Delhi District Court
Gaurav Gupta vs Satpal on 25 February, 2015
Criminal Revision No.96/14
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 96/14
FIR No. : 581/14
Under Section : Under Section 11 of The Prevention of
Cruelty to Animals Act, 1960 and
under Section 429 IPC.
Police Station : Vivek Vihar
Unique I.D. No. : 02402R0244792014
In the matter of :-
1. Gaurav Gupta, PFA
S/o. Sh. Ashok Kumar Gupta
R/o. H.No.14, Ashoka Road, New Delhi. .....Revisionist
VERSUS
1. Satpal
S/o. Sh. Gainda Ram,
R/o. Ismailabad, Thaneswar,
District Kurukshetra, Haryana.
2. Ashok Kumar
S/o. Sh. Prabhu Dayal Nagar,
R/o. B-7, Raja Garden,
Ramesh Nagar, New Delhi.
3. Sanjay Gandhi Animal Care Centre,
Near Shivaji College, Raja Garden,
New Delhi.
4. State (Govt. of NCT of Delhi)
Through :
Commissioner of Police, Delhi. .... Respondents
Date of Institution : 16.08.2014
Date of receiving the case in this court : 19.08.2014
Date of reserving order : 12.02.2005
Date of pronouncement : 25.02.2015
Decision : Revision petition is dismissed.
ORDER
1. This revision petition is directed against the impugned orders dated 08.08.2014, passed by the trial court in a case titled as State v.
Page 1 of 16 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 Ashok Kumar Nagar, bearing FIR No.581/14, PS Vivek Vihar, under Section 11 of The Prevention of Cruelty to Animals Act, 1960 (herein after refer to as the Act) and under Section 429 IPC. Vide the impugned orders, the trial court directed to release the animals on superdari to the applicants Sh. Ashok Kumar Nagar and Satpal, on furnishing superdarinama in the sum of Rs.10 lakh and subject to following conditions :-
(a) IO will ensure that animals are handed over to the superdar, when all conditions required for Transportation of Animals Act 1978 and in the judgment of Laxmi Narayan Modi v. Union of India are fulfilled.
(b) Superdar shall furnish to IO a certificate of certified veterinary doctor to the fact that these animals are fit for transportation.
(c) The animals are marked for the purpose of identification. Their photographs shall be taken along with video footage so that same can be exhibited during the course of trial.
(d) Superdar shall not dispose of any of these animals till further orders of the court or before the disposal of the case.
The trial court also directed that satisfaction of these conditions shall be obtained by the IO of the case and not by anybody else.
2. Briefly stated, the relevant facts giving rise to this revision petition are that on the complaint of revisionist Sh. Gaurav Gupta, an FIR was registered in PS Vivek Vihar bearing FIR No.581/13, under Section 11 of The Prevention of Cruelty to Animals Act, 1960 and under Section 429 IPC in PS Vivek Vihar. The revisionist had claimed to be President of raiding team of P.F.A, being run by Mrs. Meneka Gandhi and alleged that he had received information regarding transportation of some sheep and goats in truck for the Page 2 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 purpose of slaughtering at Jammu and Kashmir. Revisionist reached road no.56 near Surya Nagar Red Light, within jurisdiction of PS Vivek Vihar and found two trucks loaded with a number of sheep and goats. He informed police at 100 number and with the help of police, drivers of both trucks bearing no.HR-37A-7737 and HR-55G-8568 were apprehended. Both trucks were found containing 180 sheep and goats in each truck and it was alleged that they were being transported without having provision of food and water and in double partitioned truck, thereby contravening rules of transportation of animals. IO/SI Praveen Kumar seized both trucks as well as animals and total number of animals was
383. All animals were handed over in Sanjay Gandhi Animal Care Centre. Thereafter, respondent Ashok Kumar Nagar and Satpal moved application before trial court for release of the animals on superdari, claiming to be owner of the cattles. The trial court finding no resistance from the State, ordered for release of animals on superdari to respondent Ashok Nagar and Satpal vide the impugned orders.
