Rule.
Learned APP Mr. H.L.Jani waives service of Rule for Respondent No.1-State of Gujarat and learned Advocate Mr. P.P.Majmudar waives service of Rule for Respondent No.2.
The present Petition has been filed by the Petitioner under Article 226 and 227 of the Constitution of India challenging the impugned judgment and order passed by the learned Additional Sessions Judge, Deesha in Criminal Revision Application No.50 of 2012 dated 1.6.2012 confirming the order passed by the learned Judicial Magistrate First Class, Dhanera in Criminal Miscellaneous Application No.64 of 2012 on the grounds stated in the Petition.
Heard learned Advocate Mr. Hardik A. Dave for the Petitioner, learned APP Mr. H.L.Jani for Respondent No.1-State of Gujarat and learned Advocate Mr. P.P.Majmudar for Respondent No.2-Tatoda Panjrapole.
Learned Advocate Mr.Dave has referred to the provisions of the Gujarat Animal Preservation Act, 1954 (Act No.72 of 1954) along with the Amending Act, by which Section has been added by the Amendment Act of 2011. Learned Advocate Mr. Dave has submitted that the cattle have been purchased by the Petitioner at the mela at Rajasthan for which necessary documentary evidence is placed on record. Therefore, he submitted that the provisions of the Act would not be attracted and no presumption can be raised that the cattle were taken for slaughter. He submitted that infact this Court (Coram: Anant S.Dave,J) has passed an order dated 10.5.2012 in Criminal Miscellaneous Application Nos. 6345 of 2012 to 6348 of 2012 with 6348 of 2012 to 6359 of 2012 with regard to the release of the vehicle used for purchase of transporting these very cattle. Therefore, learned Advocate Mr. Dave submitted that the present Petition regarding release of the cattle as prayed for may be allowed. He also referred to the report of the Investigating Officer and submitted that he has made a report produced at Annexure-D specifically stating that the cattle which have been seized may be released and handed over to the Petitioner as there is no objection. Learned Advocate Mr. Dave submitted that inspite of this report made by the I.O., the impugned order was passed by the learned Magistrate which has been confirmed by the Sessions Court, and therefore, the present Petition has been filed.
Learned Advocate has also pointedly referred to the provisions of the Gujarat Animal Preservation Act, 1954 in support of his submission and submitted that Section 5 refers to the "Prohibition against slaughter without certificate from Competent Authority". He submitted that Section 6(A) refers to the "Prohibition against transportation of specified animals for slaughter". Learned Advocate Mr. Dave submitted that in any case, in view of the evidence, the cattle were not either transported or carried for slaughter and it has been prima facie observed by this Court (Coram: Anant S. Dave,J) earlier while releasing the vehicles as per order dated 10.5.2012 passed in Criminal Misc. Application No. 6345 of 2012 and allied matters. Therefore, he submitted that the present Petition may be allowed.
Learned APP Mr. H.L.Jani for Respondent No.1-State of Gujarat has resisted the present Petition. However, he has not been able to dispute about the fact that Section 5 regarding "Prohibition against slaughter without certificate from Competent Authority" and Section 6 regarding "Prohibition of slaughter of animals in places not specified for the purpose". Learned APP Mr. Jani has therefore submitted that if the Act is read with the object, then it has to be considered that sub section 1A of Section 5 of the Act does not permit transport of cattle specified in this sub-section and the proviso has been made that subject to the permit, it could be transported. He submitted that therefore, permit may be required for the cattle if they are transported.
Learned Advocate Mr. P.P.Majmudar for the Respondent No.2 - Tatoda Panjarapole has submitted that the law provides for presumption that once the cattle are transported, it is for slaughter unless that presumption is rebutted with the material and evidence. He submitted that in any case the cruelty to the animals is also required to be appreciated. For that purpose, he referred to the judgment of the Gujarat High Court in case of Samandkhan Meerakhan and Ors. v. State of Gujarat and Ors., 2011 (3) GLH 762. He therefore submitted that the present Petition may not be entertained. Alternatively it is submitted that it should be subject to the conditions.
In Rejoinder, learned Advocate Mr. Dave submitted that before these provisions of the Act could be attracted, there has to be some prima facie material or evidence for drawing the presumption with regard to the fact that the cattle were transported or carried for slaughter. He submitted that infact, as observed in the order passed by this Court in Criminal Misc. Application Nos. 6345 of 2012 and allied matters, while releasing the vehicles involved in the same incident, that the cattle were not transported for slaughter, which was not even disputed.
In view of these submissions, it is required to be considered whether the present Petition can be entertained or not.
The facts which have been stated referred to the alleged violation of the Gujarat Animal Preservation Act, 1954 as amended by Gujarat Act No. 28 of 2011. By the aforesaid amendment, Section 6A (1) 2(a), 2(b), 3 and 4 have been added. However, as could be seen from the scheme of the Act, Section 5 of the Act refers to "Prohibition against slaughter without certificate from Competent Authority" and Section 5(1) provides that for a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter whereas as per Section 5(1A) no certificate under sub-section (1) shall be granted in respect of a specified cattle. Section 5 is regarding the Prohibition against slaughter without certificate from Competent Authority. Therefore, what Section 5 of the Act provides, the restriction with regard to the slaughter or the prohibition against the slaughter subject to the certificate for the cattle other than specified in Section 5(1A). Section 6A provides for "Prohibition against transportation of specified animals for slaughter". Section 6A (1) provides that "No person shall transport or offer for transport or cause to be transported any animal specified and sub-section 1A of Section 5 and the proviso provides for discharge of burden to be discharged by the owner of the cattle that he has to prove to the satisfaction of the concerned authority that it was not for slaughter and he has obtained the permit of transport of such cattle, otherwise presumption could be made. Therefore, permit as required under sub-Section 2 of Section 6A is necessary for the purpose of transporting the cattle. Admittedly, the permit is not there as required under Section 2. But, at the same time, learned Advocate has referred to even the report of the I.O. with the purchase memo of the cattle in the mela from Rajasthan. It is also stated that it is transported for agriculture and not for slaughter. It is in this background, the provisions are required to be considered. He has also submitted that the scope of the applicability of this statute would be within the territory of Gujarat and he has brought the cattle after it has been purchased from outside the Gujarat, and therefore, in this background, in the given set of facts, the presumption may not be available.
Therefore, considering the rival submissions and the provisions of the Act, and also the order dated 10.5.2012 passed by this Court (Coram: Anant S. Dave,J) in Criminal Misc. Application No. 6345 of 2012 and allied matters, the present Petition deserves to be allowed and accordingly stands allowed.
The prayer in terms of paragraph 11(b) is granted. The impugned order passed by the learned Additional Sessions Judge, Deesha in Criminal Revision Application No.50 of 2012 dated 1.6.2012 is hereby quashed and set aside. The Respondent No.2 is directed to hand over the custody of Bullocks to the Petitioner. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(Rajesh H.
Shukla,J) Jayanti* Top