Animal Welfare Board Of India vs The State Of Tripura Represented ...
2021 Latest Caselaw 1047 Tri

                    HIGH COURT OF TRIPURA
                          AGARTALA

                      Crl.Rev.P. 35 of 2021
Dhyan Foundation, A society dedicated to the cause of Animal
Welfare, a Registered Trust Having Registration no. Doc. No.
2235, Addl. Book No. 4 On 27/5/2002 and also recognized by
Animal Welfare Board of India, having registration no. ND
054/2019, having its office at Dhyan Foundation Gaushala, A-80,
South Ex-11, New Delhi-110049, through its authorized
representative Ms. Mahima Jaini D/o Keshav Jaini, R/o Garden
Estate, Gurugram, Harayana,Currently residing at Dhyan
Foundation Devipur BSF (Rescues) Cattle Farm, Tripura.

                                                 -----Petitioner(s)
                               Versus
1.The State of Tripura represented by secretary cum commissioner
to the Government of Tripura
2.Suman Hussain, Melaghar, Indira Nagar, PO Melaghar, PS
Melaghar Sepahijala Tripura
3.Nur Miah Melaghar, Indira Nagar, PO Melaghar, PS Melaghar
Sepahijala Tripura
                                               -----Respondent(s)
                           BEFORE
 HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For Petitioner(s)          :    Mr. Harish Pandya, Adv.
                                Ms. Shreya Agarwal, Adv.

For Respondent(s)          :    Mr. S.Ghosh, Addl. PP.
                                Mr. Asutosh De, Adv.
Date of hearing            :    29.09.2021
Date of delivery of
Judgment                   :    08.10.2021
Whether fit for reporting:      Yes.
                                                              -2-



                                                   JUDGMENT

[1] By means of filing this criminal revision petition under

Section 397 read with Section 401 of the Code of Criminal

Procedure, 1973, the petitioner which is a recognized animal

welfare organization has challenged the legality and propriety of

the impugned order dated 27.07.2021 passed by the Chief Judicial

Magistrate, Sepahijala Judicial District at Sonamura in case No.

Misc. 255 of 2021 whereby the learned CJM released nine cows in

favour of respondent No.3 who claimed to be the owner of the said

cows which were seized by police during their transportation from

Melaghar to Sonamura on 26.07.2021 in a cruel and gruesome

manner in breach of the provisions of the Prevention of Cruelty to

Animals Act, 1960 and the Rules made thereunder.

[2] The factual background is as under:

Biswanath Chakraborty, Sub-Inspector of police,

Sonamura Police Station, lodged a written complaint with the

Officer-in-Charge of his Police station alleging, inter alia, that on

26.07.2021 at around 7 O'clock in the evening while he was

performing duty in an area within the jurisdiction of his police

station along with his accompanying police staff, he noticed that a

vehicle bearing registration No.TR-01-K-1531 was carrying nine

cows from Melaghar to Sonamura. Pursuant to his direction, the Crl. Rev. P No.35 of 2021

police team accompanying him stopped the vehicle. It was found

that space in the vehicle was too inadequate to carry 09 cows

together. Moreover, there was no arrangement of water and fodder

for those animals during their journey. The Police Officer,

therefore, seized the vehicle along with the cows in presence of

witnesses by preparing a seizure list and after seizure, he handed

over the cows to the petitioner namely Dhyan Foundation, Devipur,

which is an Animal Welfare Organization recognized by the

Animal Welfare Board of India.

[3] The impugned order dated 27.07.2021 of the learned

CJM demonstrates that since the allegations disclosed a non-

cognizable offence punishable under sub-section (1) of Section 11

of The Prevention of Cruelty to Animals Act, 1960, the Officer in

charge of Sonamura police station sought for permission of learned

CJM to investigate the case against accused Suman Hussain, driver

of the offending vehicle [Respondent No.2 herein] in terms of sub-

section(2) of Section 155 Cr.P.C. The learned CJM having been

satisfied that materials placed before him made out a prima facie

case of offence punishable under clauses (a) and (d) of Section 11

of the Prevention of Cruelty to Animals Act, 1960, accorded

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permission to the police officer to investigate the offence and

submit report in court in accordance with law.

