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2022 Supreme(Gau) 638
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ROBIN PHUKAN, J.
Dhyan Foundation, Represented by Its Authorised Signatory - Petitioner
Versus
The State of Assam, Represented by the Public Prosecutor, Assam & Ors. - Respondents
Crl. Pet. No. 433 of 2022
Decided On : 24-08-2022
For the Petitioner: Mr. Ditul Das.
For the Respondent: D. Das, Addl. PP, Assam, N. Uddin.
Point of Law : Impugned order withstands the test of legality, propriety and correctness.
Headnote:
Indian Penal Code, 1860 - Sections 457/380 - Prevention of Cruelty to Animals Act, 1960 - Section 11 - Code of Criminal Procedure, 1973 - Section 482, read with Sections 397/401 - Offence of lurking house or trespass - Theft in dwelling house - Charged - Under Police Station, lodged one Ejahar with Officer-in-Charge, Police Station, to effect that 5 (five) numbers of Goats were stolen on previous night by breaking byre of her residence - Upon said F.I.R., Officer-In-Charge, Police Station, registered above noted case and carried out the investigation - In course of investigation, on I.O. had intercepted one small vehicle, bearing Registration No. AS-15C-5215, and recovered 110 numbers of Goats of various size and colours and seized same preparing seizure list - After seizure of Goats, I.O. requested petitioner for taking custody of Goats and to that effect, learned Chief Judicial Magistrate, Barpeta, passed an order - Respondent Nos. 2 to 11 preferred applications before learned Chief Judicial Magistrate, seeking custody of seized Goats and then learned Chief Judicial Magistrate, Barpeta, vide order dated, called for one report from I.O. fixing matter And, thereafter, hearing both parties and considering report of I.O., learned Chief Judicial Magistrate, vide impugned order dated, directed I.O. to release seized Goats in interim custody of respondent Nos. 2 to 11.
Finding of the Court :
Court is of view that impugned order withstands test of legality, propriety and correctness - It is already stated that where owner has been claiming custody of Goats, petitioner has no preferential right - Moreover, animals are dying in the campus of petitioner due to adverse atmosphere therein - And setting aside impugned order on account of not hearing the petitioner at time of passing impugned order, and remanding matter to learned court below to hear the petitioner and to decide matter a fresh will take considerable time and in meantime more Goats will die and same will cause irreparable loss to real owners against whom there is no case - Court have carefully gone through Written Argument submitted by learned counsel for petitioner and also case laws referred by him and Court find that ratio laid down therein are not applicable in all force to facts and circumstances of case in hand and therefore, Court is not inclined to burden judgment by discussing all those case laws.
Result : Petition stands dismissed.
JUDGMENT :
Heard Mr. Ditul Das, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent No. 1, and Mr. N. Uddin, learned counsel for the respondent Nos. 2 to 11.
2. This criminal petition, under Section 482, read with Sections 397/401 of the Code of Criminal Procedure, 1973, is directed against the order dated 11.05.2022, passed by the learned Chief Judicial Magistrate, Barpeta, in connection with Barpeta P.S. Case No. 485/2022, under Sections 457/380 of the Indian Penal Code read with Section 11 of the Prevention of Cruelty to Animals Act, 1960. It is to be noted here that vide impugned order dated 11.05.2022, the learned Court below has directed for releasing of 110 numbers of Goats, which were seized by police, and were in the interim custody of the petitioner, to the respondents.
3. The factual background, leading to filing of this petition, is briefly stated as under :
“On 01.05.2022, Smti Gitanjali Das of Keotkuchi Village, under Barpeta Police Station, lodged one Ejahar with the Officer-in-Charge, Barpeta Police Station, to the effect that 5 (five) numbers of Goats were stolen on the previous night by breaking the byre of her residence. Upon the said F.I.R., the Officer-In-Charge, Barpeta Police Station, registered above noted case and carried out the investigation. In course of investigation, on 02.05.2022, the I.O. had intercepted one small vehicle, bearing Registration No. AS-15C-5215, and recovered 110 numbers of Goats of various size and colours and seized the same preparing seizure list. After seizure of the Goats, the I.O. requested the petitioner for taking custody of the Goats and to that effect, the learned Chief Judicial Magistrate, Barpeta, passed an order on 04.05.2022. Thereafter, the respondent Nos. 2 to 11 preferred applications before the learned Chief Judicial Magistrate, Barpeta, seeking custody of the seized Goats and then the learned Chief Judicial Magistrate, Barpeta, vide order dated 05.05.2022, called for one report from the I.O. fixing the matter on 13.05.2022. And, thereafter, hearing both the parties and considering the report of the I.O., the learned Chief Judicial Magistrate, Barpeta, vide impugned order dated 11.05.2022, directed the I.O. to release the seized Goats in the interim custody of the respondent Nos. 2 to 11.”
4. Being highly aggrieved, the petitioner approached this Court challenging the legality, propriety and correctness of the impugned order, dated 11.05.2022, on the ground that the learned Court below, without hearing it, has released the seized Goats in the custody of the respondents and that the case is registered under Section 11 of the Prevention of Cruelty to Animals Act, 1960, and also 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 prevent such offence and that the impugned order is contrary to the provision of Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 and while passing the impugned order, the learned Court below has ignored Rules 3, 4 & 5 of the said Rules, and that the learned Chief Judicial Magistrate, Barpeta, failed to consider violation of Rule 47 to 57, 96 to 98 of Transportation of Animal Rules, 1978, and that the learned Court below has ignored the law laid down by Hon’ble Supreme Court while passing the impugned order and therefore, it is contended to allow the petition.
5. Mr. Ditul Das, learned counsel for the petitioner, submits that the learned Court below has passed the impugned order ignoring the relevant provision of law and also without giving any opportunity of being heard to the petitioner and it suffers from manifest illegality and therefore, it is contended to allow the petition. Mr. Das has also referred following case laws in support of his submissions:-
(i) State Bank of India Vs. Rajendra Kumar Singh & Ors. (AIR 1969 SC
