Vasharambhai Ghelabhai Bhundiya vs State Of Gujarat
2021 Latest Caselaw 18032 Guj

     R/SCR.A/4244/2020                                JUDGMENT DATED: 03/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 4244 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         VASHARAMBHAI GHELABHAI BHUNDIYA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
TATVDEEP J JANI(7227) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 03/12/2021

                                 ORAL JUDGMENT

1. With the consent of learned advocates on both the sides, the matter is heard today finally.

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2. By way of this petition under Section 451 read with Section 482 of the Criminal Procedure Code, 1973, the petitioner has prayed to quash and set aside the order dated 01.01.2020 passed by the Court of learned Addl. Chief Judicial Magistrate, Morbi in Muddamal Application below Exhibit-1 filed in connection with the complaint being C.R. No. II - 506 of 2019 registered with Morbi Taluka Police Station under Sections 5, 8 and 10 of the Gujarat Animal Preservation Act, 1954 (for short, "the GAP Act"), Sections 11(1)(a), 11(1)(b), 11(1)(c), 11(1)(e), 11(1)(h) and 11(1)(k) of The Prevention of Cruelty to Animal Act, 1960 (for short, "the PCA Act"), Section 119 of the Gujarat Police Act, Sections 177 & 123 of the Motor Vehicles Act and Sections 8 & 9 of The Carriage By Road Act, as also the order passed by the Court of learned 2 nd Addl. Sessions Judge, Morbi in Criminal Revision Application No.12 of 2020 whereby, the said revision was dismissed and the order dated 01.01.2020 came to be confirmed; and to direct release of the muddamal vehicle - Ashok Eicher Pro Truck bearing registration No. GJ-33-T-9972, on suitable terms and conditions.

3. Learned advocate Mr. T. J. Jani for the petitioner submitted that the petitioner is the registered owner of the vehicle bearing registration No. GJ-33-T-9972 and is into the business of transportation. The said vehicle was intercepted by the complainant and six cows and five claves were found in the said vehicle. It was alleged that the said animals were transported in a cruel manner, without any basic facility and, therefore, FIR being II-CR No.506 of 2019 was registered with Morbi Taluka Police Station, Morbi. The petitioner urges that the vehicle is the only source of livelihood of the petitioner

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and if the same remains idle, its condition shall deteriorate and later, it would not be of any use.

3.1 Learned advocate Mr. Jani submitted that the respondent-authority has not followed the requisite procedure while ordering seizure of the muddamal vehicle. The Courts below ought to have considered the fact that the cattle were not carried for slaughter purpose and instead they were transported for being sold for the purpose of milking. He submitted that considering the allegations made in the impugned complaint, at the most, the petitioner would be liable for payment of fine. Learned advocate has produced on record a copy of the certificate dated 07.10.2019 issued by the Sarpanch of "Sri Nava Kataria Gram Panchayat", Village : Nava Kataria, Taluka : Bhachau - Kutch to bring home the point that the petitioner is into the business of milking of cattle and uses the vehicle in question for cattle transportation.

4. In the impugned complaint, the provisions of Sections 11(1)(a), 11(1)(b), 11(1)(c), 11(1)(e), 11(1)(h) & 11(1)(k) of the PCA Act have been invoked against the petitioner. Section 11 relates to "Treating animals cruelly" and sub-section (1) thereof consists of clauses (a) to (o) laying down the different circumstances as to when an offence under the said provisions would be attracted. For all the offences under clauses (a) to

(o) of sub-section (1) of Section 11 of the PCA Act, the punishment provided is fine which shall not be less than Ten Rupees but which may extend to Fifty Rupees in the case of a first offence and in the case of a second or subsequent offence committed within three years of the previous offence, with

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fine which shall not be less than Twenty Five Rupees but which may extend to One Hundred Rupees or with imprisonment for a term which may extend to three months, or with both. Clause (a) of Section 11(1) reads - "beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated; Clause (b) reads - "employs in any work or labour or for any purpose any animal which, by reason of its age or any disease], infirmity, wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be so employed; Clause (c) reads - wilfully and unreasonably administers any injurious drug or injurious substance to any animal or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by any animal; Clause (e) reads - keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; Clause (h) reads - being the owner of any animal fails to provide such animal with sufficient food, drink or shelter; and Clause (k) reads - offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill- treatment.

5. The petitioner is also facing prosecution under Sections 5, 8 and 10 of the GAP Act. Section 5 of the GAP Act reads thus:

"Prohibition against slaughter without certificate from Competent Authority :

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(1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter.

