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2006 DIGILAW 550 (AP)

Mohammad Shafi v. State of A. P.

2006-04-20

G.YETHIRAJULU

body2006
ORDER This revision petition is filed by the accused in Crime No.3 of 2006. 2. The crime was registered for the offence punishable under Section 11(a) of the Prevention of Cruelty to Animals Act, 1960 & Violation of Rules 47(a)(b)(c), 48, 49(a), 50, 52(a), 52, 54(1)(2)(3), 56(b)(c)(d)(f) of Cattle Transportation Act, 1978 and Section 10 of A.P. Prohibition of Cow Slaughter & Animal Prevention Act, 1977 and Sections 5 & 6 of the said Act. During the pendency of the above crime, the petitioner who is A-7 filed Crl.M.P.No.456 of 2006 before the Judicial Magistrate of First Class, Dharmavaram, under Section 457 Cr.P.C., for custody of 35 he-buffallows involved in Crime No.3 of 2006. 3. According to the prosecution, A-7 is the owner of 35 he-buffallows. He was transporting he-buffallows from Hyderabad to Kerala without providing any food to the cattle and providing any space to sit and they are badly tied to the lorry without leaving any space to them to move freely. During the course of transport, on 08-01-2006 at 6.15 p.m., while the cattle were being transported, Bathalapalli police seized he-buffallows in two lorries under police proceedings and a crime was registered against the petitioner and others. It is reported that the seized cattle were kept with karuna Society, Puttaparthy, for the interim custody of the cattle. The petitioner filed the present revision contending that he has not committed any offence and he was taking the he-buffallows on road for agricultural purpose. When he and the she-buffallows are taking water from the canal, the respondents seized them. The petitioner is nowhere connected to the lorries in question. The livestock badly needs close observation. The petitioner being the owner of the he-buffallows, will look after the welfare of the cattle with great care and custody. If the he-buffallows are not released in favour of the petitioner, there are chances of the cattle dying and the petitioner will be put to great loss and requested to give the interim custody of the cattle. 4. The learned counsel for the petitioner submitted that for the first offence, seizure of the cattle is not warranted and as this is the first offence of the petitioner, the cattle ought not to have been seized and the custody of the cattle ought to have been given in his favour during the pendency of the criminal case. 4. The learned counsel for the petitioner submitted that for the first offence, seizure of the cattle is not warranted and as this is the first offence of the petitioner, the cattle ought not to have been seized and the custody of the cattle ought to have been given in his favour during the pendency of the criminal case. In support of his contention, he relied on the judgment of the Supreme Court reported in Manager. Pinjrapole Deudar and another v. Chakram Moraji Nat and others (1998)6 SCC 520 wherein the Supreme Court observed as follows: "Now adverting to the contention that under Section 35(2), in the event of the animal not being sent to an infirmary, the Magistrate is bound to give the interim custody to a pinjrapole, we find it difficult to accede to it, we have noted above the options available to the Magistrate under Section 35(2). That sub-section vests in the Magistrate the discretion to give interim custody of the animal to pinjrapole. The material part of the sub-section (shorn of other details) will read, the Magistrate may direct that the animal concerned shall be sent to a pinjrapole. Sub-section (2) does not say that the Magistrate shall send the animals to pinjrapole. It is thus evident that the expression "shall be sent" is a part of the direction to be given by the Magistrate if in his discretion he decides to give interim custody to a pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to a pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to a pinjrapole but he is not bound to hand over custody of the animal to a pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, the pinjrapole has no preferential right. In a case where the owner is claiming the custody of the animal, the pinjrapole has no preferential right. In deciding whether the interim custody of the animal be given to the owner who is facing prosecution, or to the pinjrapole, the following factors will be relevant : (1) the nature and gravity of the offence alleged against the owner; (2) 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, 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; (5) the possibility of the animal being again subjected to cruelty. There cannot be any doubt that establishment of the pinjrapole is with the laudable object of preventing unnecessary pain or suffering to animals and providing protection to them and birds. But it should also be seen : (a) Whether the pinjrapole is functioning as a independent organization or under the scheme of the Board and is answerable to the Board; and (b) Whether the pinjrapole has a good record of taking care of the animals given under its custody. A perusal of the order of the High Court show that the High Court has taken relevant factors into consideration in coming to the conclusion that it is not a fit case to interfere in the order of the learned Additional Sessions Judge directing the State to hand over the custody of the animals to the owners' 5. The above decision indicates that if the owner claims custody of the animal, Bathalapalli Police has not preferential right and the Magistrate can exercise jurisdiction to hand over the interim custody of the animals when the owner claims custody of the cattle. 6. The learned counsel for the petitioner submitted that he is an agriculturist and he is maintaining the cattle for his agricultural purpose and he will abide by the conditions whatever the Court is going to impose for the interim custody of the cattle. 7. The learned Public Prosecutor submitted that if the cattle is released in favour of the petitioner, they are likely to be sent to the slaughter house. 7. The learned Public Prosecutor submitted that if the cattle is released in favour of the petitioner, they are likely to be sent to the slaughter house. Therefore, it may be difficult to get the cattle before the Court if necessary, if the Court requires. 8. In the light of the above circumstances, I am inclined to release the cattle for interim custody in favour of the petitioner with the following conditions: (1) He-buffallows seized by the police shall be given to the interim custody of the petitioner on the executing a bond for keeping the cattle with him without disposing of them either to others or for any other purpose by providing the required feed to all the buffallows and (2) under any circumstances, he shall not send them to the slaughter house till the disposal of the case". 9. The order of the learned Magistrate, dated 13-02-2006 is set aside. The criminal revision case is accordingly allowed.