The Assam Cattle Preservation Act does not impose an absolute bar on granting zimma of seized cattle to their owner during ongoing criminal proceedings.

ORDER

Date : 11-09-2024 Heard Mr. MH Laskar, learned counsel for the petitioner, Ashraful Alom, who has filed this application under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023/ Section 482 read with Sections 397 /401 Code of Criminal Procedure , 1973 and read with Article 227 of the Constitution of India challenging the order dated 24.06.2024, passed by the learned Addl. Chief Judicial Magistrate, Kokrajhar rejecting the prayer of zimma of 2 (Two) cows to the petitioner in connection with Kazigaon Police Station Case No. 19/2024 under Sections 379/411/34 of the Indian Penal Code, 1860, read with Section 13(1) of the Assam Cattle Preservation Act , 2021.

2. Also heard Mr. D. Das, learned Addl. Public Prosecutor for the State respondent.

3. The order dated 24.6.2024 reflects that a petition seeking zimma of cattle was filed by the petitioner being Petition No. 406/2024. This petition was rejected by the learned Additional CJM, Kokrajhar observing that as per Section 11 (5), when the Magistrate is satisfied that there is enough materials to presume that the prima facie case under this Act has been committed or intention to commit such an offence etc. vehicle / conveyance etc. can be released except cattle. The petition was thereby rejected quoting the bar under Section 11(5) of the Assam Cattle Preservation Act .

4. Learned counsel for the petitioner has relied on the decision of this Court in Abdul Kadir vs. The State of Assam wherein vide order dated 18.06.2024 in Criminal Petition No. 619/2023 , it has been observed that : -

“27) In the instant case, the petitioner Abdul Kadir has not been facing any accusation in the pending criminal proceeding in which the cattle have been seized. He has claimed himself to be the owner of the seized cattle and have produced certain documentary evidence in support of his claim. However, the learned Additional Chief Judicial Magistrate, Karimganj, instead of examining the said documents and coming to prima-facie finding regarding the claim of the petitioner, had directed the Investigating Officer to ascertain the ownership of seized cattle. On failure of the Investigating Officer to ascertain the ownership of the seized cattle, the learned Additional Chief Judicial Magistrate, Karimganj has rejected the prayer for custody to the petitioner, citing absolute embargo, in giving such custody to the owner, under Section 11(5) of the aforesaid Act.”

“30) Accordingly, it is hereby held that, in an appropriate case, there is no embargo under Assam Cattle Preservation Act , 2021 in giving zimma of the seized cattle to the owner of the said cattle during the pendency of a criminal proceeding instituted in respect of the alleged offence under the said Act. It is also clarified that the Section 11(5) and Section 11(7) of the Assam Cattle Preservation Act , 2021 puts no such absolute embargo on the Court to give zimma of the seized cattle to its owner.”

5. On the contrary, learned Additional Public Prosecutor has raised objection stating that no documents ascertaining the ownership of cattle has been submitted by the petitioner. The Gaonburah certificate is not reliable. It is not discernible from the certificate as to from what source the Gaonburah had issued the certificate that the petitioner is the owner of the cattle. It is submitted that during the course of trial, the ownership of cattle can be ascertained, but at this juncture this petition is liable to be dismissed.

6. In reply, the learned counsel for the petitioner has relied on the decision of this Court in Mujibur Rahman vs. The State of Assam wherein vide order dated 22.05.2024 in Crl.Rev.P./143/2024 , it has been observed that : -

“24. Accordingly, the following determinations are recorded in terms of the discussion and reasons given hereinabove above.

I. The prescription made under sub section 5 of Section 11 of the Act, 2021 is relatable only to a situation/stage when the authorised officer(s) exercises its power under sub sect