Gujarat High Court
Kapadiya Tapan Laxmanbhai vs State Of Gujarat on 8 June, 2023
NEUTRAL CITATION
R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22476 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KAPADIYA TAPAN LAXMANBHAI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. BK. RAJ(3794) for the Applicant(s) No. 1
MR NM KAPADIA(394) for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/06/2023
ORAL JUDGMENT
1. This application, under Section 482 of the Criminal Procedure Code, 1973 is filed by the applicant - original revisionist by challenging the order dated 12.06.2017 passed Page 1 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined in Criminal Misc. Application No.1402 of 2017 by the learned J.M.F.C., Vadodara and impugned order dated 10.7.2017 passed in Criminal Misc. Revision Application No.147 of 2017 by 5 th Addl. Sessions Judge, Vadodara, whereby the trail court has rejected the applications filed by the applicant.
2. Brief facts, as per the case of the applicant in this application are as such that the applicant is having a business of cattle firm of cow belonging to the Gir and Kankreji breed of Gujarat. Those who are interested in buying the Gir and Kankreji breed for their cattle farm, they contact the applicant as the applicant's firm - Shree Dhara Naturals. Purushothaman Veeraragvan, a farmer from Tamilnadu having his ancestral land at Village: Cheyyur, Dist.: Kanchipuram, contacted the applicant as he wanted to develop his Cattle farm. Shree Dhara Naturals agreed to supply 27 cattle for the breeding purpose only. Four persons were engaged by Shree Dhara Naturals to transport 27 cattle to Tamilnadu for Purushothaman Veeraraghavan. These four persons were arrested by the police while they were transporting 27 cattle with all care and comfort from Dhara Naturals farm of Vadodara to Tamilnadu on a suspicion that the cattle is taken to a slaughter house and FIR was registered at the instance of one private person - Dipenkumar Rameshbhai Parmar, who claims to be an activist against Page 2 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined animal cruelty. It is further the case of the applicant in this applicant that all the four persons were released on bail by the learned J.M.F.C. on 23.04.2017. The Laxmanbhai Govindbhai Vankar, who is the owner of the Dhara Naturals was also released on bail on 27.04.2017. It is further the case of the applicant in this applicant that thereafter, applicant made an application on 26.04.2017 for release of the cattle and his application came to be rejected by the learned J.M.F.C. by order dated 12.06.2017. Thereafter, the applicant preferred the Misc. Criminal Revision Application no.147/2017 and it has also been rejected by ordered dated 10.07.2017 passed by Learned Additional Sessions Judge, Vadodara. Thereafter, the present petition is preferred.
3. At the request of learned advocates appearing for the respective parties, this matter is taken up for final disposal.
4. Heard learned advocate Mr. B.K. Raj for the applicant, learned Assistant Public Prosecutor Mr. Soaham Joshi for the respondent No.1 - State and learned advocate Mr. N.M. Kapadia for the respondent No.2.