(1A) No certificate under sub-section (7) shall be granted in respect of -

(a) a cow;

(b) the calf of a cow, whether male or female and if male, whether castrated or not;

(c) a bull;

(d) a bullock;

(2) In respect of an animal to which sub-section (1A) does not apply, no certificate shall be granted under sub- section (1) if in the opinion of the Competent Authority -

(a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations;

(b) the animal if male, is useful or likely to become useful for the purpose of breeding;

(c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing offspring.

(3) Nothing in this section shall apply to -

(a) the slaughter of any of the following animals for such bonafide religious purposes, as may be prescribed, namely :-

(i) any animal above the age of fifteen years other than a cow, bull or bullock.

(b) the slaughter of any animal not being a cow or a calf of a cow, bull or bullock, on such religious days as may be prescribed :

Provided that a certificate in writing for the slaughter referred to in clause (a) or (b) has been obtained from the competent authority.

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(4) The State Government may, at any time for the purpose of satisfying itself as to the legality or propriety of any order passed by a Competent Authority granting or refusing to grant any certificate under this section, call for and examine the records of the case and may pass such order in reference thereto as it thinks fit.

(5) A certificate under this section shall be granted in such form and on payment of such fee as may be prescribed.

(6) Subject to the provision of sub-section (4) any order passed by the Competent Authority granting or refusing to grant a certificate, and any order passed by the State Government under sub-section (4) shall be final and shall not be called in question in any Court."

5.1 The provision of Section 8 of the GAP Act has also been invoked against the petitioner. It reads thus:

"8. Penalties :

(1) Whoever in contravention of the provisions of sub- section (1) of section 5, slaughters any animal without a certificate for which such certificate is required, shall, on conviction be punished with imprisonment for a term which may extend to one year and with fine which may extend to ten thousand rupees.

(2) Whoever in contravention of the provisions of sub- section (1) of section 5, slaughters any animal as specified in sub-section (1A) of section 5 shall, on conviction, be punished with imprisonment for life but shall not be less than ten years and with fine which may extend to five lac rupees but shall not be less than one lac rupees.

(3) Whoever contravenes the provisions of sections 6 shall, on conviction, be punished with imprisonment for a term which may extend to one year and with fine which may extend to ten thousand rupees.

(4) Whoever contravenes the provisions of section 6A

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or 6B shall, on conviction, be punished with imprisonment for a term which may extend to ten years but shall not be less than seven years and with fine which may extend to five lac rupees but shall not be less than one lac rupees."

5.2 Section 10 of the GAP Act relates to "Abetments and attempts". It provides that "whoever abets any offence punishable under this Act or attempts to commit any such offence shall be punished with the punishment provided in this Act for such offence".

5.3 Learned advocate Mr. Jani submitted that none of the above provisions would be applicable to the petitioner, as the petitioner is the owner of the vehicle in question and was not present at the place when it was seized in connection with the alleged offence. Further, the cattle in question were being transported for milking purpose and not for slaughter purpose. Hence, none of the above provisions nor the provisions of Sections 8 & 9 of The Carriage by Road Act would be attracted in this case. He submitted that it would be matter of evidence and is required to be proved during trial. Prima facie, the petitioner has been successful in showing that the cattle were being transported for milking purpose and hence, the interim custody of the vehicle may be handed over to him. He stated that necessary procedure under Rule-4(A)(c) of the Gujarat Animal Preservation (Amendment) Rules, 2017 has also not been followed at the time of seizing the vehicle in compliance of sub-section (4) of Section 6A.

6. Mr. Pranav Trivedi, learned APP submitted that the petitioner would have no right to claim the vehicle since the

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Amendment, which has been brought in by way of Section 6A of G.A.P. Act, 1954, is with the intent that owners of such vehicles should not be given custody of vehicles so seized, as there is a presumption that the vehicle would again be used for transporting animals for slaughter purpose and hence, a provision has been made for forfeiture of the vehicle to the Government. Learned APP, thereby, submitted that the larger purpose behind the enactment of the provision may be considered.

