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Judgment
(CAV)
Heard Mr. B. Islam, learned counsel for the petitioner/revisionist. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor appearing for the State of Assam and Mr. D. Das, learned counsel for the respondent No.2.
This is an application under Section 438/442 read with Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 praying for setting aside and quashing of the impugned order dated 26.05.2026 passed by the learned Sub-Divisional Judicial Magistrate (M), Biswanath, Biswanath Chariali rejecting the petition filed by the petitioner seeking custody of 8 (eight) nos. of cattle which were seized in connection with Behali Police Station Case No. 51/2026.
On 03.05.2026, one SI, Basanta Das lodged an FIR before the officer-in-charge of Behali Police Station alleging inter-alia that on 03.05.2026 at around 10:20 A.M., one secret information was received from reliable source that one Bolero Pickup vehicle bearing Regn. No.AS-02-2986 loaded with cattle, is coming from Gohpur side towards Biswanath Chariali. On receipt of the information, in-charge of Borgang OP made an G.D.E. and instructed the informant to intercept the vehicle and take appropriate actions. At about 10:35 A.M. informant along with the staff of O.P. intercepted the above-mentioned vehicle carrying cattle which was proceeding from Gohpur side towards Biswanath Chariali. During search they found 08 no's of cattle in the said vehicle. On asking about the related documents of the cattle, the driver of the vehicle namely Rafikul Islam and two passengers namely Ashadul Islam and Mohan Doley were not able to produce any valid documents of the cattle which they transported. Accordingly, informant seized the above vehicle along with total 08 no's cattle as per seizure list and apprehended the above three persons. The above accused persons were transporting the cattle illegally without any valid documents and were found transporting cattle in a cruel and inhumane manner, without maintaining proper space, food, water and hygine thereby causing unnecessary pain and suffering to the animals. It is suspected that they were transporting cattle from the neighbour state of Assam i.e. Arunachal Pradesh.
Further, the learned counsel for the petitioner submits that being the owner of the aforesaid 08 nos. of seized cattle, the petitioner approached the learned Sub-Divisional Judicial Magistrate (M), Biswanath, Biswanath Chariali by filling a petition seeking custody of 08 nos. of seized cattle in connection with the aforesaid Behali P.S. case and thereafter vide order dated 26.05.2026 prayer for zimma of 08 nos. of seized cattle of the petitioner was rejected by the learned Sub-Divisional Judicial Magistrate (M), Biswanath, Biswanath Chariali.
Learned counsel for the petitioner has referred to Section 11 (5) of the Assam Cattle Preservation Act, 2021 (here-in-after referred as ‘the Act’), which reads as follows:-
“(5)On receipt of the report, the Judicial Magistrate 1 Class may, on his being satisfied that there is enough material to presume that a prima-facie offence under this Act has been committed or intended to be committed, release the seized materials including vehicle/conveyance, except cattle on furnishing of a bank guarantee, equal to the value of the material or vehicle/conveyance, to the satisfaction of the court, pending disposal of the criminal proceedings instituted in respect of the alleged offence.”
It is the submission of learned counsel for the petitioner that the Magistrate has not recorded its satisfaction that there is enough material to presume that a prima facie offense under the Act has been committed before rejecting the prayer of the petitioner for custody of the cattle. And therefore, the impugned order cannot be sustained.
A bare reading of the aforesaid Sub-Section (5) to Section 11 of the Act reveals that it is only when the Magistrate releases any seized material including vehicle, truck, conveyance, except cattle, that he is required to satisfy himself that there is enough material to presume that a prima-facie offence under this Act has been committed or intended to be committed. Since the prayer of the petitioner for release of the cattle was rejected, the question of recording any such satisfaction does not arise. Even otherwise, it appears from the record that the petitioner here-in has not challenged the order dated 04.05.2026, by which the learned Magistrate had directed the Investigating Officer to hand over the seized cattle to the respondent No.2, Dhyan Foundation, Sri Ganga Gaushala situated at Karibil Bongali, Biswanath. It is also interesting to note that in the order dated 26/05/2026, by which the zimma of the vehicle of the petitioner was granted to him in exercise of powers under Sub-Section 5 of Section 11 of the Act, no such satisfaction, as contented by the petitioner to be necessary, has been recorded but the petitioner is not aggrieved by the same.
Learned counsel for the petitioner has referred to the decision of the Hon'ble Apex Court in Manager, Pinjrapole, Deudar and Anr. -Vs-Chakram Moraji Nat and Ors, reported in (1998) 6 SCC 520, wherein the Hon'ble Apex Court has held that sub-Section 2 of Section 35 of the Prevention of Cruelty to Animals Act does not make it mandatory for the Magistrate to give interim custody of the animal to a Pinjra Pole in the event of the animal not being sent to an infirmary and that the option is available to the Magistrate to give interim custody of the animal to a Pinjra Pole. Therefore, sub-Section 2 does not say that the Magistrate shall send the animal to a Pinjra Pole and therefore, it follows that under Section 35 (2) of the said Act, the Magistrate has discretion to handover interim custody of the animal to a Pinjra Pole, but he is not bound to do so and in a case where the owner is claiming custody of the animal, the Pinjra Pole has no preferential right.
As is evident, in the aforesaid decision, the Hon'ble Apex Court was interpreting Section 35(2) of the Prevention of Cruelty to Animals Act and not the Assam Cattle Preservation Act, which came into force only in the year 2021.
Being a special act, the provisions of the said Act would prevail. Reverting to the provisions of Sub Section 5 of Section 11 of the Act, which has been reproduced hereinabove, it is clear as daylight that the Magistrate has no power to release any seized cattle to the owner pending disposal of the criminal proceedings. Although a co-ordinate Bench of this Court in Md. Sirajul Islam –Vs- State of Assam, 2022 SCC online GAU 1534, has observed that the word "may", appearing in the aforesaid sub-Section grants a discretion to the Magistrate to grant interim custody of the seized cattle to the owner, I am unable to find myself in agreement with the same in the face of the clear provision of the law as incorporated in the aforesaid Sub Section 5 of Section 11 of the Act.
Learned counsel for the petitioner has also relied upon another decision of the Apex Court, that is Bharat Amratlal Kothari and another versus Dosukhan Samad Khan Sindhi and others, reported in (2010) 1 SCC 234. But the same is also of no avail to the petitioner as the statutory provisions attracted in the present case did not come up for consideration in the said case.
Learned counsel for the respondent no.2, while supporting the stand of the prosecution, has submitted that the 8 (eight) numbers of cattle were being transported by the petitioner in a very cruel manner which amounts to an offence under the provisions of the Prevention of Cruelty to Animals Act and that itself disentitles the petitioner to custody of the cattle and in this regard has referred to a host of decisions, but it is suffice to refer to the decision in Shri Chatrapati Shivaji Gaushala versus State of Maharashtra and others in Criminal Appeal No. 1719 of 2022 decided on 30.09.2022, wherein it has been observed by the Hon’ble Apex Court as follows:-
“21.The appellant has shown its willingness to accept the interim custody of the cattle. In view of the fact that private respondents were prima facie carrying the cattle in cruel conditions without a valid permit, the JMFC rightly concluded that the cattle would be safe in the custody of the appellant instead of the private respondents. In view of the above findings, the ultimate direction which was issued by the High Court was contrary to the proviso to Section 8(3) of the Maharashtra Act and would have to be set aside, while resorting the order of the JMFC. We order accordingly.”
In view of what has been discussed above, the instant revision is found to be devoid of merit and accordingly stands dismissed.