SHRI CHATRAPATI SHIVAJI GAUSHALA versus STATE OF MAHARASHTRA AND OTHERS on 30 September 2022

Conclusion

JUDGMENT

1. Leave granted.

2. This appeal arises from a judgment and order dated 17 October2019 of a Single Judge of the Aurangabad Bench of the High Court ofJudicature at Bombay.

A

B

C

D

E

F

G

H

A3. On 17 March 2019, a truck was intercepted and was found tobe transporting eighteen heads of cattle – fifteen bullocks and threebuffaloes. The eighth respondent was driving the truck and was unableto provide a satisfactory explanation about the relevant permits. Thetruck was taken to the police station and the cattle were seized. FIR No.59 of 2019 was registered at Parbhani Rural Police Station on 17 MarchB2019 for offences punishable under Section 5A of the Maharashtra AnimalPreservation (Amendment) Act 1995[1] and Section 6 of the MaharashtraAnimal Preservation Act 1976[2], Section 11(1)(d) of the Prevention ofCruelty to Animals Act 1960[3], Section 117 of the Motor Vehicles Act1988 and other allied provisions.C

A

4. The second to eighth respondents claim to be owners of theseized cattle. The appellant is a gaushala engaged in the welfare,preservation, and protection of animals in Parbhani, Maharashtra. Anapplication dated 20 March 2019 was filed before the Judicial MagistrateFirst Class, Parbhani[4] by the second to eighth respondents under SectionsD451 and 457 of the Code of Criminal Procedure 1973 seeking interimcustody of the cattle on the ground that they were the owners of thecattle. Thereafter, the appellant also filed an application on 22 March2019 for interim custody of the cattle till the conclusion of the trial underthe proviso to Section 8(b) of the Maharashtra Act and Rules 3, 4, and 5of the Prevention of Cruelty to Animals (Care and Maintenance of CaseEProperty Animals) Rules, 2017.

5. By an order dated 1 April 2019, the JMFC allowed the applicationfiled by the appellant. The JMFC rejected the application by the privaterespondents, noting that they did not have proper permits for carryingthe cattle in the truck at the relevant time. The JMFC observed that theFcattle will be safe in the custody of the appellant. In addition, the privaterespondents were directed to pay an amount of Rs. 100/- per head ofcattle per day towards maintenance and treatment of cattle to theappellant.

6. The Additional Sessions Judge-3, Parbhani allowed the revisionGpreferred by the private respondents on 24 April 2019 and held that theywere entitled to the custody of the seized animals, subject to the execution 1 Amendment Act 1995 (brought into force on 4 March 2015)2 “Maharashtra Act”3 “PCA Act”H4 “JMFC”

of an indemnity bond for the preservation of the cattle. The SessionsJudge noted that being the owners, the private respondents had apreferential right to get interim custody of the seized cattle. The SessionsJudge allowed the revision noting that the trial court failed to take noticeof Section 457 of the CrPC,.

7. The order of the Sessions Judge was questioned in a writ petitionunder Article 227 of the Constitution of India by the appellant. The HighCourt by its impugned judgment dated 17 October 2019 dismissed thepetition. The High Court upheld the order of the Sessions Judge grantingcustody to the private respondents by relying on a decision of this Courtin Manager, Pinjrapole Deudar and Another v. Chakram MorajiNat and Others[5]. The High Court noted that prima facie, the materialon the record indicated that the cattle were being subjected to cruelconditions for transportation since as many as eighteen cattle were loadedinto one truck. In this context, the High Court held:

“16. Bearing in mind these principles, if one examines the matterin hand, the only material before the Magistrate which would primafacie show that the cattle was being treated cruelly is the factthat as many as eighteen cattle i.e. fifteen bullocks and threebuffaloes were being transported in one vehicle. As has beenpointed out by the learned advocate for the petitioner, the Transportof Animals Rules, 1978 framed pursuant to enabling provisioncontained in section 38 of Prevention of cruelty to Animals Act,1960 clearly lay down various elaborate provisions laying downspecification for transportation of animals. Chapter IV lays downprovisions in Rules 47 to 56 for transaction of cattle. Rule 56 laysdown that when cattle are to be transported by a goods vehiclethe vehicle should have a special type of tail board and paddingaround the sides, it should provide anti sleeping material and nogoods vehicle carry more than six cattle. In the matter in hand, asmany as eighteen cattle were being transported in one vehicleand such transportation was clearly violative of this rule andconstitutes cruelty.”

