Allowed

Alfaruqure Faraji @ Alfaruk Foraji v. the State of Assam and Anr.

Gauhati HC17 Aug 2022Crl.Rev.P./321/2022

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a criminal revision petition challenging an order dismissing a custody plea for seized cattle. It held that the lower court failed to record satisfaction under Section 11(5) of the Assam Cattle Preservation Act and granted interim custody to the owner with conditions to prevent cruelty.

What did the court decide?

The seized cattle were released in interim custody of the petitioner pending trial, subject to conditions regarding care, bonding, and maintenance procedures.

Alfaruqure Faraji @ Alfaruk Foraji Vs the State of Assam… — Property and Title | Gauhati HC (2022)

¶1

Page No.# 1/10

¶2

GAHC010125692022

¶3

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

¶4

Case No. : Crl.Rev.P./321/2022

¶5

ALFARUQURE FARAJI @ ALFARUK FORAJI S/O- AHMOD ALI, PERMANENT RESIDENT OF VILL.- NANGOLDUWA, P.O. SAIDHORIA, P.S. RUPAHIHAT, DIST. NAGAON, ASSAM, PIN- 782125 AND PRESENTLY RESIDING AT VILL. GEREUA, P.S. CHILAPATHAR, DIST. DHEMAJI, ASSAM

¶6

VERSUS

¶7

THE STATE OF ASSAM AND ANR REPRESENTED BY THE P.P., ASSAM

¶8

2:TRINAYAN GAUSHALA SITUATED AT FOREST GATE CHARIDUAR DIST. SONITPUR ASSAM PIN- 784103 REPRESENTED BY ITS SECRETARY NAMELY SRI NILAN THAPA

¶9

Advocate for the Petitioner : MR. R ALI

¶10

Advocate for the Respondent : PP, ASSAM

¶11

Page No.# 2/10

¶12

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

¶13

Date of hearing : 25.07.2022

¶14

Date of Verdict : 17.08.2022

¶15

VERDICT (CAV)

¶16

Heard Mr. R. L. Chutia, learned counsel for the petitioner and also heard Mr. P. Borthakur, learned Additional P.P. for the State respondents.

¶17

2. In this petition, under Sections 397/401 read with Section 482 Cr.P.C., the petitioner has challenged the legality, propriety and correctness of the order, dated 13.06.2022, so passed by the learned JMFC, Biswanath Chariali in petition No. 476/2022 in connection with Sootea P.S. Case No. 35/2022. It is to be noted here that vide impugned order, the learned Court below has dismissed the petition filed by the petitioner seeking custody of 22 Nos. of cattle, which were seized in connection with the aforementioned case.

¶18

3. The factual background, leading to filing of the present petition, is briefly stated as under:-

¶19

“On 23.04.2022, S.I. Shyamal Jyoti Saikia lodged one F.I.R. to the Officer-

¶20

Page No.# 3/10

¶21

In-Charge, Sootea P.S., to the effect that on 22.04.2022, at about 11.30 P.M., one Truck bearing Registration No. AS-01-LC-1486 was apprehended with 2 persons namely, Md. Abu Alom & Md. Ashiqul Rahman, while they were carrying 21 Nos. of cattle illegally from Silapathar towards Nagaon District. And they failed to produce valid documents of the said cattle and as such, it is suspected that the bullocks were stolen and carried illegally and they also could not show any permit for transporting the cattle. Also, it is stated that one cattle was found dead inside the Truck and the cattle were carried in cruel manner in the vehicle without sufficient space. Upon the said F.I.R., Sootea P.S. Case No. 35/22, under Section 379/411/429/34 IPC, read with Section 13(1) of Assam Cattle Preservation Act, 2021, read with Section 11(1)(d) of the Prevention of Cruelty to Animals Act, 1960 was registered and S.I. Bhaskar Jyoti Saikia was endorsed to investigate the same. During investigation, the I/O has seized 21 Nos. of bullock and also seized cash, Rs. 31,580/-. Thereafter, the I/O has arrested Md. Abu Alom & Md. Ashiqul Rahman and forwarded them to the Court and seized the cattle, preparing seizure-list and handed over the cattle to Trinayan Goushala on 24.04.2022, for maintenance, the I.O. also seized the Truck, bearing Registration No. AS-01-LC-1486. Thereafter, the petitioner preferred one petition, being petition No. 476/22 before the Court of learned JMFC, Biswanath Chariali and then after hearing both the parties, the learned Court below vide impugned order 13.06.2022, has dismissed the petition”.