5. Learned advocate Mr. B.K. Raj for the applicant has submitted that the FIR dated 22.04.2017 bearing C.R. No. II
- 113 of 2017 lodged by the respondent No. 1 registered Page 3 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined before the Varnama Police Station, Vadodara is nothing but an abuse of process of law as the allegations are highly absurd, unbelievable and concocted and is nothing but an abuse of process of the law in light of the guideline No.1 to 7 of Bhajanlal's case reported in 1992 Cri. L.J. page no.527 of Supra. He has also submitted that the order dated 10.07.2017 passed by learned Additional Sessions Judge and order 28.07.2017 passed by learned J.M.F.C., Vadodara are against the law. He has also submitted that it is not an offence to transport the cattle for the agricultural or breeding purpose and therefore, no offence is committed. He has also submitted that no cruelty was committed with the cattle and enough care was taken during transportation. He has also submitted that the applicant has no antecedent and first time he is facing litigation of this nature. He has also submitted that respondent no.2 has no locus standi and he can not be heard in Criminal Proceeding as third party as it is beyond the scope and provisions of Criminal Procedure Code. He has also submitted that the Gir and Kankreji breed cow require lot of care and attention and it can not be provided by the Panjarapole and therefore the life of the cattle is under the danger. He has also submitted that the learned trial court has committed an error by not releasing the cattle with appropriate terms and conditions. He has also submitted that the proposed purchaser - Purushothaman Veeraraghavan has Page 4 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined been protected by this Court in quashing of F.I.R. proceeding. He has also submitted that in light of the settle principles of the law emanated from the various judgments of the Hon'ble Apex Court as well as of this Court, the case of the applicant deserves the consideration. Learned advocate for the applicant has relied on the judgment of this Court in the case of Manager, Panjarapole, Deodar V Chakaram Moraji Nat and Anr. and Gitaben B. Shah versus State of Gujarat reported in 1997 (2) GLR 1321, and has submitted that it is not mandatory to hand over the custody to Panjarapole. He has also relied on the judgment of this Court in the case of Vadhwan Mahajan Pasnjarapole versus State of Gujarat & Another reported in 2000 (4) GLR 3461 and has submitted that the Magistrate has discretion to hand over interim custody of the animal to Panjarapole but he is not bound to hand over custody of animal to Panjarapole, in the event of not sending it too and infirmary. He has further submitted that in a case where owner is claiming for custody of animal, Panjarapole has no preferential right. He has also submitted that he himself has not filed any other petition or appeal for the same subject matter either before Hon'ble Apex Court or before this Court and has prayed to allow this application.
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NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined 6.1 Per contra, learned advocate Mr. N.M. Kapadia for the respondent No.2 has submitted that the orders passed by the learned trial court is complying the provisions of law and this Court should not interfere with the order passed by the learned trial court by exercise the powers under Section 482 of the Criminal Procedure Code, 1973. He has submitted that the submission of the applicant regarding the business of cattle farm and running the same in the name and style of 'Shree Dhara Naturals' is absolutely false and concocted because on request Mr. Jatin J. Vyas, the member of SPCA Vadodara and Honorary Animal Welfare Officer, Animal Welfare Board of India, had personally visited the address of 'Shree Dhara Naturals' and was shocked to learn that Shree Dhara Naturals not in existence at village Raghavpura Dist. Baroda, as mentioned in the FIR. The applicant is misguiding the court by stating false things on oath and therefore, the cattle cannot be returned to him. He has drawn my attention towards the circular dated 30.10.2013 issued by the Directorate of Animal Husbandry, State of Gujarat, wherein an absolute prohibition has been imposed on transportation of milking animals, from the state of Gujarat or within the state of Gujarat. He has submitted that now in view of the said circular, the applicant, in no given scenario, can be justified in transporting the cattle from one place to another and said act is illegal.
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NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined 6.2 He has placed reliance on the amendment of 2011 brought into the Gujarat Animal Preservation Act, 1954, and more particularly Section 6A is relevant and has submitted that on a bare reading of the same, it makes crystal clear that in absence of any permit or license from the appropriate authority, the transport of the cow progeny animals cannot permitted. In the facts of the present case, no permit or license authorizing the transport by competent authority has been produced by the applicant. In absence of the same the act of the applicant shall be deemed to have taken the animals for slaughtering. He has also relied on the Transportation of Animals (Amendment) Rules, 2001, and more particularly Rules 96 and 97 are relevant. He has relied on the judgment of the Hon'ble Apex Court in the case of Laxminarayan Modi versus Union of India reported in (2013) 10 SCC 227 and the submitted that a certificate has to be obtained before undertaking the transportation of animals, which is absent in the present case. He has also relied on the Central Motor Vehicles Rules, 1989 and more particularly Rule 125(E) is relevant. He has also relied on the Food Safety and Standards (Prohibition & Restriction on Sales) Regulations, 2011 and more particularly Clause 3.4 is relevant and has submitted that for journeys, exceeding 12 hours, the animals shall be transported by railways. Page 7 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023
NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined 6.3 He has further submitted that the animals that were rescued and brought to the Panjrapole - are in a very healthy and hearty condition from the date they were being rescued. None of the animals are ill or are suffering from any injury or disease. He has submitted that our Panjrapole is an Institution which has been actively working for the betterment and welfare of speechless animals. By saving the present animals in dispute they are serving the nation by protecting its flora and fauna, therefore the intention and the care provided by Panjrapole cannot be doubted in any case. He has also submitted that our Panjrapole is having very good facilities of keeping animals, having facility of veterinary livestock inspector, medicines, Big Space for grazing regular visits by Government Veterinary Officers. Our Panjrapole is also given Award by State of Gujarat.
