Dismissed

Delowar Hussain v. the State of Assam and Anr.

Gauhati HC17 Nov 2021Crl.Rev.P./78/2021

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed three revision petitions challenging the rejection of prayers for custody of seized cattle. The court held that despite petitioners claiming ownership, their failure to comply with transport rules and lack of necessary permits justified the trial court's decision to keep animals in government care.

What did the court decide?

All three revision petitions dismissed; orders of the trial court upholding rejection of zimma prayer left unchanged.

Delowar Hussain Vs the State of Assam and Anr. — Property and Title | Gauhati HC (2021)

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GAHC010025542021

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

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Case No. : Crl.Rev.P./50/2021

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SURAT JAMAL S/O SIKIM ALI, R/O VILL-CHARUABAKHAR, P.S.-BILASIPARA, DISTDHUBRI, ASSAM

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VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:ASI MANJIT NATH SIMULTAPU OUTPOST S/O LATE BIJAY CH. NATH ASSISTANT SUB-INSPECTOR OF SIMULTAPU OUTPOST P.S. GOSSAIGAON DIST-KOKRAJHAR ASSAM PIN-783361 3:Dhyan Foundation Having Regd office at A 80 South Extension Part-2 New Delhi- 49 Rep by authorised Signatory Kollangudu Venkateswaran Kannan S/o. Lt. K. Padmanabhar permanent resident Plot-18 2nd floor Kantareddy Nagar Attapur Hyderabad-48 P/R/A Durga Mandir Goalpara Town Goalpara Assam-78312

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Advocate for the Petitioner : MR. M KHAN

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Advocate for the Respondent : ADDL. PP, ASSAM

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Linked Case : Crl.Rev.P./78/2021

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DELOWAR HUSSAIN S/O. ABDUL HASHEM R/O. VILL. TOWN KISMAL P.S. KALGACHIA DIST. BARPETA ASSAM.

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VERSUS

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THE STATE OF ASSAM AND ANR REP. BY PP ASSAM.

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2:ASI MANJIT NATH

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SIMULTAPU OUT POST S/O. LT. BIJAY CH. NATH ASSTT. SUB-INSPECTOR OF SIMULTAPU OUTPOST P.S. GOSSAIGAON DIST. KOKRAJHAR ASSAM PIN-783361. -----------Advocate for : MR. M KHAN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR

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Linked Case : Crl.Rev.P./51/2021

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JAHIRUL ISLAM SHEIKH S/O RIYAZ UDDIN R/O VILL-SIMULTAPU PT-III P.S.-GOSSAIGAON

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DIST-KOKRAJHAR ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM 2:ASI MANJIT NATH SIMULTAPU OUTPOST S/O LATE BIJAY CH. NATH ASSISTANT SUB-INSPECTOR OF SIMULTAPU OUTPOST P.S. GOSSAIGAON DIST-KOKRAJHAR ASSAM PIN-783361 3:DHYAN FOUNDATON Having Regd office at A 80 South Extension Part-2 New Delhi- 49 Rep by authorised Signatory Kollangudu Venkateswaran Kannan S/o. Lt. K. Padmanabhar permanent resident Plot-18 2nd floor Kantareddy Nagar Attapur Hyderabad-48 P/R/A Durga Mandir Goalpara Town Goalpara Assam-783123 -----------Advocate for : MR. M KHAN Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR.

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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Date of hearing: : 24.09.2021.

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Date of Judgment : 17.11.2021.

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JUDGEMENT AND ORDER (ORAL)

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All the three petitions are taken up together for disposal, as they related to same police case i.e. Gossaigaon P.S. Case No.23/2021, registered under Sections 279/353/307/289/ 379/411/289 of the IPC, read with Section 11(i)(a)(d)(e)(h) of the Prevention of Cruelty to Animal Act.

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2. Heard the learned counsel appearing for and on behalf of their respective petitioners. Also, heard Mr. P.S. Lahkar, learned Addl. P.P., Assam, representing the respondent Nos.1 & 2 and Mr. D. Das, learned counsel appearing for the respondent No.3/Dhyan Foundation.