7. Rule 4A of the Gujarat Animal Preservation (Amendment) Rules, 2017 provides for the manner for forfeiture of vehicle under sub-section (3) of sub-section 6A or sub-section (2) of section 6B of the G.A.P. Act. Clause (1) of sub-rule (a) of Rule 4A provides that when there is reason to believe that an offence under sub-section (3) of Section 6A of sub-section (2) of sub-section 6B has been committed in respect of any animal, as specified in sub- section (1A) of Section 5 of the Act or, or beef or beef product is being transported in contravention of the provisions of the Act, such animal or product together with vehicle, conveyance, container and any other equipment used in committing any such offence, may be seized by Police Officer by stopping the vehicle or conveyance and causing it to remain stationary as long as may reasonable be necessary for examination of the contents in the vehicle, conveyance, container and any other equipment and inspection of all records in possession of such driver or other person in charge of the vehicle or conveyance any other person in the vehicle or conveyance. For ready reference, sub-rule (a) of Rule 4A is reproduced hereunder:

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"4A. Manner for forfeiture of vehicle under sub-section (3) of section 6A or sub-section (2) of section 6B of the Act :

(a) (1) When there is reason to believe that an offence under sub-section (3) of section 6A or sub- section (2) of section 6B has been committed in respect of any animal as specified under sub-section (1A) of section 5 of the Act, or beef or beef product is being transported in contravention of the provisions of the Act, such animal or product together with vehicle, conveyance, container and any other equipment used in committing any such offence, may be seized by Police- officer by stopping the vehicle or conveyance and causing it to remain stationary as long as may reasonably be necessary for examination of the contents in the vehicle, conveyance, container and any other equipment and inspection of all records in possession of such driver or other person in charge of the vehicle or conveyance any other person in the vehicle or conveyance.

(2) The Police officer who has made the seizure under this rule shall immediately send sample of the suspected beef to Forensic Science Laboratory. The animal captured in vehicle or conveyance as specified under sub-section (1A) of section 5 of the Act shall be handed over to nearest designated infirmary.

(3) it shall be the duty of the driver, owner or the perosn in charge of the vehicle or conveyance from whom the sample of suspected beef is taken, to upkeep the remaining quantity of suspected beef in good condition till the result of Forensic Science Laboratory is received by taking such steps as the police officer may deem necessary.

(4) every police officer making seizure under this rule shall place on such vehicle, conveyance, container and any other equipment, a mark indicating that the same has been seized, and shall, as soon as may be make a report of such seizure to immediate superior officer."

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7.1 Clause (b) of Rule 4A provides as under;

"(b) The Sub- Divisional Police Officer may make an order to confiscate such vehicle, conveyance, container and any other equipment seized under sub-section(3) of Section 6A or sub-section(2) of section 6B of the Act."

7.2 Clause (c) of Rule 4A reads thus:

"(c) No order confiscating any vehicle, conveyance, container and any other equipment shall be made under clause (b) without giving notice in writing to the person from whom it is seized informing such person of the grounds on which it is proposed to confiscate and considering objections, if any:

Provided that, no order confiscating a vehicle, conveyance, container and any other equipment shall be made except, after giving a notice in writing to the registered owner thereof."

7.3 Clause (d) of Rule 4A reads thus:

"No such order confiscating vehicle, conveyance, container and any other equipment shall be made under clause (b), if the owner of the vehicle conveyance, container and any other equipment proves to the satisfaction of the authorised officer that the same was used in carrying animal or beef or beef product without the knowledge or connivance of the owner, agents and person in the vehicle, conveyance, container any any other equipment if any, and each of them had taken all reasonable and necessary precautions against such use."

8. In the instant case, no seizure has been reported to the Sub-Divisional Police Officer and no procedure has been followed for ordering confiscation of the vehicle in question. Under the referred provision, it becomes incumbent on the

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Sub-Divisional Police Officer to give necessary notice to the registered owner of the vehicle so as to enable him to explain the circumstances under which the prohibited cattle were found in the vehicle. Such procedure has not been followed in this case. In this case, as per police report, no such order of confiscation has also been passed. The trial will take its own time to conclude.

9. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai's case (supra), the relevant portion of which reads thus;

"15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of

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application for return of such vehicles."

10. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the custody of the vehicle, if granted in favour of the petitioner on stringent terms and conditions, no prejudice is likely to be caused to the prosecution.

11. In the result, the petition is allowed. Both the above orders passed by the learned Courts below are quashed and set aside. The authority concerned is directed to release the vehicle bearing registration No.GJ-33-T-9972 in favour of the petitioner on the conditions that the petitioner :

(i) shall furnish solvent surety equivalent to half of the value of the vehicle, as noted in the seizure memo.

(ii) shall file an Undertaking before the trial Court that he shall not sell, transfer, alienate and/or create any third party right in the vehicle, in any manner, without the prior permission of the trial Court concerned until the conclusion of trial;

(iii) shall produce the vehicle as and when directed by the trial Court;

11.1 Before handing over possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed panchnama in that regard, if not drawn, shall be drawn for the purpose of trial. If the Investigating Officer

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finds it necessary, videography / photography of the vehicle shall also be done and the expenses thereof shall be borne by the applicant. Rule is made absolute. Direct service is permitted.

(GITA GOPI, J) ila