6.4 He has also submitted that several animals in question are calves of cows, hence not milking. Hence, the claim of the petitioner that all animals are milking is false. He has also submitted that though the applicant claims to be doing the business, he has not produced on record the registration certificate under the Prevention of Cruelty to Animals (Registration of Cattle of premises) Rules, 2001. He has also relied on the judgment of the Hon'ble Apex Court in the case of Animal Welfare Board Of India vs A. Nagaraja & Ors. Page 8 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023
NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined reported in (2014) 7 SCC 547, and has submitted that the scope of Article 21 is not only for humans but also for animals. He has also relied upon the Article 48A and 51A(g) of the Constitution of India and has submitted that this Article should also be considered, which imposes a duty upon the State and the citizens to protect the flora and fauna of our country. He has also relied on the judgment of this Court in the case of Mahisagar Mataji Samaj Seva Trust versus State of Gujarat reported in 2011 (3) GLH 762, and has submitted that in this judgment this Court has held that cattle are like human beings and they possess life in them. Even an animal has right to say that its liberty cannot be deprived except in accordance with law. Thus, the criteria lay down by the Hon'ble Supreme Court and by this Hon'ble Court regarding safety of the animals is not satisfied by the applicant. The applicant has not produced the details with proof, where he has been and where he will be keeping the animals. The fact that so many animals were cruelly dumped in the Truck itself indicates that the applicant has no capacity or facilities to keep the animals safely. 6.5 He has further submitted that the Central Government recently notified the Rule, namely; Prevention of Cruelty to Animals Act (Care and Maintenance of Case Property Animals); according to which the magistrate has to direct Page 9 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined that the animals be housed in the infirmary or Panjarapole. He has further submitted that giving away of custody to the applicant would amount to sending the animals to slaughter house, as in absence of any documentation the presumption of animals being taken for slaughtering by the purchasers must be drawn. Therefore, he has prayed to dismiss this application by not exercising the powers conferred under Section 482 of the Criminal Procedure Code, 1973.
7. Learned Assistant Public Prosecutor Mr. Soaham Joshi for the respondent No.1 - State has submitted that there is clear violation of the rules while transporting cattle in the truck. He has submitted that on 23.5.2017 Central Government has notified the Rule, namely; Prevention of Cruelty to Animals Act (Care and Maintenance of Case Property Animals), whereby Rule 3 of that Rule provides that custody of animals, during the pending litigation should be handed over to voluntary organization and to be housed at Panjarapole Animal Welfare Organization or Goshala. He has further submitted that in view of the fact that no custody can be handed over. He has drawn my attention towards affidavit-in-reply filed by respondent No.2 where respondent No.2 has given detailed reply. He has relied on the judgment of the Hon'ble Apex Court in the case of A. Nagaraja & Ors. (supra), and has submitted that the Hon'ble Apex Court has Page 10 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined extended the scope of Article 21of the Constitution not only to humans but also to animals. He has also relied upon the judgment of this Court in the case of Mahisagar Mataji Samaj Seva Trust (supra), and has submitted that the applicant, who is original owner of the cattle, has sold the cattle to the persons who were transporting the cattle, as such, has no locus or any say in the present matter. He has submitted that for that reason also, this application is required to be dismissed. He has further submitted that it is not mandatory that when such type of incident where there is case of cruelty with the animals were recorded, the animals should be handed over back to the original owner of the cattle. On the contrary, considering the Rules framed by the Central Government, it clearly transpires that such cattle should be handed over and kept with some charitable institute vis, Panjarapole, Gaushala, etc. Therefore, he has also supported the submissions made by learned advocate for the respondent No.2 and objected the prayers made in the application by the applicant herein.
