Criminal Revision No.93 of versus. Revision under Section 397/401 of the Code of Criminal Procedure

Transcription

1 1 HIGH COURT OF CHHATTISGARH Single Bench:Hon ble Shri Justice Sanjay K. Agrawal Criminal Revision No.93 of 2005 Applicants Non-Applicant versus Shankar and another State of Chhattisgarh Revision under Section 397/401 of the Code of Criminal Procedure Appearance: Shri Mayank Chandrakar, counsel for the applicants. Shri Anupam Dubey, Deputy Government Advocate for the State/non-applicant O R A L O R D E R (Passed on 3 rd July, 2014) (1) Questioning the legality, validity and correctness of the impugned judgment affirming the judgment of conviction and partly modifying order of sentence passed by the Additional Chief Judicial Magistrate convicting the applicants for offence under Section 6 of the Chhattisgarh Agricultural Cattle Preservation Act, 1959 (henceforth 'the Act, 1959') and punishable under Section 11 of the Act, 1959 and sentencing them to undergo simple imprisonment for 1 year and to pay fine of `1,000. (Sentence was partly modified and reduced by the appellate Court to 6 months' simple imprisonment and

2 2 to pay fine of `500 only). (2) The prosecution case as unfolded during trial is as under: (2.1)Complainant Narad (PW-1) made a report in Police Station Dongargarh on that the applicants were transporting agricultural cattle namely, buffaloes 4 in number and bullocks 12 in number for the purpose of their slaughtering. On the basis of the aforesaid complaint, offence under the Act, 1959 was registered and cattle were recovered from the applicants and the cattle so seized were sent for medical examination to the Veterinary Surgeon who submitted his report vide Ex.P-7. It is alleged that the applicants made extra judicial confession before Narad (PW-1) and Gyandas (PW-2). They were charge-sheeted and tried in accordance with law for the aforesaid offence. (2.2)During the course of trial, the applicants pleaded innocence and they were tried for the offence punishable under Sections 5, 6 and 7 read with Section 11 of the Act, (2.3)In order to establish the charges, the prosecution examined four witnesses and produced and exhibited six documents. The defence neither

3 3 examined any witness nor brought any document on record. (2.4)The trial Magistrate, upon appreciation of the evidence on record, held the applicants guilty for transportation of agricultural cattle for slaughtering, which is punishable under Section 11 of the Act, 1959 and convicted for the afore-noted offence and sentenced as stated above. (2.5)In appeal filed by the applicants, the appellate Court affirmed the finding of conviction arrived at by the trial Magistrate, but reduced the sentence of simple imprisonment from 1 year to 6 months and that of fine from `1,000 to `500. (3) Shri Mayank Chandrakar, learned counsel appearing for the applicants would submit that the trial Magistrate has committed manifest illegality in holding the applicants guilty for the offence under Section 6 of the Act, 1959 as the vital ingredients for constituting offence under Section 6 of the Act, 1959 are missing and as such the prosecution has completely failed to establish the ingredients of offence under Section 6 of the Act, 1959 beyond shadow of doubt. (4) Shri Anupam Dubey, learned Deputy Government

4 4 Advocate appearing for the State/non-applicant would submit that the prosecution has established the ingredients of the offence under Section 6 of the Act, He would further submit that in view of Section 12 of the Act, 1959, it was the burden of the accused/applicants to prove that such a transport of agricultural cattle was not in contravention of the Act, (5) I have heard and considered the rival submissions made by learned counsel appearing for the parties and have also perused the record with utmost circumspection. (6) Admittedly and undisputedly, 4 buffaloes and 12 bullocks were seized from the possession of the applicants on at Village Chiddo vide Ex.P- 3 to P-5. Seized buffaloes and bullocks are agricultural cattle duly incorporated in a Schedule enacted under Section 2(i) of the Act, (7) Clause (a) of sub-section (1) of Section 4 of the Act, 1959 brought by Amendment Act of 1991 imposes complete restriction on slaughtering of agricultural cattle as defined in the Schedule enacted under Section 2(i) of the Act, The Supreme Court, in Hasmatullah v. State of M.P. 1, JLJ 406

5 5 declared Section 4(1)(a) of the Act, 1959 partly ultra vires and effect of that would be that there would be total ban on the slaughter of cow, calf of cow and calf of she-buffalo, while the slaughter of bull or bullock along with other agricultural cattle shall fall under clause (b) of Section 4(1) of the Act, 1959 and they can be slaughtered after complying with provisions of the said clause. (8) Section 6 of the Act, 1959 provides as under: 6. Prohibition on transport of agricultural cattle for slaughter No person shall transport or offer for transport or cause to be transported any agricultural cattle from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be, so slaughtered. (9) From a careful perusal of Section 6 of the Act, 1959, it appears that the agricultural cattle must be transported or caused to be transported from any place within the State to any place outside the State for the purpose of slaughtering in contravention of provision of the Act, 1959 or with the knowledge that it will be or is likely to be so slaughtered. Thus, one of the important ingredient for offence under Section 6 of the Act, 1959 is that agricultural cattle must be transported from any place within the State of Chhattisgarh to any other

