JUDGMENT J.B. PARDIWALA, J. 1. BY way of this writ petition under Article 226 of the Constitution of India, petitioners who are traders engaged in the trade of buying and selling of sheep and goat, seek to challenge the constitutional validity of Section 35(1) and Section 35(2) of the Prevention of Cruelty to Animals Act, 1960, on the ground that Section 35(1) and Section 35(2) of the Act are ultra-vires to the provisions of Article 19(1)(g) of the Constitution of India. Though the petitioners have challenged constitutional validity of Section 35(1) and Section 35(2) of the Prevention of Cruelty to Animals Act, 1960, they have confined their challenge only to a part of Section 35(2) of the said Act, which empowers the learned Magistrate concerned to send the entire livestock to a Pinjarapole. 2. THE facts relevant for the purpose of deciding this petition can be summarised as under:- 2.1 Petitioners are traders engaged in the trading of buying and selling of sheep and goats. All the three petitioners reside in the State of Rajasthan. As a part of their business, they buy sheep and goats from the nearby areas in Rajasthan and sell them to the respective customers in the State of Gujarat and Maharashtra. In order to transport the animals from Rajasthan to the places of delivery, the consignment (livestock) is entrusted to the transporters with licence to carry sheep and goats. 2.2 It appears that on 15.11.2010, the petitioners transported 393, 232 and 299 sheep and goats in three trucks bearing Nos. GJ24 7101, RJ04 A0357 and RJ19GB 225 respectively. THE delivery point for the livestock was Bombay and the trucks were to pass National Highway No.8 in Gujarat. 2.3 It further appears that when the trucks were crossing the town of Vapi, some unknown persons with few Policemen intercepted the three trucks. THE drivers of the respective trucks were taken by the Policemen to Vapi Police Station. It appears that the entire livestock was straight-away handed over to Pinjarapole in Vapi, managed by respondent No.3 herein. 2.4 It also appears that an FIR came to be registered by Vapi Town Police Station, being FIR No.II-540 of 2010 for offences punishable under Section 11(1)(d) of the Act. It appears that the entire livestock was straight-away handed over to Pinjarapole in Vapi, managed by respondent No.3 herein. 2.4 It also appears that an FIR came to be registered by Vapi Town Police Station, being FIR No.II-540 of 2010 for offences punishable under Section 11(1)(d) of the Act. It also appears that the petitioners preferred application before the Judicial Magistrate First Class at Vapi under the provision of Section 451 of the Criminal Procedure Code for obtaining the custody of their respective sheep and goats. 2.5 Learned Judicial Magistrate First Class, Vapi, thought fit to pass an order granting interim custody of the livestock to the petitioners subject to certain terms and conditions. It appears that respondent No.3, who is managing the Pinjarapole at Vapi, immediately preferred Criminal Revision Application No. 77 of 2010 in the Court of Sessions Judge at Valsad and challenged the order of learned JMFC, Vapi, granting interim custody of the livestock to the petitioners. Sessions Court at Valsad, stayed the operation, implementation and execution of the order passed by the learned JMFC, Vapi. As a result of the stay granted by the Sessions Court, petitioners were not able to take custody and possession of the livestock and the entire livestock of sheep and goats remained in the care of Pinjarapole at Vapi. 2.6 It appears that the entire livestock of sheep and goats around 1,000 in numbers, died at Pinjarapole of Vapi. It is at this stage that the petitioners, feeling aggrieved, thought fit to prefer this petition in the above referred factual background, challenging the constitutional validity of Section 35(1) and Section 35(2) of the Act, on the ground that the same is ultra-vires Article 19(1)(g) of the Constitution of India. 3. WE have heard learned Advocate Mr. Mukul Sinha, appearing for the petitioners, learned Government Pleader Mr. P.K. Jani for respondent No.1 and learned Advocate Mr. Virat Popat for respondent No.3. 4. LEARNED Counsel for the petitioners submitted that though the challenge as regards constitutional validity in the petition is with regard to Section 35(1) and Section 35(2) of the Act, he is not pressing the challenge so far as the validity of Section 35(1) of the Act is concerned. Virat Popat for respondent No.3. 4. LEARNED Counsel for the petitioners submitted that though the challenge as regards constitutional validity in the petition is with regard to Section 35(1) and Section 35(2) of the Act, he is not pressing the challenge so far as the validity of Section 35(1) of the Act is concerned. He also further clarified that he is challenging only a part of Section 35(2) of the Act to the extent it empowers the Magistrate concerned to send the entire livestock to a Pinjarapole. 5.1 LEARNED counsel for the petitioners would submit that the Act deals with animals in general, which includes sheep and goats, and such animals are legitimate articles of trade and business, and also those which are not articles of legitimate trade and business. He would submit that Section 35(1) and Section 35(2) of the Act does not distinguish or make any distinction between these two and therefore, it is violative of Article 14 of the Constitution, inasmuch as it covers unequal objects and gives it equal treatment. He would submit that therefore, it is in violative of Article 14 of the Constitution, and it results in unreasonable restriction to the freedom guaranteed under Article 19(1)(g) of the Constitution of India. 5.2 LEARNED counsel would further contend that the impugned provision is also arbitrary and irrational inasmuch as the provision gives most unrestricted, unguided, unfettered and unconditional custody of legitimate livestock to the Pinjarapole, which is not fixed with any responsibility and no provision is made for any form of compensation in case of death or destruction of livestock, which is given during the pendency of the criminal case. 5.3 LEARNED counsel would further contend that the impugned provision is not commensurate with the object sought to be achieved under the Act in relation to animals which are the legitimate articles of trade and business and leads to unreasonable restriction on the right of business. He further submitted that so long as the animals are objects of sale/purchase and commodities for sale/purchase, such detention would be clearly against the freedom guaranteed under Article 19(1)(g) of the Constitution since during the course of detention at Pinjarapole, the livestock would die and that would amount to complete restriction of doing business by invoking provisions of Section 35(1) and Section 35(2), read with Section 11(1)(d) of the Act. 5.4 LEARNED counsel would further contend that in case of an offence under Section 11(d) of the Act, once the livestock is certified by the Veterinary Officer to be free from any cruelty as defined under Section 11(1)(d) of the Act, the said livestock being commodities and objects for trade cannot be handed over to any other agency. He added that sheep and goats have short lifespan and once they are taken over by Pinjarapole, often they do not survive till the criminal case gets finally adjudicated. He also submitted that the livestock cannot be treated as muddamal or stolen property, or property involved in any offence. He submitted that therefore, the powers under Section 102 of the Criminal Procedure Code cannot be attracted or invoked for the seizure of the livestock, nor can it be confiscated during the pendency of the criminal case. Reliance was placed by the learned counsel on the following decisions of the Supreme Court:- (1) Mrs. Maneka Gandhi Vs. Union of India - 1978 (1) SCC 248 , para 7. (2) Manager, Pinjrapole Deudar and anr. Vs. Chakram Morajinat - 1998 (6) SCC 520 paras 7 to 12. (3) John Vallamattom and anr. Vs. Union of India - 2003 (6) SCC 611 para 19; (4) State of Madhya Pradesh Vs. Islam - 2007 (15) SCC 588 paras 8 to 12; (5) A. Satyanarayana and ors. Vs. S. Purushotham and ors. - 2008 (5) SCC 416 para 34. Per contra, learned Government Pleader appearing for respondent No.1 State opposed the petition submitting that Prevention of Cruelty to Animals Act, 1960 is a beneficial piece of legislation enacted in favour of animals and therefore, Section 35(2) of the Act cannot be struck down on the ground that the same is ultra-vires Article 19(1)(g) of the Constitution. Learned AGP would further submit that Section 35(2) of the Act provides for a provision to send such animals to Pinjarapole as a direct nexus with the object sought to be achieved under the Act. He would further submit that cruelty as alleged by the petitioners has nothing to do with the constitutional validity of Section 35(2) of the Act. He further submitted that there cannot be a presumption that once the animals are sent to Pinjrapole, they will definitely die. He would further submit that cruelty as alleged by the petitioners has nothing to do with the constitutional validity of Section 35(2) of the Act. He further submitted that there cannot be a presumption that once the animals are sent to Pinjrapole, they will definitely die. He lastly submitted that even assuming for the moment that Section 35(2) which provides for sending the animals to Pinjarapole at times is misused, but that by itself do not render the l aw bad. In short his submission is that misuse of law or any bad action will not render the law bad. In support of his contention, reliance was placed on the following case law:- (1) Manager, Panjarapole, Deodar Vs. Chakaram Morajinat Vs. State of Gujarat - 1997 (2) GLR 1321, para 19; (2) 1999 (1) GLR 587 (SC) paras 6 to 9. 