ORDER : 1. Heard learned advocate Mr. Vikas Nair for the petitioner and learned Additional Public Prosecutor Ms. C.M. Shah for the respondent-State through video conference. 2. Rule returnable forthwith. Learned Additional Public Prosecutor Ms. Shah waives service of notice of rule on behalf of respondent-State. 3. By this petition under Articles 226 and 227 of the Constitution of India read with section 451 of the Code of Criminal Procedure, 1973 (for short “the Code”), the petitioner has prayed for the following reliefs : “(A) Your Lordship may be pleased to quash and set aside the impugned order dated 03.01.2020 passed Muddamal Application no.159/2019 by the Learned Judicial magistrate first class judge at Songadh also order dated 17.02.2020 passed in Criminal Revision Application No.02/2020 by the Learned principal District & Session judge at Tapi and further be pleased to pass and order directing the release/handover of the seized Eicher Tempo bearing RTO registration no. GJ05AU8607, in connection with FIR CR No.II–25 of 2019 registered with ‘B’ Division Police Station, songadh village to the Petitioner on appropriate conditions as deemed fit by this Hon’ble Court; (B) Pending the admission and final hearing of this application, Your LORDSHIP may be pleased to issue direction for release/handover the custody of the Eicher Tempo bearing RTO registration no.GJ05AU8607, which is seized by the investigating officer in connection with CR No. II – 25 of 2019 registered with ‘B’ Division Police Station, Songadh Village to the petitioner on appropriate conditions as deemed fit by this Hon’ble High Court; (C) Ad interim relief in terms of paragraph (B) above may be pleased to be granted. (D) Any other and further relief/s which may be deemed fit by this Hon’ble Court be granted. 4. Brief facts of the case are as under : 4.1. It is the case of the petitioner that the offence was registered with Songadh Police Station being C.R. II. No. 25 of 2019 in connection with seized vehicle bearing registration no.GJ05AU8607 which was intercepted by the police in which eight buffaloes were found. It is further the case of the petitioner that that police on the basis of assumption that the buffaloes were transported for the purpose of slaughtering registered the FIR for violation of the Prevention of Cruelty to Animals Act, 1960 (for short “the Act 1960”). It is further the case of the petitioner that that police on the basis of assumption that the buffaloes were transported for the purpose of slaughtering registered the FIR for violation of the Prevention of Cruelty to Animals Act, 1960 (for short “the Act 1960”). It is further alleged in the FIR that the animals were transported in a small space and they were tied tightly to each other and the accused persons were not having any required certificate for such transportation and the buffaloes were kept with rope fastened through their nose. 4.2. It is the case of the petitioner that the petitioner is the owner of the vehicle involved in the alleged offence which was seized by Songadh police at the time of registration of the FIR. 4.3. The petitioner thereafter filed an application under section 451 of the Code being Muddamal Application No. 159/2019 before the Judicial Magistrate First Class Court at Songadh which was rejected by order dated 3rd January, 2020. 4.4. Being aggrieved and dissatisfied with the order of the learned JMFC, Songadh, the petitioner preferred Criminal Revision Application No.2/2020 before the District Principal Sessions Judge, Tapi which was also rejected vide order dated 17th February, 2020. 4.5. It is also pertinent to note that in earlier round of litigation, the petitioner approached the trial Court and District and Sessions Court for releasing of muddamal vehicle in question. Both the Courts below rejected the application of the petitioner against which the petitioner had preferred Special Criminal Application No.6884/2019 which was withdrawn so as to enable the petitioner to make a fresh application for recovery of muddamal vehicle since six months period had passed. The petitioner thereafter preferred the above application and Revision before the Court below which were also rejected. 5. Learned advocate Mr. Vikas Nair appearing for the petitioner submitted that the petitioner is a registered owner of the vehicle in question and the livestock transported in the vehicle were eight buffaloes. He also relied upon the certificate dated 31st March, 2019 issued by Ucchal Agricultural Produce Market Committee permitting the purchase and sale of animals by the petitioner. He further submitted that another vehicle which was seized in connection with a similar FIR under the Act 1960 was released by this Court vide order dated 23rd June 2020 passed in Special Criminal Application No. 1695/2020. He further submitted that another vehicle which was seized in connection with a similar FIR under the Act 1960 was released by this Court vide order dated 23rd June 2020 passed in Special Criminal Application No. 1695/2020. It was submitted that the Court below rejected the application as well as revision application filed by the petitioner on the sole ground that there is a legal bar as the vehicle in question is subject to forfeiture under the provisions of Act, 1960. 