3. Being aggrieved of the impugned orders, the revisionist has preferred this revision contending that he has saved the life of lacs of animals from cruelty and from the clutches of butchers. He has further contended that Supreme Court has recognized his locus standi and voluntary organizations to take up the cause of cruelty upon animals before the Court. He has further pleaded that the animals in this case were deposited in Government Recognized Infirmary namely Sanjay Gandhi Animal Care Centre for the purpose of medical treatment and medical care (here in after referred to as Centre) and the Centre is duly approved/recognized Page 3 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 by the Government of NCT of Delhi and Government of India for care of animals. He has raised following grounds to challenge the impugned orders :-
(a) The accused in the case filed application for release of animals making fake allegations against SHO and the Centre.
(b) Superdar mislead the trial court that truck was partitioned in accordance with Section 75 of The Transport of Animals Rules, 1978.
(c) The Centre is duly authorized by Government of India as infirmary for medical treatment and care of domestic animals and there is lot of mismanagement in Delhi Society for prevention of cruelty upon animals and many cases are pending against DSPCA in Anti Corruption Branch and at Delhi High Court. There is no adequate space and medical facility as compared to the Sanjay Gandhi Animal Care Centre.
(d) The animals were being transported for slaughtering purposes and trial court did not appreciate the apprehension of further cruelty, if they are released to owners/respondents. The owners of animals are trading in animals for slaughtering purposes only and they cannot afford to maintain them till the pendency of the case.
(e) The trial court ignored the status report filed by IO and granted superdari to the owners in violation of law of the land.
(f) The respondents were not the owners, but they had sold the animals to other persons for slaughtering purposes.
(g) The trial court failed to ensure that proper identification marks are given to the sheep and goats.
(h) The trial court did not give the opportunity of hearing to the Page 4 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 revisionist or his counsel and erred in giving superdari of poor animals to their owners, in view of the fact that they are butchers and trading for slaughtering purposes only.
(i) The respondents did not provide correct proof of ownership as the bilties produced by them did not belong to the animals in question.
(j) For want of identification marks, the animals cannot be identified properly for their release to the owners.
(k) The trial court erred in observing that no useful purpose would be served by keeping the animals in Centre and the trial court did not consider the past conduct and profession of the superdars.
(l) That it is probable that at the time of conviction of the accused, the superdars may take up a plea that all animals have died their natural death.
(m)The trial court did not appreciate that there was no veterinary certificate to show that all sheep and goats were free from all diseases and were fit for transportation.
(n) The trial court did not ensure sufficient safeguard against future cruelty to the animals or to ensure their regular medical check up or to verify their internal injury.
4. The revisionist has referred to judgment passed in State of U.P. v.
Mustkin, passed by Supreme Court in Criminal Appeal no. 283-287/2002 decided on 22.02.2002, wherein the Court had directed for keeping the animals in the Goshala and had set aside the orders for release of animals in favour of owner, in view of allegations made against the accused. He has also referred to judgment passed by Supreme Court in AIR 1998 SC 2767 and in Page 5 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 Laxmi Narayan Modi v. Union of India, WP (C) 309/2003 decided on 27.08.2013. He has also referred to the observations made by Supreme Court in Animal Welfare Board or India v. A. Nagaraja & Ors. Criminal Appeal No.5387/2014 decided on 07.05.2014. Revisionist has pleaded that as per judgment of Supreme Court in AIR 1998 SC 2769, Pinjrapole (Animal Care Centre) has a preferential right for interim custody vis a vis the owners, in a case of cruelty to animals. He has also referred to some orders passed by different courts of Delhi including High Court, in respect of release of animals on superdari.
5. The revisionist has prayed to set aside the impugned order in order to stop release of animals to the respondents/owners of the animals.
6. The respondents Satpal and Ashok contested this petition by filing a common reply. They pleaded that there is no illegality in the impugned orders and the petitioner has no locus standi to file this revision petition. They also pleaded that the State has not filed any revision petition and hence, this revision petition is not maintainable. They also pleaded that these animals in this case are still in the custody of Centre and they have not handed over the same to lawful owners despite orders of trial court and the Centre has not been impleaded as party in this proceeding. They also pleaded that they are running a lawful business of trading of animals and the revisionist as well as Centre are curtailing their fundamental rights. They further pleaded that Government of NCT of Delhi vide order dated 08.09.2009 revoked authorization of the Centre as a hospital/infirmary and vide notification dated 18.02.2010 the Government authorized DSPCA as a Pinjrapole.
