Allowed

Dhyan Foundation v. the State of Assam and 4 Ors.

Gauhati HC16 Nov 2021Crl.Pet./3/2021

Case brief

AI extract

What is this about?

The Gauhati High Court quashed orders granting interim custody of seized cattle to accused persons in a cruelty case. Relying on the Prevention of Cruelty to Animals Act and Supreme Court precedent, the court held that accused transporting animals in violation of regulations cannot be entitled to their custody before trial.

What did the court decide?

The impugned orders were set aside with a direction to the trial court to expedite the hearing and dispose of the case.

Dhyan Foundation Vs the State of Assam and 4 Ors. — Writ and Judicial Review | Gauhati HC (2021)

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Page No.# 1/7

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GAHC010000532021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./3/2021

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DHYAN FOUNDATION

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HAVING ITS REGISTERED OFFICE AT A-80, SOUTH EXTENSION, PART 2, NEW DELHI-110049, REPRESENTED BY ITS AUTHORISED SIGNATORY, SMT. TANKALA NAGA CHANDRANI, AGED ABOUT 42 YEARS, W/O K V KANNAN, P/R/O PLOT 18, 2ND FLOOR, KANTAREDDY NAGAR, ATTAPUR, HYDERABAD-48 AND P/R/A JANAKI BHAWAN, SANTIPUR, WARD NO. 6, CHANDRANATH SARMAH PATH, P.O.-BISWANATH CHARIALI, DISTBISWANATH ASSAM-784170

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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2:ASI DURLAV NATH IN CHARGE TRAFFIC GOHPUR POLICE STATION DIST-BISWANATH ASSAM-784168

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3:MD. ABDUL RAJAK @ ABUDL RAZZAQUE S/O MD. AHED ALI R/O VILL-NANGALDOWA P.S.-RUPAHIHAT DIST-NAGAON ASSAM-782125

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4:MD. NAJRUL ISLAM @ NAZRUL ISLAM S/O LATE UMED ALI R/O VILL-NANGALDOWA P.S.-RUPAHIHAT

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Page No.# 2/7

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DIST-NAGAON ASSAM-78212

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Advocate for the Petitioner : MR. D DAS

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

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JUDGEMENT AND ORDER (ORAL)

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16.11.2021

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Heard Mr D Das, learned counsel appearing on behalf of the petitioner. Also heard Mr B Sarma, learned Additional Public Prosecutor, Assam. Mr R De, learned counsel has appeared for and on behalf of the respondent No. 2, informant and Mr A Sarma, learned counsel has appeared on behalf of respondent Nos. 3 and 4.

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By way of this application filed under Section 482 CrPC, read with Sections 397/401 CrPC, the petitioner has sought for quashing ad setting aside the orders dated 24.12.2020, 28.12.2020 and 31.12.2020, passed by the learned SDJM, Gohpur, in Gohpur PS Case No. 434/2020 (GR Case No. 481/2020).

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On 24.11.2020, the Police officials/respondent No. 2 lodged the FIR before the Gohpur Police Station, stating that 7 Nos. of cattle while being illegally trafficked was intercepted and recovered, while conducting naka checking and the cattle was alleged to have been transported in violation of the Rules and Regulations. On the basis of the FIR, Gohpur PS Case No. 434/2020 was registered under Section 420 IPC, read with Section 11 (a) (b) (d) of the Prevention of Cruelty to Animals Act and the accused persons, i.e., respondent Nos. 3 and

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4 were arrested and produced before the learned Court. The cattle was seized and on the

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basis of the report given by the informant the seized cattle was kept in the designated Goushala of Dhyan Foundation, Karibal Bongali, Bishwanati Chariali. The said Dhyan Foundation is a registered NGO, having recognition of Animals Welfare Board of India and they were associated in volunteering Goushala for rehabilitation of rescued cattle.

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On 27.11.2021, the petitioner filed a formal petition before the learned SDJM, seeking interim custody of the said seized 7 Nos. of cattle, during pendency of the trial and the learned Court fixed 03.12.2020, for hearing on the petition. Subsequent thereto, on 05.12.2020, on the basis of two petitions filed by the accused respondent Nos. 3 and 4, the learned Court fixed 07.12.2020, for hearing on the matter. Subsequently, on 24.12.2020, the learned Court rejected the prayer of the petitioner, granting the interim stay of the seized cattles to the accused respondent Nos. 3 and 4, with further direction to the IO to give zimma of the cattles to the original owners. Further, on 31.12.2020, the Court issued show cause notice to the petitioner Foundation for non-compliance of the order dated 24.12.2020.

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Accordingly to the petitioner, they have no knowledge about the rejection of their prayer and/or passing of the orders dated 24.12.2020 and 28.12.2020, but after knowing about the same, while they approached the learned trial Court, the learned trial Court rejected the prayer for stay of operation of order dated 24.12.2020 and 28.12.2020. Challenging the aforesaid orders, now the petitioners have approached this Court, on the ground that the aforesaid orders are not in conformity with law, while allowing the zimma of the seized cattle in favour of the accused persons, while the case itself is under Section 11 of the Prevention of Cruelty to Animals Act and the accused persons are not entitled to zimma of the seized animals. Further, the Court without adjudicating the petitions so filed by the petitioner in proper perspective of law, while his petition was pending for hearing, the impugned orders

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have been passed, without affording him an opportunity to submit his prayer, so, the aforesaid orders are bad in law and liable to be quashed and set aside.