5.1. Learned advocate for the petitioner thereafter, referred to the provisions of Gujarat Animal Preservation Act, 1954 (for short “the Act 1954”) to submit that the Act 1954 does not bar the release of the vehicle in case the animal transported is not as listed in section 5(1A) of the Act 1954. He referred to section 5(1A) of the Act 1954 to point out that the buffaloes are not covered by the said section. He thereafter referred to the provisions of section 6 and section 6B of the Act, 1954 as amended in the years 2011 and 2017 where the provision for forfeiture of vehicle is provided. However, he submitted that when the buffaloes are not covered by section 5(1A) of the Act 1954, provisions of sections 6 and 6B of the Act, 1954 would not come into play. 5.2. Learned advocate further relied upon the decision of the Apex Court in case of Sunderbhai Ambalal Desai v. State of Gujarat reported in 2003(1) GLH 307 with regard to interim custody of the vehicle during the pendency of trial. 6. On the other hand, learned Additional Public Prosecutor Ms. Shah submitted that the petitioner is already arraigned as accused in further chargesheet for the alleged offences. It was further submitted that this is the second round of litigation and earlier the petitioner had withdrawn the petition with same prayers before this Court on the ground of applicability of section 6 of the Act 1954 and therefore, the petitioner now cannot take a plea that section 5(1A) of the Act 1954 is not applicable to the petitioner. It was further pointed out that both the Courts below have given cogent reasons for rejecting the application of the petitioner as the averments made in the FIR clearly shows that there is a specific allegation against the petitioner that the animals were taken for slaughtering. It was further pointed out that both the Courts below have given cogent reasons for rejecting the application of the petitioner as the averments made in the FIR clearly shows that there is a specific allegation against the petitioner that the animals were taken for slaughtering. It was also further pointed out that conduct of the petitioner is also required to be taken into consideration as the way in which the animals were tied in cruel fashion in the vehicle seized by the police. Reference was also made to Gujarat Essential Commodities and Cattle (Control) Act, 2005 (for short “Act 2005”) which provides for control and regulation of the production, movement, supply and distribution of and trade and commerce in certain commodities and the maintenance and movement of cattle in the State of Gujarat. It was submitted that the buffaloes are cattle and therefore, as per the provisions of section 9(2) of the Act 2005, if it is found that any vehicle or animal has been used for carrying such properties, is required to be forfeited with the Government and therefore, both the Courts below have rightly passed the impugned order of not releasing the vehicle in question. 7. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the vehicle in question was used for transportation of buffaloes which were tied in a very cruel manner. 8. However, considering the submissions made by the learned advocate for the petitioner it appears that the petitioner is only the owner of the vehicle and there is nothing on record to show that he is involved in transportation of the buffaloes. Moreover, section 5(1A) of the Act 1954 does not include the buffaloes in the list of animals which are mentioned therein. Section 5(1A) of the Act 1954 reads as under : "Section 5 Prohibition against slaughter without certificate from Competent Authority. (1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter. (1) Notwithstanding any law for the time being in force or any usage to the contrary, no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter. (1A) No certificate under subsection (1) shall be granted in respect of (a) a cow; (b) the calf of a cow, whether male or female and if male, whether castrated or not; (c) a bull; (d) a bullock; (2) In respect of an animal to which subsection (IA) does not apply, no certificate shall be granted under subsection (1) if in the opinion of the Competent Authority (a) the animal, whether male or female, is useful or likely to become useful for the purpose of draught or any kind of agricultural operations; (b) the animal if male, is useful or likely to become useful for the purpose of