Page 6 of 16 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 Therefore, the Sanjay Gandhi Animal Care Centre has no locus to detain the animals. They have also pleaded that revisionist being member of organization being run by Central Minister and Political Leader, took the animals to Sanjay Gandhi Animal Care Centre by putting illegal pressure. They also denied all the allegations made by the revisionist regarding cruelty upon the animals and defended the impugned orders. Respondents also filed copies of some orders passed by different courts of Delhi, wherein similar contentions of same revisionist were negated.
7. Sanjay Gandhi Animal Care Centre was impleaded in this proceedings, on directions given by this Court vide order dated 27.08.2014. This Centre was duly served and representative of the same also participated in this proceedings.
FINDING :-
8. The legality of impugned orders (as there are two separate orders in respect of respondents Satpal and Ashok) has to be appreciated on the parameters of Section 35 of the Act r/w Section 451 Cr.P.C.
The question raised before this Court is the same, which was raised before Supreme Court in the case of Manager, Pinjrapole Deudar & Anr. v. Chakram Moraji Nat & Ors., AIR 1998 SC 2769. In that case as well, the Supreme court dealt with the question that whether the order declining to grant interim custody of the animals to the appellants (Animal Care Centre) was contrary to Section 35 of the Act? While dealing with the object of the Act relating to prevention of cruelty to the animals, the Supreme Court dealt with the law as provided under Section 35 of the Act along with provision under Section 451 Cr.P.C. and held as under :-
"It appears to us that unless the owner of the animal in respect of which he is facing prosecution, is Page 7 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 deprived of the custody (which can be done only on his conviction under the Act for the second time), no bar can be inferred against him to claim interim custody of the animal.
Now, adverting to the contention that under Section 35 (2), in the event of the animal not being sent to infirmary, the Magistrate is bound to give the interim custody to Pinjrapole, we find it difficult to accede to it.
It follows that under Section 35 (2) of the Act, the Magistrate has discretion to handover interim custody of the animal to Pinjrapole but he is not bound to handover custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case, where the owner is claiming the custody of the animal, 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; (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 Pinjrapole is with the laudable object of preventing unnecessary pain or suffering.
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; (b) whether the Pinjrapole has good record of taking care of the animals given under its custody."
9. The decision taken by Supreme Court in the case of Mustkin (Supra) does not explain the law in question and therefore, that decision cannot be followed blindly in all set of facts. The relevant guidance can be taken from the judgment of Supreme Court in Pinjrapole's case (Supra), in view of clear cut guidelines given in the judgment. The Supreme Court, contrary to the contentions Page 8 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 made by revisionist herein, has recognized preferential right of the owner of the animal, subject to the condition that the owner should not be convicted under the Act and subject to the criteria laid down at serial no.1,2,4 and 5. The guideline at serial no.3 has the effect to recognize preferential right of the owner to have custody of the animal, despite prosecution launched against him under the Act.
10. In the present case, ld. counsel for revisionist vehemently argued that the owners (also referred as superdars at some places in the petition) are butchers and are involved in the slaughtering of the animals and their past conduct is not good. Therefore, the animals should not be released to them. However, revisionist has not referred to any particular document or any record of past conduct of the owners, to show that they have been convicted for offence under this Act. Therefore, such contentions of the revisionist is found to be based merely on his presumptions.
11. On the other hand, ld. counsel for respondents refuted such allegations made by revisionist and claimed that they have never been involved in any such case under the Act. Even IO has not reported about pendency of similar case against respondents or about their previous conviction under the Act. The respondents are not supposed to produce any evidence to negate such allegations. Rather, it was for the revisionist to produce some material in support of his allegations. In absence of any such evidence, Court cannot make an adverse presumption of previous conviction against the respondents. The allegations regarding cruelty upon the animals are to be tested during trial of the case and it is not appropriate to give any final opinion in respect of those allegations at this initial stage.
Page 9 of 16 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14
12. Keeping in view all these circumstances, I find that there is no reason to decline release of animals in this case to their respective owners i.e. the respondents. I also do not find any merit in the contentions of the revisionist that the respondents are not the true owners of the animals as they had already sold the animals to some one else, or that the respondents shall not produce the animals before the trial court or that the animals shall be slaughtered by the respondents. All such contentions of the revisionist are merely based on presumption, which cannot be given any serious attention. As far as slaughtering is concerned, it was even admitted by the counsel of revisionist that same is not prohibited in law and it is none of the business of the revisionist to make presumptions about the profession and possible conduct on the part of respondents or to term them as butchers.