8.1 I have heard the contentions raised by the respective parties. I have gone though the orders passed by the trial court. I have also gone through the judgments cited at the bar.
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NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined 8.2 It is relevant to refer Rule, which is cited at the Bar, notified by notification dated 23.5.2017, as under:
"G.S.R.495(E).--Whereas the draft Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2016 were published, as required under sub-section (1) of section 38 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960), vide the Ministry of Environment, Forest and Climate Change notification number G.S.R. 35(E), dated the 16th January, 2017 in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (i), the 16 th January, 2017 inviting objections and suggestions from all persons likely to be affected thereby before the expiry of thirty days from the date on which copies of the Gazette containing the said notification were made available to the public;
And whereas the copies of the said Gazette were made available to the public on the 16th January, 2017; And whereas objections and suggestions received from the public have been considered by the Central Government; Now, therefore, in exercise of the powers conferred by sub- sections (1) and (2) of section 38 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960), the Central Government hereby makes the following rules, namely: --
1. Short title and commencement.-- (1) These rules may be called the Prevention of Cruelty to Animals (Care and Page 12 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined Maintenance of Case Property Animals) Rules, 2017. (2) They shall come into force on the date of their publication in the Official Gazette.
2. Definitions.-- In these rules, unless the context otherwise requires, --
(a) "Act" means the Prevention of Cruelty to Animals Act, 1960 (59 of 1960);
(b) "Animal Welfare Organisation" means an organisation recognised by the Animal Welfare Board of India and includes a Society for Prevention of Cruelty to Animals established in any district under the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001 made under the Act;
(c) "cattle" means a bovine animal including bulls, cows, buffalos, steers, heifers and calves and includes camels;
(d) "Society for Prevention of Cruelty to Animals (SPCA)"
means a SPCA established under the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001 made under the Act;
(e) "State Board" means the State Animal Welfare Board constituted, in a State, by the State Government;
(f) "vehicle" means any vehicle (including a trailer of any description and the detachable body of a vehicle) constructed or adapted for use on a road;
(g) words and expressions used in these rules and not defined, but defined in the Act, shall have the meanings Page 13 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined respectively assigned to them in the Act.
3. Custody of animals pending litigation.-- When an animal has been seized under the provision of the Act or the rules made thereunder--
(a) the authority seizing the animal shall ensure health inspection, identification and marking such animal, through the jurisdictional veterinary officer deployed at Government Veterinary Hospital of the area and marking may be done by ear tagging or by chipping or by any less irksome advance technology but marking by hot branding, cold branding and other injurious marking shall be prohibited;
(b) the magistrate may direct the animal to be housed at an infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala during the pendency of the litigation.
4. Cost of care and keeping of animal pending litigation.-- (1) The State Board shall within three months from the date of commencement of these rules and thereafter on the 1st day of April every year, specify the cost of transport, maintenance and treatment per day for every species of animal that is commonly seized in the State. (2) The magistrate shall use the rates specified by the State Board as the minimum specified rates for transport, maintenance and treatment of the seized animals under sub- ection (4) of section 35 of the Act.
(3) In case the animal under consideration is not on the rate sheet specified by the State Board, the magistrate shall fix the cost of transport, treatment and maintenance of the animal based on the input provided by the jurisdictional Page 14 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined veterinary officer.
5. Execution of bond.-- (1) The magistrate when handing over the custody of animal to an infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala shall determine an amount which is sufficient to cover all reasonable cost incurred and anticipated to be incurred for transport, maintenance and treatment of the animal based on the input provided by the jurisdictional veterinary officer and shall direct the accused and the owner to execute a bond of the determined value with sureties within three days and if the accused and owner do not execute the bond, the animal shall be forfeited to infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala. (2) The infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala having the custody of the animal may draw on from the bond on a fortnightly basis the actual reasonable cost incurred in caring for the animal from the date it received custody till the date of final disposal of the animal.
