Gujarat High Court
Kansingbhai Dulsingbhai Rathava vs State Of Gujarat & on 7 September, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/5160/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO.
5160 of 2015
==========================================================
KANSINGBHAI DULSINGBHAI RATHAVA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR AFTABHUSEN ANSARI, ADVOCATE for the Applicant(s) No. 1
MS HANSA PUNANI APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/09/2015
ORAL ORDER
1 Rule returnable forthwith. Ms. Hansa Punani the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondents.
2 By this petition under Article 227 of the Constitution of India, the petitioner - a registered owner of the vehicle seized by the police in connection with the C.R. No.II54 of 2015 registered with the Kalol Police Station, District: Panchmahal, calls in question the legality and validity of the order dated 22.08.2015 passed by the learned 8th Adhoc Additional Sessions Judge, Panchmahal at Godhra in the Criminal Revision Application No.72 of 2015 by which the learned Judge rejected Page 1 of 13 HC-NIC Page 1 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER the Revision Application thereby affirming the order dated 22.07.2015 passed by the learned Judicial Magistrate First Class, Kalol, Panchmahal in the Muddamal Application No.54 of 2015.
3 It appears that the petitioner herein is the registered owner of the tempo bearing registration No. GJ. 17. Z. 0663. The same was intercepted transporting seven cattle in the same. The F.I.R. was came to be registered, referred to above, for the offence punishable under Sections 5(G), 6A(1)(2), 6(3) of the Animal Preservation Act, Section 119 of the Gujarat Police Act, Section 279 read with Section 114 of the Indian Penal code and Sections 177 and 184 of the Motor Vehicle Act.
4 The petitioner preferred an application for release of his tempo under Section 451 of the Code of Criminal Procedure, 1973 before the learned Magistrate. The same was rejected. The Revision Application filed by the petitioner also came be rejected. Being dissatisfied, he has come up with this petition.
5 Having heard the learned counsel appearing for the parties and having gone through the materials on record, I am of the view that keeping the tempo at the Police Station will not serve any good purpose, as by passage of time, it will get damaged. This issue is squarely covered by an order passed by this Court dated 03.12.2014 in the Special Criminal Application No.4790 of 2014. This Court in paras 8 to 14 has Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER observed as under:
"8. The moot question is whether the provisions of section 6(A) clause (4) applies in the facts and circumstances of the case. Section 6(A) clause (1) reads as under:
(1) No person shall transport or offer for transport or cause to be transported any animal specified in subsection (1A) of section 5 from any place within the State to any another place within the State for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be so slaughtered: Provided that a person shall be deemed to be transporting such animal for the purpose of slaughter unless contrary is proved thereto to the satisfaction of the concerned authority or officer by such person or he has obtained a permit under subsection (2) for transporting animal for bona fide agricultural or animal husbandry purpose from such authority or officer as the State Government may appoint in this behalf.
9. Section 6(A) clause (4) reads as under:
(4) The vehicle or conveyance so seized under subsection (3) shall not be released by the order of the court on bond or surety before expiry of six months from the date of such seizure or till the final judgment or the court, whichever is earlier.
10. The plain reading of section 6(A) clause (1) would indicate that the same is applicable in a case where it is found that the animals were being transported from any place within the State to any other place within the State for the purpose of slaughter in contravention of the provisions of the Act or with the knowledge that they were likely to be slaughtered. There is a proviso to section 6(A) clause (1) which provides that a person shall be deemed to be transporting such animal for the purpose of slaughter unless contrary is proved thereto to the satisfaction of the concerned authority or officer by such person or he has obtained a permission under sub-section (2) for transporting the animal for bona fide agricultural or animal husbandry purpose.
11. Clause (4) to section 6(A) puts a restriction so far as the release of the vehicle is concerned for a period of six months.
12. It is, therefore, manifest that section 6(A) clause (4) would apply only in a case where the animals are being transported Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER for the purpose of slaughter.
13. It is not in dispute so far as the present case is concerned that no permit was obtained by the petitioner herein as the registered owner of the vehicle for the purpose of transport. However, at the same time, the prosecution has to, prima facie, show something that the transport of the cattle was for the purpose of slaughter. For such purpose, I inquired with Mr. Dabhi, the learned APP, regarding the materials collected by the police in the course of investigation. Mr. Dabhi has fairly submitted that there is nothing to show that the cattle were being transported for the purpose of slaughter. It appears that there is no investigation in that direction. If it is the case of the prosecution that the cattle were being transported for the purpose of slaughter, then at least, it is expected from the investigating officer to investigate at which place they were being taken and were to be handed over to whom for the purpose of slaughter. There is nothing in that regard. In the absence of such material, in my view, the prosecution cannot straight way take recourse to the deeming fiction as provided under section 6(A)(1). In such circumstances, I am of the view that there should not be any legal impediment in releasing the vehicle before the expiry of the statutory time period i.e. six months.