breeding; (c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing offspring. (3) Nothing in this section shall apply to (a) the slaughter of any of the following animals for such bona fide religious purposes, as may be prescribed, namely : (i) any animal above the age of fifteen years other than a cow, bull or bullock. (ii) a bull above the age of fifteen years (iii) a bullock above the age of fifteen years. (b) the slaughter of any animal not being a cow or a calf of a cow, bull or bullock, on such religious days as may be prescribed : Provided that a certificate in writing for the slaughter referred to in clause (a) or (b) has been obtained from the competent authority. (4) The State Government may, at any time for the purpose of satisfying itself as to the legality or propriety of any order passed by a Competent Authority granting or refusing to grant any certificate under this section, call for and examine the records of the case and may pass such order in reference thereto as it thinks fit. (5) A certificate under this section shall be granted in such form and on payment of such fee as may be prescribed. (5) A certificate under this section shall be granted in such form and on payment of such fee as may be prescribed. (6) Subject to the provisions of subsection (4) any order passed by the Competent Authority granting or refusing to grant a certificate, and any order passed by the State Government under subsection (4) shall be final and shall not be called in question in any Court." 9. In view of the above when the buffaloes are not included in the list which is referred to in section 5(1A) of the Act 1954, provisions of section 6 and section 6B as amended in the years 2011 and 2017 would not come into play. Section 6A and Section 6B of the Act 1954 is reproduced hereunder : In the Gujarat Animal Preservation Act, 1954, after Section 6, the following new sections were inserted:” "6A. (1) No person shall transport or offer for transport or cause to be transported any animal specified in subsection (1A) of section 5 from any place within the State to any another place within the State for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be so slaughtered: Provided that a person shall be deemed to be transporting such animal for the purpose of slaughter unless contrary is proved thereto to the satisfaction of the concerned authority or officer by such person or he has obtained a permit under subsection (2) for transporting animal for bona fide agricultural or animal husbandry purpose from such authority or officer as the State Government may appoint in this behalf. (2) (a) A person may make an application in the prescribed form to the authority or officer referred to in subsection (1) for grant of permit in writing for transportation of any animal specified in subsection (1A) of section 5 from any place within the State to any another place within the State. (b) If, on receipt of any such application for grant of permit, such authority is of the opinion that grant of permit shall not be detrimental to the object of the Act, it may grant permit in such form and on payment of such fee as may be prescribed and subject to such conditions as it may think fit to impose in accordance with such rules as may be prescribed. (3) Whenever any person transports or causes to be transported in contravention of provisions of subsection (1) any animal as specified in subsection (1A) of section 5, such vehicle or any conveyance used in transporting such animal along with such animal shall be liable to be seized by such authority or officer as the State Government may appoint in this behalf. (4) The vehicle or conveyance so seized under subsection (3) shall not be released by the order of the court on bond or surety before expiry of six months from the date of such seizure or till the final judgment or the court, whichever is earlier. 6B. (1) No person shall directly or indirectly sell, keep, store, transport, offer or expose for sell or buy beef or beef products in any form. (2) Whenever any person transports or causes to be transported the beef or beef products, such vehicle or any conveyance used in transporting such beef or beef products along with such beef or beef products shall be liable to be seized by such authority or officer as the State Government may appoint in this behalf. (3) The vehicle or conveyance so seized under subsection (2) shall not be released by the order of the court on bond or surety before the expiry of six months from the date of such seizure or till the final judgment of the court, whichever is earlier. Explanation For the purpose of this section "beef" means flesh of any animal specified in subsection (1A) of section 5, in any form.” 10. This Court (Coram : Hon'ble Mr. Justice A.G. Uraizee) in case of Aachar Adam v. State of Gujarat vide order dated 23rd June, 2020 in Special Criminal