8. Nonetheless, the High Court held that there was no material toindicate that the cattle were physically harmed or that they were placedin danger or were being starved. The High Court noted that there was A

B

C

D

E

F

G

Ano apprehension that if they were returned to their owners, the cattlewould face similar cruelty since the accused had prior criminalantecedents. Relying on the decision of this Court, noted above, theHigh Court held that the Magistrate while dealing with an application forinterim custody of the animals ought to have regard to the circumstanceswhich have been spelt out in the judgment of this Court in Manager,BPinjrapole Deudar and Another (supra). The High Court further heldthat the decision of the JMFC to grant interim custody to the appellanton the basis of the Section 8(3) of the Maharashtra Act without takinginto consideration the relevant circumstances was clearly perverse andarbitrary. Hence, on these grounds, the order of the Sessions Court inCrevision was not interfered with by the High Court in the exercise of thewrit jurisdiction.

9. We have heard Dr Manish Singhvi, senior counsel appearingon behalf of the appellant and Mr Sachin Patil, counsel for the State ofMaharashtra.D10. Notice was issued to the private respondents. The office reportindicates that they are served, but have not entered appearance.

11. The Maharashtra Act received the assent of the President on16 February 1977 and was published in the Maharashtra GovernmentGazette on 1 March 1977. The enactment was amended by an AmendingEAct of 1995, which received the assent of the President nearly twodecades thereafter on 26 February 2015 and was published in theMaharashtra Government Gazette on 4 March 2015.

12. Section 8 of the Maharashtra Act contains provisions for entry,search, seizure, and custody. The said provision is extracted below:F

“Power of entry, search, seizure and custody.— (1) For thepurposes of this Act, the competent authority or any personauthorised in writing in that behalf by the competent authority(hereinafter in this section referred to as “the authorised person”)shall have power to enter and inspect any place where theGcompetent authority or the authorised person has reason to believethat an offence under this Act has been, or is likely to be, committed.

(2) Every person in occupation of any such place shall allow thecompetent authority or authorised person such access to that placeas may be necessary for the aforesaid purpose and shall answer H

to the best of his knowledge and belief any question put to him bythe competent authority or the authorised person.

(3) Any Police Officer not below the rank of Sub-Inspector orany person authorised in this behalf by the State Government,may, with a view to securing compliance of the provisions ofSections 5-A, 5-B, 5-C or 5-D, for satisfying himself that theprovisions of the said sections have been complied with may,—

(a) enter, stop and search, or authorise any person to enter, stopand search any vehicle used or intended to be used for the exportof cow, bull or bullock; (b) seize or authorise the seizure of cow, bull or bullock in respectof which he suspects that any provision of Sections 5-A, 5-B, 5-Cor 5-D has been, is being or is about to be contravened, along withthe vehicles in which such cow, bull or bullock are found andthere after take or authorise the taking of all measures necessaryfor securing the production of such cow, bull or bullock and thevehicles so seized, in a court and for their safe custody pendingsuch production:

Provided that pending trial, seized cow, bull or bullock shall behanded over to the nearest Gosadan, Goshala, Panjrapole, HinsaNivaran Sangh or such other Animal Welfare Organizations willingto accept such custody and the accused shall be liable to pay fortheir maintenance for the period they remain in custody with anyof the said institutions or organizations as per the orders of thecourt.

(4) The provisions of Section 100 of the Code of CriminalProcedure, 1973 (2 of 1974) relating to search and seizure shall,so far as may be, apply to searches and seizures under this section.

(emphasis supplied)

13. Section 8(3) empowers a police officer not below the rankof Sub-Inspector or a duly authorized person to inter alia seize a cow,bull, or bullock in respect of which he suspects that the provisions ofSections 5A, 5B, 5C, or 5D are being or are about to be contravened.The provision also authorizes the seizure of the vehicle in which thecattle are being transported. Section 5A of the Maharashtra Act is inthe following terms:

AB

C

D

E

F

G

H

A“5-A. Prohibition on transport and export of cow, bull orbullock for slaughter.— (1) No person shall transport or offerfor transport or cause to be transported cow, bull or bullock fromany place within the State to any place outside the State for thepurpose of its slaughter in contravention of the provisions of thisAct or with the knowledge that it will be or is likely to be, soBslaughtered.