14. I may quote with profit a decision of this court dated 7th October, 2013 rendered in Special Criminal Application No.1911 of 2013 and Special Criminal Application No.1912 of 2013. I quote paragraphs- 6, 6.1 and 6.2.
6. In this context, it would be appropriate to take into account the decision by the Hon'ble Apex Court in the case between Sunderbhai Ambalal Desai v. State of Gujarat [AIR 2003 SC 638]. Though in the said decision, provisions under Prevention of Cruelty to Animals Act, 1960 were not under consideration before the Hon'ble Apex Court, however, in the said decision, the Hon'ble Apex Court considered the scope and effect of the provision under Section 451 of the Criminal Procedure Code and also the approach which ought to be taken by the Court in cases covered by the said provision. With reference to the request for releasing vehicles, the Hon'ble Apex Court observed thus:
15. In our view, whatever be the situation, it is of no use to keep seized vehicles at the police stations for a long Page 4 of 13 HC-NIC Page 4 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER period. It is for the magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
16.In case where the vehicle is not claimed by the accused, owner or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If insurance company fails to take possession the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case before handling over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. (emphasis supplied) 6.1 Subsequently while considering the case in light of the provisions under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005, the Hon'ble Division Bench of this Court, after considering the above mentioned judgment in case of Sunderbhai Ambalal Desai (supra), observed, inter alia, that:
15. The principle as laid down by the Supreme Court in Sunderbhai Ambalal Desai (supra) could be made applicable in the facts of the present case.
16. xxx xxx
17. If the Rules of 2005 empowers an authorized officer to seize a vehicle on the ground of contravention or breach of other provisions of the Rules, then at the same time, it is also expected of the concerned Department to keep the vehicle in a safe custody and in a manner to ensure that the vehicle is not damaged, but it is a matter of common knowledge that as and when vehicles are seized and kept in the open office premises of the Department, not only they occupy substantial space of the office premises of the Department, but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER the Police station or other places for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. Ultimately, if the Department fails to make out any case and the confiscation proceedings are dropped, then under such circumstances, even if the vehicle is returned to the owner, it will not serve any good purpose because of extensive damage being already caused to such vehicles. To avoid all this, Rules provide for release of the vehicle on execution of a bond.
Rule 18 of the Rules, 2005, as referred to above, enables the authorised officer to provide for interim custody of such property, pending conclusion of the confiscation proceedings, or any other enquiry. It is only a temporary arrangement, and what is contemplated is, only an interim provision to provide custody with a proper person as the authorised officer thinks fit, with liability to produce the property back as and when directed by the authorised officer. The maximum duration of the arrangement is only till conclusion of the confiscation proceedings, or any other enquiry. It follows that the arrangement is only temporary and the main object is to protect or preserve the property, pending the confiscation proceedings. Even if the person entrusted with the interim custody is the owner, his possession or custody during the period of entrustment is only as representative of the authorised officer, and not in his independent right. He is bound by the terms of entrustment and the bond executed by him in favour of the authorised officer. His ownership or right to possession may not operate against his obligation to the Department. 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 the authorised officer of the Department. What is stated above does not mean that the power of the authorised officer is arbitrary. Even though the power is discretionary, it has to be exercised in a judicious manner. Whenever such application for interim custody of the vehicle is preferred, the authorized officer is obliged to take into consideration many other factors, over and above the contravention which is alleged. While deciding such an application, the authorised officer's main concern should be to protect or preserve the property, pending the confiscation proceedings or any other enquiry. An application under Rule 18 of the Rules, 2005 could not be rejected only on the ground that the Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER owner of the vehicle is alleged to have committed breach of the Rules. If that be the only consideration, then the object with which Rule 18 of the Rules, 2005 has been enacted, would get frustrated. The authorised officer is obliged to keep the object of Rule 18 of Rules, 2005 in mind while deciding the application. In the present case, we have noticed that the Collector, Surat, being the authorised officer under the Rules of 2005, took into consideration only the fact that the petitioner being the owner of the vehicle, was trying to transport the sand outside the State of Gujarat and has past antecedence. The Collector, Surat failed to consider the consequences of keeping the vehicle idle at an open place for months together pending the confiscation proceedings, and also failed to consider that the vehicle is prone to fast natural decay on account of weather condition. Such being the position, we are of the opinion that the authorised officer failed to exercise his discretion in a judicious manner. The discretion has to be exercised judiciously and not as per the whims and caprice of the authorised officer. (emphasis supplied) Thus, Hon'ble Division Bench applied the observations by Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) to the case under Mines Act.
