Sunilbhai Dilipbhai Patil vs State Of Gujarat
2021 Latest Caselaw 5384 Guj

              R/SCR.A/8243/2020                                ORDER



                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

               R/SPECIALCRIMINALAPPLICATIONNO. 8243of 2020
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                                  SUNILBHAIDILIPBHAIPATIL
                                          Versus
                                    STATEOF GUJARAT
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Appearance:
RIKINKUMARR PATEL(9470)for the Applicant(s)No. 1
MR. RADHESHY VYAS(7060)for the Respondent(s)No. 2
NISARGS SHAH(8886)for the Respondent(s)No. 2
MS NISHATHAKORE,APPfor the Respondent(s)No. 1
RULESERVED(64)for the Respondent(s)No. 3
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                      Date: 06/05/2021
                                       ORALORDER

1. The present petition has been filed under Article 226 and 227 of

the Constitution of India challenging the legality and validity of the

judgment and order dated 10.09.2020 passed in application preferred

under Section 451 of the Code of Criminal Procedure, 1973 (for short

"Cr.P.C.) by the Judicial Magistrate First Class, Songadh, District Tapi,

which confirmed by the Principal District & Sessions Judge, Tapi at

Vyara by the judgment and order dated 07.11.2020 passed in Criminal

Revision Application No.26 of 2020 and further seeking direction to the

respondent no.2 to release/handover the interim custody of 12 Animal

Buffaloes during pendency of trial.

2. The brief facts as stated in the petition are as under:-

2.1. It is the case of the petitioner that he purchased Buffaloes from one

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Asifbhai Rajjakbhai Multani, who is resident of Vasavad, Gondal, for his

business use as the petitioner has business of animal husbandary as well

as selling milk. During the transportation of animals, the police seized the

Eicher Tempo bearing registration no. GJ-33-T-1256 in connection with

the offence registered as CR. No.11824004200789 of 2020 before

Songadh Police Station, Tapi and animals were also seized by police and

sent to the Panjarapol, Kamrej.

2.2. The petitioner preferred an application under Section 451 of the

Cr.P.C. before the Judicial Magistrate First Class, Songadh, District Tapi

to get custody of animals, which came to be rejected and being aggrieved

by the same, the petitioner challenged the order before the Sessions Court

by way of filing Criminal Revision Application No.26 of 2020, which

came to be rejected confirming the order of Judicial Magistrate First

Class, Songadh, District Tapi. Hence, the petitioner has challenged both

the orders by way of filing the present petition before this Court.

3. Learned advocate Mr.Rikinkumar Patel appearing for the petitioner

has submitted that the animals are purchased by the petitioner for his

business use of Animal Husbandary and milk selling purpose, however,

during transportation, police has seized vehicle as well as the animals. He

has drawn the attention of this Court to the certificate issued by Dhamane

Gram Panchayat, Taluka Shindkheda, District Dhule annexed at

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Annexure-C and submitted that the petitioner is a farmer by profession

and he had purchased the livestock for the purpose of milking. He has

also drawn the attention of this Court to the certificate of Shri Vasavad

Gram Panchayat, Taluka Gondal, District Rajkot and submitted that in

the said certificate it is mentioned that the petitioner purchased the

livestock for the purpose of milking. The declaration by the original

owner is also annexed, who has certified that petitioner is the owner of

the livestock. He has submitted that the courts below have committed

serious error in rejecting the applications preferred by the petitioner.

4. Learned advocate Mr.Rikinkumar Patel for the petitioner, in

support of his submissions, has placed reliance on the orders dated

03.11.2020, 11.05.2012 and 11.10.2013 passed in Special Criminal

Application No.4286 of 2020, Special Criminal Application Nos.1323

and 1324 of 2012 and Special Criminal Application Nos.1832 and 1836

of 2012, respectively, by the Coordinate Benches of this Court.

5. Learned advocate Mr.Nisarg Shah appearing for the respondent

no.2 has vehemently submitted that the petitioner has failed to prove his

ownership qua seized the animals and the courts below have rightly

rejected the applications of the petitioner after considering the documents

produced by the petitioner. He has referred to the various Rules of the

Transportation of Animal Rules, 1978 and has submitted that the

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statutory provisions are not complied with by the petitioner. He has also

submitted that the petitioner has faulted vital provisions of law and the

certificate produced by the petitioner are not valid certificates and the

genuineness of the certificates is doubted. He has submitted that as per

amended Rule 125(E) of the Central Motor Vehicles Rules, the person

transporting or carrying livestock has to adhere to the Rules and has to

follow the relevant guidelines prescribed thereunder. He has submitted

that in the present case, there was a breach of the amended rule and it is

urged that no discretion may be exercised in favour of the petitioner.

