Tripura High Court sets aside order releasing cattle to accused owners in cruelty and smuggling case

A Tripura High Court bench of Justice S.G. Chattopadhyay has set aside an order of the lower court which had released cattle seized in a cruelty and smuggling case back to accused owners and observed that it is settled law that during the pendency of a criminal case for offence committed under the Prevention of Cruelty to Animals Act,1960 and the Rules, the custody of the animals ought not to be given to the accused.

Observing thus, the court has directed the Trial Court in Sonamura, Tripura to hear the matter afresh after giving an opportunity of a hearing to the interim custodian of the cattle, i.e. an animal welfare organization named Dhyan Foundation.

The Court was hearing a criminal revision petition filed by Dhyan Foundation, an animal welfare organization engaged in rehabilitating cattle rescued by the Border Security Force and police authorities in cruelty and smuggling cases across India. The Foundation had approached the court against the order of the lower court which had released 6 seized cattle in favour of the accused owners, who are the respondents in the present case.

FACTS
One Gaurav Yadav lodged a complaint against the owners wherein he stated that while he was travelling between the towns of Melaghar and Sonamura, he noticed 6 cattle overloaded on in a small pick up van, on the road from Melaghar towards Sonamura, which is a few kilometers from the Indo-Bangladesh border.

He complained to the police who found that the space in the vehicle was too inadequate to carry 6 cattle, moreover, there was no arrangement of water and fodder for those animals during their journey. The transporters could also not produce due licenses required for the transportation of animals.

The police officer, therefore, seized the vehicle along with the cattle in the presence of witnesses by preparing a seizure list and after seizure, he handed over the cows to the petitioner namely Dhyan Foundation, for their interim care and maintenance.

Subsequently, the owners filed a petition in the court of the Judicial Magistrate, First Class, Sonamura claiming ownership of the seized cattle and produced purchase memos in favour of the same. The lower court released the six cattle to the owners, provided that the said cattle would not be disposed of by the owners until further order of court.

CONTENTION OF DHYAN FOUNDATION
Advocates Harish Pandya and Shreya Agarwal appearing for the Foundation argued that under Rule 3 of the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals)Rules, 2017, seized animals can only be kept in the custody of an infirmary, pinjarapole, SPCA, Animal Welfare Organization or Gaushala during the pendency of the litigation. The petitioner also contended under Rule 8 of the aforesaid Rules, the seized animals which are case property animals under the Act, can be released during the pendency of the litigation because if the accused is convicted or pleads guilty, the Magistrate shall deprive him of the ownership of such animals.

They argued that with a prima facie case existing against the accused owners of committing cruelty upon the cattle and with allegations of smuggling pending against them, they could not have been handed over to the accused persons pending litigation.

CONTENTION OF RESPONDENT
The owners of the cattle on the other hand contended that the cattle were purchased for domestic purposes and as a proof of purchase, they had valid sale receipts and purchase memo which were produced before the trial court on the basis of which the court released the cows in favour of the respondents.

VIEW OF COURT
The court noted that a prima facie case had been made out against the owners who are deemed to be accused in terms of sub-section (2) of Section 11 of the Act that they had overloaded the 6 cattle in a small vehicle during their transportation and the manner in which those animals were transported was very painful to them.

It noted that under Section 11 in Chapter III of the Prevention of Cruelty to Animals Act, 1960, overloading of animals in a vehicle is treated as a cruelty and conveyance or transportation of animals in a manner painful to them has been made an offence under clause(d) of sub-section(1) of Section 11 of the Act.

The Court further observed that custody of the animals, in respect of which an offence under the Act has been committed, should not be given to the accused pending litigation, as per the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 - which govern the present case.

Further it noted that as per Rule 8 of the said Rules, “The right of the owner shall stand forfeited if he is convicted or if he pleads guilty to the offence."

Reading the above with Section 11(2) of the Act which it noted provides "in unambiguous term provides that owner shall be deemed to have committed an offence, if he fails to exercise reasonable care and supervision for preventing cruelty to his cattle," the Court concluded that the "accused in this case was allegedly transporting the animals under the instruction of the owner. Situated thus, sub-section (2) of Section 11 of the Act will have application in the case.”

Thus the Court set aside the order of the lower court and ordered that the cattle shall remain with the Foundation till the trial court decides the matter afresh. In its concluding remarks the Court observed that:

“Mass awareness about the Prevention of Cruelty to Animals Act, 1960 and the various rules made there under and creation of appropriate infrastructure is necessary for proper implementation of the said Act and Rules... Strict adherence to the said rules is absolutely necessary to protect the animals from various infections, injury and other harms during transportation. Various organizations and agencies created under The Prevention of Cruelty to Animals Act and Rules made there under must ensure that the provisions of the said Act and rules are implemented in letter and spirit.

Cause Title: Dhyan Foundation V. The State of Tripura & Ors.