[4] Knowing about the seizure of his cows, Nur Miah who

is respondent No.3 herein, also filed a petition in the court of the

Chief Judicial Magistrate claiming ownership of the seized cattle.

He produced a purchase memo in the court. Learned CJM, having

been convinced about the authenticity of his claim, directed release

of the seized cattle in favour of said Nur Miah on his furnishing an

indemnity bond of Rs.2,00,000/- supported by adequate property

documents on condition that said cattle would not be disposed of by

the respondent until further order of court. By the same order the

learned CJM also directed the investigating officer to make an

enquiry as to whether said Nur Miah [respondent No.3] was

actually the owner of the seized cows.

[5] Aggrieved by and dissatisfied with the said order

passed by the learned CJM, the petitioner who had taken over the

custody of the said animals after their seizure has approached this

court for setting aside the impugned order passed by the learned

CJM mainly on the following grounds:

(i)The learned Magistrate did not appreciate the fact that the petitioner being an animal welfare organization

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and the custodian of the seized animals had a preferential right to be heard before the learned court passed the order releasing the animals in favour of Md. Nur Miah who claimed to be the owner of the said cattle.

(ii)Even though no case was registered against said Nur Miah, learned CJM should have appreciated the fact that in terms of sub-section (2) of Section 11 of The Prevention of Cruelty to Animals Act, 1960, the owner shall be deemed to have committed offence, if he fails to exercise reasonable care and supervision with a view to prevention of such offence.

(iii)Learned CJM did not consider the fact that when there is an accusation of illegal transportation of animals in violation of The Prevention of Cruelty to Animals Act, 1960 and the Rules made thereunder, release of the animals in favour of the accused transporter or the owner during the pendency of the trial was completely illegal.

[6] After the present petition was filed, by an interim order

dated 03.09.2021 passed by this court, the impugned order of the

learned CJM was stayed and notice was issued to the respondents to

file their reply.

[7] No written reply has been filed on behalf of the state

respondent No.1. Respondents No.2 who is the driver of the

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offending vehicle and Respondent No.3 who is the owner of the

seized cows, have submitted their written response.

[8] In their written response, respondents 2 and 3 have

stated that the cows were purchased for domestic purpose from

Garji Agri Produce Market Committee and as a proof of purchase,

they had a valid sale receipt and purchase memo which were

produced before the trial court on the basis of which the learned

CJM released the cows in favour of respondent No.3 who is the

actual owner of the cows. It was also asserted by the said

respondents in their written objection that despite receiving the

release order from the court, the investigating officer did not take

any effort for releasing the cows in favour of respondent No.3.

[9] Respondent No.3 further asserted that Dhyan

Foundation which is the petitioner in the present case does not have

any infrastructure for proper care and custody of animals. They

have kept the animals under open sky and there is no shelter to

protect the said animals from heat and rain. It has also been alleged

by the said respondents that each of the cows have been insured by

said Dhyan Foundation and they realize the whole amount of

insurance in the event of death of an animal in their custody.

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Respondents have urged the court for rejecting the criminal revision

petition filed by the petitioner and return their cows.

[10] Heard Mr. Harish Pandya, learned advocate appearing

along with Ms. Shreya Agarwal, learned advocate for the petitioner.

Also heard Mr. Ashutosh De, learned counsel appearing for

respondents No.2 and 3 and Mr. S.Ghosh, learned Addl. PP

representing the State respondent.

