Gujarat High Court
Al Sameer Export Pvt.Ltd. - Thro' Deepak ... vs Page 1 Of 28 on 4 August, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/SCR.A/398/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 398 of 2012
With
SPECIAL CRIMINAL APPLICATION NO. 345 of 2012
With
SPECIAL CRIMINAL APPLICATION NO. 353 of 2012
With
SPECIAL CRIMINAL APPLICATION NO. 403 of 2012
With
CRIMINAL MISC.APPLICATION NO. 1998 of 2012
In
SPECIAL CRIMINAL APPLICATION NO. 398 of 2012
With
CRIMINAL MISC.APPLICATION NO. 1997 of 2012
In
SPECIAL CRIMINAL APPLICATION NO. 403 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 ?
==========================================================
AL SAMEER EXPORT PVT.LTD. - THRO' DEEPAK RAJVANSHI....Applicant(s)
Versus
Page 1 of 28
HC-NIC Page 1 of 28 Created On Sat Aug 05 03:10:28 IST 2017
R/SCR.A/398/2012 CAV JUDGMENT
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
IN SPECIAL CRIMINAL APPLICATION No. 398 of 2012 and connected
matters:
MR. S V RAJU, SENIOR ADVOCATE WITH MR ABHISHEK M MEHTA,
ADVOCATE for the Applicant(s) No. 1
IN SPECIAL CRIMINAL APPLICATION NO. 398 of 2012 with SPECIAL
CRIMINAL APPLICATIONS Nos. 345 of 2012 with 353 of 2012
MR. CHINTAN DAVE, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s)
IN CRIMINAL MISC APPLICATIONS NO. 1998 of 2012 & 1997 of 2012
MR. VIRAT POPAT, LEARNED ADVOCATE FOR THE APPLICANT(s)
IN SPECIAL CRIMINAL APPLICATION NO. 403 of 2012 with CRIMINAL
MISC. APPLICATIONS Nos. 1998 of 2012 and 1997 of 2012
MR. PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 04 /08/2017
CAV JUDGMENT
1 All the four Special Criminal Applications, being Special Criminal Applications No. 398 of 2012, 345 of 2012, 353 of 2012, 403 of 2012, have been filed by the petitioners who are exporters, engaged in the business of various products, including buffalo meat. The petitioners are members and registered with the Agricultural and Processed Food Products Export Development Authority, Ministry of Commerce, Govt of Page 2 of 28 HC-NIC Page 2 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT India. In the course of being engaged in export of buffalo meat, which is a commodity included in the list of "open general category", the petitioners are transporting this consignment from the State of U.P/ Haryana to Mumbai via Gujarat, since the export material is required to be shipped out of the country through JNPT, Mumbai, to its final destination. 2 The consignment of buffalo meat originates from an abbatoir situated in Uttar Pradesh and the raw meat is processed in Uttar Pradesh. After checks by the Animal Husbandry Department of Uttar Pradesh or such State, the export category raw meat is transported under refrigeration from Uttar Pradesh through the National Highway No.8 across Gujarat into Maharashtra where from, at JNPT Mumbai, the said consignment / cargo is exported out of the country.
3 The petitioners have been regularly transporting the consignments to the Jawaharlal Nehru Port, Mumbai, Maharashtra enroute Gujarat.
4 When the consignment entered the State of Page 3 of 28 HC-NIC Page 3 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT Gujarat, the Officers of the State of Gujarat in their anxiety to prevent export of cow meat, intercepted such consignments in order to prevent breach of the provisions of the Bombay Animal Preservation Act, 1954. In the present set of petitions, two First Information Reports, being FIR ICR No. 19 of 2012 and FIR ICR NO. 32 of 2012 were filed at the Navsari and Vapi Police Stations, respectively. These First Information Reports were filed at the behest of one Rajesh Hastimal Shah, in the case of Vapi Police Station who claimed to be the President of Hinsa Nivaran Sangh. Similar FIR at the Navsari Police Station was filed at the behest of one Ashwin Barot, who claimed to be a Chairman of Gaurakshak Sangh. 5 These FIRs were filed against the present applicantsexporters by the concerned Police Officers of the Police Stations on being informed by these two individuals, that the refrigerated containers carrying buffalo meat, were in fact carrying cow meat. On the basis of such information, in the presence of these vigilantes, the Police Authorities intercepted five refrigerated containers of the exporters in question Page 4 of 28 HC-NIC Page 4 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT on the National Highway No.8 within the State of Gujarat. The First Information Reports were filed by invoking provisions under Sections 6(b)(2)(3), 8(2) (4), 9,10, 11(2) of the Gujarat Animal Preservation Act, 1954 together with Sections 465, 467, 468, 471 and 34 of the Indian Penal Code.
