Patna High Court
Dhyan Foundation Represented By ... vs The State Of Bihar, Service Through The on 27 April, 2017
Author: Birendra Kumar
Bench: Birendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No. 263 of 2017
Arising out of P.S. Case No. - null Year - null Thana - null District - KISANGANJ
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Dhyan Foundation represented by Nitasha Jaini, W/O Keshav Jaini authorized
signatory having its office at A - 80, South Extension II, P.S. - Hauz Khas, New
Delhi - 110049
.... .... Petitioner
Versus
1. The State of Bihar, Service through the D. M. Kishanganj
2. Chief Secretary, Govt. of Bihar, Patna
3. Secretary, Home Government of Bihar, Patna
4. Matlub, Son of Mahmood
5. Shahzad, Son of Irshad
6. Asif, Son of Irshad
7. Sabir, Son of Rais
8. Raju, Son of Firoz, Respondents 4, 5, 6, 7, 8, all are residing at Bhada, Police
Station - Danghat, District - Bangpat (Uttar Pradesh)
.... .... Respondents
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Appearance :
For the Petitioner : Smt. Nitasha Jaini, (In Person)
For the State : Mr. Partha Sarthy, G.A. IV
Mr. Apurva Kumar, A.C. to G.A. IV
For the Respondent Nos. 4 to 8 : Mr. Dilip Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date: 27-04-2017 Heard learned counsels for the parties.
Backgrounds:-
1. The Circle Officer, Kishanganj noticed that 61 camels have been brought in the campus of Khagara Mela (an animal fair), at Kishanganj. The Circle Officer suspected that the camels have been brought to the knowledge of Amit Kumar Das, the owner of Khagara Mela. Then he filed a written complaint to the Station House Officer, Kishanganj stating therein that in the night camels have been unloaded from trucks in the campus of Khagara Mela. The same should be seized and necessary prosecution be launched against the owner of the Mela.
Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 2/11 On the basis of aforesaid information Kishanganj Police Station Case No. 543 of 2016 was registered on 29.11.2016. The seizure of the camels was news of that day in the local newspapers. Suspicion was raised that the same was being transported for the purpose of slaughter in Bangaladesh.
2. The petitioner Dhyan Foundation is a registered trust vide registered trust deed at Annexure-13. The Foundation is a spiritual and charitable organization working for the welfare of the animals as per averment in paragraph no. 5 of the supplementary affidavit on oath. The petitioner works closely with the governmental agencies like Environment Ministry, Husbandary Department, Government of India vide Annexure-5 series. As soon as the writ petitioner got knowledge of the seizure of camels in Kishanganj, through the then volunteer Niru Gupta took up the matter and filed a petition before the leaned Chief Judicial Magistrate, Kishanganj for entrustment of interim custody of the camels in favour of the petitioner so that he may be carried to Rajasthan which is the natural safe place for the life of the camels.
3. Respondent no. 4 to 8 also filed a petition before the learned Chief Judicial Magistrate, Kishanganj, vide Annexure-B to the counter affidavit of the State-respondents, for release of the camels in their favour only on the ground that they are owners thereof.
4. The Circle Officer, Kishanganj i.e. the informant of the Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 3/11 aforesaid police case also reported that to save life of the camels the same be released in favour of Dhyan Foundation vide Annexure-3.
5. The Investigating Officer reported that the so-called owners are residents of Uttar Pradesh and they have carried the camels from Rajasthan, their natural place, to Kishanganj which is not a favourable climatic zone for happy life of the camels, hence, intention of the so-called owners is apparent. Moreover, they have exported the prohibited animals from Rajasthan-via-Uttar Pradesh to Kishanganj, apparently, with intent to get them slaughtered, hence, the same need not be released in favour of the owners.
6. The Investigating Officer submitted another report vide Annexure-4 that climate of Kishanganj is not favourable for the camels, hence, the same be released in favour of the petitioner for the purpose of being carried back to Rajasthan.
7. The learned Chief Judicial Magistrate, Kishanganj allowed the prayer of the petitioner by order dated 03.12.2016. Respondent no. 4 to 8 filed Cr. Revision No. 40 of 2016 before the learned District & Sessions Judge, Kishanganj challenging the aforesaid order of the learned Chief Judicial Magistrate, Kishanganj on the ground that they were owners of the said camels, hence, without hearing them, the learned Chief Judicial Magistrate, Kishanganj should not have passed the order dated 05.12.2016. Further the camels were property of Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 4/11 the petitioner, hence, those could not be released to anyone else. The learned Sessions Judge stayed the order of the learned Chief Judicial Magistrate by the impugned order dated 14.12.2016 on the ground that since criminal revision has been admitted for hearing and it would be frustrated if no stay is granted.