5. HAVING heard learned counsel appearing for the respective parties and having given our anxious thoughts and considerations to various contentions put-forward by the respective parties, we are of the view that the challenge to the Constitutional validity of a part of provision of Section 35(2) to the extent it empowers the Magistrate and makes a provision to send the animals to Pinjarapole must fail for the reasons which we shall record hereinafter. 6. IT would be expedient for better adjudication of the entire controversy before going into the merits of the contentions, to have a fair look at the object and provisions of the Act. Animals are an integral part of the Indian economy. Animals have been and are being used in various fields, specially agriculture, transportation and amusement, etc. To reap maximum gains they have been exploited by human beings by using coercive methods and by inflicting unnecessary pain. In order to prevent cruelty to animals, the then British Government in India enacted the Prevention of Cruelty to Animals Act, 1890 (11 of 1890). During the course of administering this Act many deficiencies were found. To put the law on sound footing the Government of India appointed a Committee to investigate and suggest measures for the prevention of cruelty to animals. The said Committee drew attention to a number of deficiencies in the 1890 Act and suggested its replacement by a more comprehensive Act. During the course of administering this Act many deficiencies were found. To put the law on sound footing the Government of India appointed a Committee to investigate and suggest measures for the prevention of cruelty to animals. The said Committee drew attention to a number of deficiencies in the 1890 Act and suggested its replacement by a more comprehensive Act. To give effect to the recommendations of the Committee and to repeal the 1890 Act, the Prevention of Cruelty to Animals Bill was introduced in the Parliament. Ultimately, the Act of 1890 came to be repealed and the Prevention of Cruelty to Animals Act, 1960 was enacted with the sole object to prevent the infliction of unnecessary pain or suffering on animals. Section 11 falls in Chapter III of the Act. Chapter III of the Act deals with cruelty to animals generally. Section 11 speaks about treating animals cruelly. What would amount to cruelty has been dealt with in Section 11 making it an offence. Section 11 falls in Chapter III of the Act. Chapter III of the Act deals with cruelty to animals generally. Section 11 speaks about treating animals cruelly. What would amount to cruelty has been dealt with in Section 11 making it an offence. Section 11 reads as follows:- "Section 11 - Treating animals cruelly.-(1) If any person - (a) 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 cause or, being the owner permits, any animals to be so treated; or (b) [employs in any work or labour or for any purpose any animal which, by reason of its age or any disease], infirmity, wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be so employed; or (c) wilfully and unreasonably administers any injurious drug or injurious substance to [any animal] or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by [any animal]; or (d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or (e) keeps or confines any animal in any case or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or (f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or (g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or (h) being the owner of [any animal], fails to provide such animal with sufficient food, drink or shelter; or (i) without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst; or (j) wilfully permits any animal, of which he is the owner to go at large in any street while the animal is affected with contagious or infectious disease or, without reasonable excuse permits any diseased or disabled animal, of which he is the owner, to die in any street; or (k) offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment; or [(l) mutilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; or] [(m) solely with a view to providing entertainment-- (i) confines or causes to be confined any animal (including typing of an animal as a bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or (ii) incites any animal to fight or bait any other animal; or] (n) [***] organises, keeps, uses or acts in the management of, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such purposes; or (o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting; 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.] (2) For the purposes of sub-section (1), an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence: Provided that where an owner is convicted of permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine. (3) Nothing in this section shall apply to -- (a) the dehorning of cattle, or the castration or branding or nose-roping of any animal, in the prescribed manner; or (b) the destruction of stray dogs in lethal chambers or [by such other methods as may be prescribed] or (c) the extermination or destruction of any animal under the authority of any law for the time being in force; or (d) any matter dealt with in Chapter IV; or (e) the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering." 7. SECTION 26 of the Act speaks about offences, which reads as under:- "26. Offences-- If any person -- (a) not being registered under this Chapter, exhibits or trains any performing animal; or (b) being registered under this Act, exhibits or trains any performing animal with respect to which, or in a manner with respect to which, he is not registered; or (c) exhibits or trains as a performing animal, any animal which is not to be used for the purpose by reason of a notification issued under clause (ii) of section 22; or (d) obstructs or wilfully delays any person or police officer referred to in section 25 in the exercise of powers under this Act as to entry and inspection; or (e) conceals any animal with a view to avoiding such inspection; or (f) being a person registered under this Act, on being duly required in pursuance of this Act to produce his certificate under this Act, fails without reasonable excuse so to do; or (g) applies to be registered under this Act when not entitled to be so registered; he shall be punishable on conviction with fine which may extend to five hundred rupees, or with imprisonment which may extend to three months, or with both." 8. SECTION 28 clarifies that nothing in the Act will render killing of any animal in a manner required by the religion of any community an offence. SECTION 28 reads as under:- "28. Saving as respects manner of killing prescribed by religion. SECTION 28 clarifies that nothing in the Act will render killing of any animal in a manner required by the religion of any community an offence. SECTION 28 reads as under:- "28. Saving as respects manner of killing prescribed by religion. - Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community." Section 29 speaks about power of the Court to deprive a person convicted, of ownership of animal. Section 29 reads as under:- "29. Power of court to deprive person convicted of ownership of animal.-- (1) If the owner of any animal is found guilty of any offence under this Act, the court, upon his conviction thereof, may, if it thinks fit, in addition to any other punishment, make an order that the animal with respect to which the offence was committed shall be forfeited to Government and may, further, make such order as to the disposal of the animal as it thinks fit under the circumstances. (2) No order under sub-section (1) 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 animal that the animal, if left with the owner, is likely to be exposed to further cruelty. (3) Without prejudice to the provisions contained in sub-section (1), the court may also order that a person convicted of an offence under this Act shall, either permanently or during such period as is fixed by the order, be prohibited from having the custody of any animal of any kind whatsoever, or, as the court thinks fit, of any animal of any kind or species specified in the order. (4) No order under sub-section (3) shall be made unless-- (a) it is shown by evidence as to a previous conviction or as to the character of the said person or otherwise as to the treatment of the animal in relation to which he has been convicted that an animal in the custody of the said person is likely to be exposed to cruelty; (b) it is stated in the complaint upon which the conviction was made that it is the intention of the complainant upon the conviction of the accused to request that an order be made as aforesaid; and (c) the offence for which the conviction was made committed in an area in which under the law for the time being in force a licence is necessary for the keeping of any such animal as that in respect of which the conviction was made. (5) Notwithstanding anything to the contrary contained in any law for the time being in force, any person in respect of whom an order is made under sub-section (3) shall have no right to the custody of any animal contrary to the provisions of the order, and if he contravenes the provisions of any order, he shall be punishable with fine which may extend to one hundred rupees, or with imprisonment for a term which may extend to three months; or with both. (6) Any court which has made an order under sub-section (3) may at any time, either on its own motion or on application made to it in this behalf, rescind or modify such order." 