(3) The magistrate shall call for the accused and the owner to execute additional bond with sureties once eighty per cent. of the initial bond amount has been exhausted as cost for caring for the animal.
(4) Where a vehicle has been involved in an offence, the magistrate shall direct that the vehicle be held as a security.
(5) In case of offence relating to transport of animals, the vehicle owner, consignor, consignee, transporter, agents and any other parties involved shall be jointly and severally Page 15 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined liable for the cost of transport, treatment and care of animals.
(6) In cases where a body corporate owns the animal, the Chief Executive Officer, President or highest-ranking employee of the body corporate, the body corporate and the accused shall be jointly and severally liable for the cost of transport, treatment and care of the animal. (7) In cases where the Government owns the animal, the Head of the Department and the accused shall be jointly and severally liable for the cost of transport, treatment and care of the animal.
(8) If the owner and the accused do not have the means to furnish the bond, the magistrate shall direct the local authority to undertake the costs involved and recover the same as arrears of land revenue.
6. Abandoned animal.-- (1) In case where the investigating officer files a report that prima facie offence under the Act has been made out but he is unable to determine the accused or the owner of the animal, then the magistrate shall direct the local authority to undertake the costs involved and it shall be deemed that the owner has relinquished the ownership of the animal. (2) The relinquishment of ownership shall have no effect on any criminal charges against the unknown offender or the owner.
7. Voluntary relinquishment.-- Nothing in these rules shall be construed to prevent the voluntary and permanent relinquishment of any animal by the owner who is the Page 16 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined accused, to infirmary, pinjarapole, SPCA, Animal Welfare Organisation or Gaushala in lieu of executing a bond but the voluntary and permanent relinquishment shall have no effect on any criminal charges against the accused or owner.
8. Status of animal upon disposal of litigation.-- (1) If the accused is convicted, or pleads guilty, the magistrate shall deprive him of the ownership of animal and forfeit the seized animal to the infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala already having custody for proper adoption or other disposition.
(2) If the accused is found not guilty of all charges, the seized animal shall be returned to the accused or owner of the animal and the unused portion of any bond amount executed shall be returned to the person who executed the bond.
(9) Process of adoption or other disposition.-- (1) The infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala having custody of the animal during the litigation or post litigation may euthanize the animal in its custody as per section 13 of the Act.
(2) Where the animal has been forfeited to the infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala after conviction, abandonment or voluntary relinquishment, as the case may be, the animal shall be put up for adoption. (3) A person who has been charged under the Act or any cattle preservation law made by the State Government shall be prohibited from adopting animals from the infirmary, Page 17 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined pinjrapole, SPCA, Animal Welfare Organisation or Gaushala. (4) The infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala prior to giving the animal for adoption shall,--
(a) in case of cattle, take an undertaking in form of an affidavit that the animals are adopted for agriculture purposes and not for slaughter, and verify that the person adopting the animal is an agriculturist by seeing the relevant revenue document;
(b) in case of draught and pack animals, take an undertaking in the form of an affidavit that the animals are adopted for draught and pack purposes and not for slaughter;
(c) in case of dogs and cats, ensure that the animal is spayed or neutered before adoption;
(d) keep a record of name and address of the person adopting the animal and procure an identity proof and address proof of the person adopting the animal;
(e) obtain from the person adopting the animal a declaration in the form of an affidavit that he shall not alienate the animal up to six months from the date of adoption and shall abide by the rules for transport framed under the Act or any other law for the time being in force and shall get regular veterinary checkup done for the animal. (5) The person adopting the animal shall-
(a) not sell the animal;
(b) not abandon the animal;
(c) follow the State cattle protection and preservation law;
(d) not sacrifice the animal for any religious purpose;
(e) not sell the cattle to a person outside the State without Page 18 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined permission as per the State cattle protection and preservation law.
