JUDGMENT : Heard Mr. Ditul Das, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent No. 1, and Mr. N. Uddin, learned counsel for the respondent Nos. 2 to 11. 2. This criminal petition, under Section 482, read with Sections 397/401 of the Code of Criminal Procedure, 1973, is directed against the order dated 11.05.2022, passed by the learned Chief Judicial Magistrate, Barpeta, in connection with Barpeta P.S. Case No. 485/2022, under Sections 457/380 of the Indian Penal Code read with Section 11 of the Prevention of Cruelty to Animals Act, 1960. It is to be noted here that vide impugned order dated 11.05.2022, the learned Court below has directed for releasing of 110 numbers of Goats, which were seized by police, and were in the interim custody of the petitioner, to the respondents. 3. The factual background, leading to filing of this petition, is briefly stated as under : “On 01.05.2022, Smti Gitanjali Das of Keotkuchi Village, under Barpeta Police Station, lodged one Ejahar with the Officer-in-Charge, Barpeta Police Station, to the effect that 5 (five) numbers of Goats were stolen on the previous night by breaking the byre of her residence. Upon the said F.I.R., the Officer-In-Charge, Barpeta Police Station, registered above noted case and carried out the investigation. In course of investigation, on 02.05.2022, the I.O. had intercepted one small vehicle, bearing Registration No. AS-15C-5215, and recovered 110 numbers of Goats of various size and colours and seized the same preparing seizure list. After seizure of the Goats, the I.O. requested the petitioner for taking custody of the Goats and to that effect, the learned Chief Judicial Magistrate, Barpeta, passed an order on 04.05.2022. Thereafter, the respondent Nos. 2 to 11 preferred applications before the learned Chief Judicial Magistrate, Barpeta, seeking custody of the seized Goats and then the learned Chief Judicial Magistrate, Barpeta, vide order dated 05.05.2022, called for one report from the I.O. fixing the matter on 13.05.2022. And, thereafter, hearing both the parties and considering the report of the I.O., the learned Chief Judicial Magistrate, Barpeta, vide impugned order dated 11.05.2022, directed the I.O. to release the seized Goats in the interim custody of the respondent Nos. 2 to 11.” 4. And, thereafter, hearing both the parties and considering the report of the I.O., the learned Chief Judicial Magistrate, Barpeta, vide impugned order dated 11.05.2022, directed the I.O. to release the seized Goats in the interim custody of the respondent Nos. 2 to 11.” 4. Being highly aggrieved, the petitioner approached this Court challenging the legality, propriety and correctness of the impugned order, dated 11.05.2022, on the ground that the learned Court below, without hearing it, has released the seized Goats in the custody of the respondents and that the case is registered under Section 11 of the Prevention of Cruelty to Animals Act, 1960, and also for the purpose 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 prevent such offence and that the impugned order is contrary to the provision of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 and while passing the impugned order, the learned Court below has ignored Rules 3, 4 & 5 of the said Rules, and that the learned Chief Judicial Magistrate, Barpeta, failed to consider violation of Rule 47 to 57, 96 to 98 of Transportation of Animal Rules, 1978, and that the learned Court below has ignored the law laid down by Hon’ble Supreme Court while passing the impugned order and therefore, it is contended to allow the petition. 5. Mr. Ditul Das, learned counsel for the petitioner, submits that the learned Court below has passed the impugned order ignoring the relevant provision of law and also without giving any opportunity of being heard to the petitioner and it suffers from manifest illegality and therefore, it is contended to allow the petition. Mr. Das has also referred following case laws in support of his submissions:- (i) State Bank of India Vs. Rajendra Kumar Singh & Ors. ( AIR 1969 SC 401 ) (ii) Raguramsharma Vs. C. Thulsi & Anr. (Criminal Appeal No. 230/2020) (iii) Akhil Bharat Krishi Goseva Sangh Vs. Union of India & Ors. [Writ Petition(s) (Civil) No(s). 210/2015] (iv) Tirth Kumar Sahu & Anr. Vs. Sayed Shamim Quadari & Anr. [Special Leave (Criminal) Diary No(s). 21489/2019] 6. On the other hand, Mr. ( AIR 1969 SC 401 ) (ii) Raguramsharma Vs. C. Thulsi & Anr. (Criminal Appeal No. 230/2020) (iii) Akhil Bharat Krishi Goseva Sangh Vs. Union of India & Ors. [Writ Petition(s) (Civil) No(s). 210/2015] (iv) Tirth Kumar Sahu & Anr. Vs. Sayed Shamim Quadari & Anr. [Special Leave (Criminal) Diary No(s). 