Delhi District Court
Siraj vs State (Nct Of Delhi) & Ors on 19 July, 2016
Case No. 58325/2016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Case No. 58325/2016
Criminal Revision No. 69/2016
Siraj
S/o Sh. Sadruddin
R/o Mohalla Dariba Garden,
Ghaziabad, UP .....Petitioner
Versus
State (NCT of Delhi) & Ors. .....Respondent
Instituted on : 8th July 2016
Arguments on : 19th July 2016
Decided on : 19th July 2016
ORDER
1. This revision U/S 397 of the Code of Criminal Procedure (Cr.P.C.) r/w 401 Cr.P.C is preferred against order dated 1st July 2016 passed by the Court of Sh. Sachin Sangwan, Ld Metropolitan Magistrate-04, (Central), Tis Hazari Court, Delhi, whereby forfeited to the Government all the animals (24 buffaloes) of the revisionist in case vide challan no. 256404 u/s 11 PCA Act r/w Section 34 IPC.
2. This court has heard submissions advanced by Sh. Usman Chaudhary, Ld counsel for petitioner as well as Sh. Himanshu Garg, Addl. PP for the State and has perused the material on record.
3. In brief, facts leading to the filing of this revision are Siraj vs State Page No. 1 out of 7 Pages Case No. 58325/2016 that being a businessman of sale & purchase of the cattles/domestic animals was brining the aforesaid animals in a Truck bearing No.RJ-32GA-6842 in the intervening night on 30.06.2016 at about 1:00 P.M. to Mandi Ghazipur at Delhi for selling the same in open slaughter market. Thereafter, staff of the Delhi Society for Prevention of Cruelty of Animals (DSPCA herein after) overpowered the truck and took the same to the premises of the office of the DSPCA whereby the Kalandra/Challan was prepared against the revisionist and the driver of the said truck vide Challan Nos.256404 and 256403 respectively under Section 11 (a) & 11 (d) of Prevention of Cruelty to Animals Act, 1960 and under Rules 47 (a, b, c), 48, 49-A, 52 and 54 of Transport of Animal Rules, 1978. Two challans were filed before the Ld. designated court of Shri Sachin Sangwan, M.M.-04, Central, Delhi for disposal alongwith the challan, report/veterinary medical health certificate dated 1st July 2016 of Veterinary Officer, Delhi, SPCA Hospital, Tis Hazari, Delhi was also filed. As regards the health status of the animals and in the column no.8 as to whether the animals were fit to be released or not, it was reported that the animals may not be released.
4. It is submitted by Ld counsel for petitioner that on 01.07.2016, Ld. Trial Court disposed off two kalandras vide Siraj vs State Page No. 2 out of 7 Pages Case No. 58325/2016 summary trial register entry no. 655 under the Code, after accusations were explained to the petitioner, who had pleaded guilty voluntarily and consequently, petitioner was convicted for the offence 11 (a) & 11 (d) of Prevention of Cruelty to Animals Act, 1960 and under Rules 47 (a, b, c), 48, 49-A, 52 and 54 of Transport of Animal Rules, 1978. Thereafter, the respectful submissions on the point of sentence were heard by the Ld. Trial Court and petitioner was sentenced to pay fine of Rs.50/- for each of the animal (30 animals) and also by the driver totaling fine of Rs.3,000/-. Petitioner was let off by the trial court after admonition qua the remaining violations of Transport of Animals Rules, 1978. Fine has been deposited by the petitioner but he is aggrieved with the further order passed by the Ld trial court whereby petitioner was deprived of the animals and all the buffaloes seized in the present case were forfeited to the Government and Incharge, DSPCA was directed to file report regarding fitness of the animals so as to pass further orders regarding their disposal.
5. Ld counsel for the petitioner submitted that petitioner is not aggrieved with the order of admonition and imposition of fine but is aggrieved with the order of forfeiture of animals, which is not in accordance with the provisions of Section 29 of Prevention of Cruelty to Animals Act 1960 (to be referred as PCA Act herein Siraj vs State Page No. 3 out of 7 Pages Case No. 58325/2016 after). It is submitted that Ld. Magistrate has wrongly passed the order forfeiting the animals. As per sub-section (2) of Section 29 of the Act no order under sub-section (1) forfeiting the animals, shall be made unless it is shown by evidence as to a previous conviction under this Act or as to the character of the owner or otherwise as to the treatment of the animals that the animals, if left with the owner, is likely to be exposed to further cruelty but in the present case there is no evidence of previous conviction of the petitioner or as regards the character of the owner or otherwise as to the treatment of animals for further cruelty if left with the owner/petitioner.