Application No. 1695/2020 in similar circumstances held as under : “6. It appears that the Courts below have refused to give the custody of muddamal vehicle to the petitioner essentially on the ground that Section 9(2) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005, the muddamal vehicle is liable to confiscation if it is found that the vehicle was used in transporting the livestock. It appears that the Courts below have refused to give the custody of muddamal vehicle to the petitioner essentially on the ground that Section 9(2) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005, the muddamal vehicle is liable to confiscation if it is found that the vehicle was used in transporting the livestock. However, considering the overall facts of the case I am of the view that if the muddamal vehicle remains in Police custody for long, it will be reduced to scrap and keeping question of Section 9(2) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005, I am, therefore, of the view that without entering into the merits of the case, custody of the muddamal vehicle deserves to be given to the petitioner under Section 451 of the Code during the pendency of the trial. 7. For the foregoing reasons, the petition succeeds and is hereby allowed and the order passed by the Court below are set aside. The custody of muddamal Page 2 of 3 Downloaded on : Thu Aug 06 15:28:45 IST 2020 R/SCR.A/1695/2020 ORDER i.e. Eicher Tempo bearing Registration No. GJ21W6714, which is detained in connection with II C.R. No.10/2019 registered with B” Division Police Station, Songadh, District Tapi is ordered to be handed over to the petitioner on the following condition: (i) shall furnish, by way of security, bond of Rs.5,00,000/-(Rs. Five Lakhs Only) and solvent surety of the equivalent amount; (ii) The petitioner shall file an undertaking on oath before the learned trial Court that he shall not transfer, alienate or part with possession of the vehicle till conclusion of the trial and further, produce the vehicle as and when the Court directs him to do so. (iii) the Muddamal vehicle shall not be used for any illegal activities including transporting live stock (iv) The petitioner shall not change the colour and scheme of the vehicle. (v) Before release of the vehicle, the police authority shall take photographs of the vehicle at the cost of the petitioner. 8. Rule is made absolute to the aforesaid extent. Registry to communicate this order to the concerned Court/authority through Fax/Email.” 11. Considering the above provisions of the Act and in view of the order passed by this Court in the aforesaid matter, the petition deserves to be allowed and is accordingly allowed. 8. Rule is made absolute to the aforesaid extent. Registry to communicate this order to the concerned Court/authority through Fax/Email.” 11. Considering the above provisions of the Act and in view of the order passed by this Court in the aforesaid matter, the petition deserves to be allowed and is accordingly allowed. It is true that both the Courts below have refused to grant custody of the vehicle in question on the ground of section 9(2) of the Act 2005 and Muddamal vehicle is liable to be confiscated, if the vehicle is found to be transporting livestock. However, considering the overall facts of the case, if the muddamal vehicle remains in police custody for long, it will be reduced to scrap and keeping question of section 9(2) of the Act 2005 open, without going into the merits of the case, custody of the muddamal vehicle deserves to be given to the petitioner under section 451 of the Code during the pendency of the trial. 12. For the foregoing reasons, petition is allowed. Impugned orders passed by the Court below are quashed and set aside. Custody of muddamal i.e. Eicher Tempo bearing RTO registration no. GJ05AU8607 which is detained in connection with FIR being CR No. II. 25/2019 registered with 'B' Division police station, Songadh village is ordered to be handed over to the petitioner on the following conditions : (i) shall furnish, by way of security, bond of Rs.8,00,000/(Rs. Eight Lakhs Only) and solvent surety of the equivalent amount; (ii) The petitioner shall file an undertaking on oath before the learned trial Court that he shall not transfer, alienate or part with possession of the vehicle till conclusion of the trial and further, produce the vehicle as and when the Court directs him to do so. (iii) the Muddamal vehicle shall not be used for any illegal activities including transporting live stock (iv) The petitioner shall not change the colour and scheme of the vehicle. (v) Before release of the vehicle, the police authority shall take photographs of the vehicle at the cost of the petitioner. 13. Rule is made absolute to the aforesaid extent. Registry to communicate this order to the concerned Court/authority through Fax/Email.