JUDGMENT 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent. 3. By these petitions the petitioner has challenged legality and correctness of order passed on 22/9/2014 in Misc. Criminal Application No. 453 of 2014 arising out of Crime No.3068 of 2014 by the Judicial Magistrate, First Class, Wardha. 4. By the order impugned herein, the learned Magistrate has released the custody of 13 she-buffaloes to respondent No.2, who is one of the accused persons in Crime No.3068 of 2014 for the offences punishable under Section 11 of the Prevention of Cruelty to animals Act, 1960 (hereinafter referred to as “the Act, 1960) read with Section 119 of the Bombay Police Act and also Sections 83 and 177 of the Motor Vehicles Act. 5. The allegations made against the accused/respondent and others are that they had transported in a motor vehicle 13 she-buffaloes in cruel manner by overloading them and packing them in an unhygienic manner and inappropriate conditions. While the investigation is still going on, the present respondent No.2, who has been later-on added as accused No.3, claims himself to be the owner of the she-buffaloes, which were seized in this case. During the investigation, respondent No.2 made an application under Section 457 of the Criminal Procedure Code that he is rightful claimant of the custody of she buffaloes and was also in position to maintain them properly and, therefore, sought for release of their custody on execution of supratnama. The application was strongly opposed by the prosecution as well as the petitioner. However, the learned Magistrate by his order impugned herein allowed the application. Not satisfied with the same, the petitioner has filed the present petition under Article 227 of the Constitution of India. 6. According to learned Counsel for the petitioner, the offence relating to transportation of she-buffaloes in a cruel manner has been prima-facie established against respondent No.2 and other persons and therefore, if their custody is released to respondent No.2, there is likelihood of the animals being treated in a similar manner or perhaps more cruelly. He also submits that there are some more crimes registered against respondent No.2 in which same allegations have been made against him. He also submits that there are some more crimes registered against respondent No.2 in which same allegations have been made against him. Therefore, according to learned Counsel for the petitioner even there is a good case for the prosecution to show that the seized animals in this case are liable to be confiscated and on this ground also their custody should not be released. 7. Learned A.P.P. for the State has supported the arguments of the learned Counsel for the petitioner. However, learned Counsel for respondent No.2 has submitted that even though respondent No.2 is owner of the animals and has submitted documents showing prima-facie that he is purchaser, respondent No.2 is being deprived of the benefits of ownership of those animals. He submits that the prosecution has not produced on record any evidence indicating that respondent No.2 has been previously convicted and therefore, in view of Section 29 of the Act, 1960, there would be no possibility of the seized animals being confiscated in this case. As regards the possibility of respondent No.2 exposing the seized cattle to further cruelty or transporting them in a cruel manner, he submits that appropriate conditions should be imposed and only because of registration of some other crimes, respondent No.2, respondent No.2 should not be deprived of the custody of seized animals, of which is he lawful owner. 8. So far as the aspect of possibility of seized animals being confiscated at the end of trial is concerned, I am of the view that Section 29 of the Act requires some evidence as to conviction or some material indicating that the character of the accused or behaviour of the accused is such that it is likely to give an impression that the custody of animals when given to him, would be misused by his treating the animals with further cruelty and this material, at this stage, is not available on record. Only because some other crimes levelling similar allegations have been registered against respondent No.2, it cannot be said that respondent No.2 is likely to expose the animals to further cruelty as allegations in those crimes only relate to transportation of cattle in crowded conditions and do not point out handing out of further cruelty to them by subjecting them to severe beating, lashing, injuring, maiming, etc. Besides, if the custody of the animals is to be given to respondent No.2, same can be made subject to strict conditions as regards compliance with the mandatory requirements of the Transport of Animal Rules, 1978. Therefore, on this count, I do not see any difficulty in releasing the animals to the custody of respondent No.2. 