Madras High Court
Shakeer Ali vs State Rep By Its on 21 January, 2022
Author: A.D. Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.RC.No.965 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2022
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.RC.No.965 of 2021
Shakeer Ali ... Petitioner
Vs.
State rep by its
The Inspector of Police,
Karumathampatty Police station
Coimbatore District . .... Respondents
PRAYER: Criminal Revision is filed under Section 401 r/w.397 of
Criminal Procedure Code to call for the records relating to
Crl.MP.No.1381 of 2021 in Cr.No.433 of 2021 and set aside the order
dated 03.09.2021 made by the Judicial Magistrate, Sulur and direct to
release 30 Nos of buffalo (cow).
For Petitioner : Mr.M.Vimal Bobby Crimson
For Respondent : Mr.S.Sugendran, GA (Crl.side)
ORDER
(The case has been heard through video conference) This revision has been filed by the petitioner/accused seeking to set aside the order passed by the Judicial Magistrate, Sulur, Coimbatore District in CMP.No.1381 of 2021 dated 03.09.2021 dismissing the petition filed under Section 451 r/w.457 Cr.PC, seeking for return of the seized cattles.
1 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021
2. The brief facts of the case is as follows :-
The respondent/police on information along with her party had conducted vehicle check up on 26.07.2021 at 19.00hrs and at that time they intercepted Ashok Leyland vehicle bearing Registration No.KA55 A 0938 and conducted search, during search it was found 30cows (female buffalos) were loaded in it. On enquiry, the driver of the vehicle had informed that he is from Kerala and he was transporting 30cows belonging to the petitioner to drop them at Pollachi. On inspection, it was found that the cows (female buffalos) were transported in violation of the provisions of Prevention of Cruelty to Animals Act, 1960. On enquiry, the driver of the vehicle had admitted the guilt and the respondent had registered a case in Cr.No.433 of 2021 for the offences under Sections 429 IPC, Section 11(1)(a)(d)(e)(h) of Prevention of Cruelty to Animals Act, 1960 Section 96 and 98(1) of Transport of Animals Rules 1978 and Section 8(1) of the Tamil Nadu Animal Preservation Act, 1978. The seized vehicle and the cattle were produced before the Court. The petitioner had filed Crl.MP.No.1381 of 2021 for return of property.
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3. The respondent has not filed any objection to hand over the cattle to the petitioner/owner of the property. However, the respondent/police had filed health certificate of the above said 30cattles, wherein it was stated that "all the animals need physical rest and rehabilitation so not fit for transportation at present".
4. The learned Judicial Magistrate relying on the judgment of the Hon'ble Apex Court in S.Muralidharan V. Nagaraj and another reported in 2015 (4) MLJ 38 and holding that the cattle were taken for butchery and that interim custody cannot be granted to the petitioner at this stage, had dismissed the application, against which, the present revision has been filed.
5. The learned counsel would submit that the petitioner is an agriculturist running a cattle farm at Pollachi. He had purchased 30cows (female buffalos) from Krishnagiri District and he had entrusted the cattle to be transported to his farm at Pollachi. While enroute the respondent had intercepted the vehicle and registered a case, against the driver of the lorry 3 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021 and had seized the cattle. The cattles are cows (female buffalos) intended to be used in the farm of the petitioner and it is not the case were the cattle were attempted to be smuggled to Kerala for slaughtering. The learned Magistrate had relied on the judgment of the Hon'ble Apex Court in the case of S.Muralidharan V. Nagaraj and another reported in 2015 (4) MLJ 38 had dismissed the application. In that case, the Court had found that the cattle were continuously transported from District to District and they were transported for the purpose of slaughtering. Whereas, the petitioner had transported cows for the purpose of using them in the farm land. He would submit that the cattles are now retained at Dhyan Goushala, Madukkarai, Coimbatore District. The petitioner is unable to use them in his cattle farm.
6. The learned counsel would further submit that the petitioner being the owner of the cattle has not committed any cruelty to the animals, he had handed over the animals for transporting from Krishnagiri to Pollachi and transported in violation of provisions of Prevention of Cruelty to Animals Act without the knowledge of the petitioner. The petitioner has 4 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021 not been found guilty for the offence under the Act earlier and he has not suffered any conviction. The petitioner undertakes that the cattle will be maintained properly and will not be subjected to cruelty and the petitioner is prepared to produce them either before the respondent or before the Court as and when required for and he is also prepared to furnish adequate surety for the same.