9. SECTION 31 is with regard to cognizability of offences. SECTION 31 reads as follows:- "31. Cognizability of offences ? Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence punishable under clause (1), clause (n) or clause (o) of sub-section (1) of section 11 or under section 12 shall be a cognizable offence within the meaning of that Code." 10. SECTION 32 speaks about powers and seizure, which reads as follows:- "32. Powers of search and seizer ? SECTION 32 speaks about powers and seizure, which reads as follows:- "32. Powers of search and seizer ? (1) If a police officer not below the rank of sub-inspector or any person authorized by the State Government in this behalf has reason to believe that an offence under clause (1) of sub-section (1) of section 11 in respect of any such animal as is referred to in section 30 is being or is about to be, or has been, committed in any place, or that any person has in his possession the skin of any such animal with any part of the skin of the head attached thereto, he may enter and search such place or any place in which he has reason to believe any such skin to be, and may seize such skin or any article or thing used or intended to be used in the commission of such offence. (2) If a police officer not below the rank of sub-inspector, or any person authorized by the State Government in this behalf, has reason to believe that phooka or [doom dev or any other operation of the nature referred to in section 12] has just been, or is being, performed on any animal within the limits of his jurisdiction, he may enter any place in which he has reason to believe such animal to be, and may seize the animal and produce it for examination by the veterinary officer in charge of the area in which the animal is seized." Section 35 of the Act, which is the subject matter of the present petition, is with regard to treatment and care of animals. Section 35 reads as follows:- "35. Treatment and care of animals ? (1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate. Section 35 reads as follows:- "35. Treatment and care of animals ? (1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate. (2) The magistrate before whom a prosecution for an offence against this Act has been instituted may direct that the animal concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole, or, if the veterinary officer in charge of the area in which the animal is found or such other veterinary officer as may be authorized in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed. (3) An animal sent for care and treatment to an infirmary shall not, unless the magistrate directs that it shall be sent to a pinjrapole or that it shall be destroyed, be released from such place except upon a certificate of its fitness for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act. (4) The cost of transporting the animal to an infirmary or pinjrapole, and of its maintenance and treatment in an infirmary, shall be payable by the owner of the animal in accordance with a scale of rates to be prescribed by the district magistrate, or, in presidency-towns, by the commissioner of police: Provided that when the magistrate so orders on account of the poverty of the owner of the animal, no charge shall be payable for the treatment of the animal. (5) Any amount payable by an owner of an animal under sub-section (4) may be recovered in the same manner as an arrear of land revenue. (6) If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost. (6) If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost. (7) The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale, be paid to him." 11. IT is a settled position of law that a statute can be invalidated or held unconstitutional- (i) if it is ultra vires the Parent Act; (ii) if it is contrary to the statutory provisions other than those contained in the Parent Act; (iii) if law making power has been exercised in bad faith; (iv) if it is not reasonable and it goes against the legislative policy; and (v) if it does not fulfil the object and purpose of the enabling Act. IT is evident on plain reading of the Section i.e. Section 35(2) that if it is found that the animals have been treated cruelly prima-facie constituting an offence under the provisions of the Act of 1960, read with Transport of Animals Rules, 1978, the Magistrate concerned before whom the prosecution for an offence under the Act is instituted, is legally duty bound firstly to ensure that if the animals need immediate treatment on account of injuries being caused due to treating them cruelly, and after ascertaining, shall send such animals to an infirmary for necessary treatment and shall also ensure to see that such animals are treated and cared at the infirmary until they are fit to perform its usual work or is otherwise fit for discharge. In a given case, Magistrate may find that animals are not required to be sent to an infirmary, but since there is a prima-facie case of cruelty they need to be sent to a Pinjarapole, so that they can be taken care of by providing necessary fodder and water. The whole object in making this provision empowering the Magistrate to send the animals to Pinjarapole is to ensure that there is no further cruelty being meted to the animals. The whole object in making this provision empowering the Magistrate to send the animals to Pinjarapole is to ensure that there is no further cruelty being meted to the animals. If a criminal case is instituted against a particular person for treating the animals cruelly and if the animals are to be once again handed over straight-away to the owner who is accused of treating them cruelly, then it will render the whole object with which Section 35(2) of the Act has been enacted otios. In our view, there is definitely a nexus with the object sought to be achieved under the Act and the object being to prevent cruelty to the animals. There is a fundamental fallacy in the argument of the learned counsel that they have a right to trade in sheep and goats and therefore, Section 35(2) to the extent it provides sending of the animals to Pinjarapole is unconstitutional. Trade and cruelty has nothing to do with validity of the statute. Just because a person has a right to trade does not get the licence to treat the animals with cruelty. A person cannot say that since he has a right to business under Article 19(1)(g) of the Constitution, he can continue to treat the animals with cruelty. For example, Section 28 of the Act, provides that nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community. Say for example, if a consignment of livestock is being transported from one place to another for the purpose of sacrifice as per the religion of a community and during the course of transport of such animals if it is found that the animals have been treated with cruelty, then definitely the person concerned can be prosecuted under the Act. There cannot be an argument that since the animals were being transported for the purpose of sacrifice as required by the religion of any community and which is otherwise not an offence under the Act, will not render the person concerned liable for treating the animal cruelly. Cruelty in any form as explained under Section 11(1) of the Act would constitute an offence. 12. Cruelty in any form as explained under Section 11(1) of the Act would constitute an offence. 