5.1 The case of the petitioners is that they are recognized exporters and transporters engaged in the business of export/transport of consignments of buffalo meat through refrigerated trucks from the State of Uttar Pradesh to other States including Jawaharlal Nehru Port at Mumbai, Maharashtra. That, the said consignments, namely, refrigerated trucks, while passing through the State of Gujarat and en route Mumbai, have been seized by initiating the proceedings as stated herein above.
5.2 Mr. S.V. Raju, learned Senior Counsel appearing for the petitioners, would contend that the petitioners are export oriented units engaged in the business of processing and packing buffalo meat in the State of Uttar Pradesh. That they are regularly transporting their consignments to Jawaharlal Nehru Page 5 of 28 HC-NIC Page 5 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT Port,Mumbai, Maharashtra enroute Gujarat. Certificate of condition of meat before export is granted by the Department of Animal Husbandry, Government of Uttar Pradesh and, accordingly, the meat is loaded in the refrigerated truck, sealed by the Officer of the Department of Animal Husbandry, Government of Uttar Pradesh and relevant medical and other hygienic checks are carried out so as to ensure that the consignments meant for export are safely transported and reach their destination. That, after the consignments are offloaded at the port premises, in a given case, the Customs Authority under its supervision, may draw sample before the actual export takes place. In the above circumstances, when the said consignments/trucks were passing through the State of Gujarat, upon an information, they came to be seized and the FIRs were registered. That, the meat in question is a perishable item and, if it is not released, it would cause immense monetary loss to the petitioners and they would loose the business in future. That, such an arbitrary action on the part of the informant and the State Authorities in invoking the provisions of the Act and even registering offences under Sections 465, Page 6 of 28 HC-NIC Page 6 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT 467, 468, 471 and 34 of the Indian Penal Code, is nothing but an act of intimidation and amounts to disrupting the business of the petitioners, including loss to the foreign exchange. He submitted that, the material seized is worth Rs.3.6 crores. That, the Directorate of Forensic Science Laboratories, State of Maharashtra, at Mumbai, carried out the test and the result of analysis indicates that muddamal is buffalo meat and the immunological test gave strong indication of Buffalo anti sera.
6 These petitions were heard by this Court and a common oral order was passed on 16.02.2012, which reads as under:
"1 In Special Criminal Application Nos. 345
and 353 of 2012 filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioners have challenged legality, validity and maintainability of the FIR being I CR No.19/2012 registered at Navsari Rural Police Station, Navsari, on 27.1.2012 for the offences punishable under Sections 6(b)(2)(3), 8(2) (4), 9, 10, 11(2) of the Gujarat Animal Preservation Act, 1954 {for short, 'the Act}, and Sections 465, 467, 468, 471 and 34 of the Indian Penal Code, whereas in Special Criminal Application No.403 of 2012, the impugned FIR is I CR No.32 of 2012 registered at Vapi Town Police Station, Vapi, dated 1.2.2012 for the same offences.
2. Since the issue in all the three petitions is Page 7 of 28 HC-NIC Page 7 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT common, they are taken up for hearing together.
3 The case of the petitioners is that they are recognized exporters and transporters engaged in the business of export/transport of consignments of buffalo meat through refrigerated trucks from the State of Uttar Pradesh to other States including Jawaharlal Nehru Port at Mumbai, Maharashtra. That, the said consignments, namely, refrigerated trucks, while passing through the State of Gujarat and enroute to Mumbai, have been seized by initiating the proceedings as stated hereinabove.
