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GAHC010135162023

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

Crl. Pet /619/2023

Abdul Kadir

S/o Abdul Matin

R/o Vill- Soro Pur, Bhanga

P.S. Badarpur, Dist. Karimganj

Petitioner

-Versus-

The State of Assam

Represented by the PP, Assam

Respondent

For Petitioner : Mr. A. Ahmed, Advocate

For Respondent : Mr. D. Das, Additional Public Prosecutor

Date of hearing : 10.06.2024

Date of judgment : 18.06.2024

BEFORE

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

JUDGMENT

18.06.2024

(M.K. Kalita, J)

1) Heard Mr. A. Ahmed, learned counsel for the petitioner. Also

heard Mr. D. Das, learned Additional Public Prosecutor

representing the State of Assam. Page 1 of 19

Crl.Pet./619/2023 Page 1

GAHC010135162023

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

Crl. Pet /619/2023

Abdul Kadir

S/o Abdul Matin

R/o Vill- Soro Pur, Bhanga

P.S. Badarpur, Dist. Karimganj

Petitioner

-Versus-

The State of Assam

Represented by the PP, Assam

Respondent

For Petitioner : Mr. A. Ahmed, Advocate

For Respondent : Mr. D. Das, Additional Public Prosecutor

Date of hearing : 10.06.2024

Date of judgment : 18.06.2024

BEFORE

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

JUDGMENT

18.06.2024

(M.K. Kalita, J)

1) Heard Mr. A. Ahmed, learned counsel for the petitioner. Also

heard Mr. D. Das, learned Additional Public Prosecutor

representing the State of Assam.

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Crl.Pet./619/2023 Page 2

2) This Criminal Petition has been registered on filing of an

application under Section 482 of the Code of Criminal

Procedure, 1973 read with Section 397/401 of the said Code

by the petitioner namely, Abdul Kadir impugning the order

dated 10.02.2023 passed by learned Session Judge

Karimganj in Criminal Appeal No. 14/2022, whereby the order

dated 20.08.2022, passed by learned Additional Chief Judicial

Magistrate, Karimganj in G.R. Case No.1088/2022 was

upheld. By the said order, the prayer for zimma, by the

petitioner, of his cattle, which were seized in connection with

the said case, was rejected by the learned Additional Chief

Judicial Magistrate, Karimganj.

3) The facts relevant for the consideration of the instant criminal

petition, in brief, are as follows:

(i) On 23.05.2022 one Sri Pranab Mili, SI of Police of

Malua PICP had lodged an FIR before the Officer-In-

Charge of Badarpur Police Station, inter-alia, alleging

that on 22.05.2022, at about 9.55 pm, an information

was received through reliable sources regarding illegal

smuggling and transportation of cattle from Makhibaha

to Bangladesh through Kushiyara River through

Krishnopur Ghat. Accordingly, a naka checking was

conducted at Sonapur at around 10.15 pm. Thereafter,

at around 10.45 pm, the accused persons named in

the FIR, namely, (1) Abdul Matin, and (2) Nazim Uddin

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who were taking away 13 numbers of cows were

detained at this spot for enquiry.

(ii) During enquiry it was found that the accused persons

named in the FIR have stolen these cows from various

locality and were intending to smuggle the same to

Bangladesh. Apart from the above-named two accused

persons, names of four other accused persons are also

mentioned in the FIR, who were suspected to have

been involved in the alleged crime along with the

above-named two accused persons.

(iii) It is also stated in the FIR that the accused persons

also led the police to four other cows which were

recovered from nearby jungle.

4) The learned counsel for the petitioner has submitted that the

petitioner is the owner of the cattle which were recovered

from the grazing field which is stated to be jungle in the FIR.

5) The learned counsel for the petitioner has submitted that

during the last part of April 2022 till June 2022, there was a

devastating flood situation in the Karimganj district, and the

house of the petitioner was also inundated and therefore, he

along with other villagers took shelter near the National

Highway along with his cows and to keep the cows safe he

let them to be kept in high field where flood waters could not

reach. However, the police misconceived said cows to be

brought for illegal transportation and seized those cows from

the grazing field.

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6) The learned counsel for the petitioner has also submitted that

the zimma petition filed by the present petitioner seeking

interim custody of his cows was rejected by the learned

Additional Chief Judicial Magistrate, Karimganj due to wrong

interpretation of the provision of Section 11 (5) of the Assam

Cattle Preservation Act, 2021.