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I have heard the submissions made by learned counsel for both the parties and also the materials on record.

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In the FIR, it is alleged that the aforesaid cattle was carried on National Highway in a vehicle, without having any licence for transporting livestock and other relevant documents, for which the cattle was seized. From the orders passed by the learned trial Court, it reveals that while the petition filed by the petitioner, is pending for hearing on 03.12.2020, but on the basis of the subsequent petition filed by the accused persons on 05.12.2020, the learned trial Court has fixed different dates and 07.12.2020 for hearing of the petition and subsequently, on 24.12.2020, the court, while disposing the petition so filed by the accused persons, has directed to release the seized cattle in the zimma of the accused persons (respondent Nos. 3 and 4), whereas the petition filed by the petitioner’s side was not addressed in any manner. But subsequent to the passing of the order, on the approach made by the counsel on behalf of the petitioner, on 24.12.2020, itself, the learned Court had opined that –“the first part of this order passed today regarding zimma of the seized cattle shall suffice to serve as order on Petition No. 198/2020” (i.e., the petition filed by the petitioner’s side.

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On a bare perusal of the record and the LCR, it reveals that although the case itself was registered under Section 11 (a) (b) (c) (d) of the Prevention of Cruelty to Animals Act, for carrying the seized cattle, without relevant documents, but as soon as the accused persons/respondent Nos. 3 and 4 sought for zimma of the seized cattle, the learned Court, on the basis of the report of the IO that the seized cattle are no more required for investigation,

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had directed to release of the seized cattle in favour of respondent Nos. 3 and 4 (accused

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persons).

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Be it noted that while disposing of the matter of zimma to the accused respondent Nos. 3 and 4, the learned Court has not addressed the petition filed by the petitioner/Dhyan Foundation by a reasoned order and whereas, the matter of disposal under the Special Act has to be dealt with, having due consideration to the provisions of the Act.

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Now, Rule 56 of the Transport of Animal Rules, 1978 is relevant, which is quoted as below:

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“Rule 56- When cattle are to be transported by goods vehicle, the following precautions are to be taken –

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a) Specially fitted goods vehicle with a special type of tail board and padding ground the sides should be used.

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b) Ordinarily goods vehicle shall be provided with anti-slipping material such as coir matting or wooden board on the floor and the super structure, if low, should be raised.

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c) No goods vehicle shall carry more than 6 cattle . d) ………………………. e) ………………………. f) ……………………….”

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Thus, the Rule has specifically provided that a vehicle cannot carry more than 6 cattle whereas in the present case seven cattle were carried in the single vehicle, as indicated above, by violating the Rules.

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10 . The Hon’ble Supreme Court Supreme Court in Raguramsharma and Ors. v. C. Thulsi and

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Page No.# 6/7

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Anr. [decided on 05.02.2020 in Criminal Appeal No.230/2020 arising out of SLP (Criminal

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No.11726/2019)] has held as under:-

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“….that the number of cattle were transported in a vehicle violating the norms and principles. Going by the allegations in the FIR, the accused were prima facie appears guilty of causing cruelty to animals. It is held that in such case interim custody of animals ought not to be handed over to the accused. If the accused are finally found to be not guilty than the issue of custody of animals will logically be dealt with in accordance with concerned rules or regulations. But at the stage, the accused are definitely not entitled to interim custody of the cattle.”

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So far as the prevention of Cruelty to Animals Act, 1960, which being a special Act has

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been enacted to prevent the infliction of unnecessary pain or suffering on animals to prevent the cruelty to animals. The cruelty has been defined in the Section 11 of the Act and provision to Section 11 (d) reads as follows:

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“Section 11 – Treating animals cruelty –

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(1) If any person –

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(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;

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Section 11(2) read as follows:

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(2) 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 the prevention of such offence:”

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Only asserting the ownership by a person one cannot sought for zimma of animals that has been transported in blatant violation of Rules and the Act. In terms of the Section 11(2) of the Prevention of Cruelty to Animal Act, an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to prevention of the offence.

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From the materials available on record, it is evident that there is clear violation of the requirement of Rule 56(c) of the Transport of Animal Rules, nor the required medical certificate has been furnished from the qualified Veterinary Surgeon as per Rule 47(a) of the Transport of Animals Rules, 1978.

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Going by the provision of the Act and the Rules made thereunder, it is apparent that cattle were transported in the vehicles by violating the provision of the Act and the Rules.

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In view of all above, the orders dated 24.12.2020, 28.12.2020 and 31.12.2020, passed by the learned SDJM, Gohpur, in Gohpur PS Case No. 434/2020 (GR Case No. 481/2020), while giving zimma of 7 (seven) numbers of cattle in favour of respondent Nos. 3 and 4 is vitiated for the irregularities that have been indicated above and hence all the orders dated 24.12.2020, 28.12.2020 and 31.12.2020, are hereby set aside, with a direction to the learned trial Court to expedite the hearing and dispose the case at the earliest.

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With the aforesaid directions, the criminal petition stands disposed of.

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Return the LCR.

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JUDGE

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Comparing Assistant

Dhyan Foundation v. the State of Assam and 4 Ors.

Case brief

What is this about?

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Dhyan Foundation v. the State of Assam and 4 Ors.

Case brief

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