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3. On 14.01.2021, ASI Manjit Nath of Simultapu OP, PS- Gossaigaon, District- Kokrajhar (Assam) lodged an FIR that on 14.01.2020 at about 02:05 AM secret information has been received from source that some trucks carrying cattle illegally are coming from West Bengal towards Assam. Accordingly, in this regard he along with I/C Simultapu OP and staff conducted Naka Checking duty at Simultapu NH-31C. At about 05:40 AM four trucks bearing registration nos.UP21 CN-3756, UP21BN-9171, AS01LC-6771 and AS01MC-1473 are found coming from West Bengal side with a full speed and gave signal for stopping them, but the driver violated the traffic signal and tried to escape by breaking the barricade and screaming to kill (“maar” “maar”). Sensing the ill intention of the accused the policemen on road moved away from the path of the truck to prevent being killed but continued to chase the four trucks and after some chasing was able to detain the four vehicles. But the drivers of container trucks vehicles bearing registration no.UP21CN-3756 and AS01LC-6771 managed to flee away by taking the advantage of darkness. After checking, it has been found that 24 (twenty four) numbers of male cows were loaded in the container truck bearing reg. No.UP21CN-3756, 29

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(twenty nine) numbers of male cow were loaded in the container truck bearing reg. No.UP21BN-9171, 20(twenty) numbers of male cow & 04 nos. of death cow were loaded in the container truck bearing reg. No.AS01LC-6771 and 20(twenty) numbers of male cow were loaded in the truck bearing reg. No.AS10MC-1473. On being asked the two truck drivers could not produce any documents and no any livestock permit, no NOC was issued from the Directorate of Animal Husbandry Department, no health certificate of the cattle are found in the four trucks. So, it is strongly suspected that the cattle were brought for the purpose of slaughtering as all the cattle are male which they transported from one place to another for meat purpose only. Further, the suspected four trucks loaded with 97 (ninety seven) nos. of cattle has been seized in presence of witness and brought to Simultapu OP for further necessary action. Hence, the case has been registered and investigated into.

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4. During investigation on 15.01.2021, as per secret information from source in connection with this case intercepted another truck bearing registration No.UP78CT-2073 carrying 30 (thirty) numbers of male cow illegally and arrested the accused person Md. Anowar Hussain and seized the said truck and cattle from his possession for taking necessary action as per law in connection with the case. Also during investigation on 19.01.2021, again as per secret information from source in connection with this case intercepted another container truck bearing registration No.WB91-3001 carrying 33 (thirty three) numbers of male cow illegally and arrested the below noted accused persons and seized the said truck and cattle from his possession for taking necessary action as per law in connection with the case.

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5. In continuation of investigation of this case again on 23.01.2021 secret information has been received from source that some trucks carrying cattle illegally are coming from West Bengal side towards Assam side and during Naka Checking at Simultapu NH31C one suspected truck bearing registration No.UP23T-9602 was given signal to stop but they violated the police signal with intention to kill police personnel and flee away but immediately chased and detained the said truck from a few distance and on checking the truck it was found that half portion of the truck was kept empty by making the partition in the middle of the truck with a view to conceal the cattle and to make the truck look like empty and in the

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another portion found 10(ten) numbers of male cow loaded in the truck illegally and arrested the below noted accused persons and seized the said truck and cattle from their possession for taking necessary action as per law in connection with the case.

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6. Again during investigation, I/O has arrested 17 accused persons who were carrying cattle illegally from one state to another for slaughtering purpose only was forwarded to Judicial custody and seized total seven numbers of trucks and seized total 170 (one hundred seventy) numbers of cattle.

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7. All three petitioners prayed for zimma of seized animals in connection with the cases which was rejected by the learned court of SDJM (M), Gossaigaon.

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8. The petitioner in Crl. Rev. Petition No.50/2021, Surat Jamal challenges the order dated 29.01.2021 whereby the learned Magistrate rejected the prayer of the petitioner for zimma of 20 cattle. In the same way, in Crl. Rev. Petition No.51/2021, petitioner Jahirul Islam Sheikh challenges the order dated 30.01.2021, passed by the learned SDJM (M), Gossaigaon whereby the prayer for custody of 20 cattle, made by the petitioner was rejected. In Crl. Rev. Petition No.78/2021, petitioner Delowar Hussain challenges the order dated 18.02.2021, passed by the learned Judicial Magistrate First Class at Gosaigaon whereby the prayer for custody of 30 cattle was rejected by the learned Magistrate.

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9. The petitioners Surat Jamal prayed for zimma of seized cattle 20 in numbers, Jahirul Islam Sk. prayed for seized 24 cattle and Dilwar Hussain prayed for 30 cattle claiming themselves to be the owner of the seized cattle. According to them, they purchased the said cattle from Panjipora Gohat located in Haskunda West Bengal and they have obtained valid challan and the cattle were also examined through Veterinary Surgeons but on the way to Guwahati police of Simultapu seized the vehicles carrying the cattle and has arrested the drivers and handymen of the vehicles. It is stated that none of them are the accused in the said cases but by the impugned orders, the learned court of SDJM Gossaigaon has rejected

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the zimma petition despite having valid challan for carrying the cattle. The learned trial court was of the view that petitioners have no NOC from the concerned authority for transporting of the cattle and it was suspected that those cattle were brought for the purpose of slaughtering but there is no material to show that the cattle were being transported for slaughtering purpose.

