Gujarat High Court
Bariullah Muhammad Israilkha vs State Of Gujarat & on 13 January, 2016
Author: A.G.Uraizee
Bench: A.G.Uraizee
R/CR.RA/749/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 749 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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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BARIULLAH MUHAMMAD ISRAILKHA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MA KHARADI and Mr. UMARFARUK M KHARADI, ADVOCATES for the
Applicant.
MR VIRAT G POPAT and MS. MAYURI P CHAUHAN, ADVOCATES for the
Respondent No. 2
Mr. N.J.Shah, Additional PUBLIC PROSECUTOR for Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
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R/CR.RA/749/2015 JUDGMENT
Date : 13/01/2016
ORAL JUDGMENT
Rule. Mr. N.J.Shah, learned Additional Public Prosecutor waives service of Rule for respondent no. 1. Mr.Virat Popat, learned advocate waives service of Rule for respondent no. 2. The matter is taken up for final disposal today, since the issue involved in the Revision Application moves in a very narrow compass.
2. The facts necessary for the disposal of this Revision Application are that the livestock belonging to the petitioner was being transported from Aligadh to Bhivandi on 15.9.2015 in trucks. The trucks loaded with livestock were intercepted by Dahod Rural police and an offence punishable under Sections 11(d) 3 of the Prevention of Cruelty to Animals Act (Act for short) was registered against the applicant vide Cr. no.II 95 of 2015. When the trucks were intercepted by the Dahod Rural police, it had in all 365 goats in it. The applicant moved a Criminal Miscellaneous Application no. 463 of 2015 under Section 451 of the Code of Criminal Procedure for interim custody of the livestock during the pendency of the criminal case against him. The application was rejected by the learned Chief Judicial Magistrate, Dahod by his order dated 13.10.2015 and the respondent no.2 was given the custody of the seized livestock. The applicant has challenged the order dated 13.10.2015 of the learned Chief Judicial Magistrate, Dahod in this Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure.
3. I have heard Mr. M.A.Kharadi, learned advocate for Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Jan 16 02:03:25 IST 2016 R/CR.RA/749/2015 JUDGMENT the applicant, Mr. N.J.Shah, learned Additional Public Prosecutor for respondent no. 1 and Mr. Virat Popat, learned advocate for respondent no. 2 Panjrapol.
4. Mr. Virat Popat, learned advocate for the respondent no. 2 has stated that out of 365 goats, 203 have so far died due to variety of reasons. He states that many of the animals were suffering from various symptoms and ailments when they were brought to the Panjrapol. He therefore, submits that the goats have not died due to negligence on the part of respondent no. 2 Panjrapol. It is his further contention that the remaining animals are being taken care of and looked after by the Panjrapol and they are unhealthy and suffering from ailments and not in a state to be moved from Panjrapol and therefore, he urged that the application may be rejected.
5. There is no dispute that the goats numbering 365 came to be detained by Dahod Rural police when they were being transported in a truck from Aligadh to Bhivandi. According to Mr. Popat, they were being transported without pass or permit without making any provision for their water and fodder and therefore, inference and presumption that can be drawn is that transportation was for being slaughtered and therefore, the applicant is not entitled to their custody. He therefore, urges that the Revision may be dismissed.
6. Mr. Kharadi, learned advocate for the applicant submits that the learned trial Magistrate has committed an error in concluding that the livestock was being subjected to cruelty merely on the ground of provision for water and fodder was not made. He would further urge that the applicant is a trader who trades in livestock and therefore, Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Jan 16 02:03:25 IST 2016 R/CR.RA/749/2015 JUDGMENT submits that the Revision Application may be allowed and surviving livestock may be released in favour of the applicant.
7. It appears that the learned Magistrate rejected the application of the application under Section 451 of the Code because he seems to have been influenced by the fact that there was no provision in the trucks numbering four in which the seized livestock was being transported and there was no provision for water and fodder for the animals. The learned Magistrate was therefore, of the opinion that the absence of water and fodder for the animals amounted to cruelty to animals and therefore, the applicant was not entitled to the interim custody under Section 451 of the Code.
8. Considering the fact, at this stage, that according to the say of the applicant, the animals were being transported to Bhivandi for trading, at this stage, it would not be appropriate to deny the interim custody of the animals to the applicant on the ground that they were subjected to cruelty on account of non-provision of water and fodder for them in the trucks.
9. For the aforesaid reasons, the Revision Application is allowed. The order dated 13.10.2015 passed by the learned Chief Judicial Magistrate, Dahod in Criminal Miscellaneous Application no. 463 of 2015 is hereby quashed and set aside.
10. The surviving livestock numbering163 is ordered to be handed over to the applicant on his depositing a sum of Rs. 1,65,000/- (Rs. One lakh sixtyfive thousand) in the Court of the learned Chief Judicial Magistrate, Dahod, with a further Page 4 of 5 HC-NIC Page 4 of 5 Created On Sat Jan 16 02:03:25 IST 2016 R/CR.RA/749/2015 JUDGMENT condition that the applicant will take appropriate care of the animals by making provision for water and fodder while being transported after obtaining custody of the animals from the Panjrapol The amount to be deposited by the applicant shall be invested in a FDR initially for a period of two years which shall be renewed for a further period as may be deemed necessary by the learned trial Judge if the trial is not over in the initially two years. Mr. Kharadi, learned advocate for the applicant requests that time of 10 days may be allowed to the applicant to deposit the amount as directed by this Court. The request is granted. The animals shall be released by the Panjrapol day after the amount is deposited by the applicant. Mr. Kharadi, learned advocate for the applicant submits that the applicant may be permitted to file appropriate proceedings against Panjrapol for the death of animals. I am of the opinion that no permission of the Court is required if civil remedy is available to the applicant for seeking compensation from Panjrapol, if it is available under any law.
11. Rule made absolute to the aforesaid extent. Direct service is permitted.
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