4 Mr. S.V. Raju, learned Senior Counsel appearing for the petitioners, would contend that the petitioners are export oriented units engaged in the business of processing and packing buffalo meat in the State of Utter Pradesh. That they are regularly transporting their consignments to Jawaharlal Nehru Port, Mumbai, Maharashtra enroute Gujarat. Certificate of condition of meat before export is granted by the Department of Animal Husbandry, Government of Uttar Pradesh and, accordingly, the meat is loaded in the refrigerated truck, sealed by the Officer of the Department of Animal Husbandry, Government of Uttar Pradesh and relevant medicaland other hygienic checks are carried out so as to ensure that the consignments meant for export are safely transported and reach their destination. That, after the consignments are offloaded at the port premises, in a given case, the Customs Authority under its supervision, may draw sample before the actual export takes place. In the above circumstances,when the said consignments/trucks were passing through the State of Gujarat, upon an information, etc. they came to be seized and the FIRs were registered. That, the meat in question is a perishable item and, if it is not released, it would cause immense monetary loss to the petitioners and they would loose the business in future. That, such an arbitrary action on the part of the informant and the State Authorities in invoking the provisions of the Act and even registering offences under Sections 465, 467, Page 8 of 28 HC-NIC Page 8 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT 468, 471 and 34 of the Indian Penal Code, is nothing but an act of intimidation and amounts to disrupting the business of the petitioners, including loss to the foreign exchange. That, the material is worth Rs.3.6 crores. That, the Directorate of Forensic Science Laboratories, State of Maharashtra, at Mumbai, carried out the test and the result of analysis indicates that muddamal is buffalo meat and the immunological test gave strong indication of Buffalo anti sera. Therefore, according to the learned Senior Counsel appearing for the petitioners, the muddamal may be ordered to be released forthwith.
5 Learned APP appearing for the State would submit that the analysis carried out at the Regional Forensic Science Laboratory, Surat, State of Gujarat, would reveal that certain samples contained meat of cow species and, as per the amendment carried out in the Act, the State Authority is empowered to intercept the truck/container carrying such prohibited item under the Act and, therefore, the prayer of the petitioners for releasing the goods may be rejected.
6 Mr. V.G. Popat, learned counsel appearing for the informant, has also opposed to grant of relief to the petitioners on the ground that the Regional Forensic Science Laboratory, Surat, State of Gujarat, on analyzing a few samples, found meat of cow species.
7 Having heard the learned counsels for the parties and on perusal of the record, at this stage, primafacie, the following facts would emerge:
[a] The petitioners are authorized by the competent Authority of the Department of Animal Husbandry, Government of Uttar Pradesh, to transport and export buffalo meat by issuing certificate as required;
[b] The said buffalo meat is again tested by the Department of Customs by drawing sample randomly before the actual export takes place;Page 9 of 28
HC-NIC Page 9 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT [c] The report issued by the Directorate of Forensic Science Laboratories, State of Maharashtra, at Mumbai, indicates that the muddamal contains buffalo meat with strong indication of Buffalo anti sera, not necessarily the meat of cow or cow species.
[d] However, the Regional Forensic Science Laboratory, Surat, State of Gujarat, on analyzing a few samples, found meat of cow species.
[e] The said buffalo meat is meant for export; it is perishable and, if it is not released, a huge monetary loss would cause to the petitioners.
8. Considering the above, and keeping in mind the judgment and order dated 12.2.2009 passed by the Apex Court in the case of identical nature viz. Petition for Special Leave to Appeal (Civil) No.22665/2008 [Refrigerated Truck Owners Welfare Association & Another vs. Union of India and others, wherein it is observed that:
"As was pointed out by Mr. Patwalia, appearing for the petitioners, a consignment of this nature is required to be carried under controlled temperatures and if the same is disturbed, it can lead to quick deterioration. The truck carrying such a consignment and opening of the refrigerated chamber could have an adverse effect on the consignment. Even expecting the FSL report to reach the concerned authorities within 48 hours, appears to be unrealistic and there could be much more delay than has been contemplated. This will also be evident from the chart submitted by Ms. Wahi regarding the types of cases registered in relation to offence by transporters while carrying consignments of buffalo meat through the State of Gujarat. In most of the cases the offence occurred some time in the middle of the year 2007 or thereafter and the consignment of meat is said to have been kept in cold storage since then and nothing finally has been decided even though about one and half years have passed since the consignment was intercepted.