21489/2019] 6. On the other hand, Mr. N. Uddin, learned counsel for the private respondents, submits that the impugned order suffers from no infirmity or illegality requiring any interference of this Court. Mr. Uddin further submits that though 110 numbers of Goats were seized, yet most of them had already died and only few of them are alive now and if not released in the custody of the respondents, the remaining Goats will also die and in that event, the respondents will suffer irreparable loss and therefore, it is contended to dismiss the petition. 7. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 11.05.2022. 8. It appears that the I.O. has seized 110 numbers of Goats of various size and colour on 02.05.2022, while the same were being carried in a vehicle, bearing Registration No. AS-15C-5215. It also appears that thereafter the respondent Nos. 2 to 11 have filed a petitions seeking custody of the seized Goats and then the learned Court below had called for one report from the I.O. vide order dated 04.05.2022. And, thereafter, the learned Chief Judicial Magistrate, Barpeta, vide order dated 04.05.2022, had given the Goats in the interim custody of the petitioner on its executing a bond of Rs.5,00,000/-(Rupees five lakhs) only on the condition that the petitioner will produce the said Goats as and when directed by the Court and further directed for medical examination of the Goat through concerned Veterinary Doctor. Thereafter, on 05.05.2022, the respondents have filed their respective petitions seeking custody of the seized Goats and thereafter, the learned Court below called for one report from the I.O. stating that: (i) Who are the actual owners of the aforesaid goats? (ii) Whether the aforesaid Goats are required for further investigation in this case? (iii) Whether the said seized Goats can be given in zimma to the above named petitioners respectively? 9. (ii) Whether the aforesaid Goats are required for further investigation in this case? (iii) Whether the said seized Goats can be given in zimma to the above named petitioners respectively? 9. Thereafter, on receipt of report from the I.O. concerned, the learned Court below, vide impugned order dated 11.05.2022, directed the I.O. to release the seized Goats in the custody of the respondents. 10. It appears from the Case Diary that the respondents, in favour of whom the learned Court below has passed the impugned order of releasing the seized Goats, are the real owners of the Goats. They are not accused here in this case. There is no allegation against them in respect of violation of any of the provision of the Prevention of Cruelty to Animals Act, since the Goats were stolen from their byre; there is no question of taking precaution of subjecting them to cruelty. No liability, what so ever can be fastened upon them and they are in a different footing. And it further appears that while passing the impugned order, the learned Court below has taken into consideration of the relevant factors and also taken into account the report of the I.O. regarding the actual owner of the seized Goats and whether the seized Goats are required for further investigation or not. It is to be noted here that the I.O., vide his report dated 11.05.2022, stated that the Goats are not required for further investigation. 11. Further it appears that the learned Court below has considered the report of Block Veterinary Officer, Block Veterinary Dispensary, Howly, wherein it is stated that sheds, surroundings and high weather temperature inside the Dhyan Foundation Campus are not totally suitable for goat and sheep rearing and some of the goats have already died due to symptomatic PPR and heat stroke and there is every possibility that more Goat will die if they are continued to be kept in such adverse and crowding situation. And considering all these aspects, the learned Court below has passed the impugned order, which, to the considered opinion of this Court, suffers from no illegality or impropriety requiring any interference of this Court. It is a fact that while passing the impugned order the learned court below has not heard the petitioner. And considering all these aspects, the learned Court below has passed the impugned order, which, to the considered opinion of this Court, suffers from no illegality or impropriety requiring any interference of this Court. It is a fact that while passing the impugned order the learned court below has not heard the petitioner. But, it is now well settled that in a case where the owner is claiming the custody of the animal, Pinjrapole has no preferential right. Reference in this context can be made to a decision of Hon’ble Supreme Court in the case of Manager, Pinjrapole Deudar & Ors. Vs. Chakram Moraji Nat & Ors., reported in MANU/SC/0557/1998. 12. In the said case Hon’ble Supreme Court has held as under : “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.” 