12. AS a matter of fact, if a vehicle transporting consignment of livestock is intercepted and if it is found that during the course of transport the livestock have been treated cruelly and if the Magistrate orders to send the entire livestock to a Pinjarapole, it cannot be said that the animals have been seized or their custody has been taken away from the owner. Custody will always remain with the owner, but if suffering is there, then the animals will have to go to Pinjarapole. This is the object of the Act and Section 35(2) provides the nexus with the object to be achieved. If the possession is to be handed over again to the owner against whom there is a charge of treating the animals cruelly, then the whole object would be frustrated. They are taken only for the purpose of treatment and care. We clarify that they are not to be treated as muddamal. It may be true that if the animals are taken to Pinjarapole, due to lack of proper care or lapse in the administration of the concerned Pinjarapole, the animals at times die or they are lost for which Pinjarapole is not held accountable. However, only because of misuse of a provision of law will not render the entire law bad or unconstitutional. The beneficial legislation in favour of animals cannot be struck down on the ground that it is being misused or is causing hardship to the owner of the livestock. There cannot be a presumption that once an animal goes to Pinjarapole, it will definitely die. It is true that there may be many Pinjarapoles in this State where due to lack of proper care or attention, the animals would invariably die or they are lost or at times even being directly sold away, but that by itself will not give rise to a presumption that all Pinjarapoles in the State are of the same type. As a matter of fact, from the Scheme of the Act it appears that Pinjarapole is an important institution set-up to achieve the object of the Act i.e. to prevent infliction, unnecessary pain or sufferings of animals and further to prevent the cruelty to animals. As a matter of fact, from the Scheme of the Act it appears that Pinjarapole is an important institution set-up to achieve the object of the Act i.e. to prevent infliction, unnecessary pain or sufferings of animals and further to prevent the cruelty to animals. In fact, Pinjarapole is a charitable institution and it functions for the noble purpose and must always strive very hard to do their best for preserving animals in the State like sheep, goats, cows etc. Further, Section 35(2) does not say that if the animal is not being sent to an infirmary, it must necessarily be sent to a Pinjarapole. In a given case as it follows under Section 35(2) of the Act, that the Magistrate has discretion to hand over interim custody of the animals to the owner also, who is facing prosecution, and it is only in the event Magistrate does not deem fit to hand over interim custody to the owner, then they may be sent to a Pinjarapole. It is also a settled position of law that Pinjarapole has no preferential right in a case where the owner is claiming the custody of the animals. This position of law has been made very clear by the Supreme Court in the case of Manager, Pinjarapole Deudar and anr. Vs. Chakram Morajinat (supra). 13. THE Supreme Court has made it very clear that though establishment of the Pinjarapole is with a laudable object of preventing unnecessary pain or suffering to animals and providing protection to them, but it should also be seen that a particular Pinjarapole is functioning as an independent organization or under the Scheme of the Board and is also answerable to the Board and further whether the Pinjarapole has good record of taking care of the animals given under its custody. We are of the view that if the Magistrate deems fit to exercise discretion under Section 35(2) to send the animals to Pinjarapole, these aspects must be born in mind by the concerned Court before sending the animals to Pinjarapole. Most importantly, Supreme Court while laying down factors relevant for the purpose of interim custody in favour of the owner or Pinjarapole, has also laid emphasis on the condition in which the animal is found at the time of inspection and seizure. Most importantly, Supreme Court while laying down factors relevant for the purpose of interim custody in favour of the owner or Pinjarapole, has also laid emphasis on the condition in which the animal is found at the time of inspection and seizure. It is at this stage that Section 35(2) provides the nexus with the object sought to be achieved. If the condition of the animal is found to be bad and if it needs treatment, the same may be sent to an infirmary and if the Magistrate is satisfied that handing over the animal once again to the owner will expose the animal once again to cruelty, then Magistrate can definitely send the animal to Pinjarapole. For example, in the present case, interim custody was already ordered by the Magistrate in favour of the respective owners i.e. petitioners herein, and State did not deem fit to challenge the order of the Magistrate directing interim custody of the animals in favour of the petitioners, but it is respondent No.3 running a Pinjarapole rushed to the Court of Sessions and filed a Criminal Revision Application and obtained stay of the order of the Magistrate. Ultimately, the animals remained at Pinjarapole, and all 1000 sheep and goats died. How they died, in what manner they died and all of a sudden how such a large number of sheep and goats died, remains a mystery. This situation can definitely be taken care of. THE fact that such a situation has arisen and many times it arises by itself will not render Section 35(2) unconstitutional. 14. WE find it very appropriate to rely on a recent pronouncement of the apex Court in the case of Government of Andhra Pradesh and ors. Vs. P. Laxmi Devi - (2008) 4 SCC p.720. In the case before the apex Court, the challenge was to the constitutional validity of Section 47-A of the Stamp Act. 14. WE find it very appropriate to rely on a recent pronouncement of the apex Court in the case of Government of Andhra Pradesh and ors. Vs. P. Laxmi Devi - (2008) 4 SCC p.720. In the case before the apex Court, the challenge was to the constitutional validity of Section 47-A of the Stamp Act. Before the apex Court, the argument was that under Section 47-A, a party is required to deposit 50% of the deficit stamp duty as a condition precedent for a reference to the Collector under Section 47-A and that the estimate which is made by the Registering authority is only provisional and will attain finality only after the Collector on a reference under Section 47-A adjudicates the same, and for the reference for such adjudication, no obligation can be imposed to deposit 50% of the deficit duty. The contention before the apex Court was that the said provision contained in the proviso to Section 47-A of Stamp Act is arbitrary and unreasonable violating the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution. Negativing this contention, Supreme Court held as under:- "29. In our opinion in this situation it is always open to a party to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to Section 47-A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47-A of the Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi Vs. Union of India. Hence, the party is not remediless in this situation." "30. - However, this would not mean that the proviso to Section 47-A becomes unconstitutional. There is always a difference between a statute and the action taken under a statute. The statute may be valid and constitutional, but the action taken under it may not be valid. Hence, merely because it is possible that the order of the registering authority under the proviso to Section 47-A is arbitrary and illegal, that does not mean that the proviso to Section 47-A is also unconstitutional. The statute may be valid and constitutional, but the action taken under it may not be valid. Hence, merely because it is possible that the order of the registering authority under the proviso to Section 47-A is arbitrary and illegal, that does not mean that the proviso to Section 47-A is also unconstitutional. WE must always keep this in mind when adjudicating on the constitutionality of a statute." As a matter of fact, in the case of Government of Andhra Pradesh and ors (supra), the apex Court has dealt with very very exhaustively the issue as to whether Courts have the power to declare the Act of the legislature to be invalid. While answering the question in the affirmative, the Supreme Court has exhaustively explained as to how and when power of the Court to declare the statute as unconstitutional be exercised. "A. Do Courts have the power to declare an Act of the Legislature to be invalid? 32. The answer to the above question is : Yes. The theoretical reasoning for this view can be derived from the theory in jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law). 33. According to Kelsen, in every country there is a hierarchy of legal norms, headed by what he calls as the Grundnorm' (The Basic Norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail (see Kelsen's The General Theory of Law and State'). 34. In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows: (i) The Constitution of India; (ii) Statutory law, which may be either law made by Parliament or by the State Legislature; (iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.; (iv) Purely executive orders not made under any Statute. 35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non enforceable). 36. The first decision laying down the principle that the Court has power to declare a Statute unconstitutional was the well-known decision of the US Supreme Court in Marbury v. Madison 5 U.S. (1Cranch) 137 (1803). This principle has been followed thereafter in most countries, including India. B. How and when should the power of the Court to declare the Statute unconstitutional be exercised? 37. Since, according to the above reasoning, the power in the Courts to declare a Statute unconstitutional has to be accepted, the question which then arises is how and when should such power be exercised. 