(6) Where a cattle or a draught and pack animal has been adopted, before its removal from the premises of the infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala, the proof of adoption shall be issued in five copies, out of which first copy shall be handed over to person adopting the animal, second copy to infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala, as the case may be, third copy to tehsil office of the residence of person adopting the animal, fourth copy to the Chief Veterinary Officer, Office of District of person adopting the animal and last copy shall be sent to the court to be filed in the case file.
(7) The adoption of animal shall not create an irrevocable right to the person adopting the animal, and the infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala, as the case may be, may from time to time inspect the animal and in case it finds that the person who has adopted the animal is not providing sufficient care or it has reasons to believe that an offence under the Act or any cattle preservation law is anticipated, then the infirmary, pinjrapole, SPCA, Animal Welfare Organisation or Gaushala, as the case may be, shall take possession of the animal. (8) The person adopting the animal shall only be the lawful guardian of the animal and shall not have any rights bestowed generally to an owner of the animal, but shall have the duty to take all responsible measures to ensure the well being of such animal and to prevent infliction upon such animal of unnecessary pain or suffering." Page 19 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023
NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined 8.3 It is also relevant to note the submission made at the Bar about handing over the custody by relying on judgment of this Court in the case of Manager, Panjarapole, Deodar V Chakaram Moraji Nat and Anr. and Gitaben B. Shah (supra), and more particularly, para 19 is relevant, which is as under:-
"Question 5 :
19. Having held that, as a rule, the custody of the animal is not to be given to the panjarapole, it will be for the Court concerned to exercise judicial discretion for the custody of the animal. Though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula, the Court, while considering the question of custody should take into consideration and bear in mind the following criteria :-
(A) The prime consideration of the Court should be for the preservation of livestock and elimination of chances of further cruelty to livestock.
(B) The Court should not be unnecessarily guided by emotions and sentiments.
(C) If it is a first offence, unless there are strong reasons to believe that if the custody of animal is given to accused or owner, the animal will be further exposed to cruelty, the Page 20 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined custody should be given to owner or the person from whose possession the animal is taken, on just conditions. (D) Looking to the nature of trial, unless presence of the animal for identification or other purpose is required, the custody should be given to the owner or person from whose custody the animal is taken, on just conditions. (E) In case the animal or animals are likely to be forfeited to Government at the conclusion of the trial or their presence is necessary during trial, whether the object can be achieved by imposing appropriate conditions ? (F) In case, it is considered necessary to give custody to pinjarapole, following steps shall be taken :
(i) Reputation of Panjarapole concerned be as certained with respect to maintenance of animal.
(ii) Undertaking be obtained from Authorities of Pinjarapole that they will maintain and take proper care of the health of animal and further, they will not claim costs, for maintenance of animal from accused or owner of the animal.
(iii) They will not sell or transfer the animal and they will produce the animal as and when they are directed to do so.
(iv) If they fail to produce animal at the conclusion of trial and if the Court so directs, they will pay the compensation for the loss of each animal.
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NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined (G) Keeping in view Animal as a muddamal, all efforts should be made to complete the trial expeditiously. Bearing in mind the aforesaid principles, I shall deal with each Applications."