6. Ld Counsel for petitioner submitted that the impugned order is illegal, arbitrary and contrary to the law and that Ld trial court has erred by not recording or obtaining any evidence to satisfy the requirement of Section 29(2) PCA. It is argued that Ld trial court has failed to appreciate that the animals were being taken by the petitioner for the purpose of slaughter and thus it cannot be observed that he was likely to expose the animals to further cruelty if left with him and slaughter of the animal does not mean treating the animal with cruelty since slaughter of the animal would be done in accordance with the PCA Act (Slaughter House) Rules, 2001. In support of his case, Ld counsel for petitioner relied Siraj vs State Page No. 4 out of 7 Pages Case No. 58325/2016 upon Manager, Pinjrapole Deudar and Anr. Vs Chakram Moraji Nat and Ots.1, wherein it is held that the owner of the animal can only be deprived from the custody of the animal under the Act for his conviction for second time.
7. In the Veterinary Medical Health Certificate of Veterinary Officer dated 1st July 2016, it is stated that six animals had already died and animals were not in good condition. Furthermore, as per the order dated 11 th July 2016 of the trial court, status report was received from Superintendent Delhi, SPCA. As per the same 6 buffaloes were received dead and subsequently out of the remaining 24 buffaloes, one buffalo died on 5 th July 2016 and one buffalo died on 6th July 2016. It is further mentioned that one animal is serious having difficult respiration and pain and is under treatment. It is further mentioned that the other 21 animals are also under treatment as they have abnormal gait due to pain in legs. Today also the report was filed by Ct. Mukesh Kumar in which it is mentioned that out of 30 buffaloes, 10 has died till 19 th July 2016. Out of remaining 20 buffaloes, 5 buffaloes are under treatment and 15 buffaloes are fit.
8. After hearing the submissions, this court finds that u/s 29 PCA, the Magistrate, no doubt, has the power to deprive a convict, who is the owner of animal or order forfeiture of the 1 (1998) 6 SCC 520 Siraj vs State Page No. 5 out of 7 Pages Case No. 58325/2016 animal to the Government thereof but subject to the certain conditions mentioned in Section 29(2) PCA noted above. In the present case, Ld trial court has in the impugned order has passed the order of forfeiture considering the conduct of the accused from the complaint.
9. Discretion regarding the Custody/release of the animals is required to be exercised by the Ld trial court in accordance with the provision of Chapter XXXIV of the Code, as well as the Transport of Animals Rules, 1978 (as amended) as well as Prevention of Cruelty to Animals (Slaughter House) Rules, 2001 and Section 29 Prevention of Cruelty to Animals Act, 1960, keeping in view the fitness of the animals certified by the Veterinary Officer. Thus, the animals who are fit and if the case of a convict is not covered within the requirement specified in Section 29(2) or 29(4) PCA, those animals may be released to the owner.
10. In case any evidence is shown or produced on behalf of the State as regards previous conviction, the character of the owner or otherwise the likelihood of exposure of the animals to further cruelty, if left with the owner, only then the animals can be forfeited failing which the owner of the animals cannot be deprived or prohibited from having the custody of the animals. Indisputably, there is nothing to show on record that the accused Siraj had been Siraj vs State Page No. 6 out of 7 Pages Case No. 58325/2016 previously convicted under this Act. There is no evidence on record of this case to show the character of the owner and there is also no material obtained by the Ld trial court to indicate the likelihood of exposure of animal to further cruelty, if left with him. In view of aforesaid reasons, this court finds that the exercise of discretion vested with the Ld trial court u/s 29(1) PCA was not proper and in accordance with law as required u/s 29(2) PCA.
11. In the result, impugned order dated 1 st July 2016 and the consequent orders as regards forfeiture of the animals to the Government deserve to be set aside and recalled. Order accordingly. Learned Trial Court shall now decide application, if any, moved by the petitioner or on behalf of state for release/seeking custody of animals at the earliest preferably within 10 days thereof, in the facts and circumstance having regard to the medical fitness of the animals.
12. Revision petition stands disposed off, accordingly. TCR be sent back along with a copy of this order to the Trial Court. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
on 19th July 2016 Special Judge-CBI (PC Act)-06
THC/Delhi/19.07.2016
Siraj vs State Page No. 1 out of 7 Pages