Prayer Herein
8. Thereafter, the petitioner invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India praying therein for quashing the order dated 14.12.2016 passed by the learned District & Sessions Judge, Kishanganj in Cr. Revision No. 40 of 2016 and for upholding the order of the learned Chief Judicial Magistrate, Kishanganj with further prayer for direction to the State- respondents to take immediate step for unkeep of the seized camels in proper and safe place and to provide them proper food and medicines for their survival.
9. Next prayer is to restrain the State-respondents from releasing the camels in favour of respondent no. 4 to 8 otherwise the animals would be sent to the slaughter house. Further prayer is for taking necessary action against respondent no. 4 to 8 for offence of smuggling and transportation of camels from its natural habitation Rajasthan to Kishanganj which is wholly unsuitable climate for the camels. Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 5/11 Submissions:-
10. Submission of the petitioner is that though attention of the learned Sessions Judge was drawn to the provisions of the Rajasthan Camel (Prohibition of Slaughter and Regulation on Temporary Migration or Export) Act, 2015. The learned Sessions Judge did not consider the same and wrongly assumed that respondent no. 4 to 8 were owners of the same. In fact, they are offenders under the Act.
11. Though the Rajasthan Act is not applicable in the State of Bihar but there is no contrary law prevailing hereat in the field, hence, its violation would be treated as offence wherever the offence is committed and the offender is noticed.
Section 2(f) of the Rajasthan Act, 2015 defines "export" means to take out of the State of Rajasthan to any other place out of the State of Rajasthan;
Section 2(h) defines "slaughter" means intentional killing by any method and for any purpose whatsoever;
Section 5(1) of the Act reads as follows:-
"No person shall export and cause to be exported any camel himself or through his agent, servant or other person acting in his behalf from any place within the State to any place outside the State for the purposes of slaughter or with the knowledge that it may be or is likely to be slaughtered."
Sections 6 and 7 of the Act read as follows:-
"6. Transporter to be abettor.- Whenever the camels are transported by any means of transport in furtherance of the object of commission of any offence under this Act, the transporter shall Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 6/11 be guilty of abetment of the said offence and shall be liable for the same punishment as is provided under Section 8 of the Act for person committing the said offence."
"7. Custody and disposal of camel seized.-
(1) Whenever as a result of search or seizure or as a result of inspection or otherwise the camels are seized, the custody of the seized camels pending final disposal of the case may be entrusted by an order of the Competent Authority to any recognized voluntary agency working for the welfare of such animals:
Provided that where there is no such voluntary agency in any local area, the Competent Authority may entrust the custody of camels to any such agency outside the area or to any other suitable person, who volunteers to maintain such animals. (2) Whenever any case is finally disposed of, further orders regarding custody or permanent entrustment of camel shall be made by the Competent Authority subject to such terms and conditions as may be deemed proper.
(3) Any person aggrieved by an order made under sub-section (1) or sub-section (2) may, within thirty days from the date of the said order, appeal against it to the Divisional Commissioner. (4) On such appeal the Divisional Commissioner may after giving an opportunity to the appellant and the competent Authority or any other officer authorized by him in this behalf to be heard, direct the order to be stayed pending disposal of the appeal or may modify, alter or annul the order and make any further orders that may be just.
(5) Whenever any camel is seized under this Act the Competent Authority or the Divisional Commissioner shall have, and notwithstanding anything to the contrary contained in any other law for the time being in force, any other Court, Tribunal or other Authority shall not have jurisdiction to make orders with regard to possession, delivery, disposal or release of such animal."
Section 11 of the Prevention of Cruelty to Animals Act, Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 7/11 1960 defines "treating animals cruelly" as follows:-
"11(1)(a) If any person beats, kicks, over-rides, over-drives, over- loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animals to be so treated;
he shall be punishable, [in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.]
12. Learned counsel for the State-respondents in their counter affidavit have stated that soon after seizure of the camels, they are altogether taking proper care and their upkeep but the climate of Kishanganj is not favourable, hence, some of them has died. The counter affidavit is silent whether State has objection in getting the release of the same in favour of the petitioner. However, at the time of submission, learned counsel submits that the State-respondents would abide by the directions of the Court. The State-respondents has further submitted that during investigation, prima facie, allegation of commission of offence have been established and only offenders are to be arrested in the case.