8.4 It is also relevant to consider the judgment of this Court cited at the Bar by learned advocate for the applicant in the case of Vadhwan Mahajan Pasnjarapole versus State of Gujarat & Another (Supra), and more particularly, para 4 is relevant, which is as under:
"4. Section 35(2) of the Prevention of Cruelty to Animal Act is a special legislation. The question is whether when cattle are seized whether the Magistrate is bound to deliver its custody to the Panjarapole and not to the person who is claiming to be the owner of the same. This matter was considered by the Apex Court in Manager, Panjarapole, Deodar v/s. Chakaram Morarji Nat, reported in 1999 (1) SCC 587. The Apex Court in this case has laid down that the Magistrate has discretion to give interim custody of the Animal to Panjarapole. However, considering the material part of sub.Section 2 of S.35 of the Act the Apex Court held that the Magistrate may direct that the animal concern shall be sent to a Panjarapole. According to the Apex Court sub.section 2 does not say that the Magistrate shall send the animal to Panjarapole. The ward "shall send" Page 22 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023
NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined under Section 35(2) was considered to be a part of discretion given to the Magistrate if in his discretion he decides to give interim custody to Panjarapole. The Magistrate has discretion to hand over interim custody of the animal to Panjarapole, but he is not bound to hand over custody of animal to Panjarapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal Panjarapole has no preferential right. Thus, when the rival claims of Panjarapole and the real owner to the interim custody of the animal are considered the Panjarapole can not claim preferential right of interim custody, in view of this verdict of the Apex Court. In such matters the custody of the animal is given to the owner who is facing prosecution, for which certain guidelines have been laid down by the Apex Court in this case. These guidelines are as under :
(1) The court shall consider the nature and gravity of the offence alleged against the owner;
(2) It shall consider whether it is the first offence alleged or he has been found guilty of offences under the Act earlier;
(3) If the owner is facing the first prosecution under the Act and the animal is not liable to be seized so the owner will have a better claim for the custody of the animal during the prosecution;
(4) The condition in which the animal was found at the time of inspection and seizure is also to be considered by the Court;
(5) The Court has also to consider the possibility of the animal being again subjected to cruelty." Page 23 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023
NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined 8.5 Consider the above aspect and considering that subsequent to the abovementioned judgments, the Central Government has enacted specific Rules by which it is specifically provided that in case of cruelty of the animal and where the criminal proceedings are pending, the custody of the animals should be handed over to infirmary or Panjarapole or Goshala. It is also relevant to note that submission made at the Bar by learned advocate for respondent No.2, where respondent No.2 has heavily relied upon Transportation of Animals (Amendment) Rules, 2001, and more particularly, Rules 96 and 97 are relevant, which are as under:-
"96.Issue of certificate before transportation -
(1) A valid certificate issued by an officer or any person or Animal Welfare Organisation duly recognised and authorised for this purpose by the Animal Welfare Board of India or the Central Government shall be procured by any person making transport of any animal before transportation of such animal verifying that all the relevant Central and State Acts, rules and orders pertaining to the said animals including the rules relating to transport of such animals have been duly complied with and that the animal is not being transported for any purpose contrary to the provision of any law.
(2) In the absence of such certificate, the carrier shall refuse to accept the consignment for transport. Explanation : For Page 24 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined the purpose of this rule the certificate shall be issued in such form as may be specified for this purpose by the Central Government.
97.Cancellation of permit or authorisation for transport- (1) In the event of contravention or non compliance of any of the rules contained in these rule for transport of animals, if it is pointed out in writing by any officer or persons or Animal Welfare Organisations authorised for this purpose by the Animal Welfare Board of India or the Central Government, then, any permit or authorisation issued for such transport shall be immediately cancelled by the concerned authority and it shall be the duty of the police to stop the further transport even from the intermediary station and proceed against the said offenders and deal with the animal in accordance with law.
(2) The custody of the animals immediately after unloading from the rail wagons, truck or any other vehicle shall be given to the authorised Animal Welfare Organisation if available, till the competent authority or the magistrate having jurisdiction decides about their care and upkeep." 8.6 It is also relevant to refer the judgment of the Hon'ble Apex Court relied by the respondent No.2 in the case of Laxminarayan Modi (supra), whereby the Hon'ble Apex Court has directed all the State Authorities to strictly comply with Transportation of Animals (Amendment) Rules, 2001. Therefore, there is substance in the submission made by respondent No.2 that in violation of abovementioned Page 25 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined provisions for animals being transported, in that circumstances, the animals must not be returned to the applicant. It is also relevant to refer the Central Motor Vehicles Rules, 1989 and more particularly, Rule 125(E) is relevant, which is as under:-
"125E: special requirements of motor vehicles transporting livestock.