A

(2) No person shall export or cause to be exported outside theState of Maharashtra cow, bull or bullock for the purpose ofslaughter either directly or through his agent or servant or anyother person acting on his behalf, in contravention of the provisionsCof this Act or with the knowledge that it will be or is likely to beslaughtered.”

14. The proviso to Section 8(3) of the Maharashtra Act was insertedby the Amending Act of 1995. The proviso stipulates that pending trial,the seized cow, bull or bullock shall be handed over to the nearestDgosadan, goshala, pinjrapole, hinsa nivaran sangh or such otheranimal welfare organizations willing to accept such custody and theaccused would be liable to pay for their maintenance for the periodwhen they remain in custody. The appellants have invoked the provisoto Section 8(3) for claiming custody of the cattle.

E

15. Though the High Court noticed the provisions of Section 8(3)as amended, it has relied upon the decision of this Court in Manager,Pinjrapole Deudar and Another (supra). Now that case relates to thepower conferred by Section 35 of the PCA Act. Section 35(2) of thesaid enactment is in the following terms:

F

“35. Treatment and care of animals: ***

(2) The Magistrate before whom a prosecution for an offenceagainst this Act has been instituted may direct that the animalconcerned shall be treated and cared for in an infirmary, until it isfit to perform its usual work or is otherwise fit for discharge, orthat it shall be sent to a pinjrapole, or, if the veterinary officer incharge of the area in which the animal is found or such otherveterinary officer as may be authorised in this behalf by rulesmade under this Act certifies that it is incurable or cannot beremoved without cruelty, that it shall be destroyed.”

G

H

16. While interpreting the above provision, this Court in Manager,Pinjrapole Deudar and Another (supra) noted that:

“8. *** Under sub-section (2), the Magistrate may order that:

(a) the animal shall be treated and cared for in an infirmary tillsuch time it is fit to perform its usual work or is otherwise fit fordischarge; (b) the animal shall be sent to a pinjrapole; or

(c) the animal shall be destroyed if it is certified by a VeterinaryOfficer, authorised under the Rules, to be incurable or if it is foundthat it cannot be removed without cruelty.”

17. It was in this backdrop that this Court in Manager, PinjrapoleDeudar and Another (supra) held that the Section 35(2) vests in theJMFC a discretion to give interim custody of the animals to a pinjrapole.This Court observed:

“10. Now adverting to the contention that under Section 35(2), inthe event of the animal not being sent to an infirmary, the Magistrateis bound to give the interim custody to a pinjrapole, we find itdifficult to accede to it. We have noted above the options availableto the Magistrate under Section 35(2). That sub-section vests inthe Magistrate the discretion to give interim custody of the animalto a pinjrapole. The material part of the sub-section (shorn ofother details) will read, the Magistrate may direct that the animalconcerned shall be sent to a pinjrapole. Sub-section (2) does notsay that the Magistrate shall send the animals to a pinjrapole. It isthus evident that the expression “shall be sent” is a part of thedirection to be given by the Magistrate if in his discretion he decidesto give interim custody to a pinjrapole. It follows that under Section35(2) of the Act, the Magistrate has discretion to hand over interimcustody of the animal to a pinjrapole but he is not bound to handover custody of the animal to a pinjrapole in the event of notsending it to an infirmary. In a case where the owner is claimingthe custody of the animal, the pinjrapole has no preferential right.In deciding whether the interim custody of the animal be given tothe owner who is facing prosecution, or to the pinjrapole, thefollowing factors will be relevant:

A

B

C

D

E

F

G

H

1138

A(1) the nature and gravity of the offence alleged against the owner;

(2) whether it is the first offence alleged or he has been foundguilty of offences under the Act earlier;

(3) if the owner is facing the first prosecution under the Act, theanimal is not liable to be seized, so the owner will have a betterBclaim for the custody of the animal during the prosecution;

(4) the condition in which the animal was found at the time ofinspection and seizure;

(5) the possibility of the animal being again subjected to cruelty.