38. This is a very important question because invalidating an Act of the Legislature is a grave step and should never be lightly taken. As observed by the American Jurist Alexander Bickel "judicial review is a counter majoritarian force in our system, since when the Supreme Court declares unconstitutional a legislative Act or the act of an elected executive, it thus thwarts the will of the representatives of the people; it exercises control, not on behalf of the prevailing majority, but against it." (See A. Bickel's The Least Dangerous Branch') 39. The Court is, therefore, faced with a grave problem. On the one hand, it is well settled since Marbury v. Madison (supra) that the Constitution is the fundamental law of the land and must prevail over the ordinary statute in case of conflict, on the other hand the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people. 40. The Court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances. 41. WE have observed above that while the Court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection. 40. The Court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances. 41. WE have observed above that while the Court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection. This requires clarification, since, sometimes Courts are perplexed as to whether they should declare a statute to be constitutional or unconstitutional. 42. The solution to this problem was provided in the classic essay of Prof James Bradley Thayer, Professor of Law of Harvard University entitled 'The Origin and Scope of the American Doctrine of Constitutional Law' which was published in the Harvard Law Review in 1893. In this article, Professor Thayer wrote that judicial review is strictly judicial and thus quite different from the policy-making functions of the executive and legislative branches. In performing their duties, he said, judges must take care not to intrude upon the domain of the other branches of government. Full and free play must be permitted to that wide margin of considerations which address themselves only to the practical judgment of a legislative body. Thus, for Thayer, legislation could be held unconstitutional only when those who have the right to make laws have not merely made a mistake (in the sense of apparently breaching a constitutional provision) but have made a very clear one, so clear that it is not open to rational question. Above all, Thayer believed, the Constitution, as Chief Justice Marshall had observed, is not a tightly drawn legal document like a title deed to be technically construed; it is rather a matter of great outlines broadly drawn for an unknowable future. Often reasonable men may differ about its meaning and application. In short, a Constitution offers a wide range for legislative discretion and choice. The judicial veto is to be exercised only in cases that leave no room for reasonable doubt. Often reasonable men may differ about its meaning and application. In short, a Constitution offers a wide range for legislative discretion and choice. The judicial veto is to be exercised only in cases that leave no room for reasonable doubt. This rule recognizes that, having regard to the great, complex ever-unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the Constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the Constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is not clearly in violation of a constitutional provision is valid even if the Court thinks it unwise or undesirable. Thayer traced these views far back in American history, finding, for example, that as early as 1811 the Chief Justice of Pennsylvania had concluded: "For weighty reasons, it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this Court, and every other Court of reputation in the United States, that an Act of the legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt" vide Commonwealth ex. Rel. O'Hara v. Smith [4 Binn. 117] (Pg.1811). 43. Thus, according to Prof. Thayer, a Court can declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question. In other words, the Court can declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly unconstitutional, and there is no way of avoiding such decision. The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the State the legislature, the executive and the judiciary, must respect each other and must not ordinarily encroach into each other's domain. Also the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people, and in a democracy this will is not to be lightly frustrated or obstructed. 44. Also the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people, and in a democracy this will is not to be lightly frustrated or obstructed. 44. Apart from the above, Thayer also warned that exercise of the power of judicial review "is always attended with a serious evil", namely, that of depriving people of "the political experience and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors" and with the tendency "to dwarf the political capacity of the people and to deaden its sense of moral responsibility". 45. Justices Holmes, Brandeis and Frankfurter of the United States Supreme Court were the followers of Prof. Thayer's philosophy stated above. Justice Frankfurter referred to Prof Thayer as "the great master of constitutional law", and in a lecture at the Harvard Law School observed "if I were to name one piece of writing on American Constitutional Law, I would pick Thayer's once famous essay because it is the great guide for judges and therefore, the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions". (vide H. Phillip's Felix Frankfurter Reminisces' 299-300, 1960). 46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways, e.g. if a State legislature makes a law which only the Parliament can make under List I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Mark Netto v. Government of Kerala and others AIR 1979 SC 83 (para 6). Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise. 47. In a dissenting judgment in Bartels v. Iowa 262 US 404 412(1923), Justice Holmes while dealing with a state statute requiring the use of English as the medium of instruction in the public schools (which the majority of the Court held to invalid) observed "I think I appreciate the objection to the law but it appears to me to present a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the United States prevents the experiment being tried". 48. The Court certainly has the power to decide about the constitutional validity of a statute. However, as observed by Justice Frankfurter in West Virginia v. Barnette 319 U.S. 624 (1943), since this power prevents the full play of the democratic process it is vital that it should be exercised with rigorous self restraint. 49. In this connection we may quote from the article titled 'The Influence of James B Thayer Upon the Work of Holmes, Brandeis and Frankfurter' by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978), which is as follows: "If, then, the Thayer tradition of judicial modesty is outmoded if judicial aggression is to be the rule in policy matters, as in the 1930's some basic issues remain. First, how legitimate is government by judges ? Is anything to be beyond the reach of their authority ? Will anything be left for ultimate resolution by the democratic processes for what Thayer called "that wide margin of considerations which address themselves only to the practical judgment of a legislative body" representing (as courts do not) a wide range of mundane needs and aspirations ? Is anything to be beyond the reach of their authority ? Will anything be left for ultimate resolution by the democratic processes for what Thayer called "that wide margin of considerations which address themselves only to the practical judgment of a legislative body" representing (as courts do not) a wide range of mundane needs and aspirations ? The legislative process, after all, is a major ingredient of freedom under government. Legislation is a process slow and cumbersome. It turns out a product laws that rarely are liked by everybody, and frequently little liked by anybody. When seen from the shining cliffs of perfection the legislative process of compromise appears shoddy indeed. But when seen from some concentration camp as the only alternative way of life, the compromises of legislation appear but another name for hat we call civilization and even revere as Christian forbearance. Let philosophy fret about ideal justice. Politics is our substitute for civil war in a constant struggle between different conceptions of good and bad. It is far too wise to gamble for Utopia or nothing to be fooled by its own romantic verbiage. Above all, it knows that none of the numerous clashing social forces is apt to be completely without both vice and virtue. By give and take, the legislative process seeks not final truth, but an acceptable balance of community interests. In this view the harmonizing and educational function of the process itself counts for more than any of its legislative products. To intrude upon its pragmatic adjustments by judicial fiat is to frustrate our chief instrument of social peace and political stability. Second, if the Supreme Court is to be the ultimate policy-making body without political accountability how is it to avoid the corrupting effects of raw power? Can the Court avoid the self-inflicted wounds that have marked other episodes of judicial imperialism? Can the Court indeed satisfy the expectations it has already aroused? A third cluster of questions involves the competence of the Supreme Court as a legislative body. Can any nine men master the complexities of every phase of American life which, as the post 1961 cases suggest, is now the Court's province? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are courts institutionally equipped for such burdens? Can any nine men master the complexities of every phase of American life which, as the post 1961 cases suggest, is now the Court's province? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions. If courts are to rely upon social science data as facts, they must recognize that such data are often tentative at best, subject to varying interpretations, and questionable on methodological grounds. Moreover, since social science findings and conclusions are likely to change with continuing research, they may require a system of ongoing policy reviews as new or better data become available. Is the judiciary capable of performing this function of supervision and adjustment traditionally provided by the legislative and administrative processes? Finally, what kind of citizens will such a system of judicial activism produce a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law. Such are the problems addressed by and at least in the minds of jurists like Holmes, Brandeis, and Frankfurter resolved by Thayer's doctrine of judicial restraint". WE respectfully agree with the views expressed above, and endorse Thayer's doctrine of self restraint. 50. In our opinion judges must maintain judicial self-restraint while exercising the power of judicial review of legislation. "In view of the complexities of modern society", wrote Justice Frankfurter, while Professor of Law at Harvard University, "and the restricted scope of any man's experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and expressed in memorable language: "It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong." (See Frankfurter's 'Mr. Justice Holmes and the Supreme Court') 51. In our opinion the legislature must be given freedom to do experimentations in exercising its powers, provided of course it does not clearly and flagrantly violate its constitutional limits. 52. As observed by Mr. Justice Brandeis of the U. S. Supreme Court in his dissenting judgment in New State Ice Co. v. Liebmann 285 U.S. 262 (310-11) : "The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and in situations to meet changing social and economic needs. To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation." 53. In writing a biographical essay on the celebrated Justice Holmes of the U. S. Supreme Court in the dictionary of American Biography, Justice Frankfurter wrote: "It was not for him (Homes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic route of skepticism by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest." (See 'Essays on Legal History in Honour of Felix Frankfurter' edited by Morris D. Forkosch) 54. In this connection Justice Frankfurter while Professor of Law at Harvard University wrote in 'The Public and its Government' -- "With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. In this connection Justice Frankfurter while Professor of Law at Harvard University wrote in 'The Public and its Government' -- "With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people." In the same book Justice Frankfurter also wrote "In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who interpret. That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship." 55. In Keshvananda Bharati v. State of Kerala AIR 1973 SC 1461 (vide para 1547) Khanna J. observed: "In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error." 56. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the judges personal preferences. The Court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step. As observed by this Court in State of Bihar v. Kameshwar Singh AIR 1952, SC 252(274) : "The legislature is the best judge of what is good for the community, by whose suffrage it comes into existence". 57. In our opinion, the Court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt about its unconstitutionality. 58. As observed by the Constitution Bench decision of this Court in M. H. Quareshi v. State of Bihar AIR 1958 SC 731 (vide para 15) : "The Court must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest, and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, common report, the history of the times, and may assume every state of facts which can be conceived existing at the time of the legislation. (See also Moti Das v. S.P. Sahi AIR 1959 SC 942 (947). 59. In the light of the above observations, the impugned amendment is clearly constitutional. The amendment was obviously made to plug a loophole in the Stamp Act so as to prevent evasion of stamp duty, and for quick collection of the duty. There are other statutes e.g. the Income Tax Act in which there are provisions for deduction at source, advance tax, etc. which aim at quick collection of tax, and the constitutional validity of these provisions have always been upheld. C. Application of Thayer's Doctrine by the Courts : 60. In America, after the activist period of the U. S. Supreme Court which was at one time declaring Act after Act of the U. S. Congress to be invalid on the ground that it violated the due process clause in the U. S. Constitution or the right to liberty of contract, there was a realization by the Judges of the U.S. Supreme Court that they were following a confrontationist path vis--vis the U.S. Congress which was causing all kinds of major problems. Hence in 1937 the U.S. Supreme Court accepted Thayer's doctrine of judicial restraint, and the same was followed thereafter (except for the period of the Warren Court). 61. The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. 61. The U.S. Supreme Court enunciated the principle that there is a presumption in favour of the constitutionality of Statute, and the burden is always upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. This view was adopted by the Constitution Bench of this Court in Charanjit Lal Chowdhury v. Union of India and others AIR 1951 SC 41 (para 10), which observed : "Prima facie, the argument appears to be a plausible one, but it requires a careful examination, and while examining it, two principles have to be borne in mind : (1) that a law may be constitutional even through it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American Courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton v. Texas Power and L. Company, (248 U.S. 152 and 157), in which the relevant passage runs as follows : It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by expression and that its discriminations are based upon adequate grounds." (emphasis supplied) and this view has been consistently followed thereafter. 62. Thus in M/s. B. R. Enterprises v. State of U.P. and others AIR 1999 SC 1867 this Court observed : "Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment, vide Charanjit Lal Chowdhury v. Union of India 1950 SCR 869 : AIR 1951 SC 41 ); State of Bombay v. F.N. Bulsara, 1951 SCR 682 : ( AIR 1951 SC 318 ), Mahant Moti Das v. S.P. Sahi ( AIR 1959 SC 942 )". The following passage in Seervai, Constitutional Law of India (3rd Edn.) page 119 found approval in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 (Supp) 1 SCC 600 : ( AIR 1991 SC 101 ). The Court held: "Seervai in his book Constitutional Law of India (3rd Edn) has stated at page 119 that: "the courts are guided by the following rules in discharging their solemn duty to declare laws passed by a legislature unconstitutional: (1) There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; 'to doubt the constitutionality of a law is to resolve it in favour of its validity'. *** *** *** (6) A statute cannot be declared unconstitutional merely because in the opinion of the court it violates one or more of the principles of liberty, of the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution" 63. Similarly in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and others AIR 2001 SC 724 (vide para 9) a Constitution Bench of this Court observed: "9.....There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will Shell Company of Australia v. Federal Commissioner of Taxation, 1931 AC 275(Privy Council). The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved. The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded his fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of construction that if one construction being given the statute will become ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the Court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction". 64. In State of Bihar and others v. Bihar Distillery Ltd. AIR 1997 SC 1511 (vide para 18) a Constitution Bench of this Court observed : "17. ... The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void." 65. The same view has been taken by the Constitution Bench of this Court in Hamdard Dawakhana and another v. Union of India AIR 1960 SC 554 (vide para 9) which observed : "9.... Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people, that the laws it enacts are directed to problems which are made manifest by experience, and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment. Presumption is, therefore, in favour of the constitutionality of an enactment. Charanjit Lal v. Union of India, 1950 SCR 869 : ( AIR 1951 SC 41 ); State of Bombay v. F.N. Baulsara, 1951 SCR 682 at p.708; ( AIR 1951 SC 318 at p. 326); AIR 1959 SC 942 ." 