4 Whether This Case Involves A ... vs State Of Gujarat &

Trust has filed the present Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 seeking to question the legality and propriety of order dated 22nd September, 2014 passed by learned Judicial Magistrate First Class, Savarkundla passed below Exhibit 1 in Criminal Miscellaneous Application No.284 of 2014.

2. The applicant-Trust, which is running a Panjrapole, is aggrieved by the said order because learned Magistrate by the said order, directed to hand over the custody of muddamal live stock being 28 buffalos and 05 small buffalos to respondent No.2. Learned Magistrate further directed to hand over custody of muddamal vehicle being Tata 407 bearing particular engine number and chasis number to respondent No.2. Said 33 live stock animals were given to the applicant-Trust by the police authorities, who seized them from the vehicle.

3. The facts may be stated. Against respondent No.2, a First Information Report came to be registered on 09th September, 2014 at Savarkundla Rural Police Station, District Amreli in connection with the offences punishable under Sections 397, 147, 149, 120- B and 186 of the Indian Penal Code and under Section 11 of the Prevention of Cruelty to Animals Act, 2012. Police seized the aforesaid muddamal tempo carrying the said animals. It was stated in F.I.R. that under the said vehicle animals were loaded in excess capacity and they were so loaded that they were not Page 2 of 10 R/CR.RA/606/2014 JUDGMENT able to move. It was stated that cruelty was exerted on the animals-the buffalos by not pouring water and fodder to them. Pursuant to the said F.I.R., criminal case was registered against respondent No.2. After seizure of the said muddamal being the live stock and the vehicle tempo, police authorities handed over all 33 buffalos to the applicant-Trust. They are since then have remained in the custody of the applicant- Trust.

3.1 Before the learned Magistrate, respondent No.2 filed application (Exh.1) praying for custody of the muddamal vehicle as well as pray for custody of live stock. It was his case that he was the owner of the vehicle as well as live stock-the buffalos. He was keeping the said live stock for selling milk. He stated that he purchased the live stock from different districts in the Saurashtra and nearby regions and that for transportation of the live stock, the vehicle was used. It was submitted that the entire livelihood was dependent upon the business of selling milk. Learned Magistrate allowed the application as per the impugned order.

3.2 It emerges from the record as noted by learned Magistrate, that the applicant-Panjrapole was served with the notice of the proceedings personally but they did not remain present. They neither participated to present their case nor submitted any report. No details regarding maintenance and care of the live stock was submitted by them. It appeared that in the proceedings of application of respondent No.2, Page 3 of 10 R/CR.RA/606/2014 JUDGMENT no interest was shown by the applicant.

4. Learned advocate Mr.Hemant B. Rawal for the applicant-Trust submitted that the order of Magistrate handing over custody of live stock to respondent No.2 was not sustainable in asmuch as the learned Magistrate has overlooked the fact that the appliant is a Trust and would be keeping the muddamal buffalos in the Panjrapole run by it. It was submitted that the place of the applicant was a better place for taking care of the live stock. It was submitted that in order to prevent any further cruelty being exerted on the buffalos, police had rightly handed over the custody to the applicant after seizing them from the vehicle. Learned advocate for the applicant relied on decision of this Court in Shri Bhavnagar Panjrapole Thro' Manager Vs State of Gujarat in Criminal Revision Application No.601 of 2013 decided as per the judgment dated 08th September, 2014.

4.1 On the other hand learned advocate Mr.Mrudul for respondent No.2 submitted that respondent No.2 is the owner of the vehicle. He submitted that learned Magistrate has imposed conditions while allowing the custody of the muddamal to respondent No.2 and in view of those conditions, there is no prejudice to anybody if the vehicle and the live stock are handed over to respondent No.2. He submitted that the buffalos belonged to respondent No.2 and the same is source of livelihood. He stated that these buffalos have died while in custody of applicant and further submitted that applicant-trust has not taken and has not been Page 4 of 10 R/CR.RA/606/2014 JUDGMENT taken proper care of his livestock. About muddamal vehicle, it was submitted that registration of the vehicle showed ownership of respondent No.2. He urged that the Revision Application may be dismissed.

4.2 Learned advocate for the respondent No.2 relied on the following decisions-Samandkhan Meerkhan Vs State of Gujarat [2011 (3) GLH 762], Shree Ajit Seva Trust Vs State of Gujarat being Criminal Revision Application No.480 of 2014 decided on 24th December, 2014 and Kalol Panjarapole Mandal (Sanstha) Vs State of Gujarat being Special Criminal Application No.1114 of 2014 decided on 03rd December, 2014.

5. Having considered the facts and the submissions, it has to be observed that there is no dispute the ownership of the muddamal vehicle bearing registration No.GJ-4x-5376 stands in the name of respondent No.2 in the Registration Book and accordingly he is the owner. The Registration Book was produced before the Magistrate and the ownership of respondent No.2 was verified. The respondent No.2 has claimed to be the owner of live stock-the buffalos and about the ownership thereof also, there is no dispute. It is nobody's stand that respondent No.2 is not the owner. The allegation in the F.I.R. pursuant to which the vehicle and the live stock are seized, are mainly about loading number of buffalos in the vehicle and not giving them fodder, etc. It was presumed that the buffalos were carried in vehicle for some criminal activity. Accordingly the offences under the Indian Page 5 of 10 R/CR.RA/606/2014 JUDGMENT Penal Code and under the Prevention of Cruelty to Animals Act were registered.