6.2 At this stage, it would be relevant to refer to the observations in a recent decision by Hon'ble Apex Court in the case between Multani Hanifbhai Kalubhai v. State of Gujarat [2013 (3) SCC 240], more particularly paragraphs 6 to 12 of the said decision, which read thus:
6. The Bombay Animal Preservation Act, 1954 (in short "the Bombay Act"),which was enacted for the preservation of animals suitable for milch, breeding or for agricultural purposes was made applicable to the State of Gujarat. The following provisions of the said Act are relevant for the case in hand:
"Section 5 Prohibition against slaughter without certificate from Competent Authority.
(1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter.Page 7 of 13
HC-NIC Page 7 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER (1A) No certificate under subsection (1) shall be granted in respect of-
(a) a cow;
(b) the calf of a cow, whether male or female and if male, whether castrated or not;
(c) a bull;
(d) a bullock;
(2) In respect of an animal to which subsection (IA) does not apply, no certificate shall be granted under subsection (1) if in the opinion of the Competent Authority
(a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations;
(b) the animal if male, is useful or likely to become useful for the purpose of breeding;
(c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing offspring.
(3) Nothing in this section shall apply to(a) the slaughter of any of the following animals for such bona fide religious purposes, as may be prescribed, namely :
(i) any animal above the age of fifteen years other than a cow, bull or bullock.
(ii) a bull above the age of fifteen years
(iii) a bullock above the age of fifteen years.
(b) the slaughter of any animal not being a cow or a calf of a cow, bull or bullock, on such religious days as may be prescribed :
Provided that a certificate in writing for the slaughter referred to in clause (a) or (b) has been obtained from the competent authority.
(4) The State Government may, at any time for the purpose of satisfying itself as to the legality or propriety of any order passed by a Competent Authority granting or refusing to grant any certificate under this section, call for and examine the records of the case and may pass such order in reference thereto as it thinks fit.
(5) A certificate under this section shall be granted in such form and on payment of such fee as may be Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER prescribed.
(6) Subject to the provisions of subsection (4) any order passed by the Competent Authority granting or refusing to grant a certificate, and any order passed by the State Government under subsection (4) shall be final and shall not be called in question in any Court."
In the Gujarat Animal Preservation Act, 1954, after Section 6, the following new sections were inserted:"
6A. (1) No person shall transport or offer for transport or cause to be transported any animal specified in subsection (1A) of section 5 from any place within the State to any another place within the State for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be so slaughtered:
Provided that a person shall be deemed to be transporting such animal for the purpose of slaughter unless contrary is proved thereto to the satisfaction of the concerned authority or officer by such person or he has obtained a permit under subsection (2) for transporting animal for bona fide agricultural or animal husbandry purpose from such authority or officer as the State Government may appoint in this behalf.
(2) (a) A person may make an application in the prescribed form to the authority or officer referred to in subsection (1) for grant of permit in writing for transportation of any animal specified in subsection (1A) of section 5 from any place within the State to any another place within the State.
(b) If, on receipt of any such application for grant of permit, such authority is of the opinion that grant of permit shall not be detrimental to the object of the Act, it may grant permit in such form and on payment of such fee as may be prescribed and subject to such conditions as it may think fit to impose in accordance with such rules as may be prescribed.
(3) Whenever any person transports or causes to be transported in contravention of provisions of subsection (1) any animal as specified in subsection (1A) of section 5, such vehicle or any conveyance used in transporting such animal along with such animal shall be liable to be seized by such authority or officer as the State Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER Government may appoint in this behalf.
(4) The vehicle or conveyance so seized under subsection (3) shall not be released by the order of the court on bond or surety before expiry of six months from the date of such seizure or till the final judgment or the court, whichever is earlier.
6B. (1) No person shall directly or indirectly sell, keep, store, transport, offer or expose for sell or buy beef or beef products in any form.
(2)Whenever any person transports or causes to be transported the beef or beef products, such vehicle or any conveyance used in transporting such beef or beef products along with such beef or beef products shall be liable to be seized by such authority or officer as the State Government may appoint in this behalf.
(3)The vehicle or conveyance so seized under subsection (2) shall not be released by the order of the court on bond or surety before the expiry of six months from the date of such seizure or till the final judgment of the court, whichever is earlier.
Explanation For the purpose of this section "beef" means flesh of any animal specified in subsection (1A) of section 5, in any form."