¶22

4. Being aggrieved, the petitioner approached this Court by filing the present petition on the grounds that:-

¶23

Page No.# 4/10

¶24

(i) The learned Court below erred in law and also in fact by rejecting the petition No. 476/22 vide impugned order dated 13.06.2022, without applying its judicial mind and also without taking into consideration that the petitioner is the absolute owner of the said cattle.

¶25

(ii) That the Court below has dismissed the petition by quoting Section 11(5) of the Cattle Preservation Act, 2021, stating that “when the aforesaid Section specifically provides that cattle seized cannot be released, the zimma petition cannot be allowed, and thereafter rejected the same.

¶26

(iii) And that, in the said Section the word “MAY” is used and as such, the learned Court below has failed to appreciate the aforesaid provision of law in its proper perspective.

¶27

(iv) And that, Section 7(6)(i) & (ii) of the Act, provides no permission shall be required for carrying cattle to grazing field or for agricultural or animal husbandry purposes within the State and to and from registered Animal Market for the purpose of sale and purchase of such cattle within the State cattle shall not be transported in a district without valid permit which shares international border with any foreign country. In this present case neither Dhemaji district nor Nagaon district share international border with any foreign country. And as such, the impugned order

¶28

Page No.# 5/10

¶29

is bad in law.

¶30

(v) And that, in view of the order of Hon’ble Supreme Court in the case of Manager, Pinjorapole Deudar and Anr. Vs Chakram Moraji Nat & Ors., (1998) 6 SCC 520, the impugned order is bad in law.

¶31

(vi) And that, the Court below has failed to consider the provision of the Assam Cattle Preservation Act, 2021 especially, the Section 7 (3) of the said Act.

¶32

(vii) And that, the learned Court below has failed to appreciate the fact that handing over of the animals to Pinjrapole/Goushala, would also result in unnecessarily burdening the owner to pay an amount of Rs. 200/- per day/per cattle and depriving the owner of the custody over these animals would tantamount to violation of Section 29 of the Prevention of Cruelty to Animals Act, 1960.

¶33

(viii) And that, the Assam Cattle Preservation Act, 2021 enacted to prevent the illegal slaughter of cattle(s) which is almost similar to the ‘Karnataka Prevention of Slaughter and Preservation of Cattle Act, 2020’. And, Karnataka High Court vide order dated 16.02.2022, in Criminal Petition No. 100024/2022 has reiterated that while the owner is claiming the custody of the animal, the Pinjrapole has no preferential right and accordingly, allowed the custody of the seized cattle(s) to its owner.

¶34

Page No.# 6/10

¶35

(ix) And that, the sections under which, the case has been registered is not attracted here in this case. Therefore, it is contended to allow the petition.

¶36

5. Mr. Chutia, learned counsel for the petitioner, submits that the impugned order passed by the learned JMFC, Biswanath Chariali, while rejecting the petition of the petitioner suffers from manifest illegality and impropriety and the same is not sustainable in law and therefore, it is contended to allow the petition.

¶37

5.1. Mr. Chutia, further submits that in the case Criminal Revision Petition No. 124/2021, this Court, vide judgment and order dated 24.06.2022, was pleased to grant interim custody of the seized cattle(s) to the petitioner of that case pending trial, imposing some conditions and the case of the present petitioner is also squarely covered by the aforesaid judgment and order, and therefore, it is contended to grant similar relief.

¶38

6. On the other hand, Mr. P. Borthakur, learned Additional P.P., for the State respondent submits that here the ownership of the petitioner is not disputed, but, in view of the provision of Assam Cattle Preservation Act, and in view of the provision of Prevention of Cruelty to Animals Act, the seized cattle(s) cannot be released in favor of the petitioner till disposal of the case.

¶39

7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and

¶40

Page No.# 7/10

¶41

also perused the impugned order, dated 13.06.2022, passed by the JMFC, Biswanath Chariali. Also, gone through the case law referred by Mr. Chutia, learned counsel for the petitioner.