7) It is submitted by the learned counsel for the petitioner that

the present petitioner is the owner of the seized cows and he

had produced documents in support of his claim of ownership

of the seized cattle, before the learned Magistrate. It is also

submitted by learned counsel for the petitioner that there is

no accusation against the present petitioner in the G. R. Case

No.1088/2022.

8) The learned counsel for the petitioner has also submitted that

no satisfaction was recorded by the learned Additional Chief

Judicial Magistrate, Karimganj in the impugned order that

there is enough material to presume that a prima facie

offence under the Act has been committed by the present

petitioner and mechanically declined to release the seized

cows to the petitioner, in spite of the fact that the petitioner

is the owner of the said cows. Learned counsel for the

petitioner has also submitted that after rejection of the

zimma prayer by the Court of learned Additional Chief Judicial

Magistrate, Karimganj, the petitioner preferred an appeal

under Section 12 of the Assam Cattle Preservation Act, 2021

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to the Court of learned Sessions Judge, Karimganj against

the aforesaid order. However, it is submitted by the learned

counsel for the petitioner that the learned Sessions Judge,

Karimganj also misread the provision of Section 11(5) of the

Assam Cattle Preservation Act, 2021 and upheld the

impugned order of learned Additional Chief Judicial

Magistrate.

9) It is also submitted by the learned counsel for the petitioner

that the appellate Court, while dismissing the appeal, has

also observed, in the impugned order, that no valid permit

was shown by the petitioner, however, it totally missed the

fact that the cattle of the petitioners were not meant for any

transportation and it was not seized from any vehicle during

transportation, rather those were seized from jungle on being

shown by the FIR named accused. Learned counsel for the

petitioner has also submitted that as the cows belonging to

the petitioners were only grazing in the jungle, the question

of obtaining permit under Section 7 of the Assam Cattle

Preservation Act, 2021 does not arise in this case. It is also

submitted that both the Courts namely, the Court of

Additional Chief Judicial Magistrate, Karimganj as well as the

Court of learned Session Judge, Karimganj mechanically

rejected the zimma prayer of the petitioner ignoring the

object of the Assam Cattle Preservation Act, 1921.

10) The learned counsel for the petitioner has also submitted that

under similar circumstances a Coordinate Bench of this Court

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in the case of “Md. Sirajul Islam Vs. The State of Assam”

(Order dated 20.10.2022 passed in the Criminal Revision

Petition No. 429/2022) as well as in the case of “Alfaruqure

Faraji @ Alfaruk Foraji Vs The State of Assam And Anr” (Order

dated 17.08.2022 passed in Criminal Revision Petition

No.321/2022) had directed to give interim custody of the

seized cattle in favor of the owners of the said cattle.

11) The learned counsel for the petitioner has also submitted that

in both the above cited cases, the Court relied on the

judgment of the Supreme Court of India in the case of

“Manager, Pinjarapol, Deudar and another v. Chakram, Moraji

Nat and others” reported in 1998 (6) SCC 520, wherein the

interim custody of seized goats and sheep were given to the

owners of the said animals during the pendency of the case.

12) On the other hand, Mr. D. Das, learned Additional Public

Prosecutor, has submitted that in view of the provisions of

Section 11(5) of the Assam Cattle Preservation Act, 2021

where there is a clear embargo on release of the seized

cattle, there is no illegality or impropriety committed by the

Court of the learned Additional Chief Judicial Magistrate,

Karimganj or by the Court of learned Sessions Judge,

Karimganj in rejecting the prayer of the zimma of the seized

cows in favor of the present petitioners.

13) I have considered the submissions made by learned counsel

for both the sides and have perused the materials available

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on record, including the scanned copy of the case records of

Criminal Appeal Case No. 14/2022 as well as Badarpur P.S.

Case No. 121/2022, which were called for in connection with

the instant criminal petition.

14) On perusal of the available records, it appears that on

27.05.2022, the petitioner, namely, Abdul Kadir, had filed an

application before the Court of learned Additional Chief

Judicial Magistrate, Karimganj, seeking zimma of the nine

cattle out of seventeen cattle, which were seized in

connection with the said case, claiming himself to be the

owner of these said cattle. It appears that on the same day,

one Arun Chandra Das had also filed an application before

the said court seeking zimma of eight numbers of cattle

seized in connection with the case, also claiming himself to

be the owner. It also appears from the record that one

zimma petition for the seized cattle was also filed on behalf

of one Dhyan Chand Foundation Goshala, which claimed to

be a registered trust having been recognized by Animal

Welfare Board of India.

