IMPORTANT POINT
The main legal point established in the judgment is that the provisions of Chapter XXXIV of the Code of Criminal Procedure, 1973, regarding the disposal of property, shall be applicable in a case under the Assam Cattle Preservation Act, 2021, in the absence of specific provisions for disposal of property during enquiry and trial.

JUDGMENT :

1. Heard Mr. N. J. Dutta, learned counsel for the petitioner. Also heard Mr. K. K. Parashar, learned Additional Public Prosecutor for the State.

2. The present application under Section 397 and 401 of the Code of Criminal Procedure, 1973 is filed assailing an order dated 27.03.2024 passed by the learned SDJM-II, Kamrup (M), Guwahati in connection with Basistha P.S. Case No. 131/2024, under Section 120(B)/379/429 IPC read with Section 13(1)/16 of the Assam Cattle Preservation Act, 2021.

3. By the impugned order dated 27.03.2024, the learned Magistrate had refused to grant zimma of the seized cattle to the petitioner on the ground that the seized cattle may be necessary for further investigation.

4. Mr. Dutta, learned counsel for the petitioner submits that the seized cattle were duly purchased from the registered cattle market and the petitioner had already produced the receipt of purchase before the I.O., and that being the position, the learned Magistrate could not have rejected the zimma of the cattle.

5. Per contra, Mr. K. K. Parashar learned Additional Public Prosecutor referring to the provision of Section 11 of the Assam Cattle Preservation Act, 2021 (hereinafter referred to as Act, 2021) submits that in terms of sub section 5 of Section 11 of the Act, 2021, custody of cattle cannot be granted to the petitioner inasmuch as in terms of the mandate of sub Section 7 of Section 11 of the Act, 2021, the seized cattle are to be handed over, either to an institution established under Section 21 of the Act, 2021 or to any existing Gaushalas or similar institutions.

6. Referring to sub section 9 of Section 11 of the Act, 2021, Mr. Parashar, learned Additional Public Prosecutor further contends that on conviction, the seized materials shall stand forfeited to the State Government. Therefore, there is no scope for grant of custody/possession of cattle to an accused. According to him, when the cattle are transported in contravention of the Prevention of Cruelty to Animals Act, 1960 and rules framed thereunder, a person is not entitled for custody. In support of his contention, Mr. Parashar, learned Additional Public Prosecutor relies on the decision of the Hon’ble Apex Court in the case of Shri Chatrapati Shivaji Gaushala –vs-State of Maharashtra and Others reported in 2022 SCC Online SC 1402. He further relies on the decision of a coordinate Bench in the case of Meher Banu Begum –vs- State of Assam (Crl Rev. P/41/2021).

7. Mr. Parashar, learned Additional Public Prosecutor further contends that an express provision of appeal is thereunder Section 12 of the Act, 2021 against any order passed under Section 11 of the Act, 2021 and therefore, the impugned order is an appealable order. According to Mr. Parashar, learned Additional Public Prosecutor, when an express provision of appeal is provided under the Act, the revisional power under Sections 397/401 of Cr.P.C. can not be exercised and when it comes to the exercise of power under Section 482 of Cr.P.C., the same can only be exercised in exceptional cases, where glaring illegality resulting in miscarriage of justice is shown.

8. Countering such arguments, Mr. N.J. Dutta, learned counsel for the petitioner argues that provisions mandated under sub section 5 of Section 11 of the Act, 2021 relates only to the stage of production of seized materials in terms of sub section 3 and 4 of Section 11 of the Act, 2021 and such exercise of power is not relatable to the power of disposal of the seized property as mandated under Chapter XXXIV of the Code and therefore, the disposal of seized property is required to be dealt with in terms of Chapter XXIV of the Code. The learned Counsel further contends that, when power is exercised by the Megistrate under Chapter XXXIV of the Cr.P.C., such order can not be made appealable under section 12 of the Act’2021.

9. This Court has given anxious consideration to the submissions made by the learned counsel for the parties. Also perused the materi