C

There cannot be any doubt that establishment of the pinjrapole iswith the laudable object of preventing unnecessary pain or sufferingto animals and providing protection to them and birds. But it shouldalso be seen:

D(a) whether the pinjrapole is functioning as an independentorganization or under the scheme of the Board and is answerableto the Board; and

(b) whether the pinjrapole has a good record of taking care of theanimals given under its custody.”

E

18. The above observations of this Court interpret Section 35(2)of the PCA Act. As the court noted, the said provision does not containa mandate that the Magistrate shall send the animal to a pinjrapole.Under that provision, the Magistrate has a discretion to hand over interimcustody of the animal to a pinjrapole, but is not bound to do so.F

19. In the present case, the High Court upon evaluating thecircumstances in which the cattle were being transported arrived at aprima facie conclusion that as many as eighteen cattle were beingtransported in one vehicle. The High Court has also noted that thisconstituted cruelty as it violated Rule 56 of the Transport of AnimalGRules 1978 framed in accordance with the enabling provisions of Section38 of the PCA Act. The amended provisions of the Maharashtra Acthave received the assent of the President.

20. The intention of the legislature in incorporating the proviso toSection 8(3) was to give effect to the object of the Maharashtra Act toHpreserve and protect cows, bulls, and bullocks useful for milch, breeding, SHRI CHATRAPATI SHIVAJI GAUSHALA v. STATE OFMAHARASHTRA AND OTHERS

draught, or agricultural purposes. The proviso to Section 8(3) of theMaharashtra Act provides for handing over of the seized cow, bull, orbullock to the nearest gosadan, goshala, pinjrapole, hinsa nivaran sanghor such other animal welfare organization willing to accept such custody.In the present case, the appellant was willing and ready to accept custodyof the seized cattle. In light of the prima facie observation that the privaterespondents were in violation of the Transport of Animal Rules 1978, itwas incumbent upon the High Court to ensure that the seized cattlewould be properly preserved and maintained until the conclusion of thetrial proceedings.

21. The appellant has shown its willingness to accept the interimcustody of the cattle. In view of the fact that private respondents wereprima facie carrying the cattle in cruel conditions without a valid permit,the JMFC rightly concluded that the cattle would be safe in the custodyof the appellant instead of the private respondents. In view of the abovefindings, the ultimate direction which was issued by the High Court wascontrary to the proviso to Section 8(3) of the Maharashtra Act and wouldhave to be set aside, while restoring the order of the JMFC. We orderaccordingly.

22. The Court has been apprised of the fact that since the seizureof the cattle in February 2019, two of the cattle have died, leaving sixteencattle in the balance, with the appellant. In such matters, it is necessarythat the trial for offences punishable under the Maharashtra Act musttake place expeditiously and that it should be concluded preferably withina period of six months. This would ensure that the animals do not continueto remain in custody under the provisions of the proviso to Section 8(3)of the Maharashtra Act for an indefinite period. We issue a direction inthose terms.

23. In an order of a two-Judge Bench of this Court dated 25January 2022 in Jagatguru Sant Tukaram Goshala v. The State ofMaharashtra and Another[6], the Court noted a factual situation in whichthe cattle which were seized on 24 July 2012, continued to remain undercustody for a decade and would have broadly outlived their commercialutility. In the present case, as noted above, two of the cattle have died.This leads to the conclusion that trials for offences punishable under theMaharashtra Act must be concluded expeditiously. The courts concerned

6 Criminal Appeal No. 132 of 2022

AB

C

D

EF

G

H

Ashall take all necessary steps to conclude the trials within a period of sixmonths so as to bring finality.

24. The appeal is allowed in the above terms. The impugnedjudgment and order of the High Court dated 17 October 2019 is set-aside. The order of the JMFC dated 1 April 2019 stands restored.BHowever, the appellants have stated before this Court that they will notinsist on claiming any compensation for the maintenance of the animals pending the trial. Since a substantial period has already elapsed, theJMFC shall conclude the trial within three months.

25. Pending applications, if any, stand disposed of.

C

Devika Gujral

Appeal allowed.

(Assisted by : Preetam Bharti, LCRA)

D

E

F

G

H