JUDGMENT :

ROBIN PHUKAN, J.

1. Heard Mr. J.C. Gaur, learned counsel for the petitioner and also heard Mr. K. Baishya, learned Addl. Public Prosecutor for the State respondent No. 1.

2. Legality, propriety and correctness of the order, dated 05.09.2022, passed by the learned Judicial Magistrate First Class, Kamrup, Guwahati (M), in Garchowk P.S. Case No. 159/2022, under Section 11(1) of the Prevention of Cruelty to Animals Act, 1960, is challenged in this petition, under Section 397/401, of the Code of Criminal Procedure, 1973 by the petitioner-Dhyan Foundation. It is to be mentioned here that vide impugned order, the learned Judicial Magistrate has allowed interim custody of the seized 3 numbers of cattle, in favour of the private respondent Nos. 2 & 3, by rejecting similar prayer of the petitioner seeking interim custody of the said 3 nos. of cattle.

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

“On 22.05.2022, at about 12:30 PM, the one Anirban Sen, while he was travelling, had seen three cattle being tied with rope over neck and carried in a small vehicle bearing Registration No. AS-25 DC-1977, from Jalukbari to the City through NH 37 and on being asked the vehicle was intercepted by Police and when asked the driver of the vehicle had shown the receipt of purchasing the same from Chaygaon. But, they could not produce any certificate of fitness of the cattle that they are decease free and fit to travel, and thereby, violated the provision of the Prevention to Cruelty to Animal Act and Transportation of Animal Rules, 2001 and Transport of Animal Rules 1978 and Assam Cattle Preservation Act.

Upon the said FIR the Officer-in-Charge Garchowk P.S. has registered Garchowk P.S. Case No. 159 of 2022, U/s 11(1) of the Prevention of Cruelty to Animal Act and endorsed S.I. Mubarak Ali to investigate the same. The I.O. then seized the cattle preparing seizure list.

Thereafter, the petitioner approached the Court of Judicial Magistrate First Class, Kamrup (M), Guwahati, for interim custody of the seized three numbers of cattle during the pendency of trial of the case, by filing a Petition No. 1210. The learned Judicial Magistrate First Class, Kamrup (M), Guwahati, after hearing the parties, passed the impugned order, dated 05.09.2022, by giving custody of the three seized cattle to the private respondent Nos. 2 & 3, who also have filed petition seeking custody of the cattle and thereby rejected the prayer for interim custody of the seized cattle, filed by the petitioner.”

4. Being highly aggrieved by the impugned rejection order, the petitioner approached this Court, inter-alia, on the following grounds, amongst others:

(a) That, while passing the impugned order, the learned Magistrate has erred in law as well as in facts.

(b) That, the seized cattle cannot be released in the custody of the owners, who are the accused of the case and instead the same may be released in the custody of the Gaushala of Pinjorapole and in the event of acquittal of the owner the cattle shall be liable to be forfeited to the state, and as such the impugned order of giving interim custody of the cattle to the respondent Nos. 2 & 3 is illegal.

(c) That, the learned Magistrate had ignored the fact that the seized cattle were purchased for slaughtering and allowing custody of the cattle to the owners the provision of Assam Cattle Preservation Act and also the provision of Prevention to Cruelty to Animal Act stands vitiated and that the cattle were not fit for animal husbandry.

(d) That, the learned Magistrate had ignored the provisions of Prevention to Cruelty to Animal (Care and Maintenance of Case Property Animals) Rules 2017.

5. The respondents’ No. 2 and 3 have entered appearance and filed affidavit-in-opposition denying the assertions made in the petition. It is also stated that they have purchased the same lawfully from the market and enclosed the purchase receipts and that they have not violated any provision of law and