7. Learned counsel for the appellant submitted that the provisions of the Amended Act clearly mention the applicability of Section 6A(3) to the class of animals as given in Section 5 (1A) of the Principal Act, viz., cow, the calf of a cow, bull and bullock, however, this section nowhere mentions 'buffalo calves' which have been found in the seized vehicle. According to him, in the absence of prohibited categories of animals as aforesaid, invoking of Section 6B(3) for not releasing the vehicle of the appellant before the expiry of six months from the date of seizure is not sustainable in law.
8. In context of the above, it is relevant to note that on 12.10.2011, an amendment was brought in the Principal Act which was called the Gujarat Animal Preservation (Amendment) Act, 2011. By virtue of this Amendment Act, a new Section 6A was brought in the Principal Act. We have already extracted Section 6A of the Amended Act.
Page 10 of 13
HC-NIC Page 10 of 13 Created On Thu Sep 10 01:13:15 IST 2015
R/SCR.A/5160/2015 ORDER
9. Subsection (3) of Section 6A of the Amended Act stipulates that whenever any person transports in contravention of provisions of subsection (1), any animal as specified in Section 5(1A), such vehicle or any conveyance used in transporting such animal, shall be liable to be seized by the authority/officer concerned. It is brought to our notice that the vehicle which has been impounded by the respondents was not carrying the category of animals which has been laid down under Section 5(1A). The vehicle in question was transporting the 'buffalo calves'.
10. A perusal of the FIR shows that one Sajidkhan Pirmohemmed Multani, driver of the vehicle and Rajubhai Kalubhai Multani had been passing from Sector 30 of Gandhinagar, Gujarat. The police tried to stop the said vehicle but when they did not stop, they followed and intercepted the same. On search being made inside the vehicle, they found 28 buffalo calves. Respondent No.2 herein arrested both the persons and seized Eicher Truck bearing Registration No. GJ9Z3801, which is the vehicle in question.
11. The courts below rejected the application filed by the appellant for release of the vehicle under Section 451 of the Code on the ground that as per the provisions of Section 6B(3) of the Amendment Act, the vehicle of the appellant shall not be released before the expiry of six months from the date of its seizure. On going through the relevant provisions, we are of the view that the Courts below including the High Court grossly erred by overlooking the correct position of law as stated in Section 6A(3). Subsection (1A) of Section 5 stipulates the schedule of animals which are as under:
(a) a cow;
(b) the calf of a cow, whether male or female and if male, whether castrated or not;
(c) a bull;
(d) a bullock.
It is clear from the above description of animals that the buffalo calf does not fall under the list of prohibited animals. We have already noted and it is not in dispute that the vehicle in question was carrying 28 buffalo calves. Thus, Section 6B(3) of the Amendment Act cannot be invoked in order to deny the claim of release of the vehicle before the expiry of six months from the date of Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER its seizure.
12. It is true that Section 5(1) prohibits slaughtering of any animal without a certificate in writing from the Competent Authority that the animal is fit for slaughter. In other words, without a certificate from competent authority, no animal could be slaughtered. Subsection (1A) to Section 5 mandates that no certificate under subsection (1) shall be granted in respect of the abovementioned animals. In the said section, admittedly, 'buffalo calf' has not been mentioned as prohibited animal. In such circumstance, the prohibition relating to release of vehicle before a period of six months as mentioned in Section 6B(3) of the Amendment Act is not applicable since the appellant was transporting 28 buffalo calves only. In view of the same, it is not advisable to keep the seized vehicle in the police station in open condition which is prone to natural decay on account of weather conditions. In addition to the above interpretation, whatever be the situation, it is of no use to keep the seized vehicle in the police station for a long period. (emphasis supplied) The observations would be applicable to this case as well. In light of the legal position and the facts of these cases, the request of the petitioners ought to have been granted on appropriate conditions. The learned trial Courts have committed error in passing the impugned orders which are not sustainable in the facts of the case."
6 In the result, this petition is allowed. The impugned orders passed by the Courts below are hereby quashed and set aside. It is ordered that the vehicle in question shall be released subject to the following terms and conditions:
6.1 The petitioner shall execute a bond within a period of one week from today for the production of the vehicle so released, if and when required before the Court having jurisdiction to try the offence on account of such seizure;Page 12 of 13
HC-NIC Page 12 of 13 Created On Thu Sep 10 01:13:15 IST 2015 R/SCR.A/5160/2015 ORDER 6.2 The petitioner shall not indulge in any such illegal activity of transportation of the animals;
6.3 The petitioner shall not sell, transfer or alienate the vehicle in any manner till the final conclusion of the trial pending in the court of the Judicial Magistrate.
7 Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Sep 10 01:13:15 IST 2015