13. Learned counsel for the private-respondent nos. 4 to 8 submits that, in fact, they are bona fide purchasers of the camels which would appear from the inquiry report submitted in the case. He further submits that they want further time to file counter affidavit. Further Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 8/11 submission is that no other claimant has appeared before the learned court below to claim the seized camels. Moreover, the petitioner has got no locus standi to claim possession of those camels. Findings:-
14. The record reveals that by order dated 20.04.2017 time was allowed to the private-respondents for filing the counter affidavit which they have not filed. Considering the urgency of the matter, further prayer for time for filing counter affidavit is refused.
15. The order of the learned Sessions Judge has been challenged on the ground that the same has been passed without hearing the petitioner in whose favour the order of the leaned Chief Judicial Magistrate was there and the order of the learned Sessions Judge affected the interest of the petitioner, hence, principle of natural justice has been violated.
16. A bare perusal of the order of the learned Sessions Judge reveals that the same has been passed without hearing the petitioner which affected the right of the petitioner accrued by order of the learned Chief Judicial Magistrate. Hence, the order of the learned Sessions Judge is in violation of the principle of natural justice. Accordingly, the same is not sustainable in law and fit to be set aside.
17. The impugned order passed by the learned Sessions Judge is not sustainable for one more reason. Article 51A(g) of the Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 9/11 Constitution of India and Section 3 of the Prevention of Cruelty to Animals Act, 1960 create constitutional and legal duty on everyone to ensure the well being of animals and to prevent infliction upon such animals of unnecessary pain or suffering. Article 51A(g) of the Constitution reads as follows:-
"It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures."
Section 3 of the P.C. Act 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.
18. In Animal Welfare Board of India v. A. Nagaraja & Ors., reported in (2014) 7 SCC 547, the Hon'ble Apex Court in paragraph 72 of the judgment observed as follows:-
RIGHT TO LIFE:
"72. Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word "life" has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, "life" means something more than mere survival or Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 10/11 existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity. Animals' well-being and welfare have been statutorily recognised under Sections 3 and 11 of the Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Sections 3 and 11 of the PCA Act read with Article 51-A(g) of the Constitution. Right to get food, shelter is also a guaranteed right under Sections 3 and 11 of the PCA Act and the Rules framed thereunder, especially when they are domesticated. The right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well. The right, not to be beaten, kicked, over-ridden, over-loaded is also a right recognized by Section 11 read with Section 3 of the PCA Act. Animals also have a right against human beings not to be tortured and against infliction of unnecessary pain or suffering. Penalty for violation of those rights are insignificant, since laws are made by humans. Punishment prescribed in Section 11(1) is not commensurate with the gravity of the offence, hence being violated with impunity defeating the very object and purpose of the Act, hence the necessity of taking disciplinary action against those officers who fail to discharge their duties to safeguard the statutory rights of animals under the PCA Act."
19. The perusal of the penal provisions under the P.C.A. Act, constitutional obligations and the observations aforesaid makes it abundantly clear that if the order of the learned Sessions Judge is allowed to stand, the same would be dangerous for the life of the seized camels, especially, in view of the statement made in the supplementary affidavit filed by Nitasha Jaini, the volunteer of Dhyan Foundation, disclosing the fact that out of 61 camels 12 have already died. The petitioner has enclosed the photographs of ailing camels suffering from Patna High Court Cr. WJC No.263 of 2017 dt.27-04-2017 11/11 different scars on feet and are victim of weight loss due to non- availability of adequate food etc.
20. In the circumstances, the impugned order passed by the learned Sessions Judge is quashed and it is directed to release the seized camels in favour of the petitioner at once on execution of surety bond and proper identification of the petitioner with further direction that the petitioner would carry the same straightway to the State of Rajasthan and shall not dispose of the camels without permission of the competent authority under the Rajasthan Act. The State-respondents shall fully cooperate in shifting of the camels to Rajasthan.
21. Since, criminal case has already been lodged against respondent no. 4 to 8, no further order is required to be passed on the prayer of the petitioner to take action against respondent no. 4 to 8 for alleged criminal act as well as cruelty committed by them against the seized camels.
22. With the aforesaid observation, the writ application stands allowed.
(Birendra Kumar, J)
Kundan
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 27.04.2017
Transmission 27.04.2017
Date