5.1 In another decision of this Court in Shree Ajit Seva Trust (supra) this Court relied on the decision in Samandkhan Meerkhan (supra). In yet another decision in Kalol Panjarapole Mandal (Sanstha) (supra) this Court taking note of the fact that live stock being goats and sheeps in that case kept in custody of Panjrapole died for want of due care, imposed cost of Rs.50,000/- while rejecting the claim of the Panjrapole to have the custody of the live stock.

6. Reverting back to the facts of the case, as far as the claim of custody of vehicle is concerned, keeping the vehicle idle is going to benefit none and on the contrary it would result depletion of value of the vehicle as its condition would get deteriorated. When the ownership of the vehicle is shown to be of respondent No.2 by virtue of acceptable documentary evidence, respondent No.2 is entitled to the custody of the same. In this regard, decision of the Apex Court in case of Sundarbhai Ambalal Desai Vs State of Gujarat [2003 (2) GLR 1337] as well as decision of this Court in Salimbhai Abbasbhai Ravani Vs State of Gujarat being Criminal Revision Application No.93 of 2015 decided on 24th March, 2015 relying on the aforesaid Apex Court's decision deserves a reference.

6.1 For the live stock-the buffalos, 33 in number, respondent No.2 has legitimate claim for custody. It was stated in course of hearing that out Page 6 of 10 R/CR.RA/606/2014 JUDGMENT of the total number of buffalos, three buffalos have died while in the custody of Panjrapole. Respondent No.2 being the owner, he has prior claim for having custody of the muddamal live stock.

6.2 In Samandkhan Meerkhan (supra) division bench of this Court was dealing with a public interest litigation and addressed the question of commission of offences under the Prevention of Cruelty to Animals Act vis-a-vis right of Panjrapole to seek custody of live stock against the claim of the owner. It is inter alia observed that it is a settled position of law that Panjrapole hash no preferential right in a case where owner is claiming custody of animals. The Court relied on apex decision in Manager, Panjrapole, Deodar Vs Chakram Morajinat [(1997) 2 GLR 1321], in particular paragraph 6 of the said decision.

6.3 Learned Magistrate has not committed error also on the count of allowing custody of live stock in favour of respondent No.2 and had also imposed necessary conditions while allowing custody. The principles of law are correctly applied. The applicant has no valid ground to claim the custody. Merely because it is a Panjrapole, it cannot thwart the legitimate claim of the owner of the live stock-the buffalos for having custody. However at the same time, while allowing custody of muddamal in favour of respondent No.2, he is required to put to certain additional terms.

6.4 Bhavnagar Panjrapole (supra) relied on by the applicant stands on its own facts in asmuch as it Page 7 of 10 R/CR.RA/606/2014 JUDGMENT is clear from paragraph 5 that in the said case a serious question about ownership of respondent No.2 who claimed the muddamal, was involved. Therefore this Court observed that it cannot be said that custody of cattle in question should be handed over to respondent No.2 only because he is claiming the custody. It was observed that cattle could not be handed over to a person whose claim for ownership was doubtful.

7. As a result of above discussion, present Revision Application is dismissed. The order passed by the learned Magistrate is upheld having booked no error. At the same time, since the Criminal Case is pending, it is proper to impose conditions on respondent No.2 while allowing custody of muddamal to him.

7.1 For the purpose, vehicle No.GJ-4X-5376 shall be released in favour of the present respondent No.2 on the following conditions,

(i) The respondent No.2 shall file an undertaking before the trial court that he will produce vehicle bearing Registration No.GJ-4X- 5376 as and when required by the court;

(ii) The respondent No.2 shall deposit Rs.20,000/- (Rupees Twenty Thousand Only) and shall undertake that he shall not transfer or alienate the vehicle during the course of the trial and the vehicle shall not be allowed to be used in any criminal activity or offence, similar or otherwise;

R/CR.RA/606/2014 JUDGMENT

(iii) The undertaking to the aforesaid effect shall be filed in writing before the competent court below, which shall be the precondition of release of the vehicle;

(iv) The respondent No.2 shall report to nearest Police Station being Savarkundla Police Station once in a month by physically bringing and producing the vehicle before the police station;

(v) The respondent No.2 shall also inform the police personnel concerned about names and addresses of persons to whom the vehicle in question may be handed over temporarily or permanently for running or using the same.

7.2 As far as the release of mudammal live stock is concerned, the respondent No.2 shall have to comply with the following conditions,

(a) Respondent No.2 shall take proper care of the live stock and keep them in healthy condition. They shall be provided water and fodder and shall not be subjected to cruelty in any manner;

(b) Live stock shall not be vested in any manner including by undertaking any criminal act or activity in that regard;

(c) They shall not be transferred or sold by respondent No.2 during the pendency of the criminal proceedings;

R/CR.RA/606/2014 JUDGMENT (d) Respondent No.2 shall be required to

produce all or any of buffalos as and when and if required by the court.

8. For the purpose of identification of the live stock-the buffalos-the conditions imposed by learned Magistrate shall operate. Respondent No.2 shall obtain photographs of each of the buffalos so as to identify them pictorially and produce such photographs before the Court along with necessary affidavits. This shall be done within 10 days from the date of getting custody of the live stock.

9. Rule is discharged subject to the aforesaid conditions and directions.

Direct service is permitted.

(N.V.ANJARIA, J.) Anup Page 10 of 10