13. As far as better locus of Sanjay Gandhi Animal Care Centre is concerned, I find that the conduct of the Centre had not been beyond suspicion. In the present proceedings, it was observed by this Court that IO had not taken any photographs of any animals till such directions were given to him during pendency of this petition. The IO had not even bothered to give any identification marks to the seized animals. Though the revisionist has also raised similar contentions, but it is also worth mentioning that even revisionist, who was complainant in this case and who had been working in collaboration with the Centre, did not put such identification mark, while accepting the animals in the Centre. For all such omissions on the part of IO, revisionist/complainant as well as the Centre, no blame can be shifted upon the respondents. In fact from the perusal of standing order no.31/2010 dated 19.10.2010, I find that Page 10 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 despite instructions to take photographs of the animals before taking out the animals from the cage/kennel and to take photographs of the physical condition of the animals instantly, so as to depict any injury upon any animal, IO omitted to do so. IO did not seek any order from the Metropolitan Magistrate for custody of these animals and the animals were straightaway handed over to the Centre instantly after their seizure. It was duty of the IO to get all the animals medically examined instantly, after their seizure and at the time of their deposit at the Centre, which he did not perform. The officials of the Centre did not report about any particular disease or injury, if suffered by any of the animal, at the time of accepting those animals. Though revisionist claimed the Centre to be a medical care centre for the animals and further claimed that it has better infrastructure and facility than DSPCA, but on the record a number of FIRs under Section 406 IPC have been placed which were registered against the same Centre and one of such FIR was registered on the basis of facts discovered during this proceeding, because the officials of Centre did not provide status of 45 animals in this case. Although directions were given to IO within knowledge of revisionist and officials of Centre, to verify status of all animals and it was claimed by revisionist and the Centre before the Court that 45 animals were alright and were shifted to Gurgaon for the purpose of their medical treatment, but no prior information was ever given to the IO nor any specific particulars were reported to this Court. When the IO as well as ld. DCP (East) filed their reports stating that the officials of Centre were not facilitating physical inspection of 45 animals, then finally on 29.01.2015 counsel for revisionist and Ms. Gauri Maulekhi (representative of the Centre) Page 11 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 informed the Court about death of uncertain number of animals during the month of October 2014. Such information given by them was contradictory to stand taken by them before this Court up to 29.01.2015 i.e. to say that all the animals were safe and alive and the 45 animals were shifted to Gurgaon for their safe keeping. All of sudden, it was reported before the Court that some animals were found infected with PPR and in view of communication from Director, Animal Husbandry, Government of NCT dated 29.12.2014, the affected lot of animals were required to be quarantined. When the Court asked police agency to verify about the alleged death of the animals, then IO was informed vide communication dated 05.02.2015 that 12 animals had already expired.
14. All such conduct of the Centre raises serious question over their mode of functioning. Their status was not better than a trustee/bailee and they were supposed to inform IO about each significant fact relating to these animals, which were only deposited with them, but were not their own properties. However, they kept on taking their own decision, keeping the IO of the case in dark and refusing to release the animals in the month of August, 2014 despite orders passed by ld. ACMM. Even as per report of team of doctors, the animals were allegedly examined on 17.09.2014 and the Centre was advised certain control measures and treatment, but such facts were never disclosed before the Court or before the IO. It is worth to mention that this petition was being prosecuted before this Court since 19.08.2014.
15. If 12 animals had actually expired in the month of October 2014, then there could not have been any situation for revisionist and representative of the Centre to claim before this Court as well as Page 12 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 before police authorities that all the animals were safe and alive. In fact they were duty bound to inform IO about illness and the critical condition of any animal, before death of any animal. If any death had occurred, they were bound to inform the IO and to hand over the dead bodies so that IO might have taken further steps for postmortem examination of those animals. The officials of Centre did not do so and kept making false claim regarding existence of all animals. They came up with an information of death of 12 animals, allegedly taken place way back in October 2014, only on 05.02.2015. Such conduct of the revisionist and the Centre is not only alarmingly suspicious, but also leads to raise a question against police authorities for making their choice for this particular Centre for keeping animals seized in a case under the Act.