15) However, it appears that by order dated 26.07.2022, learned

Additional Chief Judicial Magistrate, Karimganj had rejected

the prayer for zimma by the Dhyan Chand Foundation

Goshala and directed the Investigating Officer to find out the

ownership of the seized cattle and also directed the present

petitioner to cooperate with the Investigating Officer and

produce the documents of ownership of the cattle before the

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Investigating Officer. A report was also called for from the

Investigating Officer in this regard.

16) It also appears from the record that by order dated

20.08.2022, which has been impugned in the instant criminal

petition, the learned Additional Chief Judicial Magistrate,

Karimganj has observed that the Investigating Officer had

submitted that no person could produce any valid document

regarding ownership of the seized cattle, therefore, he could

not ascertain as to who is the actual owner of the seized

cattle. It also appears that the seized cattle are kept in the

cow shelter at Katigora and it is reported by the Investigating

Officer to the learned Additional Chief Judicial Magistrate that

all the necessary amenities for survival of the cattle has been

provided there. However, it appears that without giving any

finding regarding the claim of ownership of the nine numbers

of seized cattle by the present petitioner, the learned

Additional Chief Judicial Magistrate, Katigora had rejected the

prayer for zimma, mainly on the ground that during inquiry or

trial, the giving of cattle on zimma to anyone including the

owner is strictly prohibited under the said provision.

17) For the sake of convenience, the operative part of the

impugned order passed by learned Additional Chief Judicial

Magistrate, Karimganj is reproduced herein below:

“However, as the offence is registered

under section 13 of the Assam Cattle

Preservation Act 2021, before deciding

zimma the court must have to consider

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the provision under Section 11(5) of the

Act which provides that the Magistrate

may release other articles and

conveyance except the cattle on zimma.

Thus, during enquiry or trial giving the

cattle on zimma to anyone including the

owner is strictly prohibited. Hence, the

zimma prayer of the petitioner is hereby

rejected.”

Thus, it appears that by impugned order dated 20.08.2022,

the learned Additional Chief Judicial Magistrate, Karimganj

had rejected the prayer for zimma of the seized cattle to the

present petitioner mainly on the ground that, the said court

was of the view that as per provision of Section 11 (5) of the

Assam Cattle Preservation Act 2021, during enquiry or trial,

giving the cattle on zimma to anyone, including the owner, is

strictly prohibited.

18) On the other hand, learned Sessions Judge, Karimganj, while

considering the appeal preferred under Section 12 of the said

Act, has observed in the impugned judgment dated

10.02.2023, that as the accused persons have failed to show

any valid permit for transportation of the seized cattle, there

are materials to presume that an offence under Section 7

read with Section 13 of the Act has been committed. The

learned Sessions Judge, Karimganj has held that the

Magistrate Court was correct in rejecting the prayer for

zimma of the seized cattle in the light of the provisions of

Section 11(5) of the Act. Thus, basically, it appears that both

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the courts have rejected the prayer for zimma of the seized

cattle to the petitioner citing the embargo provided in Section

11(5) of the Assam Cattle Preservation Act, 2021.

19) Now, let us examine, as to whether such a strict prohibition,

as viewed by both the above-mentioned courts, has been

envisioned by the statute or not.

20) If we look at the preamble of the Assam Cattle Preservation

Act, 2021, it would make clear that the said Act was enacted

to provide for the preservation of cattle by regulating their

slaughter, consumption, illegal transportation and the matter

connected and incidental therewith. Thus, the main object of

the Act is the preservation of cattle and what has been

regulated is the illegal slaughter, consumption and illegal

transportation of the cattle. Section 13, read with Section 4,

5, 6, 7 and 8 of the aforesaid Act penalises the act of illegal

slaughter, consumption and illegal transportation of the

cattle. Section 11(5) and Section 11(7) of the said Act

prescribes the enabling provisions for giving the interim

custody of the seized materials, including cattle, during the

pendency of the criminal proceedings.

21) Section 11 (5) of the Assam Cattle Preservation Act 2021

provides as follows:

“11(5). On receipt of the report, the

Judicial Magistrate First Class may, on

his being satisfied that there is

enough material to presume that a

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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 except, to the

satisfaction of the Court pending

disposal of the criminal proceeding

instituted in respect of the alleged

offence”

Whereas, Section 11 (7) of the Assam Cattle Preservation Act

2021 provides as follows:

“11(7). The cattle so seized may be

handed over to an institution

established under Section 20 of this Act

or any existing Goshala or similar

institution after value assessment by

Animal Husbandry and Veterinary

Department”.