66. As observed by the Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation (1931) AC 275 (298) : "Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will." 67. Hence if two views are possible, one making the provision in the statute constitutional, and the other making it unconstitutional, the former should be preferred vide Kedarnath v. State of Bihar AIR 1962 SC 955 . Also, if it is necessary to uphold the constitutionality of a statute to construe its general words narrowly or widely, the Court should do so vide G.P. Singh's Principles of Statutory Interpretation, 9th Edition, 2004 page 497'. Thus the word Property' in the Hindu Women's Right to Property Act, 1937 was construed by the Federal Court in In re Hindu Women's Right to Property Act AIR 1941 FC 72 to mean property other than agricultural land', otherwise the Act would have become unconstitutional. 68. The Court must, therefore, make every effort to uphold the constitutional validity of a Statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the Court declare a statute to be unconstitutional." 20.1 The Supreme Court in the case of Manager, Pinjarapole Deudar and anr. Vs. Chakram Morajinat (supra) held in paragraphs 7 to 12 as under:- "7. Now, it may be useful to quote Section 35 of the Act under which the appellant-Pinjrapole claims interim custody of the animals: "35. Treatment and care of animals-(1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate. (2). Treatment and care of animals-(1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate. (2). The magistrate before whom a prosecution for an offence against this act has been instituted may direct that the animals concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a Pinjrapole, or if the veterinary officer in charge of the area in which the animal is found or such other veterinary officer as may be authorised in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed. (3) An animal sent for care and treatment to an infirmary shall not, unless the magistrate directs that it shall be sent to a pinjrapole or that it shall be destroyed, be released from such place except upon a certificate of its fitness, for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act. (4) The cost of transporting the animal to an infirmary or pinjrapole, and of its maintenance and treatment in an infirmary, shall be payable by the owner of the animal in accordance with a scale of rates to be prescribed by the district magistrate, or, in presidency-towns, by the commissioner of police. Provided that when the magistrate so orders on account of the poverty of the owner of the animal, no charge shall be payable for the treatment of the animal. (5). Any amount payable by an owner of an animal under sub-section (4) may be recovered in the same manner as an arrear of land revenue. (6). If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost. (7). (6). If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost. (7). The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale, be paid to him." 8. From a plain reading of the provisions, above noted, it is evident that sub-section (1) of Section 35 enables the State Government to appoint infirmaries for the treatment and care of animals in respect of which any of the offences under the Act has been committed and to authorise the detention of such animals pending their production before a magistrate. Under sub-section (2), the Magistrate may order that: (a) the animal shall be treated and cared for in an infirmary till such time it is fit to perform its usual work or is otherwise fit for discharge; (b) the animal shall be sent to a Pinjrapole; or (c) the animals shall be destroyed if it is certified by a veterinary officer, authorised under the Rules, to be incurable or if it is found that it cannot be removed without cruelty. Mandate of sub-section (3) is that no animal shall be released from an infirmary unless it is directed to be sent to Pinjrapole or be destroyed or certified by concerned veterinary officer to be fit for discharge. Sub-section (4) imposes liability for payment of the cost of transporting the animal to an infirmary or Pinjrapole and its maintenance and treatment in an infirmary, in accordance with the prescribed rates, which, however, can be dispensed with if the Magistrate is satisfied that on account of the poverty of the owner, he is unable to bear the same, otherwise it may be recovered as arrears of land revenue, as envisaged in sub-section (5). Sub-section (6) says that if the owner refuses or neglects to remove the animal within the time specified by the Magistrate then he can order the sale of the animal and appropriation of the sale proceeds for the cost thereof and in the event of there being surplus proceeds of such sale, payment of the same to the owner on his application within two moths of the sale. This is postulated by sub-section (7). This is postulated by sub-section (7). 9. In view of the above discussion and provisions of Section 451 Cr.P.C., it appears to us that unless the owner of the animal in respect of which he is facing prosecution, is deprived of the custody (which can be done only on his conviction under the Act for the second time), no bar can be inferred against him to claim interim custody of the animal. 10. Now adverting to the contention that under Section 35(2), in the event of the animal not being sent to infirmary, the Magistrate is bound to give the interim custody to 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 sub-section (shorn of other details) will read, the Magistrate may direct that the animal concerned shall b 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 part of the direction he decides to give interim custody to Pinjrapole. It follows that under Section 35(2) of the Act, the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not count to hand over 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. There cannot be any doubt that establishment of 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 an independent organization or under the scheme of the Board and is answerable to the Board; and (b) whether the Pinjrapole has good record of taking care of the animals given under its custody. A perusal of the order of the High Court shows 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 animals to the owner. 11. Dr. Singhvi represents that Pinjrapole prepared to keep animals in custody without charging any money for their maintenance. In our view, that cannot be a correct criteria for giving custody of the animals to Pinjrapole particularly when the Court has to decide the competing claims of the owner and the Pinjrapole for their custody. 12. For the aforementioned reasons, we find no merit in these appeals, they are accordingly dismissed but having regard to the facts and circumstances of the case without costs." 20.2 WE shall now also look into some case law, relied upon by the learned counsel for the petitioners, though we do not find it necessary to discuss them in detail. 20.3 In the case of Mrs. Maneka Gandhi Vs. Union of India - 1978 (1) SCC 248 , the Supreme Court in para 7 held as under:- "7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow,pedantic or lexicographic approach. No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned Within traditional and doctrinaire limits. And, therefore, it must not be subjected to a narrow,pedantic or lexicographic approach. No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned Within traditional and doctrinaire limits. WE must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu and Another (1) namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes, at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be "?right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied." 20.4 In the case of John Vallamattom and anr. Vs. Union of India - 2003 (6) SCC 611 , the apex Court in para 19 held as under:- "19. The equality clause enshrined in Article 14 of the Constitution of India is of wide import. It guarantees equality before the law or equal protection of the laws within the territory of India. The restriction imposed by reason of a status, however, can be upheld in the event it be held that the person to whom the same applies, forms a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved." 20.5 In the case of State of Madhya Pradesh Vs. Islam - 2007 (15) SCC 588, the Supreme Court in paras 8 to 12 held as under:- "8. Section 29 reads as below: "29. Islam - 2007 (15) SCC 588, the Supreme Court in paras 8 to 12 held as under:- "8. Section 29 reads as below: "29. Power of court to deprive person convicted of ownership of animal.-(1) If the owner of any animal is found guilty of any offence under this Act, the court, upon his conviction thereof, may, if it thinks fit, in addition to any other punishment, make an order that the animal with respect to which the offence was committed shall be forfeited to Government and may, further, make such order as to the disposal of the animal as it thinks fit under the circumstances. (2) No order under sub-section (1) 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 animal that the animal, if left with the owner, is likely to be exposed to further cruelty." 