Delhi District Court
People For Animals vs Md. Mohazzim on 10 March, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No. 49/14
ID No. 02406R0331432014
People for Animals
Through Gaurav Gupta,
14 Ashoka Road,
New Delhi - 110001 . . . . Revisionist
Through: Shri S. D. Windlesh, advocate.
versus
1. Md. Mohazzim
S/o Shri Azam Khan
R/o G8A/249, Ratia Marg,
Sangam Vihar
New Delhi
Through: Shri Jitesh Vikram Shrivastav,
advocate.
2. The State . . . . . Respondents
Through: Shri M. Zafar Khan, Additional
Public Prosecutor.
__________________________________________________________
Date of Institution : 29.11.2014
CR No. 49/14 1 of 10
Date when arguments were heard : 21.02.2015
Date of Judgment : 10.03.2015
JUDGMENT :
The present Criminal Revision is directed against impugned orders dated 20.10.2014 and subsequent orders dated 30.10.2014 and 03.11.2014 passed by learned MM01, SouthEast, Saket Courts, New Delhi in the matter of DD No. 34A dated 13.10.2014 police station Lajpat Nagar.
2. Prosecution case in brief is that on 13.10.2014, Shri Gaurav Gupta r/o 14, Ashoka Road, New Delhi, President, Raiding Party, People for Animals, Wild Life, along with his 23 associates came to police station Lajpat Nagar, who informed the SHO that some persons were indulging in cruelty upon animals in the area and asked for police assistance. On the directions of ATO (SHO), SI Subhash Chand along with Ct. Sachin and Ct. Amit accompanied Shri Gaurav Gupta and reached near Mool Chand hospital, BRT Corridor, where they found some birds and animals caged in front of a pet shop. On this, Kalandra under Section 11 (a) of The Prevention of Cruelty to Animals Act, 1960 was prepared. Respondent / accused Mohd. Mohazzim was apprehended and released on bail. The birds and animals, who were seized were sent through ambulance to Sanjay Gandhi Hospital under care and protection of Shri Gaurav Gupta.
CR No. 49/14 2 of 10
3. Respondent / accused Mohd. Mohazzim moved an application for release of birds and animals on superdari before the court of learned MM. On 20.10.2014, after hearing counsel for respondent / accused, learned APP for State and considering the report of Investigating Officer, learned MM was pleased to allow the application of respondent accused for superdari by passing the following order : "It is submitted by the applicant that the birds and animals have been seized by the concerned police officials. It is further submitted that applicant is the rightful owner of the birds and animals and the same are not required for the purpose of investigation by the police. The applicant undertakes to produce the aforementioned birds and animals as and when required or directed by the court. It is further submitted that he has never been prosecuted or convicted in this Act, therefore there is no possibility of birds and animals being subjected to cruelty. The applicant also undertakes to transport these animals and birds, as per the provision of transportation of Animals Act 1978 and in consonance with the guidelines of Hon. Supreme Court in case of "Lakshmi Narayan Modi v/s Union of India" WP (Civil) no. 309/2003 as of 31.10.2004.
IO of the case shall ensure that the birds and animals are handed over to the superdar by meeting the condition required for transport of animal and birds as per CR No. 49/14 3 of 10 provision of transportation of Animal Act 1978 and the superdar shall also furnish to the IO, a certificate of the certified Veterinary doctor to the fact that birds and animals are fit for transportation. IO shall also ensure that animals are properly tagged with the tag number and birds are tagged with aluminum plate by their claw / legs for identification for future purpose. The satisfaction of these conditions shall be obtained by the IO and not by any other authority.
The applicant shall file the superdarinama in sum of Rs.2,00,000/ for the animals and birds mentioned above to the satisfaction of the IO / SHO concerned.
The applicant shall take proper care and custody of the aforementioned animal and birds and shall produce the same as and when required before the court. The superdar shall also provide the medical treatment to the aforementioned birds and animals. The applicant shall not sell the birds and animals and in case, any of them die, he shall inform the IO during the investigation and to the court during trial along with documents.
The applicant is also directed to submit the report to the IO after eyer 3 months with respect to the health of the aforementioned birds and animals till filing of charge sheet. SHO concerned is directed to release the animals and birds to the applicant after satisfying himself about the identity and fitness of the animals and further the ownership proof CR No. 49/14 4 of 10 of applicant qua animal and birds. IO is directed to put identification mark on each animal and birds and shall take the photographs of each animal and birds from all angles. IO will file the superdarinama along with photographs at the time of filing the police report."
4. Subsequent to the passing of order dated 20.10.2014, respondent accused filed another application for seeking relaxation in the condition of superdari order passed on 20.10.2014. This application of respondent / accused was taken for consideration by learned MM on 30.10.2014. After considering the submissions of both the parties, the learned MM was pleased to relax the condition of tagging of birds / animals with aluminum plate. IO of the case was directed to take the group photographs of the birds / animals at the cost of respondent accused.