A plain reading of above provisions would clearly

indicate that both are enabling provisions dealing with

custody of seized materials including

vehicle/conveyance/cattle during the pendency of the

criminal proceeding instituted in respect of the alleged

offence under the said Act. It also appears that whereas

Section 11(5) deals with the interim custody of seized

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materials including vehicle and conveyance, Section 11(7)

deals with the interim custody of cattle.

22) In a catena of judgments [for example in “New India Sugar

Mills Ltd Vs. Commissioner of Sales Tax, Bihar” reported in AIR

1963 SC 1207 and in “Kanwar Singh and Others Vs. Delhi

Administration, reported in “AIR 1965 SC 871”, etc.], the Apex

Court has observed as follows:

“It is a recognized rule of

interpretation of statute that

expressions used therein should

ordinarily be understood in a sense in

which they best harmonize with the

object of the statute and which

effectuate the object of legislature”.

23) As already discussed herein above, the object of the Assam

Cattle Preservation Act, 2021, as appears from its preamble,

is the preservation of cattle by regulating illegal slaughter,

illegal transportation and consumption. Various provisions of

the Assam Cattle Preservation Act, 2021 has to be

interpreted harmoniously so as to further the object sought

to be achieved by the said Act. In any criminal proceeding

which is initiated under the said Act, where any allegation of

commission of an offence under the Act has been made and

where seizure of any cattle has been made, one of the prime

concerns for the court would be to ensure the welfare of the

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seized cattle. As the retention of the seized cattle by the

seizing authority, during the pendency of the criminal

proceedings, may not be conducive for the welfare of the

seized cattle, the provision for interim custody of the seized

cattle has been made in the Section 11(7) of the said Act.

In the above-mentioned background, if the words “except

cattle” appearing in Section 11(5) of the Act is interpreted to

mean as an absolute bar in giving zimma of the cattle to

anyone including the owner, it would frustrate the very

object of the Act regarding the preservation and welfare of

the cattle.

24) This Court is of the view that the Section 11(5) of the Act has

to be interpreted as an enabling provision regarding the

interim release of the seized material, including vehicle and

conveyance only, which were seized in a criminal proceeding

instituted in respect of the alleged offence under the

aforesaid Act. As regards the interim release of cattle is

concerned, the enabling provision is provided in Section

11(7) of the Act, which enables the handing over of the

seized cattle to an institution established under Section 20 of

the Act or to existing Goshalas or similar institutions during

the pendency of the criminal proceeding instituted in respect

of the alleged offence.

25) The question which arises at this stage is, as to whether

there is any provision in the Assam Cattle Preservation Act,

2021 which imposes an absolute bar in giving interim zimma

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of the seized cattle to its owner during the pendency of the

criminal proceeding. This Court does not find any such

absolute bar in any of the provision of the Assam Cattle

Preservation Act 2021.

26) While considering a similar question in respect of

interpretation of Section 35 (2) of the Prevention of Cruelty

to Animals Act, 1960, the Supreme Court of India in the case

of “Manager, Pinjarapol, Deudar and another v. Chakram,

Moraji Nat and others” (Supra) has held that subject to certain

conditions the interim custody of seized animal may be given

even to an owner who is facing an accusation in the pending

criminal proceeding where the said animal has been seized.

The Apex Court has observed in the aforesaid case as

follows:

“10. Now adverting to the contention

that under Section 35(2), in the event of

the animal not being sent to an

infirmary, the Magistrate is bound to

give the interim custody to a pinjrapole,

we find it difficult to accede to it. We

have noted above the options available

to the Magistrate under Section 35(2).

That sub-section vests in the Magistrate

the discretion to give interim custody of

the animal to a pinjrapole. The material

part of the sub-section (shorn of other

details) will read, the Magistrate may

direct that the animal concerned shall

be sent to a pinjrapole. Sub-section (2)

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does not say that the Magistrate shall

send the animals to a pinjrapole. It is

thus evident that the expression “shall

be sent” is a part of the direction to be

given by the Magistrate if in his

discretion he decides to give interim

custody to a pinjrapole. It follows that

under Section 35(2) of the Act, the

Magistrate has discretion to hand over

interim custody of the animal to a

pinjrapole but he is not bound to hand

over custody of the animal to a

pinjrapole in the event of not sending it

to an infirmary. In a case where the

owner is claiming the custody of the

animal, the pinjrapole has no

preferential right. In deciding whether

the interim custody of the animal be

given to the owner who is facing

prosecution, or to the pinjrapole, the

following factors will be relevant:

(1) the nature and gravity of the offence

alleged against the owner;

(2) whether it is the first offence alleged

or he has been found guilty of offences

under the Act earlier;

(3) if the owner is facing the first

prosecution under the Act, the animal is

not liable to be seized, so the owner will

have a better claim for the custody of

the animal during the prosecution;

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(4) the condition in which the animal

was found at the time of inspection and

seizure;

(5) the possibility of the animal being

again subjected to cruelty.