[11] In the course of his arguments, counsel appearing for

the petitioners have referred to various provisions of the Prevention

of Cruelty to Animals Act,1960 and the Rules made thereunder. It

is contended by Mr.Pandya, learned advocate of the petitioner that

under the Prevention of Cruelty to Animals Act, 1960, various rules

have been framed to prevent cruelty to animals during transport and

slaughter, to regulate the animal markets and to curb trans-border

cattle smuggling. Counsel submits that Section 38 of the Prevention

of Cruelty to Animals Act, 1960 has empowered the Central

Government to make rules to carryout the purposes of the Act and

in exercise of such power, the Central Government has framed,

amongst others, the Prevention of Cruelty to Animals (Care and

Maintenance of Case Property Animals)Rules, 2017. It is

contended by learned counsel that since learned Chief Judicial

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Magistrate has found by the impugned order that the materials

placed before him made out an offence under the Act, he should

have treated the seized animals as case property and the learned

Magistrate should not have passed an order for release of the said

animals ignoring the provisions of Rules 3 of The Prevention of

Cruelty to Animals (Care and Maintenance of Case Property

Animals) Rules, 2017.

[12] Counsel submits that under Rule 3 of the said Rules,

such seized animals can only be kept in the custody of an infirmary,

pinjarapole, SPCA, Animal Welfare Organization or Gaushala

during the pendency of the litigation. It is also contended by

learned counsel that in no circumstances, the seized animals which

are case property animals under the Act, can be released during the

pendency of the litigation because Rule 8 of the aforesaid rules

categorically provides that if the accused is convicted or pleads

guilty, the Magistrate shall deprive him of the ownership of such

animals and the animals shall be forfeited to the infirmary,

pinjarapole, SPCA, Animal Welfare Organization or Gaushala

already having the custody of the said animals.

[13] Counsel further submits that even though the

owner[Respondent No.3] could not be spotted by police when the

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commission of the offence was detected, he shall be treated as an

accused in view of sub-section(2) of Section 11 of the Prevention of

Cruelty to Animals Act, 1960 which provides that for the purpose

of sub-section(1) of Section 11 of the Act, an owner shall be

deemed to have committed an offence if he has failed to exercise

reasonable care and supervision with a view to prevention of such

offence. Counsel submits that the whole purpose of the law shall be

frustrated if the custody of the animals which have been subjected

to cruelty is handed over to the accused persons even if they claim

ownership of the animals.

[14] In support of his stand, counsel has relied on the

decision of the Gauhati High Court in the judgment dated

21.09.2020 in Case No.Crl.Petn.452 of 2020[Dhyan Foundation

vs. State of Assam and 2 Ors] wherein the high court has held that

the act and rules nowhere provide that seized animals can be

released in favour of the owner. It has been held by the High Court

that the order of the learned Magistrate whereby the seized cows

were ordered to be released on Jimma in favour of their owner was

de hors the provisions of the Act and Rules and therefore, such

order of the Magistrate was set aside by the high court and the

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matter was remanded to the trial court for fresh consideration in

terms of the law laid down in this regard.

[15] Counsel has further relied on the decision dated

05.02.2020 of the Apex Court in Raguram Sharma and Anr. vs.

Thulsi and Anr. [Crl. Appeal. No.230 of 2020 arising out of

SLP(Crl.)No.11726 of 2019] wherein the Apex Court has held that

if a prima facie case of causing cruelty to the animals is made out

against the accused, interim custody of the animals ought not to be

handed over to the accused. If the accused are finally found to be

not guilty, then the issue of custody of the animals will logically be

dealt with in accordance with the concerned rules or regulations.

[16] Counsel of the petitioner has also relied on another

decision dated 22.02.2002 of the Apex Court in Crl. Appeal

No.283, 287 of 2002 wherein the Apex Court set aside the release

order of the animals on the ground that there were specific

allegations in the FIR with regard to cruelty committed to those

animals and the criminal case was still pending. Counsel appearing

for the petitioner argues that facts of the present case being similar,

the impugned order passed by the learned Magistrate is liable to be

set aside and the petitioner may be allowed to retain the custody of

the seized cows.