Accordingly, in order to arrive at an equitable Page 10 of 28 HC-NIC Page 10 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT solution to the problem, we are of the view that certain checks may be put in place on the refrigerated trucks while passing through the State of Gujarat to prevent any tampering with the said consignment once it reaches the State of Gujarat and exists therefrom We, accordingly, grant leave to the authorities of the State of Gujarat, upon receiving a specific complaint that a particular truck was carrying goods other than that certified for, they would be at liberty to seal the consignment on the entry of the concerned truck into the State of Gujarat, which would remain intact till the truck reached its ultimate destination. The authorities of the State of Gujarat would, thereafter, be at liberty to unseal the consignment and take samples therefrom for being sent to the Forensic Science Laboratory after taking necessary steps to reseal the consignment. Such FSL report must reach the authorities concerned within four days from the date of the arriving of the consignment at the port in question and on receipt of such report, the authorities shall either clear the consignment or take further steps as they may consider necessary.
As far as consignment going to the ports at Mumbai are concerned, the authorities of the State of Gujarat will be entitled to forward the complaints received in respect of any particular vehicle to their counter parts in the State of Maharashtra to take the same steps, as indicated hereinabove. In any event, the consignment should not be delayed for more than two weeks, within which period, if the FSL report is not received, the authorities of the State of Gujarat or Maharashtra will unseal the consignment and after completion of necessary formalities, allow the same to be exported.
I.A. 2 is disposed of with the aforesaid directions.
We make it clear that any observations made in this order is for the purpose of the disposal of the interlocutory application and will have no direct bearing at the time of the hearing of the special leave petition.Page 11 of 28
HC-NIC Page 11 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT The respondents will be entitled to file their counter affidavits to the special leave petition within four weeks; rejoinder, if any, may be filed within two weeks thereafter. List the matter after six weeks."
in the facts of the present case also, I am of the view that overall facts and circumstances persuade this Court to order release of all vehicles/trucks seized pursuant to the FIRs being I CR No.19/2012 registered at Navsari Rural Police Station, Navsari, on 27.1.2012, and CR No.32 of 2012 registered at Vapi Town Police Station, Vapi, on 1.2.2012, forthwith, upon the petitioners filing a proper undertaking to the effect that, if they fail in the cases instituted before the competent court of law against them, for all purposes, they will recoup the loss and abide by the final verdict of the Court. Order accordingly.
Applicability of the amended Act will be considered at the final hearing of the matters. S.O. To 12.3.2012.
Direct service is permitted."
7 As is evident from the facts which are noted by this Court in its order quoted herein above, these petitions have been filed claiming that the interception of the vehicles of the refrigerated containers was in violation of the Supreme Court guidelines as laid down in I.A No. 2 in petitions for Special Leave to Petition (C) No. 22665 of 2008 in the case of Refrigerated Truck Owners Welfare Association vs. Union of India & Ors.
8 It is contended by Shri S V Raju, Senior Counsel Page 12 of 28 HC-NIC Page 12 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT appearing for the applicants that the Police machinery is intercepting the consignment of buffalo meat which is being transported through refrigerated trucks without any jurisdiction and in gross violation of the directions of the Supreme Court.
9 Mr. Raju learned counsel for the applicants has invited my attention to the order of the Supreme Court, which reads as under:
" The main concern of both the State of Gujarat as well as the respondent No.8, appears to be that there is a possibility that in the name of a consignment of buffalo meat, cow meat may also be transported for the purpose of export or otherwise, which will be contrary to the provisions of the enactments referred to herein above.