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10. According to the petitioners, the order of rejection by the learned Magistrate is perverse and arbitrary whereas they can be given interim custody of the cattle. It has been submitted that as per the provision Section 29 of the Prevention of Cruelty to Animals Act, 1960 one can be deprived of ownership of animal only on conviction to the offence and as per Section 29(4), a person who is found guilty cannot be convicted unless it is shown by evidence as to his previous conviction.

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11. It has been urged before the Court that the learned trial court already relied upon the provision of Rule-3 of the Prevention of Cruelty to Animals (Care and Maintenances of Case Property Animals) Rules 2017 (hereinafter called as Rules, 2017), which provides that the Magistrate may direct the animals to be housed at an infirmary, Pinjrapole, society for prevention of cruelty to animals (SPCA), Animal Welfare Organization or Gaushala during the pendency of the litigation. Upon conjoint reading of Rule-3 of 2017 Rules as well as Section 35 of the Act of 1960, it appears that it is the discretion of the Magistrate to give interim custody of the animal to Pinjrapole, SPC etc. and it is not mandatory. The Hon’ble Supreme Court in the case of Manager, Pinjrapole Deudar –vs- Chakram Moraji Nat & Ors. relying the provision of section 35 of the Act, 1960 held that the Magistrate has discretion to hand over interim custody of the animal to Pinjrapole but he is not bound to hand over custody of the animal to Pinjrapole in the event of not sending it to any infirmary. The Hon’ble Supreme Court further held that in a case where the owner is claiming the custody of animal, Pinjrapole has no preferential right. The Hon’ble Apex court has laid down certain factors which are crucial and decisive factors to deal with the matter of interim custody of the animal to the owner which are – (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

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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. Here, in the instant case, there is no record that the petitioners are either facing any other trial or had convicted earlier in any other case under this Act. Therefore, as per factor No.3, their animals are not liable to be seized.

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12. Further, it is submitted that this Hon’ble Court in Criminal Petition No.452/2020 (Dhyan Foundation –vs- the State of Assam) dealt with a matter where factual aspect of the matter was totally different. In that case, the seized cattle were initially given to the custody of Dhyan Foundation on the basis of a formal letter issued by the Deputy Commissioner. Subsequently, some of the cattle there from given custody to the person claiming ownership of the cattle without hearing the Dhyan Foundation. The said order was challenged in the aforesaid criminal petition. This Hon’ble Court while remanding the matter to the court below by providing an opportunity of hearing to Dhyan Foundation held that the Act and the Rules nowhere provides that seized animal can be released in favour of the owner. It is the humble submission of the petitioner that there can be no strait jacket formula in such matters where the Hon’ble Supreme Court has already laid down laws by relying the provisions of the parent Act of 1960 which are crucial and decisive factors. The Rules of 2017 has been framed in exercise of the power conferred U/S 38(1) & (2) of the Act, 1960. Moreover, there is no provision in the Act as well as in the Rules, 2017 that the seized animal cannot be given custody to the owner. In fact, Section 29 of the Act, 1960 provides that ownership of the animals can be forfeited to Govt. only after his conviction and that is also with the establishment of previous conviction with the same allegation under the Act. Therefore, there is no occasion to hold that the owner has no right to claim for custody of seized animals.

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13. The Hon’ble Supreme Court in the case of Bharat Amratlal Kothari –vs- Dosukhan Samadkhan Sindhi & Ors. reported in 2009 (4) RCR (Crl.) 939 in para 17 held that keeping the animals in the custody of Pinjrapole would serve no purpose and the custody of animal

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being sought by actual owner which is not disputed by the respondent and accordingly, custody was allowed to the owner.

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14. As against the Dhyan Foundation, it is submitted that the foundation has no locus to say in the instant revision petitions because neither the animals are in the custody of Dhyan Foundation nor they have ever prayed before court below for granting custody of the cattle. There is no records to show that the animal are in any manner in the custody of Dhyan Foundation and in fact, all the animal are in the custody of police which are kept in one private firm i.e. S.D. Livestock that is absolutely in the hands of police. They have not even filed any petition either before the court below or before this Hon’ble Court seeking custody of animal. In the impleadment petition by annexing one order dated 25.01.2021 of the learned court below, they had tried to misrepresent the fact that all the cattle seized in connection with Gossaigaon P.S. Case No.23/2021 has been given custody to the Dhyan Foundation and in fact, the said order was relating to some other animal which is very much evident in our impugned order dated 29.01.2021 by which some other cattle were given to their custody.

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15. It has been submitted by Mr. D. Das, learned counsel appearing for the respondent Dhyan Foundation that after rejecting the prayer for zimma vide it’s order dated 27.01.2021, the learned SDJM(M) has granted interim custody of all seized cattle in connection with Gossaigaon P.S. Case No.23/2021 to the respondent Dhyan Foundation by order dated 25.01.2021. Now, they are under proper care and custody of the said Dhyan Foundation and in that view of the matter, present revision petitions became infructuous.