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[17] Mr.S.Ghosh, learned Addl. PP representing the state

submits that the Gaushala of the petitioner is not properly

maintained and the cattle are not safe in their custody. Counsel

therefore, urges the court to issue appropriate direction to the

petitioner to undertake appropriate measures for treatment and care

of the animals in their custody.

[18] Mr.A.De, learned advocate appearing for respondents

2 and 3 on the other hand argues that the respondents have annexed

some photographs to their written objection which clearly

demonstrate that the petitioner does not have any infrastructure for

taking proper care of the animals which have been entrusted to their

custody. Counsel submits that the animals are left under open sky

in heat and rain. A good number of cows are dying almost on every

day for lack of proper care and treatment. Counsel submits that the

trial court rightly released the animals in favour of Respondent no.

3 who proved his ownership before the trial court. According to

Mr.De, learned advocate, since there is no illegality in the order

passed by learned CJM, the present criminal revision petition is

liable to be rejected.

[19] I have examined the record and considered the

submissions of the counsel of the parties. Before The Prevention of

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Cruelty to Animals Act, 1960 came into operation, the Prevention

of Cruelty to Animals Act,1890 enacted during the British rule was

in force. When the deficiencies in the Act of 1890 were noticed and

pointed out, Government of India constituted a committee to

suggest measures for removal of those deficiencies from the Act of

1890. Pursuant to the recommendations of the committee, the Act

of 1890 was replaced by the present Act of 1960 incorporating

various provisions to prevent infliction of unnecessary pain or

suffering on animals. Under the said Act, various rules have been

made which include, amongst others, The Prevention of Cruelty to

Animals (Care and Maintenance of Case Property Animals) Rules,

2017.

[20] The Act of 1960 deals with cruelty to animals in

Chapter III of the Act. Under Section 11 in Chapter III, various

instances of cruelty to animals have been identified. Overloading of

animals in a vehicle is treated as a cruelty under clause(a) of sub-

section(1) of Section 11 and conveyance or transportation of

animals in a manner painful to them has been made an offence

under clause(d) of sub-section(1) of Section 11 of the Act.

[21] The allegations appearing in the complaint lodged by

Biswanath Chakraborty, a police officer of Sonmaura police station

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make out a prima facie case against the accused driver of the

offending vehicle as well as the owner who is deemed to be an

accused in terms of sub-section (2) of Section11 of the Act that

they overloaded 09 cows in a small vehicle during their

transportation from Melaghar to Sonamura and the manner in

which those animals were transported was very painful to them.

Learned trial court was also of the view that going by the

allegations in the complaint, the accused were prima facie guilty of

causing cruelty to those animals for which he permitted the

investigating officer to carry out investigation in a non-cognizable

offence. Despite such finding, the learned trial court released the

animals in favour of respondent No.3 who claimed to be the owner

of those animals.

[22] Section 29 in Chapter VI of the Act empowers the

court to deprive a person of the ownership of animal if he is

convicted for an offence under the Act. Under sub-section(1) of

Section 29, it is provided that if the owner of any animal is found

guilty of any offence under this Act, the court, upon his conviction

may make an order that the animal with respect of which he has

committed the offence shall be forfeited to the government. The

Prevention of Cruelty to Animals(Care and Maintenance of Case

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Property Animals) Rules,2017 under Rule3 provides that the

Magistrate may direct the seized animals to be housed at any

infirmary, pinjarapole, SPCA, Animal Welfare Organization or

Gaushala during the pendency of the litigation and Rule 8 provides

that if the accused is convicted or pleads guilty, the Magistrate shall

deprive him of the ownership of the animal and forfeit the seized

animals to the infirmary, pinjarapole, SPCA, Animal Welfare

Organization or Gaushala already having the custody of the said

animals. A conjoined reading of these provisions would lead to the

conclusion that during the pendency of a criminal case for offence

committed under the Act, the custody of the animals ought not to be

given to the accused until the case ends in his acquittal.