6. This court has heard learned advocates appearing for the respective

parties and during the course of arguments a specific query was raised by

this Court to the learned counsels appearing for the respondents to point

out any legal bar against release of the vehicles in favour of the petitioner,

which the advocate for the respondents have not been able to point out

from the relevant applicable laws. The argument that is canvassed by the

respondents on this aspect is only that as there is violation of the law

while transportation of the livestock, the petition may not be entertained.

The other submission as canvassed by the advocate for respondent no.2

on merits of the petition is that the petitioner has not been able to prove

the ownership of the livestock and hence the claim of the petitioner

cannot be entertained.

R/SCR.A/8243/2020 ORDER

7. In such scenario before commenting onto the merits of the case and

the point as to the required indulgence of this Court, the relevant

applicable provisions and its rigors are required to be perused. The FIR

came to be registered for the offenccs punishable under sections 11(1)(d),

(e), (f), (h) of Prevention of Cruelty to Animals Act, 1960; Section 4 of

Gujarat Essential Commodities and Cattle Control Act, 2005; Gujarat

(Control and Restriction of) Transportation of Animals Order, 1975 and

Central Motor Vehicles (11th Amendment) Rules, 2015

The applicable provisions in the said legislations concerning the release

or restriction on the release of concerned property are reproduced herein

as under:

Prevention of Cruelty to Animals Act, 1960:-

"Section 29.Power of court to deprive person convicted of ownership of animal- (1) If the owner of any animal is found guilty of any offence under this Act, the court, upon his conviction thereof, may, if it thinks fit, in addition to any other punishment, make an order that the animal with respect to which the offence was committed shall be forfeited to Government and may, further, make such order as to the disposal of the animal as it thinks fit under the circumstances.

(2) No order under sub-section (1) shall be made unless it is shown by evidence as to a previous conviction under this Act or as to the character of the owner or otherwise as to the treatment of the animal that the animal, if left with the owner, is likely to be exposed to further cruelty"

Sections 9(2) and 13(2) of the Gujarat Essential Commodities and

Cattle Control Act, 2005

"9 (2) Any Court trying the contravention of an order may direct that any property in respect of which the Court is satisfied that the order has been contravened, and any vehicle, vessel or animal which the Court is satisfied has been used with the knowledge of the person having the control thereof for carrying such property, shall be forfeited to Government:

R/SCR.A/8243/2020 ORDER

Provided that if the court is of the opinion that it is not necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property, if may, for reasons to be recorded, refrain from doing so.

13 (2) The pubic servant aforesaid, may, either before or after the institution of any proceedings for any offence punishable under this Act, accept from any person charged with such offence by way of composition of the offence a sum of money not exceeding one thousand rupees, and direct the release of any property which has been seized as liable to forfeiture under this Act on payment of the value thereof as estimated by him."

Various other legislations governing the livestock have undergone

legislative changes in the recent past due to the change in social scenario

and the same could also have been important for adjudication of the

present petition. The said amendments being Gujarat Animal Preservation

(Amendment) Act, 2011 and Gujarat Animal Preservation (Amendment)

Act, 2017 by which the Sections 6A and 6B of the act has been amended

in 2011 and 2017 respectively. The same are not invoked in the present

case and hence the same would not have any applicability on the outcome

of the present case. This court has gone through the provisions of the said

Act also to check whether the said provisions do provide for any legal bar

in the release of seized property by any means. But on perusal of the said

provisions also it is clear that the same do not provide for any legal bar

and hence no further deliberation is made for the said provisions.