(1) On and after, the 1st January, 2016, motor vehicles used for transportation of livestock by road shall be in accordance with the specifications of the bureau of Indian standards as provided in IS-14904:007: or IS-5238:2001: Is-5236:1928, as the case may be, as amended from time to time and the transporter or the consigner of the livestock shall follow the code of practice laid down in the respective specification regarding the transport of the livestock. (2) Subject to sub-rule(1), the motor vehicles for carrying animals shall have permanent partitions in the body of the vehicle so that the animals are carried individually in each partition where the size of the partition shall not be less than the following namely:-
(1) Cows and buffalos = 2 sq.mts.
(ii) Horses and mares = 2.25 sq.mts.
(iii) Sheep and goat = 0.3 sq.mts.
(iv) Pig= 0.6 sq.mts.
(v) Poultry = 40 cm sq. (3) No motor vehicles meant for carrying animals shall be Page 26 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined permitted to carry any other goods.
(4) The regional transport Officer shall issue special licences for the motor vehicles meant for carrying animals on the basis of vehicles modified in accordance with the provisions of sub- rule(2)."
The above Rule is heavily relied upon by the respondent No.2 and has some relevance in the facts and circumstances of the present case.
8.7 It is also relevant to refer the judgment of the Hon'ble Apex Court, which is heavily relied by respondent Nos.1 & 2, in the case of A. Nagaraja & Ors. (supra), whereby the Apex Court has extended the scope of Article 21 of the Constitution of India, not only to humans but also to the animals. It was further observed in this judgment that under Article 48A and 51A of the Constitution of India should also be considered, which imposes a duty upon the State and the citizen to protect the flora and fauna of our country. It is also relevant to refer the judgment of this Court, which is cited by respondent No.2, in the case of Mahisagar Mataji Samaj Seva Trust (supra), wherein it is held that cattle are like human being and they possess life in them, even an animal has right to say that its liberty cannot be deprived of except in accordance. Therefore, considering the Page 27 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined abovementioned legal situation and considering the facts of the present case whereby it is found that more than 27 cattle, from whom 13 are Gir Cow, 1 is Gir Nandi and 1 is Kakrej Nandi and 12 are Kankreji breed Cows of Gujarat, were loaded in the truck and transported to Tamil Nadu when such truck was intercepted, it is found that no necessary compliance as required under the Rules and law is found in the said truck and therefore, it clearly transpires that such activity was carried out without complying provisions of the abovementioned Act and Rules. When such animals more particularly cows were transported, from the abovementioned Rules & Act, the presumption can be inferred that such animals were taken for slaughtering. Considering the same, when the applicant himself involved in such activity by selling such animals to the persons who are coming from Tamil Nadu, it clearly states that the applicant is otherwise no more owner of the goods i.e. cattle and therefore also, the applicant is not entitled to get any custody of the animals. Moreover, Rules otherwise provide about the custody to be handed over to the Panjarapole or Goshala as per latest Rules of 2017, and therefore, I found that the both the learned courts below have not committed any error in refusing the request made by the applicant. Therefore also, I found no reason to interfere in the impugned order passed by the courts below which are proper Page 28 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023 NEUTRAL CITATION R/CR.MA/22476/2017 JUDGMENT DATED: 08/06/2023 undefined and well reasoned order by exercising my limited under Article 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code.
9.1 In view of the above, this application is dismissed. 9.2 As the applicant has tried to take the undue advantage of his own wrongdoing by filing such proceedings even after livestocks were sold out by him, this is the fit case to impose the cost of Rs.25,000/-, upon the applicant, which is to be deposited before the Gujarat High Court Advocates' Law Library within a period of 3 weeks from today as he has tried to abuse the process of law by dragging the litigation from one Court to another and by consuming precious time of the Court for such frivolous proceedings.
Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 29 of 29 Downloaded on : Sat Sep 16 20:03:08 IST 2023