JUDGMENT :

M.K. Kalita, J.

1. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor representing the State of Assam.

2. This Criminal Petition has been registered on filing of an application under Section 482 of the Code of Criminal Procedure, 1973 read with Section 397/401 of the said Code by the petitioner namely, Abdul Kadir impugning the order dated 10.02.2023 passed by learned Session Judge Karimganj in Criminal Appeal No. 14/2022, whereby the order dated 20.08.2022, passed by learned Additional Chief Judicial Magistrate, Karimganj in G.R. Case No.1088/2022 was upheld. By the said order, the prayer for zimma, by the petitioner, of his cattle, which were seized in connection with the said case, was rejected by the learned Additional Chief Judicial Magistrate, Karimganj.

3. The facts relevant for the consideration of the instant criminal petition, in brief, are as follows:

(i) On 23.05.2022 one Sri Pranab Mili, SI of Police of Malua PICP had lodged an FIR before the Officer-In- Charge of Badarpur Police Station, inter-alia, alleging that on 22.05.2022, at about 9.55 pm, an information was received through reliable sources regarding illegal smuggling and transportation of cattle from Makhibaha to Bangladesh through Kushiyara River through Krishnopur Ghat. Accordingly, a naka checking was conducted at Sonapur at around 10.15 pm. Thereafter, at around 10.45 pm, the accused persons named in the FIR, namely, (1) Abdul Matin, and (2) Nazim Uddin who were taking away 13 numbers of cows were detained at this spot for enquiry.

(ii) During enquiry it was found that the accused persons named in the FIR have stolen these cows from various locality and were intending to smuggle the same to Bangladesh. Apart from the above-named two accused persons, names of four other accused persons are also mentioned in the FIR, who were suspected to have been involved in the alleged crime along with the above-named two accused persons.

(iii) It is also stated in the FIR that the accused persons also led the police to four other cows which were recovered from nearby jungle.

4. The learned counsel for the petitioner has submitted that the petitioner is the owner of the cattle which were recovered from the grazing field which is stated to be jungle in the FIR.

5. The learned counsel for the petitioner has submitted that during the last part of April 2022 till June 2022, there was a devastating flood situation in the Karimganj district, and the house of the petitioner was also inundated and therefore, he along with other villagers took shelter near the National Highway along with his cows and to keep the cows safe he let them to be kept in high field where flood waters could not reach. However, the police misconceived said cows to be brought for illegal transportation and seized those cows from the grazing field.

6. The learned counsel for the petitioner has also submitted that the zimma petition filed by the present petitioner seeking interim custody of his cows was rejected by the learned Additional Chief Judicial Magistrate, Karimganj due to wrong interpretation of the provision of Section 11 (5) of the Assam Cattle Preservation Act, 2021.

7. It is submitted by the learned counsel for the petitioner that the present petitioner is the owner of the seized cows and he had produced documents in support of his claim of ownership of the seized cattle, before the learned Magistrate. It is also submitted by learned counsel for the petitioner that there is no accusation against the present petitioner in the G. R. Case No.1088/2022.

8. The learned counsel for the petitioner has also submitted that no satisfaction was recorded by the learned Additional Chief Judicial Magistrate, Karimganj in the impugned order that there is enough material to presume that a prima facie offence under the Act has been committed by the present petitioner and mechanically declined to release the seized cows to the petitioner, in spi