While appreciating the anxiety on the part of the State of Gujarat to prevent such breach, it will still have to be borne in mind that the goods being sought to be transported are highly perishable and subject to swift decay and contamination, which will make it unfit for export. As was pointed out by Mr. Patwalia, appearing for the petitioners, a consignment of this nature is required to be carried under controlled temperatures and if the same is disturbed, it can lead to quick deterioration. The truck carrying such a consignment and opening of the refrigerated chamber could have an adverse effect on the consignment. Even expecting the FSL report to reach the concerned authorities within 48 hours, appears to be unrealistic and there could be much more delay than has been contemplated. This will also be evident from the chart submitted by Ms. Wahi regarding the types of cases registered in relation to offence by transporters while Page 13 of 28 HC-NIC Page 13 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT carrying consignments of buffalo meat through the State of Gujarat. In most of the cases the offence occurred some time in the middle of the year 2007 or thereafter and the consignment of meat is said to have been kept in cold storage since then and nothing finally has been decided even though about one and half years have passed since the consignment was intercepted.
Accordingly, in order to arrive at an equitable solution to the problem, we are of the view that certain checks may be put in place on the refrigerated trucks while passing through the State of Gujarat to prevent any tampering with the said consignment once it reaches the State of Gujarat and exists therefrom.
We, accordingly, grant leave to the authorities of the State of Gujarat, upon receiving a specific complaint that a particular truck was carrying goods other than that certified for, they would be at liberty to seal the consignment on the entry of the concerned truck into the State of Gujarat, which would remain intact till the truck reached its ultimate destination. The authorities of the State of Gujarat would, thereafter, be at liberty to unseal the consignment and take samples therefrom for being sent to the Forensic Science Laboratory after taking necessary steps to reseal the consignment. Such FSL report must reach the authorities concerned within four days from the date of the arriving of the consignment at the port in question and on receipt of such report, the authorities shall either clear the consignment or take further steps as they may consider necessary.
As far as consignment going to the ports at Mumbai are concerned, the authorities of the State of Gujarat will be entitled to forward the complaints received in respect of any particular vehicle to their counter parts in the State of Maharashtra to take the same steps, as indicated hereinabove. In any event, the consignment should not be delayed for more than two weeks, within which period, if the FSL report is not received, Page 14 of 28 HC-NIC Page 14 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT the authorities of the State of Gujarat or Maharashtra will unseal the consignment and after completion of necessary formalities, allow the same to be exported.
I.A. 2 is disposed of with the aforesaid directions."
10 It was further contended by Mr Raju that in identical circumstances of the case, one of the exporters had approached this Court by filing Special Criminal Application No. 2296 of 2007 and allied matters praying for quashing of complaints similar to the present one, and this Court by its judgment and order dated 24.11.2008 after appreciating the legal position observed as under:
"6 The totality of facts clearly indicate an investigation and persecution based on sheer suspicion, resulting into destruction of privateproperty meant for export and for earning foreign exchange. The whole process is indicated at the instance of an unauthorized person and a busy body claiming to be Animal Welfare Activist. By an order dated 04.07.2008, the original complainant was given an opportunity to show how he was authorized to stop and inspect any consignment of meat passing through the State of Gujarat and he has failed to show any legal and valid authorization by any statutory agency. His affidavit in Special Criminal Application No. 2296 of 2007 clearly indicate his presumption that even possession or transport of meat through the territory of Gujarat authorized every citizen to make a complaint on the basis of presumption of cruelty to animal and the burden of proving that no offence was committed was on the accused persons. It is unfortunate that the police has Page 15 of 28 HC-NIC Page 15 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT intervened at his instance in these matters and caused loss to the nation to the tune of crores of rupees.
7 Further prosecution and criminal proceedings in the facts would only cause further harrasement to the parties and waste of judicial time of the Court. Therefore, the petitions are required to be allowed. Accordingly they are allowed with the direction that the main complaint registered as C.R.No. II175/2007 shall stand quashed. It is clarified that it would be open for the petitioners, if thought fit and so advised, to take suitable proceedings in respect of causation of destruction of valuable property belonging to them. Rule in each petition is made absolute accordingly with no order as to costs".
10.1 According to Mr. Raju, therefore, when the present First Information Reports are read, what is evident is that such FIRs are filed only on the basis of suspicion expressed by the cow vigilantes. Filing of such FIRs is in gross violation of the guidelines of the Supreme Court which have been quoted in extensive in aforesaid.
11 Mr Raju further contends that, the Police Authorities have no jurisdiction to file the complaints and the Police Authority had to only forward its apprehension to their counter parts in Maharashtra.
Page 16 of 28 HC-NIC Page 16 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT 11.1 It was further contended by Mr Raju that, in view of the judgment of this Court in Special Criminal Application Nos. 2296 of 2007, particularly when the Court had observed that filing of such complaints was pure harassment, the complaints in question be quashed.
12 Mr Raju also drew the attention of this Court to a subsequent development. The order dated 16.02.2012 passed by this Court in the present batch of applications, by which after recording the facts the consignments were released, Rajesh Hastimal Shah, at whose behest FIR at Vapi was filed had challenged the aforesaid order before the Supreme Court by filing Criminal Appeal No. 661 of 2012. The Supreme Court by its order dated 16.02.2012, dismissed the appeal of the individual at whose behest the complaint at Vapi was filed.
13 According to Mr Raju, when the order of this Court was passed on 16.02.2012, what was before the Court were two FSL Reports. The report issued by the Director of Forensic Science Laboratories, State of Page 17 of 28 HC-NIC Page 17 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT Maharashtra, at Mumbai, indicated that the mudammal contained buffalo meat with strong indication of buffalo anti sera, not necessarily the meat of cow or cow species. However, the regional Forensic Science Laboratory, Surat, found, on analyzing the sample that it found meat of cow species. Before the Supreme Court, it has come on record that in order to settle the dispute the matter was referred to the Central Forensic Laboratory at Hyderabad and thereafter to the Central Forensic Science Laboratory at Delhi. A copy of the report which was placed on record before the Supreme Court, as recorded in the order recorded a factual statement that the entire consignment consisted of only buffalo meat.
13.1 It would be relevant therefore to quote the order of the Supreme Court in Criminal Appeal No. 661 of 2012 at the hand of the cow vigilantee Rajesh Hastimal Shah, which reads as under:
"1 Leave granted.
2 This appeal is directed against the order dated 16.02.2012, passed by the Gujarat High Court in SCRA No. 403/2012, whereby the learned Single Judge of the High Court had directed release of all the vehicles and trucks seized pursuant to the FIRs, being I CR No. 19 of 2012, registered at Navsari Rural Police Station, Page 18 of 28 HC-NIC Page 18 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT Navsari on 27th January, 2012, and C.R.No. 32 of 2012, registered at Vapi Police Station, Vapi, on 1 February, 2012, forthwith, upon the st respondents herein filing a proper undertaking to the effect that, if they failed in the cases instituted before the competent court of law against them, for all purposes, they will recoup the loss and abide by the final verdict of the court.
3 It may be indicated that both the FIRs, being CR.32/12, and CR 32/12 was registered at the instance of the appellant, Shri Rajesh Hastimal Shah.
4 It had been contended on behalf of the appellant herein that the consignment of meat which was to be exported, contained meat of cow progeny, apart from buffalo meat. At that point of time, there were two FSL reports before us, one which was submitted by the Forensic Science Laboratory at Surat and the other by the Forensic Science Laboratory in Maharashtra. The two reports were conflicting in that the FSL report from Surat indicated that apart from buffalo meat, there appeared to be some samples containing meat of cow progeny.
5 In order to settle the dispute, the matter was first of all referred to the Central Forensic Laboratory at Hyderabad, which, however, returned the reference upon indicating that it had no infrastructure to conduct the tests. Thereafter, the Central Forensic Science Laboratory at Delhi, which we were informed was under the control of the Central Bureau of Investigation, was directed to examine the consignment and to give its report.
6 Today, a copy of the report has been produced by the State of Gujarat, under sealed cover, from which it appears that the entire consignment consisted of only buffalo meat. When it was decided to send the samples of meat to the laboratory at Delhi, we had, in fact, cautioned the parties that if there was a report Page 19 of 28 HC-NIC Page 19 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT which was in favour of the consignor, the costs for the damage to the consignment would have to be borne by the petitioner (appellant herein) and, accordingly, in view of the report which has been submitted by the Central Forensic Science Laboratory at Delhi, we not only have to dismiss the appeal, but we have also to consider the question of costs in the matter.
7 We accordingly, dismiss the appeal and direct the authorities to act in terms of the order of the High Court and to release the goods, which have been kept under seizure, to the respondent No.1.
8 The learned advocate for the respondent No.1 has submitted a chart of the loss suffered by him on account of this delay in the export of the consignment of meat, which adds up to a total of about 70 lakhs.
9 However, since the loss suffered is based on an estimate made by the exporter himself, we compute the total loss, which the respondent No.1 may have suffered at 50 lakhs, which will also include demurrage charges in the cold storage.
10 We, accordingly, direct that while releasing the goods to the respondent No.1, 50 lakhs shall be paid to the respondent No.1, by the appellant and the State of Gujarat in equal shares.
11 Accordingly, the State of Gujarat and the appellant shall pay a sum of Rs. 25 lakhs each to the respondent No.1, as compensation towards the deterioration of the value of the goods sought to be exported, within a month from date. 12 The appeal is, accordingly, dismissed, with the aforesaid directions.
13 Let the report of the Central Forensic Science Laboratory, of the Central Bureau of Investigation, at New Delhi, produced in Court today, be resealed and kept with the records.Page 20 of 28
HC-NIC Page 20 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT 14 Having regard to this order, the application for impleadment is also dismissed."
14 In the submission of Shri Raju, therefore, in view of the categorical finding of the Supreme Court in its order, based on the report called by it, the controversy now rests. The report placed before the Supreme Court categorically observed that the consignment in question consisted only of buffalo meat. According to Mr Raju, therefore, in view of the order passed by the Supreme Court, these applications should be allowed.
15 Pending these four quashing petitions, Criminal Misc Application Nos. 1997 of 2012 and Criminal Misc Application No. 1998 of 2012 were filed by Rajesh Hastimal Shah, at whose behest the Vapi Police filed Complaint. By these applications, the applicant prayed for being joined as party respondent in these proceedings. The application was so filed stating that the applicant is an Animal Welfare Officer and, in view of the fact that there is complete ban in Gujarat and Maharashtra on slaughter of cow or its progeny, the applicant be impleaded as party in these Page 21 of 28 HC-NIC Page 21 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT proceedings. These applications were ordered to be heard with the main petition. This applicant, it needs to be noted was the appellant before the Supreme Court in Criminal Appeal No. 661 of 2012.
16 Mr Virat Popat, learned advocate appearing for this applicant, urged that it is necessary to hear the applicant, before the Court decides these petitions on merit, in view of the fact that it was he who had initiated the prosecution. Mr Popat for the party joining applicant relied upon a judgment of the Supreme Court in the Case of J K International vs. State Govt of NCT of Delhi reported in 2001 (2) GLH 795 to contend that since he is the person aggrieved by the offence committed, he cannot be kept out of the controversy as the persons committing the offence are being brought to book at his instance. Mr Virat Popat, in support of his contentions has placed heavy reliance on paras 9 and 11 of the judgment, which reads as under:
"9 The scheme envisaged in the Code of Criminal Procedure (for short "the Code") indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police Page 22 of 28 HC-NIC Page 22 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT and the chargesheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Even in the sessions court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Code, a private person who is aggrieved by the offence involved in the case is not altogether debarred from participating in the trial. [@page 798] This can be discerned from Section 301(2) of the Code which reads thus:
"If in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."
10 xxxxx xxxxxx xxxxx 11 In view of such a scheme as delineated above how can it be said that the aggrieved private person must keep himself outside the corridors of the court when the case involving his grievance regarding the offence alleged to have been committed by the persons arrayed as accused, is tried or considered by the court. In this context, it is appropriate to mention that when the trial is before a Magistrate's court, the scope of any other private person intending to participate in the conduct of the prosecution is still wider. This can be noticed from Section 302 of the Code which reads thus:
"(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below a rank of Inspector; but no person, other than the AdvocateGeneral or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, Page 23 of 28 HC-NIC Page 23 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so or by a pleader."
