Gujarat High Court
Imrankhan Liyakatkhan Pathan vs State Of Gujarat on 3 December, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/5964/2020 ORDER DATED: 03/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5964 of 2020
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IMRANKHAN LIYAKATKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR SS SAIYED(3690) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/12/2021
ORAL ORDER
1. With the consent of learned advocates on both the sides, the matter is heard today finally.
2. By way of this petition under Sections 451 and 482 of the Criminal Procedure Code, 1973, the petitioner has prayed to quash and set aside the order dated 25/08/2020 passed by the learned Judicial Magistrate First Class, Sojitra, District, Anand below Exh-4 in Criminal Case No.47 of 2020 and the order dated 14/09/2020 passed by the learned 4 th Additional Sessions Judge, Petlad in Criminal Revision Application No.14 of 2020; and to release interim custody of muddamal vehicle "Bolero Pick-Up" bearing registration No.GJ-23-AT-0833 in favour of the petitioner, which was seized in connection with the FIR being II-CR No.48 of 2019 for the offence punishable under Sections 3, 11(1)(d)(e)(f) of The Prevention of Cruelty to Animals Act, 1960 and Section 5(1A), 6A and 8(2) of The Gujarat Animal Preservation Act, 1954, on suitable terms and conditions.
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3. Learned advocate Mr. S. S. Saiyed for the petitioner stated that the petitioner is the registered owner of the vehicle and is in the business of transportation. The vehicle was intercepted by the complainant and two oxen were found in the vehicle. It was alleged that the said animals were transported in a cruel manner, without any basic facility and, therefore, FIR being II-CR No.48 of 2019 was registered with Sojitra Police Station for the offence as stated above.
4. Learned advocate Mr. Saiyed submitted that the petitioner is real owner of the vehicle and that requisite procedure has not been followed for the seizure of the muddamal vehicle. It was submitted that the vehicle is the only source of livelihood of the petitioner and if the same remains idle, its condition may deteriorate and later it would not be of any use. He submitted that the Courts below ought to have considered the fact that the oxen were not carried for slaughter purpose and to the allegations so made, at the most, the petitioner would be liable for fine. He stated that the owner of the cattle had hired the petitioner's vehicle for transporting them from Tarapur to Petlad for farming purpose. The 7/12 abstract produced on record shows that the owner of the cattle was in farming business. The RC Book of the vehicle suggests that the petitioner is the owner of the vehicle.
5. The provisions of Sections - 3 & 11(1)(d), (e) & (f) of the Prevention of Cruelty to Animals Act, 1960 have been invoked in this case.
5.1 Section 3 provides for the "Duties of the person having Page 2 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022 R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 charge of animals". It provides that it shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.
5.2. Section 11 relates to "Treating animals cruelly". Sub- Section (1)(d) provides about any person, conveying or carrying, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; sub-clause (e) of section (1) provides about any person keeps or confines any animal in a cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; and sub-clause (f) of sub-section (1) provides against any person who keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; then all such offences shall be punishable for a fine of less than Rs.10/- if it is a first offence. This provision of fine has been made in context of persons who are in charge of animals and who fail to undertake the duty as prescribed under the Act.
6. The petitioner is also facing prosecution under Sections 5(1A), 6A and 8(2) of the Gujarat Animal Preservation Act, 1954, as amended by Gujarat Animal Preservation (Amendment) Act, 2017.
6.1. Section 5(1A) is with regard to prohibition against slaughter without Certificate from the Competent Authority.
Page 3 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 6.2. Section 6A of the Gujarat Animal Preservation Act, 1954 provides that no person shall transport or offer for transport or cause to be transported any animal specified in sub-section (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 the Act or with the knowledge that it will be or is likely to be so slaughtered. It is required to be noted that the said section is with the proviso which says that the 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 sub-section (2) for transporting animal for bonafide agricultural or animal husbandry purpose from such authority or officer as the State Government may appoint in this behalf.