9. It is also the contention of the learned Counsel for the petitioner that the learned Magistrate has not considered appropriately the objection raised by the prosecution that respondent No.2 has not prima-facie established his ownership of the seized animals. He submits that the Agricultural Produce Market Committee's receipt produced by him before the Investigating Officer indicates that the purchase price of 13 she-buffaloes was Rs.50,000/- and this price being very low, the Investigating Officer doubted correctness of the receipt and, therefore, it was proposed by the Investigating Officer to further investigate this matter. All these facts, learned Counsel for the petitioner further submits, were brought to the notice of the learned Magistrate but those were not considered. 10. Upon perusal of the impugned order, I find that the learned Magistrate has considered one objection taken by the learned A.P.P. during the course of the argument and it was to the effect that no document of ownership has been produced by the owner and it was found to be baseless by the learned Magistrate upon perusal of receipt issued by the A.P.M.C., which was forming part of the case papers. Of course, in the say of the prosecution filed before lower Court, Investigating Officer had submitted that the price of she-buffaloes was shown to be very low, and so he was entitled to make further investigation in the matter so as to verify the contention of respondent No.2 that he was the owner of the cattle. This specific submission of the Investigating Officer has not been considered by the learned Magistrate. But, what has been considered by the learned Magistrate is one receipt issued by the A.P.M.C. This document has not been alleged to be false and, therefore, it's contents can be considered for making prima-facie conclusion. It prima-facie shows that respondent No.2 is the owner of seized cattle. But, what has been considered by the learned Magistrate is one receipt issued by the A.P.M.C. This document has not been alleged to be false and, therefore, it's contents can be considered for making prima-facie conclusion. It prima-facie shows that respondent No.2 is the owner of seized cattle. If this document, prima-facie, establishes the claim of ownership of respondent No.2, and there is no material produced on record by the Investigating Officer showing that prima-facie the receipt depicts incorrect price, there is no need to give importance to subjective opinion called doubt of the Investigating Officer about low price of the cattle shown in the A.P.M.C. receipt. Ultimately, it has to be seen as to whether or not there is some material to prima-facie show ownership of the cattle and if that material has been properly considered, ignoring the unsubstantiated doubt of the Investigating Officer would not render the order of the Magistrate as being against well settled principles of law or perverse. I must say it here that the Investigation Officer only expressed a doubt about price of the cattle but placed no material before the learned Magistrate showing that one buffalo of same variety, age, health and productivity, would have generally fetched an 'X' amount of price. Therefore, it was neither possible nor expected of learned Magistrate to prefer Investigating Officer's doubt over objectively available prima-facie evidence of the price. Therefore, I find no merit in the said submission of the learned Counsel for the petitioner. 11. Learned Counsel for the petitioner has relied upon the case of Deorao s/o Sadashivji Navghare Vs. State of Maharashtra & Anr. Reported in 2010 ALL MR (Cri) 45 and has submitted that while refusing custody of the seized cattle, it is also necessary for the Court to consider as to whether the claimant is well equipped to handle, possess and maintain the seized animals and in this case, no material has been produced on record by respondent No.2 about his capacity to properly maintain and care for the animals. 12. No doubt, the factor of capacity of the claimant in such a case is important and the Court must satisfy itself in this regard. 12. No doubt, the factor of capacity of the claimant in such a case is important and the Court must satisfy itself in this regard. But, as rightly submitted by learned Counsel for respondent No.2, some material ought to have been produced on record by the Investigating Officer in this regard so as to create a doubt about the lack of facilities with respondent No.2 for maintaining the cattle. On the other hand, respondent No.2 has produced on record a copy of his licence regarding sale and purchase of the cattle. The fact that respondent No.2 possesses such a licence, it can be prima facie presumed that he is well equipped to deal in the cattle. Now, the question would be whether the cattle that he would be allowed to retain the possession of would be properly taken care of by him or not and even though there is no material produced on record by the Investigating Officer to create any doubt about the capacity of respondent No.2 in this regard, still out of caution, this aspect of the matter can be taken care of by calling upon respondent No.2 to furnish an undertaking about the same by way of an additional condition. 