16. During search of certain materials on the subject, I also came across orders passed by Division Bench of Punjab and Haryana High court in Civil Writ No. 8678/2013 on 30.05.2013 and 16.08.2013. That proceeding was initiated before High Court, on the basis of a reference/report sent by ld. CJM Jhajjar, Haryana about illegal activities of revisionist herein and same Centre. High Court found same revisionist and same Centre to be involved in embezzlement of certain domestic animals in connivance with local police, which were also reported to have died while being in the custody of the Centre.
17. It is also surprising that in a number of cases, wherein animals were deposited with the same Centre, the animals were being reported to have died in routine manner. Such record of the revisionist and the Centre in different cases, itself is sufficient to cast a doubt over their genuineness and competence to safeguard Page 13 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 the interest and health of any animal. Such consistent suspicious but unchecked record of the revisionist and the Centre lends credence to the allegations made by respondents that using name of Ms. Maneka Gandhi, presently a Cabinet Minister and a political leader, revisionist and the Centre had been pressurizing the police and had been defiant to any order passed by the court for release of the animals, with only purpose to make animals disappear and to raise huge bills. Surprisingly, Delhi Police itself has registered several cases against the revisionist and the Centre, but has not taken sufficient steps to find out such places, where the welfare of animal could be actually taken care of, rather than reporting their death in routine manner. The notification of Delhi Government as referred by respondents do raise a question over authorization of the Centre to be infirmary as provided in the Act. Revisionist claimed that the Centre is authorized by Government of NCT, but did not file any such document. On the contrary, order of Government of NCT of Delhi dated 08.09.2009 shows revocation of authority of the Centre to keep wild animals and absence of any authority to keep domestic animals. Delhi Police and Government of NCT of Delhi must check suspicious working of any NGO, including the Centre, without being influenced of any irrelevant factor.
18. In these circumstances, it is appropriate to refer this matter to Delhi Government through its Chief Secretary, to make sufficient arrangement for welfare of the animals, so that any animal seized on the allegations of cruelty, are kept at safe places/infirmary (having sufficient infrastructure and medical facility) and are kept alive in all the cases. It is also expected that Delhi Police shall act Page 14 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.96/14 as per notification issued by Delhi Government, in order to make a choice of place to deposit any animal, till the time any further orders are passed by the Magistrate. Delhi Government should communicate their notification in this regard to Delhi Police and Judiciary and should have proper communication with them, to ensure welfare of all the animals. These aforesaid referrals by this Court are necessary to ensure that welfare of animals is implemented rather than same is merely used in the dialogue by anyone, without actually caring about the same.
19. From the impugned orders, I find that the trial court has already taken care of the directions given by Supreme Court in Laxmi Narayan's case (Supra) and regarding all necessary safeguards for medical examination and the identification of the animals. The photographs placed on this record be also sent to the trial court and the trial court shall ensure that all the needful has been done by IO in this case. Thus, on overall comparison of credentials of owners/respondents and revisionist/the Centre, the automatic choice has to be in favour of owners/respondents. Hence, the petition stands dismissed.
20. The animals, which are reported to be infected and are reported to be not fit for release at this moment, would be released only when they are certified to be fit for the same and it shall be duty of the IO to monitor the health condition as well as medical check up of all the animals of this case. IO shall also intimate the respondents/ owners about such condition and the respondent shall have a right to get the animals examined through any authorized veterinary doctor at their own cost and to make inspection of those animals, till the time they are released to them.
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21. Copy of the order be sent to ld. Chief Secretary, Government of NCT of Delhi to do the needful so as to ensure welfare of animals in true spirit of letters and to take sufficient measures to provide efficient infirmary equipped with all medical facilities for animals kept in custody in Delhi. An appraisal of role played by concerned department as well as DSPCA should be made, in respect of medical check-up of all animals seized under the Act.
22. A copy of order be also sent to ld. Commissioner of Police to once again make an appraisal of the functioning of the IO in this case, which was not found in consonance with standing order of the department as well as provisions of the Act. It is also required to make proper investigation into alleged illness and death of animals.
23. TCR along with copy of order be sent back to the trial court.
File of revision be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 25.02.2015 Additional Sessions Judge (Shahdara) (This order contains 16 pages) Karkardooma Courts, Delhi Page 16 of 16 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi