REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL No. 219 OF 2013
(Arising out of S.L.P. (Crl.) No. 8971 of 2012)
Multani Hanifbhai Kalubhai .... Appellant(s)
Versus
State of Gujarat & Anr. ....
Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the judgment and order dated
25.09.2012 passed by the High Court of Gujarat at Ahmedabad in Special
Criminal Application No. 2755 of 2012 whereby the High Court dismissed the
application filed by the appellant herein.
3) Brief facts:
a) The vehicle of the appellant, Eicher Truck, was seized by the police,
which was found to be transporting 28 buffalo calves.
The First
Information Report (in short “FIR”) was registered against the appellant on
02.08.2012 for the offences punishable under Sections 279 and 114 of the
Indian Penal Code, 1860 (in short “IPC”), Sections 184, 177 and 192 of the
Motor Vehicles Act, 1988 (in short “M.V. Act”), Sections 5, 6, 8 and 10 of
the Gujarat Animal Preservation Act, 1954 (hereinafter referred to as “the
Principal Act”) and Section 11 of the Prevention of Cruelty to Animals
Act, 1960.
b) The appellant filed an application being Criminal Misc. Application
No. 9 of 2012 under Section 451 of the Code of Criminal Procedure, 1973 (in
short “the Code”) for the release of his Eicher truck before the Judicial
Magistrate, First Class, Gandhinagar, Gujarat. Vide order dated
24.08.2012, the Judicial Magistrate rejected the said application on the
ground that as per the provisions of Section 6B(3) of the Gujarat Animal
Preservation (Amendment) Act, 2011 (hereinafter referred to as “the
Amendment Act”), the vehicle shall not be released before the expiry of
six months from the date of its seizure.
c) Aggrieved by the said order, the appellant filed an application being
Criminal Revision Application No. 73 of 2012 before the District & Sessions
Judge, Gandhinagar, which was also rejected on 01.09.2012
d) Dissatisfied with the order of the District & Sessions Judge,
Gandhinagar, the appellant preferred Special Criminal Application No. 2755
of 2012 before the High Court. By impugned order dated 25.09.2012, the
High Court dismissed the said application.
e) Challenging the said order, the appellant has filed this appeal by
way of special leave.
4) Heard Mr. O.P. Bhadani, learned counsel for the appellant and Mr.
Shomik Sanjanwala, learned counsel for the respondents.
5) The only point for consideration in this appeal is whether the Courts
below are justified in rejecting the prayer of the appellant as per the
provisions of the amended Act?
6) The Bombay Animal Preservation Act, 1954 (in short “the Bombay Act”),
which was enacted for the preservation of animals suitable for milch,
breeding or for agricultural purposes was made applicable to the State of
Gujarat. The following provisions of the said Act are relevant for the
case in hand:
“Section 5 - Prohibition against slaughter without certificate from
Competent Authority. (1) Notwithstanding any law for the time being in
force or any usage to the contrary, no person shall slaughter or cause
to be slaughtered any animal unless, he has obtained in respect of
such animal a certificate in writing from the Competent Authority
appointed for the area that the animal is fit for slaughter.
(1A) No certificate under sub-section (1) shall be granted in respect
of—
(a) a cow;
(b) the calf of a cow, whether male or female and if male, whether
castrated or not;
(c) a bull;
(d) a bullock;
(2) In respect of an animal to which sub-section (IA) does not
apply, no certificate shall be granted under sub-section (1) if in the
opinion of the Competent Authority-
(a) the animal, whether male or female, is useful or likely to
become useful for the purpose of draught or any kind of
agricultural operations;
(b) the animal if male, is useful or likely to become useful for the
purpose of breeding;
(c) the animal, if female, is useful or likely to become useful for
the purpose of giving milk or bearing offspring.
(3) Nothing in this section shall apply to—
(a) the slaughter of any of the following animals for such bona fide
religious purposes, as may be prescribed, namely :--
(i) any animal above the age of fifteen years other than a cow, bull
or bullock.
(ii) a bull above the age of fifteen years
(iii) a bullock above the age of fifteen years.
(b) the slaughter of any animal not being a cow or a calf of a cow,
bull or bullock, on such religious days as may be prescribed :
Provided that a certificate in writing for the slaughter referred to
in clause (a) or (b) has been obtained from the competent authority.
(4) The State Government may, at any time for the purpose of
satisfying itself as to the legality or propriety of any order passed
by a Competent Authority granting or refusing to grant any certificate
under this section, call for and examine the records of the case and
may pass such order in reference thereto as it thinks fit.
(5) A certificate under this section shall be granted in such form and
on payment of such fee as may be prescribed.
(6) Subject to the provisions of sub-section (4) any order passed by
the Competent Authority granting or refusing to grant a certificate,
and any order passed by the State Government under sub-section (4)
shall be final and shall not be called in question in any Court.”
In the Gujarat Animal Preservation Act, 1954, after Section 6, the
following new sections were inserted:-
“6A. (1) No person shall transport or offer for transport or cause to
be transported any animal specified in sub-section (1A) of section 5
from any place within the State to any another place within the State
for the purpose of its slaughter in contravention of the provisions of
this Act or with the knowledge that it will be or is likely to be so
slaughtered:
Provided that a person shall be deemed to be transporting such
animal for the purpose of slaughter unless contrary is proved thereto
to the satisfaction of the concerned authority or officer by such
person or he has obtained a permit under sub-section (2) for
transporting animal for bona fide agricultural or animal husbandry
purpose from such authority or officer as the State Government may
appoint in this behalf.
2) (a) A person may make an application in the prescribed form to the
authority or officer referred to in sub-section (1) for grant of
permit in writing for transportation of any animal specified in sub-
section (1A) of section 5 from any place within the State to any
another place within the State.
(b) If, on receipt of any such application for grant of
permit, such authority is of the opinion that grant of permit shall
not be detrimental to the object of the Act, it may grant permit in
such form and on payment of such fee as may be prescribed and
subject to such conditions as it may think fit to impose in
accordance with such rules as may be prescribed.
3) Whenever any person transports or causes to be transported in
contravention of provisions of sub-section (1) any animal as
specified in sub-section (1A) of section 5, such vehicle or any
conveyance used in transporting such animal along with such animal
shall be liable to be seized by such authority or officer as the
State Government may appoint in this behalf.
4) The vehicle or conveyance so seized under sub-section (3) shall not
be released by the order of the court on bond or surety before
expiry of six months from the date of such seizure or till the
final judgment or the court, whichever is earlier.
6B. (1) No person shall directly or indirectly sell, keep, store,
transport, offer or expose for sell or bury beef or beef products in
any form.
2) Whenever any person transports or causes to be transported the beef
or beef products, such vehicle or any conveyance used in
transporting such beef or beef products along with such beef or
beef products shall be liable to be seized by such authority or
officer as the State Government may appoint in this behalf.
(3) The vehicle or conveyance so seized under sub-section (2) shall
not be released by the order of the court on bond or surety before
the expiry of six months from the date of such seizure or till the
final judgment of the court, whichever is earlier.
Explanation – For the purpose of this section “beef” means flesh of
any animal specified in sub-section (1A) of section 5, in any form.”
7) Learned counsel for the appellant submitted that the provisions of
the Amended Act clearly mention the applicability of Section 6A(3) to the
class of animals as given in Section 5 (1A) of the Principal Act, viz.,
cow, the calf of a cow, bull and bullock, however, this section nowhere
mentions ‘buffalo calves’ which have been found in the seized vehicle.
According to him, in the absence of prohibited categories of animals as
aforesaid, invoking of Section 6B(3) for not releasing the vehicle of the
appellant before the expiry of six months from the date of seizure is not
sustainable in law.
8) In context of the above, it is relevant to note that on 12.10.2011,
an amendment was brought in the Principal Act which was called the Gujarat
Animal Preservation (Amendment) Act, 2011. By virtue of this Amendment
Act, a new Section 6A was brought in the Principal Act. We have already
extracted Section 6A of the Amended Act.
9) Sub-section (3) of Section 6A of the Amended Act stipulates that
whenever any person transports in contravention of provisions of Sub-
section (1), any animal as specified in Section 5(1A), such vehicle or any
conveyance used in transporting such animal, shall be liable to be seized
by the authority/officer concerned. It is brought to our notice that the
vehicle which has been impounded by the respondents was not carrying the
category of animals which has been laid down under Section 5(1A). The
vehicle in question was transporting the ‘buffalo calves’.
10) A perusal of the FIR shows that one Sajidkhan Pirmohemmed Multani,
driver of the vehicle and Rajubhai Kalubhai Multani had been passing from
Sector 30 of Gandhinagar, Gujarat. The police tried to stop the said
vehicle but when they did not stop, they followed and intercepted the same.
On search being made inside the vehicle, they found 28 buffalo calves.
Respondent No.2 herein arrested both the persons and seized Eicher Truck
bearing Registration No. GJ-9-Z-3801, which is the vehicle in question.
11) The courts below rejected the application filed by the appellant for
release of the vehicle under Section 451 of the Code on the ground that as
per the provisions of Section 6B(3) of the Amendment Act, the vehicle of
the appellant shall not be released before the expiry of six months from
the date of its seizure. On going through the relevant provisions, we are
of the view that the Courts below including the High Court grossly erred by
overlooking the correct position of law as stated in Section 6A(3).
Sub-
section 1A of Section 5 stipulates the schedule of animals which are as
under:
(a) a cow;
(b) the calf of a cow, whether male or female and if male, whether
castrated or not;
(c) a bull;
(d) a bullock.
It is clear from the above description of animals that the buffalo calf
does not fall under the list of prohibited animals.
We have already noted
and it is not in dispute that the vehicle in question was carrying 28
buffalo calves. Thus, Section 6B(3) of the Amendment Act cannot be invoked
in order to deny the claim of release of the vehicle before the expiry of
six months from the date of its seizure.
12) It is true that Section 5(1) prohibits slaughtering of any animal without a certificate in writing from the Competent Authority that the animal is fit for slaughter. In other words, without a certificate from competent authority, no animal could be slaughtered. Sub-section (1A) to Section 5 mandates that no certificate under sub-section (1) shall be granted in respect of the above mentioned animals. In the said section,
admittedly, ‘buffalo calf’ has not been mentioned as prohibited animal.
In such circumstance,
the prohibition relating to release of vehicle before a
period of six months as mentioned in Section 6B(3) of the Amendment Act is not applicable since the appellant was transporting 28 buffalo calves only.
In view of the same, it is not advisable to keep the seized vehicle in the police station in open condition which is prone to natural decay on account of weather conditions. In addition to the above interpretation, whatever be the situation, it is of no use to keep the seized vehicle in the police station for a long period.
13) In the light of the above conclusion, order dated 24.08.2012, passed
by the Judicial Magistrate, Gandhinagar in Criminal Misc. Application No. 9
of 2012, order dated 01.09.2012, passed by the District and Sessions Judge,
Gandhinagar in Criminal Revision Application No. 73 of 2012 and order dated
25.09.2012, passed by the High Court in Special Criminal Application No.
2755 of 2012 are set aside and the respondents are directed to release the
vehicle - Eicher Truck bearing Regn. No. GJ-9-Z-3801 forthwith.
14) The appeal is allowed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
FEBRUARY 01, 2013.
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