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1987 Supreme(Bom) 314
IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari Acg. C.J. V.P. Tipnis, J.
Krushi Goseva Sangh another... Petitioners.
Versus
State of Maharashtra others... Respondents.
Criminal Writ Petition No. 373 of 1987, decided on 23-9-1987.
Advocates appeared :
M.B. Mor with Kamalkishore Tated, for petitioners.
A.R. Shaikh, for Intervenors.
Mrs. Manuja Rao, P.P., for respondents.
Headnote:Article 226-Writ of mandamus-The direct Maharashtra State to frame scheme for effective Implementation of Maharashtra Animal Preservation Act, 1976-Reason-Aoimai power is dominant aspect of countrys cattle wealth Cattle is not libility, but at an asset-Provision similar to Section 11 (d) & (e) of Prevention of cruelty to Animals Act could be made in Maharashtra Animal Preservation Act also to make It more efreetive so achieve object of Legislation.
Held, Minimum State Government is expected to do is to appoint committee to look into matter and also to suggest ways and means to implement Act and also necessary amendments to Act if necessary.
MAHARASHTRA ANIMAL PRESERVATION ACT, 1976
Section 5-Code of Criminal Procedure, 1973, Section 451-Preservation of protection of the cash or schedule animals -Suggested that for effective implementation of the Act, and avoiding, its evasion a total ban should be imposed on the slaughter of progeny of the cow itself.
It is no doubt true that no provision is made in the Act about the custody and disposal of the property pending the trial. However, as rightly contended by the respondents recourse could be taken to Section 451 of the Criminal Procedure Code for seeking a direction from the competent Court of law for the custody and disposal of the property pending trial. The competent Court is expected to pass an order which will be in tune with the object of the Legislation. An order cannot be passed which will defeat the Very object of the Act. The order should be for preservation and protection of the cow or schedule animals and not for slaughter or destruction. Its by now well settled that what is directly forbidden cannot be indirectly permitted.
It is regretted note that the state government has not chosen to file any affidavit in reply. It seems that the Government is of the view that its responsibility is over by merely enacting the law, though it is alleged before us by the petitioners that the act is being implemented in its breach only. If the State is really serious about the implementation of the Act. The Prevention of Cruelty to Animals Act, 1960 has laid down enough guidelines including presumption as guilt, power of the Court to deprive a person convicted of ownership of the animal, right to the custody of the animal, and treatment and care of the animals etc. Therefore, apart from the provisions of the Criminal Procedure Code and particularly Section 451 thereof, a specific provision as to maintenance of the cattle, burden of proof etc., could be incorporated by introducing necessary amendments. A provision could also be made for the completion of the trial within a specified time; such a speedy trial will be in the interest of both i.e., prosecution as well as the accused. It is also suggested by the petitioners that for the effective implementation of the Act, and avoiding, its evasion a total ban should be imposed on the slaughter of property of cow itself. It is suggested that all these decisions deserves serious consideration.
Sections 6 and 10-Preservation and protection of schedule animals - Where cattle seized being the object of crime and deserves to be preserved and protected, that animal can safely be held to be the property regarding which offence is committed.
By Section 6 restrictions on slaughter of schedule animals are imposed. The offence punishable under the Act is declared as cognizable by the Section 10 of the Act. Therefore, it will not be correct to say that the police have no power to seize the cattle, even if it is found that the crime is committed under the Act, and the cattle seized is the object of the crime; and deserves to be preserved and protected. Such an animal can safely be held to be the property regarding which offence is committed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
What is the mandate of mandamus under Article 226 in requiring the State of Maharashtra to frame a scheme for the effective implementation of the Maharashtra Animal Preservation Act, 1976?
What is the appropriate legal framework and remedies for preservation, custody, and disposal of cattle or schedule animals pending trial under the Maharashtra Animal Preservation Act, 1976, including the use of Section 451 CrPC?
What amendments or additional provisions could enhance the efficacy of the Maharashtra Animal Preservation Act, 1976 (e.g., banning slaughter of progeny, licensing requirements, and maintenance/detention guidelines) to prevent evasion and ensure speedy trials?
2. It is the case of the petitioners that at Malegaon and several other places in Nasik District, flagrant breaches of the provisions of sections 6 and 7 of the Maharashtra Animal Preservation Act, 1976 are being committed and no action is being taken by the authorities concerned, thereby making the very provision of the Act nugatory. On the other hand it is the case of the Intervenors that bona fide traders who deal in the business of sale and purchase of cattle at Malegaon and other places are being put to harassment merely on suspicion, thereby depriving them of their fundamental right to carry on trade or business guaranteed by Article 19 of the Constitution of India. According to them on the basis of mere suspicion they are arrested, chattels are seized and prosecutions are launched. Unfortunately the State Government of Maharashtra has not chosen to file any affidavit. One Rohidas K. Ghodake and Bhagwan U. Dhole Police Sub-Inspectors attached to Azad Nagar Police Station, Malegaon, have filed affidavits, since they are the Investigating Officers of the crimes registered under the aforesaid Act. The Investigating Officers have denied the fact that the Intervenors are traders and are dealing with the purchase and sale of cattle. According to them the traders who deal in purchase and sale of cattle are required to obtain licences from the Krushi Utpanna Bazar Samiti Malegaon. Distrcit Nashik. Such a licence is also necessary under the Municipalities Act. None of the Intervenors have any such licences. It is their case that many times it is noticed that animals are carried in a truck, in such a manner which in itself is an offence under the Prevention of Cruelty to Animals Act, 1960. From the information received by the concerned Police Station it is noticed that the Intervenors and others are only dealing in illegal slaughtering of cattle. It is then contended by them that the police had authority to seize the cattle if it is noticed that they are carried for illegal slaughtering. It is also their say that under section 451 of the Code of Criminal Procedure a direction could be sought from the competent Court of law for the preservation and protection of cattle during the tendency of the trial.
3. Under Article 48 of the Constitution of India a provision has been made that- "The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle." Then in furtherance of the directive principles of the State Policy the Maharashtra Act IX of 1977 known as the Maharashtra Animal Preservation Act, 1976 - (hereinafter referred to as the said Act) came to be enacted. The day Legislature took a decision, that at least one animal shall not be killed for any purpose, it took a glorious step towards cultural progress, and revolution. Ultimately what is culture? Culture is the art of living with others and respect for life. The Act is enacted to provide for the prevention of slaughter of cows and for reservation of certain other animals suitable for milch, breeding, draught or agricultural purpose. Sect