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16. I have gone through the impugned orders under challenge. It is to be noted that the impugned order dated 29.01.2021 the learned court has obtained the report of the I/O wherein the I/O has reported that although the Surat Jamal is the owner of the 20 numbers of cattle a per challan, but it was transported illegally and the vehicle has no livestock permit, no NOC from the Directorate of Animal Husbandry and it was brought for slaughtering purpose. The learned court was of considered view that the 20 numbers of cattle were

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carried in the vehicle violating the rule of 56(c) of Transport of Animals Rules which provides that the goods vehicle should not carry more than 6 cattle. Taking note of all the facts that there was no NOC, no proper medical certificates, and further violation of Rule 3 of 2017 Rules and considering all above violation of the provision of the Act and the Rules, the learned court rejected the zimma prayer and directed to hand over the cattle to the Government animal pound with further direction that the petitioner will bear the expenses of the seized cattle keeping in the Government pound.

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17. In case of Jahirul Islam Sk. similar report was filed by the I/O about non-compliance of Transport Rules, non-having of livestock permit, NOC with a similar observation and finding but court directed to handover the seized cattle to Srirampur Government pound with a direction that the petitioner will bear the expanses of the cattle kept in the pound and he will also furnish a bond in this regard.

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18. In case of Dilwar Hussain also exactly similar report was submitted about violation of Transport Rules, livestock permit, NOC and violation of Rule 3 of Prevention of Cruelty to Animals Rules, the court was of the opinion that 30 numbers of cattle were loaded in a truck in violation of the Transport Rules, that too without proper certificate from qualified Veterinary Surgeon, the court has rejected the zimma prayer and directed the seized animal to be kept in SD Livestock with further direction to the petitioner being owner of the seized cattle to bear the cost.

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19. Although in all the petitions the ownership of the seized cattle were not disputed by the I/O in view of having challan but unlike any other cases matter of disposal, in an offence under Section 11 of the Prevention of Cruelty to Animal, Act 1960 is to be decided altogether on different pretext. There is no denial that in any other offences owner of the article is entitled to get the same on being satisfied about the ownership by way of adducing relevant documents.

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20. So far as the prevention of Cruelty to Animal Act, 1960, which being a special Act has been enacted to prevent the infliction of unnecessary of 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; 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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21. In view of the aforesaid provisions, an owner shall also be liable for commission of an offence if he did not take proper care and supervision of such animals. That being so, one cannot claim the possession of the animals only as owner of the same unless it is proved that he has taken due reasonable care. In the instant case, as has been found 20/24/35 numbers of cattle were carried in one truck, in violation of Transport of Animals Rules, 1978.

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22. Even going by the principles in the Pinjrapole (supra), relied by the petitioner, it is seen that the petitioner cannot avail the benefit of the same as the authority has observed that the owner will have a claim over the custody of animals if the animals are not liable to be seized and the conditions of the animals at the time of inspection is well maintained. Whereas, in the present case, apart from claiming ownership of the animals, it is not disclosed by the petitioner that proper care was taken at the time of transportation of such animals, as mandated under the law and rules.

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23. 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 certificate has been furnished from the qualified Veterinary Surgeon as per Rule 47(a) of the Transport of Animals Rules, 1978. As per Section 47(b), such certificate is required to be issued by the doctor at the loading point (in the present case West Bengal) whereas it was issued by a Retd. Veterinary Doctor of Assam (at the end point).

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24. Section 3 of the Prevention of Cruelty to Animals Act, 1960, provides that it shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infection upon such animal of unnecessary pain or suffering. Further, Section 35 of the Act provides that for proper care and treatment of animals- in respect of which offences under this Act have been committed, such animal can be kept in pinjrapole/Government Pond, etc. with a direction that the cost of transporting and maintaining shall be payable by the owner of the animal.

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25. 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. The petitioner being bound by the said direction, has nowhere pleaded that such transportation was made as per the above rules rather petitioner is totally silent as to the compliance of all above.

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26. In view of the matters on record, as well as the legal proposition discussed above, this Court is of the opinion that the learned trial court has rightly appreciated the matter in proper perspective of law while rejecting the zimma prayer of the petitioner and giving same to third party/ respondent no.2 with direction to the owner/petitioner to bear the cost, failing which forfeiture of the seized cattle. There being no illegality and irregularity in the impugned orders, no interference is called for and resultantly all the revision petitions stand dismissed with a direction to the learned trial court to expedite the matter of trial as early as possible as the well-being of large number of animals is in question.

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Return the Case diary.

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JUDGE

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Comparing Assistant

Delowar Hussain v. the State of Assam and Anr.

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Delowar Hussain v. the State of Assam and Anr.

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