¶42

8. It is to be noted here that the petitioner is the owner of the seized cattle(s) and this fact is not disputed by the respondent side. Despite, the learned Court below has dismissed the petition on the ground that Section 11(5) of Assam Cattle Prevention Act provides that “the cattle cannot be released in zimma of the petitioner”. A perusal of the aforesaid Section reveals that “On receipt of the report, the Judicial Magistrate 1^st Class may, on his being satisfied that there is enough material to presume that a prima-facie offence under this Act has been committed, release the seized materials including vehicle/conveyance except cattle on furnishing of a bank guarantee, equal to the value of the material or vehicle/conveyance, to the satisfaction of the Court, pending disposal of the criminal proceedings instituted in respect of the alleged offence”.

¶43

9. Mr. R. L. Chutia, learned counsel for the petitioner submits that the word “ MAY” used in the aforesaid Section is not mandatory and discretion is left with the learned Court below, but, the learned Court below has failed to consider the same.

¶44

10. Having considered the submission of learned counsel for the petitioner, in the light of the facts and circumstances in the record, I find sufficient force in his submission.

¶45

Page No.# 8/10

¶46

11. A cursory perusal of the aforesaid Section reveals that the learned Court below has failed to record its satisfaction that there is enough material to presume that a prima-facie offence under the Assam Cattle Preservation Act, 2021, has been committed or intended to be committed. The case was registered under Sections 379/411/429/34 of the Indian Penal Code read with Section 13(1) of the Cattle Preservation Act and 11 (1) (d) of the Prevention of Cruelty to animal Act. To attract Section 13(1) of the Assam Cattle Preservation Act, one has to contravene the provision of Sections 4, 5, 6, 7 & 8. A bare perusal of the impugned order reveals that no such satisfaction is recorded by the learned Court below. Without recording such satisfaction, it cannot be said that the impugned order so passed by the learned Court below, withstand the test of legality, propriety and correctness. This Court in Criminal Revision Petition No. 124/2021, vide Judgment and order dated 24.06.2022 has directed to release the seized cattle(s) in the interim custody of the petitioner pending trial, imposing some conditions on the basis of judgment of Hon’ble Supreme Court in Manager, Pinjorapole Deudar(Supra), and I find that the present case is squarely covered by the aforesaid judgment and order, and as such, the petitioner is entitled to similar relief granted to the petitioner of the aforesaid case.

¶47

12. Accordingly, it is provided that the seized cattle(s) shall be released in the interim custody of the petitioner pending trial, on the following terms and conditions that:-

¶48

(i) They shall not be subjected to any cruelty.

¶49

Page No.# 9/10

¶50

(ii) They shall be produced before the learned trial Court as and when directed.

¶51

(iii) They shall be maintained and taken care of in the same condition in which he received them.

¶52

(iv) They shall not be sold or handed over to anyone else.

¶53

(v) The petitioner shall execute a bond of Rs.2 lac, before the learned trial Court.

¶54

(vi) The petitioner shall appraise the learned trial Court as to the place where they shall be kept and maintained.

¶55

(vii) In case of death of any cattle, the petitioner shall inform the learned trial Court about the same without delay.

¶56

(viii) Health inspection and identification and ear tagging of the cattle, if not done earlier as per Rule 3(a) of the Preservation of Cruelty to Animal (Care and Maintenance of Case property Animal) Rules 2017, has to be done before releasing them in custody of the petitioner.

¶57

(ix) The petitioner shall clear all dues, which the respondent No. 5 is legally entitled to for maintaining them till the date of release from the date of giving custody to it.

¶58

Page No.# 10/10

¶59

13. In view of the issues raised in this petition, I deem it proper and also appropriate to direct the learned trial Court to make endeavor to dispose of the case within a reasonable period, if in the meantime Charge-sheet is submitted.

¶60

14. In terms of above, this criminal revision petition stands disposed of. The parties have to bear their own costs.

¶61

15. The Case Diary be returned.

¶62

JUDGE

¶63

Comparing Assistant

Alfaruqure Faraji @ Alfaruk Foraji v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Alfaruqure Faraji @ Alfaruk Foraji v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rakesh Dudharia Vs the State of Assam

Latho Sonowal Vs the State of Arunachal Pradesh

Sahid Ahmed Vs the State of Assam

Himanish Chakraborty Vs the State of Assam and Anr.

Saddam Hussain Vs the State of Assam and 3 Ors.

Mukul Chandra Das and Anr. Vs Smti Gita Devi and Anr.