1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent.

3. By these petitions the petitioner has challenged legality and correctness of order passed on 22/9/2014 in Misc. Criminal Application No. 453 of 2014 arising out of Crime No.3068 of 2014 by the Judicial Magistrate, First Class, Wardha.

4. By the order impugned herein, the learned Magistrate has released the custody of 13 she-buffaloes to respondent No.2, who is one of the accused persons in Crime No.3068 of 2014 for the offences punishable under Section 11 of the Prevention of Cruelty to animals Act, 1960 (hereinafter referred to as “the Act, 1960) read with Section 119 of the Bombay Police Act and also Sections 83 and 177 of the Motor Vehicles Act.

5. The allegations made against the accused/respondent and others are that they had transported in a motor vehicle 13 she-buffaloes in cruel manner by overloading them and packing them in an unhygienic manner and inappropriate conditions. While the investigation is still going on, the present respondent No.2, who has been later-on added as accused No.3, claims himself to be the owner of the she-buffaloes, which were seized in this case. During the investigation, respondent No.2 made an application under Section 457 of the Criminal Procedure Code that he is rightful claimant of the custody of she buffaloes and was also in position to maintain them properly and, therefore, sought for release of their custody on execution of supratnama. The application was strongly opposed by the prosecution as well as the petitioner. However, the learned Magistrate by his order impugned herein allowed the application. Not satisfied with the same, the petitioner has filed the present petition under Article 227 of the Constitution of India.

6. According to learned Counsel for the petitioner, the offence relating to transportation of she-buffaloes in a cruel manner has been prima-facie established against respondent No.2 and other persons and therefore, if their custody is released to respondent No.2, there is likelihood of the animals being treated in a similar manner or perhaps more cruelly. He also submits that there are some more crimes registered against respondent No.2 in which same allegations have been made against him. Therefore, according to learned Counsel for the petitioner even there is a good case for the prosecution to show that the seized animals in this case are liable to be confiscated and on this ground also their custody should not be released.

7. Learned A.P.P. for the State has supported the arguments of the learned Counsel for the petitioner. However, learned Counsel for respondent No.2 has submitted that even though respondent No.2 is owner of the animals and has submitted documents showing prima-facie that he is purchaser, respondent No.2 is being deprived of the benefits of ownership of those animals. He submits that the prosecution has not produced on record any evidence indicating that respondent No.2 has been previously convicted and therefore, in view of Section 29 of the Act, 1960, there would be no possibility of the seized animals being confiscated in this case. As regards the possibility of respondent No.2 exposing the seized cattle to further cruelty or transporting them in a cruel manner, he submits that appropriate conditions should be imposed and only because of registration of some other crimes, respondent No.2, respondent No.2 should not be deprived of the custody of seized animals, of which is he lawful owner.

8. So far as the aspect of possibility of seized animals being confiscated at the end of trial is concerned, I am of the view that Section 29 of the Act requires some evidence as to conviction or some material indicating that the character of the accused or behaviour of the accused is such that it is likely to give an impression that the custody of animals when given to him, would be misused by his treating the animals with further cruelty and this material, at this stage, is no