9. Section 29(1) undoubtedly confers jurisdiction on the court, in the event the offender stands convicted, to pass an order of forfeiture of the animals in favour of the Government. But on a close scrutiny of the language used therein, Section 29(1) stands appears to be restricted and subject to the provisions contained in sub-section (2) noticed hereinbefore. 10. Sub-section (2) of Section 29 specially lays down three specific conditions without which applicability thereof would not arise. The same being:(a) it is shown by evidence as to a previous conviction; or (b) as to the character of the owner or otherwise as to the treatment of the animal; or (c) that the animal, if left with the owner, is likely to be exposed to further cruelty. 11. While it is true that there is a report by the Veterinary Surgeon that the animals were not in a healthy condition but there is not an iota of evidence as regards the third condition noticed in the body of the above-noted sub-section (2). 12. In that view of the matter, we are of the view that in the absence of any material on record, question of sustaining the order of the Ist Additional Sessions Judge would not arise. 12. In that view of the matter, we are of the view that in the absence of any material on record, question of sustaining the order of the Ist Additional Sessions Judge would not arise. The High Court dealt with the matter in a manner proper and we see no reason to record a contra finding in the contextual facts." 20.6 In the case of A. Satyanarayana and ors. Vs. S. Purushotham and ors. - 2008 (5) SCC 416 , the Supreme Court in para 34 held as under:- "34. A statutory rule, it is a trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The Legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the Rule maker, but the same must be capable of being taken to a logical conclusion." In the above conspectus of the entire discussion, we hold that Section 35(2) of the Act, 1960 to the extent that it gives discretion to the Magistrate before whom a prosecution for an offence against this Act has been instituted to direct sending of the animals concerned to a Pinjarapole has definitely a nexus with the object to be achieved under the Act i.e. prevention of unnecessary pain or suffering on animals. We hold that it is valid and in no manner violating any of the Articles of Constitution, more particularly Article 19(1)(g) of the Constitution. It cannot be said in any manner that the law making power has been exercised in bad faith or that it is not reasonable and it goes against the legislative policy or does not fulfil the object and purpose of the Act. It is well settled that a statute can be invalidated or held unconstitutional on limited grounds viz. on the ground of the incompetence of the legislature which enacts it or on the ground that it breaches or violates any of the fundamental rights or other constitutional rights and on no other grounds. (See State of A.P. v. Mc. Dowell and Co. and Kuldip Nayar v. Union of India.) The principle of presumption of Constitutionality of a statutory provision has been long accepted by different Courts. (See State of A.P. v. Mc. Dowell and Co. and Kuldip Nayar v. Union of India.) The principle of presumption of Constitutionality of a statutory provision has been long accepted by different Courts. In the case of State of Jammu and Kashmir v. Triloki Nath Khosa and others, reported in AIR 1974 Supreme Court 1, five Judges Bench of the Apex Court noted with approval the observations made in the previous judgment in case of AIR 1958 SC 538 as under : "That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration." The burden thus is on the respondents to set out facts necessary to sustain the plea of discrimination and to adduce "cogent and convincing evidence" to prove those facts for "there is a presumption that every factor which is relevant or material has been taken into account in formulating the classifications." It was further observed that : ?25. Thus, it is no part of the appellants? burden to justify the classification or to establish its constitutionality. Formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the fact of it and the onus therefore cannot shift from where it originally lay." The above principles of presumption of constitutionality would also persuade us not to declare the statutory provisions challenged in the present petition as ultra vires. 15. IN the result, the petition fails and the same is rejected with no order as to costs. 16. BEFORE parting, we need to clarify some important aspects relevant so far as the subject matter is concerned. Though we have upheld the constitutional validity of Section 35(2) of the Act, 1960, the matter does not rest here and we are of the view that some directions to take care of the grievances which have been voiced for redressal before us is necessary. Though we have upheld the constitutional validity of Section 35(2) of the Act, 1960, the matter does not rest here and we are of the view that some directions to take care of the grievances which have been voiced for redressal before us is necessary. There is no doubt that once the animals are sent to Pinjarapole, the authorities managing the Pinjrapole are legally duty bound to take care of the animals and ensure that proper food, water and if necessary some medical treatment is being given to the animals. The experience is otherwise. In many cases it has been reported, which is not even denied by the State, that the animals have died at Pinjarapole within a very short time under mysterious circumstances. They die for many reasons. If an animal dies, it may die because of some disease or ailment or because of lack of proper food or water. If this happens, then it is really very serious. Indirectly this amounts to cruelty. Though the animals are sent to Pinjarapole to relieve them of cruelty, pain and suffering, but ultimately if they have to die at Pinjarapole because of lack of proper care and facilities, then no useful purpose would be served. Some times the animals are lost. When they are reported lost, the necessary presumption would be that they are stolen and in a given case it may be with the connivance of the persons taking care of the Pinjarapole. This is also a dangerous situation. We may not be understood to convey that such things happen at all Pinjarapoles. At the same time we cannot ignore the fact that umpteen number of cases have been reported where Pinjarapole people have not been able to take care of the animals and they have died. Under such circumstances, what should be the appropriate mode or method to ensure that the animals would be looked after well at Pinjarapole, as Pinjarapole is an important institution to achieve the object of the Act. For these reasons, we deem fit and proper to issue following directions. Though this has been taken care of by the apex Court in the case of Manager, Pinjarapole Deudar and anr. Vs. Chakram Morajinat (supra), we would like to reiterate the same. For these reasons, we deem fit and proper to issue following directions. Though this has been taken care of by the apex Court in the case of Manager, Pinjarapole Deudar and anr. Vs. Chakram Morajinat (supra), we would like to reiterate the same. In deciding whether the interim custody of the animal be given to the owner who is facing prosecution, following factors shall be kept in mind by the concerned Magistrates. (a) The nature and gravity of the offence alleged against the owner; (b) Whether it is the first offence alleged or he has been found guilty of offence under the Act earlier; (c) The condition in which the animal was found at the time of inspection; (d) The possibility of the animal being again subjected to cruelty; and (e) 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. We clarify that this will always be subject to the other conditions which we have narrated above. 17. AT the same time, if the interim custody is to be given to Pinjarapole, following aspects shall be taken into consideration:- (i) Whether the Pinjarapole is functioning as an independent organization or under the Scheme of the Board and is answerable to the Board? (ii)Whether the Pinjarapole has a good record of taking care of the animals under its custody. (iii)The Magistrate shall ensure to take an undertaking from the authorities of Pinjarapole that they will maintain and take proper care of the animal and further they will not claim costs for maintenance of animal from accused or owner of the animal. (iv) If any animal dies for any reason, the authorities of Pinjarapole shall immediately inform the concerned Magistrate, who in turn shall very promptly enquire into the abrupt death of the animal, if necessary through a Veterinary. (v) An undertaking should also be obtained from Pinjarapole authorities that they will not sell or transfer the animal and if the animal is lost or dies under mysterious circumstances, more particularly on account of gross negligence on the party of the Pinjarapole authority, then the authorities shall be liable to pay appropriate compensation for the same and it would also be open for the owner of the animals to initiate appropriate proceedings for compensation. 18. 18. WE also deem fit to direct all concerned Magistrates of the State to ensure that the trial under the Prevention of Cruelty to Animals Act, 1960 must be immediately commenced and concluded as expeditiously as possible.