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2010 DIGILAW 145 (MP)

MOHAMMAD AJEEM KHAN v. STATE OF MP.

2010-02-03

K.S.CHAUHAN

body2010
Judgment K.S.Chauhan, J. ( 1. ) This criminal revision under Section 397/401 of the Code of Criminal Procedure has been preferred being aggrieved by the order dated 07.08.2008 passed by Chief Judicial Magistrate, Seoni (M.P.) whereby the applications filed by the applicant under Section 451 and 457 of Cr.P.C. have been rejected. ( 2. ) The brief facts of the case are that on 21.07.2008 Ajju Khan and Arif Khan were transporting the cattle by Truck No.MP-20 G/1 642 for slaughtering purposes to Nagpur which was seized by Seoni Police and offence under Sections 4, 6, 9 of M.P. Gauvansh Pratishedh Adhiniyam, 2004, section 4,6 of M.P. Agriculture Cattle Preservation Act, 1959, section 10 and 11 of Prevention of Animal Cruelty Act, I960, section 3/7 of Essential Commodities Act and Section 166 and 192 of Motor Vehicle Act against them. Out of 27 cattle 4 were found dead. They were given in the temporary custody of respondent No. 2. ( 3. ) Applicant Mohd. Ajeem Khan @ Ajju, S/o Ajeej Khan filed the applications under Section 451 and 457 of Cr.P.C. for taking the cattle and truck on Supurdginama which were rejected by the impugned order and the application filed by respondent No.2 for taking the cattle on interim custody was allowed and the cattle were given in the interim custody to respondent No.2 on the conditions enumerated in the impugned order. Being aggrieved by the impugned order the applicant preferred the instant petition. ( 4. ) Learned counsel for the applicant submitted that the applicant is attorney holder of the truck owrner Mohd. Javed. The copy of power of attorney is filed as Annexure A-5. The applicant is the owner and possession holder of the truck and cattle. These cattle were being carried for selling purposes and not for slaughtering. The court below has committed an illegality in rejecting the applications, therefore, the direction be made to provide truck and cattle in the interim custody of the applicant. In support of his contention he has referred the decision rendered in Manager, Pinjrapole Deodar and another v. Chakram Moraji Nat and others, 1999 AIR SCW 2943. ( 5. ) On the contrary, Shri P.C. Jain, learned P.L. appearing on behalf of the respondent/State and Shri Sanjay Jain, learned counsel for the respondent No.2 supported the impugned order passed by the court below. ( 5. ) On the contrary, Shri P.C. Jain, learned P.L. appearing on behalf of the respondent/State and Shri Sanjay Jain, learned counsel for the respondent No.2 supported the impugned order passed by the court below. Learned counsel for the respondents submitted that power of attorney was executed after one month of the incident. The power of attorney is not valid because the contents are defective. The court below has. rightly exercised discretion, therefore, it does not call for any interference in the revision. In support of their contention they have referred the case of Secretary, Gopal Goshala Jhonkar v. Ramesh and others reported in 2009(4) M.P.H.T. 182 . ( 6. ) Considered the rival contentions raised by the learned counsel for the parties. ( 7. ) Section 4 of M. P. Krishik Pashu Parirakshan Adhiniyam, 1959 prohibits the slaughter of agricultural cattle and section 6 prohibits the transportation of agricultural cattle for slaughtering purpose. The Section 11 of Prevention of Cruelty to Animals Act provides punishment for treating the animals with cruelty. ( 8. ) Sections 4, 6 and 9 of the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004 reads as underlying:- "Section 4. Prohibition of slaughter of cow progeny.-No person shall slaughter or cause to be slaughtered or offer or cause to be offered, for slaughter of any cow progeny. Section 6. Prohibition on transport of cow progeny for slaughter.- No person shall transport or offer for transport or cause to be transported any cow progeny from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provision of this Act or with the knowledge that it will be or is likely to be, so slaughtered. Section 9. Penalties.- Whoever contravenes or attempts to contravene or abets the contravention of the provisions of Sections 4, 5 and 6 shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees or with both." ( 9. ) In the case of Manager, Pinjrapole Deudar (supra) the Apex Court has held thus: "Under S. 35(2) of the Act, the Magistrate has discretion to handover interim custody of the animal to Pinjrapole but he is not bound to handover custody of the animal to Pinjrapole in the event of not sending it to an infirmary. ) In the case of Manager, Pinjrapole Deudar (supra) the Apex Court has held thus: "Under S. 35(2) of the Act, the Magistrate has discretion to handover interim custody of the animal to Pinjrapole but he is not bound to handover custody of the animal to Pinjrapole in the event of not sending it to an infirmary. In a case where the owner is claiming the custody of the animal, 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." ( 10. ) So far as the present case is concerned, the cattle were being carried in a very deplorable condition. Out of 27 cattle 4 were found dead. This is clear indicative of the fact that they were being carried for slaughtering purposes. No documents for purchasing these cattle have been filed. The respondent No.2 is a benevolent institution and acts in the welfare of the cattle. If the cattle are given in custody of the applicant the possibility of their slaughtering cannot be ruled out. ( 11. ) In the matter of State of U.P. vs. Mustakeem in Criminal Appeal No.283- 287/2002 vide order dated 22.02.2002, the Honble Apex Court has observed as under:- "The State of Uttar Pradesh is in appeal against the direction of the Court directing release of the animals in favour of the owner. It is alleged that while those animals were registered for alleged violation of the provisions of Prevention of Cruelty to Animals Act, 1960, and the specific allegation in the FIR was mat the animals were transported for being slaughtered, and the animals were tied very tightly to each other. The criminal case is still pending. It is alleged that while those animals were registered for alleged violation of the provisions of Prevention of Cruelty to Animals Act, 1960, and the specific allegation in the FIR was mat the animals were transported for being slaughtered, and the animals were tied very tightly to each other. The criminal case is still pending. On an appeal for getting the custody of the animals was filed, the impugned order has been passed. We are shocked as to how such an order could be passed by the learned Judge of the High Court in view of the very allegations and in view of the charges, which the accused may face in the criminal trial. We, therefore, set aside the impugned order and direct that these animals be kept in the Goshala and the State Government undertakes to take the entire responsibility of the preservation of those animals so long as the matter is under trial." ( 12. ) Keeping in view the facts and circumstances of this case the court below has rightly declined to hand over the cattle in the interim custody of applicant. The discretion appears to be exercised in proper manner. ( 13. ) Since the offence under Section 3/7 of the Essential Commodities Act has also been registered and the confiscation proceeding of the truck was going on before the competent authority, hence there was no question to give that truck on supurdginama. ( 14. ) The court below after considering the every aspect of the matter has rightly dismissed the applications of the applicant. There is no illegality, irregularity, perversity, impropriety in the impugned order hence does not call for interference. The revision is devoid of merits and deserves to be dismissed. ( 15. ) Consequently, this revision petition fails and is dismissed accordingly. However, the court below is directed to decide the case expeditiously. Revision dismissed.