5. On 03.11.2014, respondent accused moved an application before the court of learned MM for directing the Superintendent of Sanjay Gandhi Hospital to produce the seized birds / animals before the court for handing over the same to respondent accused on superdari. Application of respondent accused was considered. The condition of medical examination by any practicing certified veterinary doctor was considered to be sufficient and the concerned authority was directed not to press for medical examination of the birds and animals by a government doctor. The concerned authority of Sanjay Gandhi Hospital CR No. 49/14 5 of 10 for animal was directed to assist the IO to comply the order on superdari, otherwise, IO was given liberty to take appropriate action against the concerned authority.
6. The revisionist, feeling aggrieved by the orders dated 20.10.2014, 30.10.2014 and 03.11.2014 of learned MM has challenged the same before this court.
7. The revisionist filed the instant revision against three other authorities namely (i) The Commissioner, Municipal Corporation of Delhi, Delhi, (ii) State (Government of NCT of Delhi) through SHO Lajpat Nagar, New Delhi and (iii) the Secretary, Animal Welfare Department, Ministry of Environment and Forest, Indra Paryavaran Bhawan, Jor Bagh Road, New Delhi besides the respondent Mohd. Mohazzim. Vide order dated 04.12.2014, learned Predecessor of the court was pleased to delete the other authorities from the array of respondents as he thought that they are not necessary party in the matter.
8. Respondent Mohd. Mohazzim has filed reply to the revision petition of the revisionist.
9. I have heard the submissions advanced by Shri. S. D. Windlesh, learned counsel for revisionist, Shri Jitesh Vikram Srivastav, learned counsel for respondent and perused the record of the case.
10. Learned counsel for revisionist after drawing the attention CR No. 49/14 6 of 10 of the court to the impugned orders of learned MM and judgment titled as "Animal Welfare Board of India Vs. A. Nagraj & Ors., Civil Appeal No. 5387 of 2014 decided by Hon'ble Apex Court on 07.05.2014" and "Abdul Kadar Mohd. Azam Sheikh Vs. State of Gujarat, Laws (GJH)2011551 decided on 12.05.2011" submitted that the impugned orders passed by learned MM is not sustainable in the eyes of law. He further argued that the birds which were seized by the police ought to have been released in the open air in the sky and they cannot be permitted to remain caged. He further submitted that the order on superdari passed in favour of respondent accused for release of birds and animals is illegal. He prayed to set aside the impugned orders of learned MM.
11. Per contra, it was submitted by learned counsel for respondent that learned trial court has passed a judicious order while exercising his power under the provisions of Cr.P.C. and there is no illegality or impropriety in the order passed by learned MM. He further submitted that the respondent is dealing in the trade of exotic birds having all facilities required for these birds. He further submitted that the respondent was keeping the exotic birds in hale and healthy manner because these birds are so delicate that they cannot bear any cruelty and if any cruelty is done, they would die. He further submitted that there is no allegation against the respondent for cutting the wings, tying of their CR No. 49/14 7 of 10 legs and other injuries caused to seized birds. Learned counsel for respondent submitted that respondent has not violated the Export and Import Policy of the country and has not violated any provisions of law. It is prayed to dismiss the revision petition preferred by revisionist being devoid of any merit.
12. I have considered the rival submissions of both the parties and perused the material on record.
13. On bare perusal of impugned orders passed by learned MM, it is seen that before releasing the seized birds and animals, the respondent accused has been directed to take proper care and custody of the birds and animals and further directed to produce them in the court when required. He has further been directed to provide medical treatment to the seized birds and animals and further directed not to sell the birds or animals. In case of death of any of the birds or animals, the respondent has been directed to inform the IO during the investigation and to the court during trial along with documents. Respondent has further been directed to submit report to the IO after every three months with respect to the health of the birds and animals till filing of charge sheet. The learned MM, after considering the report of the IO and the medical fitness of the birds and animals, deemed it appropriate to release the birds to the owner i.e. respondent.
14. The judgments relied upon by learned counsel for CR No. 49/14 8 of 10 revisionist is not at all applicable in the facts and circumstances of the case, as a bare perusal of the same reveals that facts of A Nagraja's case (supra) are totally different from the facts of the present case. In the said case, birds were found kept in small cages, their wings and tails were cut, cello tape was put on their wings and rings were put on their legs. Considering the gravity of cruelty, birds were not released to their owner and were ordered to be released in the open sky. In the present case, respondent has not committed any cruelty and therefore, he cannot be deprived of his property if he is otherwise entitled for the same.
15. There is no dispute that respondent is not the owner of the seized birds and animals. There is no restriction in dealing and keeping the exotic birds. There is no dispute to the fact that the seized birds are not exotic. In the given circumstances, I do not find any illegality, impropriety or infirmity in the impugned orders passed by learned MM in release of seized birds and animals to respondent on taking superdarinama with specific direction that no cruelty be caused to them. The seized birds and animals be kept in healthy condition and they be regularly examined by the doctor and their fitness be reported to the IO of the case during the course of investigation.
16. In view of foregoing reasons, I am of the considered view that there is no illegality or perversity in the impugned orders passed by learned MM. Revision petition preferred by revisionist lacks merit and CR No. 49/14 9 of 10 same deserves to be dismissed. Accordingly, revision petition preferred by revisionist is hereby dismissed.
17. A true copy of the judgment along with TCR be sent back to court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e 10th March, 2015 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No. 49/14 10 of 10