13. It is further held in the said case that:- “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 be sent to a Pinjrapole. Sub-section (2) does not say that the Magistrate shall send the animals to Pinjrapole. It is, thus, evident that the expression & quote; shall be sent & unquote; 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 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.” 14. Again in the case of Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors., reported in MANU/SC/1799/2009, in paragraph No. 17, Hon’ble Supreme Court had held as under:- “17. This takes the Court to answer the question whether respondent Nos. 1 to 6 are entitled to relief of interim custody of goats and sheep seized pursuant to filing of complaint No. II-C.R. 3131 of 2008 registered with Deesa City Police Station. The fact that respondent Nos. 1 to 6 are owners of the goats and sheep seized is not disputed either by the appellant No. 1 or by the contesting respondents. The fact that respondent Nos. 1 to 6 are owners of the goats and sheep seized is not disputed either by the appellant No. 1 or by the contesting respondents. Though the respondent No. 8 has, by filing counter reply, pointed out that the officials of Panjarapole at Patan are taking best care of the goats and sheep seized in the instant case, this Court finds that keeping the goats and sheep in the custody of respondent No. 8 would serve purpose of none. Admittedly, the respondent Nos. 1 to 6 by vocation trade in goats and sheep. Probably a period of more that one and half years has elapsed by this time and by production of goats and sheep seized before the court, the prosecution cannot prove that they were subjected to cruelty by the accused because no marks of cruelty would be found by this time. The trade in which respondent Nos. 1 to 6 are engaged, is not prohibited by any law. On the facts and in the circumstances of the case this Court is of the opinion that respondent Nos. 1 to 6 would be entitled to interim custody of goats and sheep seized in the case during the pendency of the trial, of course, subject to certain conditions.” 15. In the instant case, most of the seized Goats already died due to symptomatic PPR and heat stroke and there is every possibility that more sheep and goat will die if they are continued to be kept in such adverse and crowding situation. The report of Block Veterinary Officer reveals that the sheds, surroundings and high weather temperature inside the campus of the petitioner is not totally suitable for goat and sheep rearing. There appears to be no possibility of subjecting the Goats and Sheep to cruelty by the real owners. 16. Thus, having tested the legality, propriety and correctness of the impugned order in the light of the ratio laid down in the aforesaid case laws, this Court is of the view that the impugned order withstands the test of legality, propriety and correctness. It is already stated that where the owner has been claiming the custody of the Goats, the petitioner has no preferential right. Moreover, the animals are dying in the campus of the petitioner due to adverse atmosphere therein. It is already stated that where the owner has been claiming the custody of the Goats, the petitioner has no preferential right. Moreover, the animals are dying in the campus of the petitioner due to adverse atmosphere therein. And setting aside the impugned order on account of not hearing the petitioner at the time of passing the impugned order, and remanding the matter to the learned court below to hear the petitioner and to decide the matter a fresh will take considerable time and in the meantime more Goats will die and the same will cause irreparable loss to the real owners against whom there is no case. The petitioner, thus, has failed to demonstrate that it has suffered any serious prejudice. Thus, weighing the interest of the parties, this court is not inclined to take such recourse, as the same will never serve the cause of justice, rather it will cause grave injustice to the respondents. 17. I have carefully gone through the Written Argument submitted by the learned counsel for the petitioner and also the case laws referred by him and I find that the ratio laid down therein are not applicable in all force to the facts and circumstances of case in hand and therefore, this Court is not inclined to burden this judgment by discussing all those case laws. 18. In the result, I find no merit in this petition and accordingly, the same stands dismissed. Interim order of stay, if any, stands vacated. However, it is provided that the respondents shall clear all dues, which the petitioner is legally entitled for keeping the Goats in its custody. The parties have to bear their own cost. The Case Diary be returned.