7. He would also submit that there is no legal bar for returning the cattle to the owner of the cattle. He would further submit that in similar matters, the Courts have, while deciding whether the interim custody of the animals can be given to the owners who is facing prosecution has found the following factors to 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; (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."
5 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021
8. The learned counsel would further submit that in the similar circumstances, the Gujarat High Court in Spl.Crl.A.No.8243 of 2020 dated 06.05.2021 had ordered release of cattle in favour of the owner imposing certain conditions.
9. The learned Government Advocate (crl.side) would submit that the lorry bearing Registration No.KA55 A 0938 was intercepted by the respondent/police and it was found transporting 30cows (female buffalos) in violation of provisions of Prevention of Cruelty to Animals Act, 1960. He would submit that on enquiry, the driver had stated that the cattle belongs to the petitioner and they were transported from Krishnagiri to Pollachi to the cattle farm of the petitioner.
10. Heard the counsel and perused the materials available on record.
11. Since, it was found that 30cows (female buffalos) were transported in a congested manner in violation of the provisions of the Prevention of Cruelty to Animals Act, 1960, the respondent has registered a case. The petitioner had filed application for return of cattle and the 6 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021 learned Magistrate relying on the judgment of the Hon'ble Apex court in the case of S.Muralidharan (cited supra) had dismissed the application. In that case, the cattles have been transported for slaughtering. However, in this case the cattles are 30 cows (female buffalos) and as per the petitioner they are transported for raising them in his farm for agricultural purpose and not for slaughtering. It is also stated by the petitioner that due care of the cattle will be taken by him and they will be produced before the respondent or before the Court as and when required for.
12. In the case of Manager, Pinjrapore Deudar and another v. Chakram Moraji Mat and others reported in (1998) 6 SCC 520 the Hon'ble Apex Court has held "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 7 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021 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; (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."
13. In this case as stated above, the petitioner is the owner of 30 cows (female buffalos), he had handed it over to the transporter for transporting 8 https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021 it from Krishnagiri to his cattle farm in Pollachi. The cattle have been transported in violation of the provisions of Prevention of cruelty to Animals Act without the knowledge of the petitioner, the petitioner has not suffered any previous conviction. The cows are not taken for slaughtering and they have been taken to the farm of the petitioner at Pollachi. The petitioner has agreed to file an affidavit of undertaking that the animal will not be subjected to cruelty and they will be produced before the trial Court as and when required.
14. In such circumstances, this Court is of the opinion the learned Magistrate can be directed to handover the interim custody of the cattle 30 cows (female buffalos) to the petitioner on certain conditions. Accordingly, the Criminal Revision Petition is allowed and the impugned order, dismissing the petition for return of property in Crl.MP.No.1381 of 2021, dated 03.09.2021, passed by the learned Judicial Magistrate, Sulur, Coimbatore, is hereby set aside and that the interim custody of the cattles (30 female buffalos) shall be handed over to the petitioner, subject to the following conditions:
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(i)The petitioner shall execute a bond for a sum of Rs.75,000/- with two sureties for a like sum to the satisfaction of learned Judicial Magistrate, Sulur, Coimbatore District.
(ii)The petitioner shall take individual photographs of the bulls (30 female buffalos) and hand it over to the Magistrate.
(iii)The petitioner is further directed to file an affidavit of undertaking that the cattle will be maintained properly and will not be treated cruelly and it will be transported in a safe manner and used only for agricultural purpose and if necessary they will be produced before the learned Magistrate or before the respondent as and when required or either during investigation or during trial.
With the above direction, the criminal revision stands allowed.
21.01.2022.
tsh To
1. The Judicial Magistrate, Sulur, Coimbatore
2. The Inspector of Police, Karumathampatty Police Station, Coimbatore District.
Note : Issue copy on 31.01.2022.
10https://www.mhc.tn.gov.in/judis Crl.RC.No.965 of 2021 A.D. JAGADISH CHANDIRA, J tsh Crl.RC.No.965 of 2021 21.01.2022.
11 https://www.mhc.tn.gov.in/judis