6.3 Learned advocate also drew attention of the Court to the list of animals against whom there is prohibition for their slaughter except without the certificate from the competent authority. For such purpose, he took the Court to the provision of sub-section - (1A) of Section 5 of The Gujarat Animal Preservation Act, 1954, which reads thus:
"5. Prohibition against slaughter without certificate from Competent Authority :
(1) ....
(1A) No certificate under sub-section (7) 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;Page 4 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022
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(d) a bullock;"
7. Learned advocate Mr. Saiyed submitted that the petitioner is in the business of transportation and since the owner of the cattle wanted to transport them for agricultural purpose, the petitioner, being the owner of the vehicle, had no reason to doubt his bonafides. When the owner of the cattle was desirous to use the vehicle for transportation of the cattle, the petitioner believed that all requisite permissions must have been obtained by him for transporting them.
8. Learned advocate Mr. Saiyed submitted that the provision of Section 8(2) would not be applicable to the petitioner being the owner of the vehicle since the said provision is in relation to contravention of the provision of sub-section (1A) of Section 5 and the penalty is provided for the person who has slaughtered the such animal.
9. Learned advocate Mr. Saiyed submitted that it would be matter of evidence that during trial, prima facie, the petitioner has shown that the cattle were carried for farming purpose and the petitioner has prayed for the interim custody of the vehicle. He stated that necessary procedure under Rule-4(A)(c) of the Gujarat Animal Preservation (Amendment) Rules, 2017 has also not been followed at the time of seizing the vehicle in compliance of sub-section (4) of Section 6A.
9.1. At this stage, reference to the provisions of sub-Section 4 of Section 6A of Gujarat Animal Preservation (Amendment) Rules, 2017 is relevant. It reads as follows:
Page 5 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 "The vehicle or any conveyance so seized under sub- section(3) shall stand forfeited to Government in the manner as may be prescribed".
10. Mr. Pranav Trivedi, learned APP submitted that the petitioner would have no right to claim the vehicle since the Amendment, which has been brought in by way of Section 6A of G.A.P. Act, 1954, is with the intent that owners of such vehicles should not be given the custody of vehicles so seized, as there is a presumption that the vehicle would again be used for transporting animals for slaughter purpose and hence, a provision has been made for forfeiture of the vehicle to the Government. Learned APP, thereby, submitted that the larger purpose behind the enactment of the provision may be considered.
11. Rule 4A of the Gujarat Animal Preservation (Amendment) Rules, 2017 provides for the manner for forfeiture of vehicle under sub-section (3) of sub-section 6A or sub-section (2) of section 6B of the G.A.P. Act. Clause (1) of sub-rule (a) of Rule 4A provides that when there is reason to believe that an offence under sub-section (3) of Section 6A of sub-section (2) of sub-section 6B has been committed in respect of any animal, as specified in sub- section (1A) of Section 5 of the Act or, or beef or beef product is being transported in contravention of the provisions of the Act, such animal or product together with vehicle, conveyance, container and any other equipment used in committing any such offence, may be seized by Police Officer by stopping the vehicle or conveyance and causing it to remain stationary as Page 6 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022 R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 long as may reasonable be necessary for examination of the contents in the vehicle, conveyance, container and any other equipment and inspection of all records in possession of such driver or other person in charge of the vehicle or conveyance any other person in the vehicle or conveyance. For ready reference, sub-rule (a) of Rule 4A is reproduced hereunder:
"4A. Manner for forfeiture of vehicle under sub-section (3) of section 6A or sub-section (2) of section 6B of the Act :
(a) (1) When there is reason to believe that an offence under sub-section (3) of section 6A or sub-
section (2) of section 6B has been committed in respect of any animal as specified under sub-section (1A) of section 5 of the Act, or beef or beef product is being transported in contravention of the provisions of the Act, such animal or product together with vehicle, conveyance, container and any other equipment used in committing any such offence, may be seized by Police- officer by stopping the vehicle or conveyance and causing it to remain stationary as long as may reasonably be necessary for examination of the contents in the vehicle, conveyance, container and any other equipment and inspection of all records in possession of such driver or other person in charge of the vehicle or conveyance any other person in the vehicle or conveyance.