[23] Under the Prevention of Cruelty to Animals Act, 1960,

the Animal Welfare Board of India has been established by the

Central Government in exercise of power conferred under Section 4

of the Act. It appears from the documents submitted by the

petitioner that the Animal Welfare Board of India, by a certificate

of recognition dated 22.01.2019, has recognized the petitioner as an

Animal Welfare Organization. As discussed, various allegations

have been brought against the petitioner by the respondents with

regard to care and treatment of the animals in their custody. This

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court is not going to make any observation on those allegations

without sufficient materials having been made available before this

court. The petitioner has denied all the allegations made by the

respondents. Counsel appearing for the petitioner has contended

that respondents have made such unfounded allegations with a

malafide intention to secure release of the animals.

[24] State has been made a party in the case as respondent

no.1. Under The Prevention of Cruelty to Animals (Establishment

And Regulation of Societies for Prevention of Cruelty to Animals)

Rules, 2001, every district must have a Society for Prevention of

Cruelty to Animals(SPCA) to function for the welfare of animals

within the state. SPCA has duties and powers under sub-rule(3) of

Rule 3 of the said rules to aid the government, the Animal Welfare

Board of India and the local authorities to enforce the provisions of

the Prevention of Cruelty to Animals Act, 1960. If the allegations

brought against the petitioners with regard to maintenance of their

gaushala are found to be true, the State Government may intervene

through such agencies created under the Act and Rules and take

appropriate remedial measures.

[25] As far as the impugned order is concerned, grievance

of the petitioner is that no opportunity of hearing was provided to

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the petitioner before passing the said order though it was brought to

the notice of the court that the seized animals were handed over to

the custody of the petitioner. As a result, petitioner which is a

recognized animal welfare organization, could not raise its

grievance including the legal provisions before the court to protect

the interest of those animals which were subjected to cruelty by

respondents 2 and 3.

[26] As discussed, the Act and Rules provide that custody

of the animals, in respect of which an offence under the Act has

been committed, should not be given to the accused pending

litigation. Rather, the right of the owner shall stand forfeited if he is

convicted or if he pleads guilty to the offence. Section 11(2) of the

Act in unambiguous term provides that owner shall be deemed to

have committed an offence, if he fails to exercise reasonable care

and supervision for preventing cruelty to his cattle. The accused in

this case was allegedly transporting the animals under the

instruction of the owner. Situated thus, sub-section (2) of Section

11 of the Act will have application in the case.

[27] For the reasons stated above, impugned order dated

27.07.2021 passed by the Chief Judicial Magistrate, Sonamura in

case No.Misc.255 of 2021 is set aside with a direction to the trial

Crl. Rev. P No.35 of 2021

court to decide the matter afresh in accordance with law after

providing reasonable opportunity of hearing to the parties including

the present petitioner. Since the long vacation intervenes, parties

are directed to appear before the trial court on 10.11.2021 and

thereafter, the trial court shall decide the matter as expeditiously as

possible. Till then, status quo with regard to the custody of the

seized animals shall be maintained.

[28] Before parting with the case, it would be appropriate to

say that mass awareness about the Prevention of Cruelty to Animals

Act, 1960 and the various rules made there under and creation of

appropriate infrastructure is necessary for proper implementation of

the said Act and Rules. The Transport of Animals Rules,1978,

besides making provisions for fodder, drinking water and

compulsory certification of fitness, provides different space requirement

for different classes of animals during their transportation in order to

prevent infliction of pain and sufferings to such animals. Strict

adherence to the said rules is necessary to protect the animals from

various infections, injury and other harms during transportation. Various

organizations and agencies created under The Prevention of Cruelty to

Animals Act and Rules made there under must ensure that the

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provisions of the said Act and rules are implemented in letter and

spirit.

[29] In terms of the above, this Criminal Revision Petition

stands allowed and the matter is disposed of.

Send a copy of the judgment to the Chief Judicial

Magistrate, Sepahijala Judicial District, Sonamura forthwith for

compliance.

JUDGE

Saikat Sarma, P.S-II

Crl. Rev. P No.35 of 2021