17 Learned APPs have supported the contents of the complaints and stated that once suspicion has been expressed that the consignment that was being transported, through the State of Gujarat, was suspected to be that of cow meat, and that, the Forensic Science Laboratory Report of Surat also opined it to be cow meat, this Court should not quash the complaint in question.
18 Having considered the submissions of the advocates of the respective parties, what is apparent on the perusal of the pleadings and the judgments of the Supreme Court in the case of I.A No. 2 in petitions for Special Leave to Petition (C) No. 22665 of 2008 in the case of Refrigerated Truck Owners Welfare Association vs. Union of India & Ors (supra) and the judgment in Special Criminal Application No. Page 24 of 28 HC-NIC Page 24 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT 2296 of 2007 is that:
(A) The First Information Report which are subject matter of these petitions, when read expressly present a picture that thesecomplaints were filed purely on the basis of suspicion of the cow vigilantes. Reading of the complaint shows that such a complaint was filed on the basis of suspicion.
(B) It was categorically held by the Supreme Court in the judgment of Registered Trucks Owners Association (supra) that, the authorities of the State of Gujarat while intercepting refrigerated trucks passing through the State should file a complaint only upon receiving a specific complaint that the particular truck was carrying goods other than that certified for.
(C) Evidently, on reading the complaint, it is apparent that the root cause for filing this complaint is suspicion. The question does not end here. What is evident from the judgment in the case of Truck Owners Welfare Association (supra) is that it was categorically observed by Supreme Court that as far as consignments going to Mumbai Port are concerned, the authorities Page 25 of 28 HC-NIC Page 25 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT of the State of Gujarat will be entitled to forward the complaints received in respect of any particular vehicle to their counter part in the State of Maharashtra to take the steps.
Nothing has come on record to suggest otherwise. I am therefore, inclined to accept the submissions of learned Senior Counsel Shri S V Raju, that the complaints filed at the behest of the Police Authorities in the State of Gujarat without forwarding them to Maharashtra, are without jurisdiction.
(D) On perusal of the order passed by this Court on 16.02.2012, and the order of the Supreme Court of 16.02.2012, what is evident is that in view of the conflict in the two FSL Reports, one of Surat and one of Mumbai, in order to settle the dispute, the Supreme Court got the consignment tested with the Central Forensic Science Laboratory, at Delhi. As the order records the report which has been produced before the Supreme Court, it appears that, the entire consignment consisted only of buffalo Page 26 of 28 HC-NIC Page 26 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT meat. This in my view, therefore, completely sets the controversy at rest. In view of the specific finding of the Supreme Court based on the Report of the Central Forensic Science Laboratory, Delhi, that the consignment was of buffalo meat, the complaints impugned in these petitions deserve to be set aside.
19 In view of what is observed above, these petitions deserves to be allowed and the complaints in question namely FIR Nos. being FIRICR No. 19 of 2012 and FIR ICR NO. 32 of 2012, filed at the Navsari and Vapi Police Stations, respectively are hereby quashed and set aside. Rule is made absolute in each applications accordingly.
20 As far as the Criminal Misc. Applications of Rajesh Hasitmal Shah are concerned, which were ordered to be heard with these petitions, in view of the specific finding of the Supreme Court, dismissing the application for impleadment as well as the review petition being Review (Cri.) Petition No. 363/2012, the contention of Mr Virat Popat, that he being an Page 27 of 28 HC-NIC Page 27 of 28 Created On Sat Aug 05 03:10:28 IST 2017 R/SCR.A/398/2012 CAV JUDGMENT aggrieved party be heard needs no further adjudication. In view of the categorical observation of the Supreme Court dismissing the application, these Criminal Misc. Applications stand dismissed.
(BIREN VAISHNAV, J.) Bimal Page 28 of 28 HC-NIC Page 28 of 28 Created On Sat Aug 05 03:10:28 IST 2017