(2) The Police officer who has made the seizure under this rule shall immediately send sample of the suspected beef to Forensic Science Laboratory. The animal captured in vehicle or conveyance as specified under sub-section (1A) of section 5 of the Act shall be handed over to nearest designated infirmary.
(3) it shall be the duty of the driver, owner or the perosn in charge of the vehicle or conveyance from whom the sample of suspected beef is taken, to upkeep the remaining quantity of suspected beef in good condition till the result of Forensic Science Laboratory is received by taking such steps as the police officer may deem Page 7 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022 R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 necessary.
(4) every police officer making seizure under this rule shall place on such vehicle, conveyance, container and any other equipment, a mark indicating that the same has been seized, and shall, as soon as may be make a report of such seizure to immediate superior officer."
11.1 Clause (b) of Rule 4A provides as under;
"(b) The Sub- Divisional Police Officer may make an order to confiscate such vehicle, conveyance, container and any other equipment seized under sub-section(3) of Section 6A or sub-section(2) of section 6B of the Act."
11.2 Clause (c) of Rule 4A reads thus:
"(c) No order confiscating any vehicle, conveyance, container and any other equipment shall be made under clause (b) without giving notice in writing to the person from whom it is seized informing such person of the grounds on which it is proposed to confiscate and considering objections, if any:
Provided that, no order confiscating a vehicle, conveyance, container and any other equipment shall be made except, after giving a notice in writing to the registered owner thereof."
11.3 Clause (d) of Rule 4A reads thus:
"No such order confiscating vehicle, conveyance, container and any other equipment shall be made under clause (b), if the owner of the vehicle conveyance, container and any other equipment proves to the satisfaction of the authorised officer that the same was used in carrying animal or beef or beef product without the knowledge or connivance of the owner, agents and person in the vehicle, conveyance, container any any Page 8 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022 R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 other equipment if any, and each of them had taken all reasonable and necessary precautions against such use."
11.4 Here, in the instant case, no seizure has been reported to the Sub-Divisional Police Officer and no procedure has been followed for ordering confiscation of the vehicle in question. Under the referred provision, it becomes incumbent on the Sub-Divisional Police Officer to give necessary notice to the registered owner of the vehicle so as to enable him to explain the circumstances under which the prohibited cattle were found in the vehicle. Such procedure has not been followed in this case.
12. In this case, as per police report, no such order of confiscation has been passed. The trial will take its own time to conclude. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai's case (supra), the relevant portion of which reads thus;
"15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.
16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of Page 9 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022 R/SCR.A/5964/2020 ORDER DATED: 03/12/2021 litigation and a lot of arguments are advanced by the concerned persons.
17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long 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 application for return of such vehicles."
13. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the custody of the vehicle, if granted in favour of the petitioner on stringent terms and conditions, no prejudice is likely to be caused to the prosecution.
14. In the result, the petition is allowed. Both the above orders passed by the learned Courts below are quashed and set aside. The authority concerned is directed to release the vehicle bearing registration No.GJ-23-AT-0833 in favour of the petitioner on the conditions that the petitioner :
(i) shall furnish solvent surety equivalent to half of the value of the vehicle, as noted in the seizure memo.
(ii) shall file an Undertaking before the trial Court that he shall not sell, transfer, alienate and/or create any third party right in the vehicle, in any manner, without the prior permission of the trial Court concerned until the conclusion of trial;Page 10 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022
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(iii) shall produce the vehicle as and when directed by the trial Court;
14.1 Before handing over possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed panchnama in that regard, if not drawn, shall be drawn for the purpose of trial. If the Investigating Officer finds it necessary, videography / photography of the vehicle shall also be done and the expenses thereof shall be borne by the applicant.
Rule is made absolute. Direct service is permitted.
(GITA GOPI,J) ila Page 11 of 11 Downloaded on : Wed Jan 12 07:10:23 IST 2022