8. This court has perused the applicable laws and on the basis of the same

it is clear that there is no specific legal bar either in the provision or there

is no such intent reflecting from the legislation so as to curtail the powers

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available under Section 451 of Cr.PC. Hence the Courts below were not

precluded from exercising the powers available under Section 451 of

Cr.PC in any manner and the Courts were required to examine the merits

of the matter in its true sense and keeping in mind the intent and object of

Section 451 of Cr.PC which provides for interim release of property

during the pendency of trial. The above mentioned provisions of 1960

Act or 2005 Act provide for forfeiture by the orders of the Court which

clearly would be applicable at the stage of conclusion of trial or as and

when such orders directing the forfeiture are passed. None of the

provisions can be inferred in a manner that such forfeiture restricts the

grant of interim custody.

9. At this stage, It is also important to deal with the argument as raised by

the respondent no.2 on the aspect as to turn down the claim of the

petitioner as the ownership of the livestock is not proved by providing the

ownership documents. The said argument is to be appreciated keeping in

mind that this court is dealing with the application preferred under

Section 451 of Cr.PC. The said aspect would not turn the table much in a

scenario when there is no rival claim as to the ownership of the seized

property. In any circumstances looking the scheme of the Chapter-

XXXIV of the Code the intent is clear that the Court under Section 451

while directing the interim release of the vehicle is not required to

R/SCR.A/8243/2020 ORDER

determine the question of rights of the parties over a property, but it

merely has to decide about the custody of such property during the

pendency of trial. The general principle as to interim release of property

during the pendency of trial is undisputed and the same calls for release

of the property in favour of the person from whose possession the

property is seized unless there is a rival claim raised.

10. It would be apposite to refer to the observation made in the case of

Gurukrupa Mech Tech Pvt. Ltd. vs. State of Gujarat and Ors, reported in

2018(4) GLR 3324 wherein the underlying object of Section 451 of the

Cr.PC has been explained carefully along with its obligations on the

persons claiming for interim release, which is as under:-

"86. Section 451 enables the Magistrate to provide for the interim custody of such property pending the conclusion of enquiry or trial. It is only a temporary arrangement and what is contemplated is only an interim provision to provide the custody with a proper person as the Court thinks fit with the liability to produce the property back as and when directed by the Court. The maximum duration of the arrangement is only till the conclusion of the enquiry or trial. It follows that the arrangement is only temporary and the main object is to protect or preserve the property pending trial. Even if the person entrusted with interim custody is the owner, his possession or custody during the period of entrustment is only as a representative of the Court and not in his own independent right. He is bound by the terms of entrustment and the bond executed by him in favour of the Court. Any failure to comply with the terms will entail the necessary consequences also. His ownership or right to possession may not operate against his obligation to the Court. The entrustment or custody will not invest him with any preferential right to ownership or even possession. In the eye of law his possession or custody is only that of Court.

87. The arrangement once made is not even final till the conclusion of the inquiry or trial. The Court has the power or right to terminate the entrustment, get back the property from-him and entrust it to somebody else whom the Court deems fit in appropriate

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cases even before the conclusion of the inquiry or trial. So much so, the person entrusted with the property may also be entitled to seek termination of the entrustment and surrender the property even before the conclusion of trial. Cases may arise where the person to whom interim custody was ordered may not care to undertake the obligation. In such cases the Court may have to make other arrangements for the custody pending trial. After giving custody the Court may for reasons think that his custody may not be proper. In such cases the Court can terminate the arrangement and make other arrangements. Pending the inquiry or trial more than one such arrangement could be made.

88. Even in cases of rival claims for interim custody, the preference made to one person does not settle any right to the ownership or possession. Irrespective of the defeat in a contest for interim custody, the defeated party can successfully enforce his claim for custody if ultimately he comes out with flying colours. The ultimate consideration is only who is the proper person considered by the Court for the entrustment of the property. In doing so, the Court may have many considerations like safety of the property, the possibility of getting it back without damage etc. The arrangement is being made by the Court only for the preservation of property for being handed over to the person to whom the custody has to be ordered under Section 452 after the conclusion of trial or to be dealt with otherwise.

89. What is stated above does not mean that the power of the Court is arbitrary. Even though the power is discretionary it has to be exercised in a judicial manner. It is likely that there may be a contest for getting the interim custody like the case at hand. The person entitled to ownership or possession may be interested in getting the custody to himself in preference to the opponents due to various reasons. He may have the fear that at the hands of somebody else the property is liable to damage or misappropriation of the proceeds. The questions of prestige also may be there. For that reason itself there may be stiff opposition also. Custody to a wrong person may result in irreparable loss to the rightful claimant. Even though the power is discretionary, it is rather of a quasi-civil nature. In the choice of the person to be entrusted with interim custody in such cases the Court may have to take into consideration all the relevant aspects."

