of Section 35 (2) of the Prevention of Cruelty
to Animals Act, 1960, the Supreme Court of India in the case
of "Manager, Pinjarapol, Deudar and another v. Chakram,
Moraji Nat and others" (Supra) has held that subject to certain
conditions the interim custody of seized animal may be given
even to an owner who is facing an accusation in the pending
criminal proceeding where the said animal has been seized.
The Apex Court has observed in the aforesaid case as
follows:
"10. Now adverting to the contention
that under Section 35(2), in the event of
the animal not being sent to an
infirmary, the Magistrate is bound to
give the interim custody to a pinjrapole,
we find it difficult to accede to it. We
have noted above the options available
to the Magistrate under Section 35(2).
That sub-section vests in the Magistrate
the discretion to give interim custody of
the animal to a pinjrapole. The material
part of the sub-section (shorn of other
details) will read, the Magistrate may
direct that the animal concerned shall
be sent to a pinjrapole. Sub-section (2)
Crl.Pet./619/2023 Page 14
does not say that the Magistrate shall
send the animals to a pinjrapole. It is
thus evident that the expression "shall
be sent" is a part of the direction to be
given by the Magistrate if in his
discretion he decides to give interim
custody to a pinjrapole. It follows that
under Section 35(2) of the Act, the
Magistrate has discretion to hand over
interim custody of the animal to a
pinjrapole but he is not bound to hand
over custody of the animal to a
pinjrapole in the event of not sending it
to an infirmary. In a case where the
owner is claiming the custody of the
animal, the pinjrapole has no
preferential right. In deciding whether
the interim custody of the animal be
given to the owner who is facing
prosecution, or to the pinjrapole, the
following factors will be relevant:
(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 animal is
not liable to be seized, so the owner will
have a better claim for the custody of
the animal during the prosecution;
Crl.Pet./619/2023 Page 15
(4) the condition in which the animal
was found at the time of inspection and
seizure;
(5) the possibility of the animal being
again subjected to cruelty.
There cannot be any doubt that
establishment of the pinjrapole is with
the laudable object of preventing
unnecessary pain or suffering to animals
and providing protection to them and
birds. But it should also be seen:
(a) whether the pinjrapole is functioning
as an independent organization or under
the scheme of the Board and is
answerable to the Board; and
(b) whether the pinjrapole has a good
record of taking care of the animals
given under its custody.
A perusal of the order of the High Court
shows that the High Court has taken
relevant factors into consideration in
coming to the conclusion that it is not a
fit case to interfere in the order of the
learned Additional Sessions Judge
directing the State to hand over the
custody of the animals to the owners."
27) In the instant case, the petitioner Abdul Kadir has not been
facing any accusation in the pending criminal proceeding in
which the cattle have been seized. He has claimed himself to
be the owner of the seized cattle and have produced certain
Crl.Pet./619/2023 Page 16
documentary evidence in support of his claim. However, the
learned Additional Chief Judicial Magistrate, Karimganj,
instead of examining the said documents and coming to
prima-facie finding regarding the claim of the petitioner, had
directed the Investigating Officer to ascertain the ownership
of seized cattle. On failure of the Investigating Officer to
ascertain the ownership of the seized cattle, the learned
Additional Chief Judicial Magistrate, Karimganj has rejected
the prayer for custody to the petitioner, citing absolute
embargo, in giving such custody to the owner, under Section
11(5) of the aforesaid Act.
28) Apart from the statement of the Investigating Officer which is
reflected in the impugned order of the learned Additional
Chief Judicial Magistrate, Karimganj that the seized cattle are
provided with all necessary amenities for their survival in the
cow shelter at Katigora, there is nothing on record from
where the Magistrate could have assessed as to what
amenities are provided in the Katigora cow shelter, what is
the intake capacity of the said cow shelter and what is the
actual number of cattle presently kept in the said cow
shelter. These are relevant consideration which could not be
discernible from the material available in the record. It also
appears from the record that after seizure of the cattle in the
aforesaid case, two cattle have already died due to
"Tympanites". Under such circumstances, learned Additional
Chief Judicial Magistrate, Karimganj ought to have properly
examined the claim of the petitioner, instead of rejecting his
Crl.Pet./619/2023 Page 17
prayer by citing the embargo of the Section 11(5) of the
Assam Cattle Preservation Act, 2021.
29) The use of the word "may" in the Section 11(7) of the Assam
Cattle Preservation Act, 2021 itself indicates that it is not
mandatory in all circumstances that the seized cattle have to
be handed over to an institution established under Section 20
of the Act or to any existing Goshala or similar institution. It
is implied that in an appropriate case, to further the object of
the Act i.e., the preservation of cattle, if the Judicial
Magistrate of 1st class finds that welfare of the seized cattle is
in giving the zimma of the same to its actual owner, none of
the provisions of the Act prohibits him/her to do so.
30) Accordingly, it is hereby held that, in an appropriate case,
there is no embargo under Assam Cattle Preservation Act,
2021 in giving zimma of the seized cattle to the owner of the
said cattle during the pendency of a criminal proceeding
instituted in respect of the alleged offence under the said
Act. It is also clarified that the Section 11(5) and Section
11(7) of the Assam Cattle Preservation Act, 2021 puts no
such absolute embargo on the Court to give zimma of the
seized cattle to its owner.
31) In view of the discussion made and the reasons cited in the
foregoing paragraphs, the impugned judgement dated
10.02.2023 passed by learned Session Judge, Karimganj in
Criminal Appeal No. 14/2022 as well as the impugned order
Crl.Pet./619/2023 Page 18
dated 20.08.2022 passed by learned Additional Chief Judicial
Magistrate, Karimganj in G.R. Case No. 1088/2022 are
hereby set aside and quashed.
32) The learned Additional Chief Judicial Magistrate, Karimganj is
directed to decide afresh the prayer of the petitioner for the
interim custody of the seized cattle on the basis of his claim
of the owner ship over the seized cattle in the Badarpur P.S.
Case No. 121/2022.
33) Let a copy of this judgement be sent to the court of learned
Sessions Judge, Karimganj as well as to the learned
Additional Chief Judicial Magistrate, Karimganj.
34) With the above observations, this instant criminal petition is
accordingly, disposed of.
JUDGE
Comparing Assistant
Crl.Pet./619/2023 Page 19