There cannot be any doubt that

establishment of the pinjrapole is with

the laudable object of preventing

unnecessary pain or suffering to animals

and providing protection to them and

birds. But it should also be seen:

(a) whether the pinjrapole is functioning

as an independent organization or under

the scheme of the Board and is

answerable to the Board; and

(b) whether the pinjrapole has a good

record of taking care of the animals

given under its custody.

A perusal of the order of the High Court

shows that the High Court has taken

relevant factors into consideration in

coming to the conclusion that it is not a

fit case to interfere in the order of the

learned Additional Sessions Judge

directing the State to hand over the

custody of the animals to the owners.”

27) In the instant case, the petitioner Abdul Kadir has not been

facing any accusation in the pending criminal proceeding in

which the cattle have been seized. He has claimed himself to

be the owner of the seized cattle and have produced certain

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documentary evidence in support of his claim. However, the

learned Additional Chief Judicial Magistrate, Karimganj,

instead of examining the said documents and coming to

prima-facie finding regarding the claim of the petitioner, had

directed the Investigating Officer to ascertain the ownership

of seized cattle. On failure of the Investigating Officer to

ascertain the ownership of the seized cattle, the learned

Additional Chief Judicial Magistrate, Karimganj has rejected

the prayer for custody to the petitioner, citing absolute

embargo, in giving such custody to the owner, under Section

11(5) of the aforesaid Act.

28) Apart from the statement of the Investigating Officer which is

reflected in the impugned order of the learned Additional

Chief Judicial Magistrate, Karimganj that the seized cattle are

provided with all necessary amenities for their survival in the

cow shelter at Katigora, there is nothing on record from

where the Magistrate could have assessed as to what

amenities are provided in the Katigora cow shelter, what is

the intake capacity of the said cow shelter and what is the

actual number of cattle presently kept in the said cow

shelter. These are relevant consideration which could not be

discernible from the material available in the record. It also

appears from the record that after seizure of the cattle in the

aforesaid case, two cattle have already died due to

“Tympanites”. Under such circumstances, learned Additional

Chief Judicial Magistrate, Karimganj ought to have properly

examined the claim of the petitioner, instead of rejecting his

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prayer by citing the embargo of the Section 11(5) of the

Assam Cattle Preservation Act, 2021.

29) The use of the word “may” in the Section 11(7) of the Assam

Cattle Preservation Act, 2021 itself indicates that it is not

mandatory in all circumstances that the seized cattle have to

be handed over to an institution established under Section 20

of the Act or to any existing Goshala or similar institution. It

is implied that in an appropriate case, to further the object of

the Act i.e., the preservation of cattle, if the Judicial

Magistrate of 1

st

class finds that welfare of the seized cattle is

in giving the zimma of the same to its actual owner, none of

the provisions of the Act prohibits him/her to do so.

30) Accordingly, it is hereby held that, in an appropriate case,

there is no embargo under Assam Cattle Preservation Act,

2021 in giving zimma of the seized cattle to the owner of the

said cattle during the pendency of a criminal proceeding

instituted in respect of the alleged offence under the said

Act. It is also clarified that the Section 11(5) and Section

11(7) of the Assam Cattle Preservation Act, 2021 puts no

such absolute embargo on the Court to give zimma of the

seized cattle to its owner.

31) In view of the discussion made and the reasons cited in the

foregoing paragraphs, the impugned judgement dated

10.02.2023 passed by learned Session Judge, Karimganj in

Criminal Appeal No. 14/2022 as well as the impugned order

Order downloaded on 04-08-2025 10:07:12 PMPage 19 of 19

Crl.Pet./619/2023 Page 19

dated 20.08.2022 passed by learned Additional Chief Judicial

Magistrate, Karimganj in G.R. Case No. 1088/2022 are

hereby set aside and quashed.

32) The learned Additional Chief Judicial Magistrate, Karimganj is

directed to decide afresh the prayer of the petitioner for the

interim custody of the seized cattle on the basis of his claim

of the owner ship over the seized cattle in the Badarpur P.S.

Case No. 121/2022.

33) Let a copy of this judgement be sent to the court of learned

Sessions Judge, Karimganj as well as to the learned

Additional Chief Judicial Magistrate, Karimganj.

34) With the above observations, this instant criminal petition is

accordingly, disposed of.

JUDGE

Comparing Assistant