13. Learned Counsel for the petitioner has also referred to me case of Jivdaya Pashupakashi Saurakshan and Sanwardhan Sanstha Vs. State of Maharashtra & anr. 2009 ALL MR (Cri) 3230 and submits that as respondent No.2 does not possess valid licence, and as no material has been placed by him before Court about proper arrangements, custody of the cattle should not be released to him. I have already observed that respondent No.2 has produced on record a copy of his licence and it has not been shown to me by the petitioner as how and why it should not taken as prima-facie evidence of his licence. I have also found that Investigating Officer has not shown by placing any material on record that respondent No.2 lacks capacity or has no arrangements to maintain the cattle. Therefore, the argument deserves rejection and it is rejected accordingly. 14. I have also found that Investigating Officer has not shown by placing any material on record that respondent No.2 lacks capacity or has no arrangements to maintain the cattle. Therefore, the argument deserves rejection and it is rejected accordingly. 14. Learned Counsel for the petitioner has further submitted that the investigation in this case is almost over and since the cattle are already in possession of the petitioner for a long period of time, the petitioner should be allowed to retain their possession as the possibility of chargesheet being filed in near future is very much there and it would not take much time for trial of the case to conclude. He further submits that such an arrangement would cause no prejudice to respondent No.2. The prayer has been strongly opposed by respondent No.2, who submits that even though respondent No.2 has been found to be prima facie owner of the cattle, respondent No.2 is being sought to be deprived of the custody of the cattle in the name of conclusion of the trial within a short period of time. According to him this would only amount to granting something by extralegal mode which cannot be granted by legal mode. 15. I am completely in agreement with the argument so advanced on behalf of respondent No.2. Once it is found that respondent No.2 is prima facie owner of the seized cattle and it has also been found that on the parameters governing discretion for release of custody of the seized articles or cattle under Section 457 Cr.P.C., respondent No.2 is entitled to the custody of the animals, the Court cannot stand in between respondent No.2 and the animals on the ground that trial is likely to be concluded in a shorter period of time. Otherwise, it would only mean granting that relief quietly which cannot be granted openly. That apart, as submitted by learned A.P.P. for the State, statement of the seller of she-buffaloes is yet to be recorded. This would mean that it cannot be said with any certainty that trial of the case would be over very soon. 16. Otherwise, it would only mean granting that relief quietly which cannot be granted openly. That apart, as submitted by learned A.P.P. for the State, statement of the seller of she-buffaloes is yet to be recorded. This would mean that it cannot be said with any certainty that trial of the case would be over very soon. 16. Having regard to the aspect of ownership as well as the parameters governing discretion of the Court under Section 457 Cr.P.C., I am of the view that by and large the impugned order can be seen to be in conformity with the law governing the discretionary power under Section 457 Cr.P.C. and as such cannot be seen to be perverse or arbitrary so as to warrant any interference in supervisory jurisdiction of Article 227 of the Constitution of India. There is, therefore, no merit in this petition and it deserves to be dismissed. However, I find it necessary to stipulate certain additional conditions as a precautionary measure. On re-custody, all the animals shall be released on supratnama of Rs.1,00,000/- (rupees one lac only) to respondent No.2 subject to following conditions which will be read in addition to the conditions imposed in the impugned order. It is directed that respondent No.2 shall comply with the conditions stated in Rule 47 and Rule 56 of the Prevention of Cruelty to transport of Animals Rule, 1978 and shall produce appropriate certificates/transport permits as required under these Rules before the Court of J.M.F.C. before claiming custody of the seized animals before the Magistrate, who is taking cognizance of this case. The condition of payment of maintenance charges of Rs.125/- per day as imposed by the learned Magistrate is modified by the condition that maintenance charges at this rate shall be payable by respondent No.2 only from the date of seizure of the animals till the date of the impugned order. Petition is dismissed in above terms. Rule is discharged.