11. It is in this view the court now comes to the material available on

record which reflects the following:

The muddamal consist of 12 Buffaloes. The petitioner, as stated in the

petition, is into the business of milking. There is no allegation that the

petitioner was transporting livestock for the purpose of slaughter. It is

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further noticed that there is no reason to believe that the petitioner is not

the owner having produced documents on record. There is no reason to

doubt the ownership of the livestock as there is no rival claim as raised

by anyone. Presently, the livestock is being taken care of by the

Panjarapole-Respondent No.2-authorities. The courts below have rejected

the applications of the petitioner on the ground of breach of the

Transportation of Animal Rules, 1978 and it is nowhere alleged that the

cattle was transported for slaughter. The petitioner was having the

certificate of Dhamane Gram Panchayat, Taluka Shindkheda, District

Dhule and also having a declaration by the original owner saying that the

cattle was purchased for the purpose of milking by the present petitioner.

12. In view of the said facts which are borne from the record of the

petition and considering the governing principles of Section 451 of Cr.PC

and in absence of any legal bar, this Court finds that the findings of the

Courts below in rejecting the application of the petitioner on the ground

of alleged violation of the procedures is clearly erroneous and deserves to

be set aside. It is important to keep in mind that commission of offence is

always owing to some violation of law and it is only then criminal

machinery is put in motion. Hence by merely citing that there has been

violation of legal procedures, the powers available under Section 451

Cr.PC cannot be ignored.

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13. The findings of the courts below on the aspect of ownership and

absence of material also requires interference in view of the settled legal

position that the provisions of Section 451 do not require any

adjudication of the ownership of property and that in absence of any rival

claim the interim custody of the property can be handed over to the

person from whose possession the property is seized by the investigating

officer. The petitioner cannot be expected to prove his claim of

ownership in the same manner as he has to prove the same in a civil court

and hence the impugned orders cannot be permitted to sustain on this

ground also.

14. It is also important to deal with the decisions as rendered by both the

sides on this issue and the same in my view assist the case of the

petitioner in a better way as the Coordinate benches of this Court have

time and again passed orders directing the release of vehicles and live-

stock involved in commission of similar offences. The decisions as relied

upon by the advocate for the respondents are also considered but none of

the decisions lay down a proposition that there is a legal bar or there is

any such intent to restrict the live-stock with the Panjrapoles only. All the

decisions referred to by the respondents are morc on the aspcct of

restriction of illegal slaughter of cattle but not on the aspect of restriction

of the release of the same. The intent to restrict illegal slaughter of live-

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stock is the basis for all the recent legal changes but when we peruse the

record of the petition it is noone's case that the present live-stock was

being carried for illegal slaughter and this aspect has been not disputed

by the respondents in any manner during the course of hearing also. In

view of the aforesaid this Court finds no reason to refuse release of the

livestock in favour of the petitioner.

15. In the result, the petition is allowed. The impugned orders dated

10.09.2020 passed by the Judicial Magistrate First Class, Songadh,

District Tapi, and confirmed by the Principal District & Sessions Judge,

Tapi at Vyara vide order dated .07.11.2020 in Criminal Revision

Application No.26 of 2020 are hereby quashed and set aside. The

respondent no.2-Panjarapol, Kamrej is directed to release the muddamal

livestock seized in connection with the FIR in question, in favour of the

petitioner. The said procedure shall be followed after carrying out

necessary panchnama plus value of buffalo and clicking of photographs

by the investigating officer, if deemed necessary. The petitioner shall be

required to take care of the live-stock and has to ensure that no cruelty of

any nature is meted out to the live-stock. The petitioner shall make

available the live-stock as and when required by the Trial Court. The

petitioner shall deposit Rs.5,000/- with the Panjarapole-Respondent No.2

for incurring the expenditure and taking care of the live-stock. On

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production of the receipt of the deposited amount as directed, the present

judgment and order will be given effect. The petitioner states that due

care will be taken while transferring the live-stock and will follow the

norms, if any, pursuant to the prevailing COVID-19 pandemic passed by

the State Government.

16. Rule is made absolute. Direct Service Permitted.

(VAIBHAVID. NANAVATI,J) ABHISHEK