6 6 place outside the State of Chhattisgarh for the purpose of its slaughtering in contravention of the Act, The applicants have been chargesheeted and convicted for contravention of Section 6 of the Act, 1959, however, the charges framed against them state as under: (1) rqe vkjksihx.k fnukad 21&05&2003 dks 3-00 cts jkf= xzke fpn~nks pksdh ds ikl Fkkuk Mksaxjx<+ ftyk jktukanxkao esa d`f"kd ;ksx; i'kq pkj ux HkSalk rfkk ckjg ux csyksa dks l{ke izkf/kdkjh }kjk fu;r fd;s x;s LFkku ls i`fkd LFkku o/k djus ds vk'k; ls ys tk jgs Fks \ (2) rqe vkjksihx.k mlh fnukad le; o LFkku ij d`f"kd ;ksx; i'kqvksa HkSalk,oa csyksa dks ekjrs gq,] d"v nsrs gq,] dzwjrk dk O;ogkj dj gkadrs gq, ys tk jgs Fks \ bl izdkj vkius /kkjk 5] 6] 7 d`-i-ifj- vf/k-,oa /kkjk 11(d) d`f"kd i'kqvkssa ds izfr dzwjrk vf/kfu;e ds varxzr vijk/k fd;k tks esjs fopkj.k {ks=kf/kdkj ds varxzr gs A vkidks vkjksi Lohdkj gs ;k vki fopkj.k pkgrs gks A (10) A perusal of the above-quoted charges framed against the applicants would show that there is no charge framed against the applicants that they were transporting the said agricultural cattle from the State of Chhattisgarh to any place outside the State for the purpose of slaughtering which is sine qua non for holding a person guilty for the offence under Section 6 of the Act, Apart from this, the defence of the applicants throughout is that they are involved in the business of purchase and sale of agricultural cattle which Narad (PW-1) has also admitted in his statement. Gyandas (PW-2) has also admitted that the applicants are involved in

7 7 the said business. The aforesaid two witnesses as well as the star-witness of the prosecution, i.e., the Investigating Officer did not utter any word that the said agricultural cattle were being transported from any place of State of Chhattisgarh to any place outside the State. Apart from the fact that no specific charge was framed against the applicants for transporting the agricultural cattle to any place outside the State, their two starwitnesses, namely, Narad (PW-1) and Gyandas (PW-2) did not say that the accused/applicants made any extra judicial confession that agricultural cattle were being transported to any place outside the State. Thus, one of the important ingredients of transporting the agricultural cattle to the other place is absolutely missing in the charge framed and no evidence was brought though the said fact which is sine qua non and essential ingredient to establish the charges and for holding the applicants guilty for the offence under Section 6 of the Act, The submission of the State counsel that in view of Section 12 of the Act, 1959 the applicants have failed to discharge their burden that the slaughter, transport or sale of agricultural cattle was not in contravention of the Act, 1959 which the applicants have failed to discharge deserves to be

8 8 rejected. (11) In Abdul Hakim Quraishi and others v. State of Bihar 2, the Supreme Court, while rejecting the challenge made to the constitutional validity of Section 12 of the Act, 1959, held as under: 24. However, we must say a few words about S. 12 of the Act which has also been challenged before us. Section 12 is in these terms: S.12. In any trial for an offence punishable under S. 11 for contravention of the provision of S. 5, 6 or 7 of this Act the burden of proving that the slaughter, transport or sale of agricultural cattle was not in contravention of the provisions of this Act shall be on the accused. The argument is that S. 12 infringes the fundamental right of the petitioners inasmuch as it puts the burden of proof on an accused person not only for his own knowledge or intention but for the knowledge or intention of other persons. We do not think that this contention is correct. The accused person, so far as Ss. 5 and 7 are concerned, must be the person who has slaughtered the animal or who has purchased, sold or otherwise disposed of the animal etc. Therefore, the only question will be his knowledge and the legislature was competent to place the burden of proof on him. So far as S. 6 is concerned, it specifically refers to the knowledge of the person who has transported or offered for transport or caused to be transported any agricultural cattles from any place within the State to any place outside the State. Therefore, when the section talks of knowledge, it talks of the knowledge of that person who has transported or offered for transport etc. The knowledge of no other person comes into the purview of S. 6. We are, therefore, of the view that S. 12 is not 2 AIR 1961 SC 448

9 9 invalid on the ground suggested by the petitioners. (12) The present case is not a case of slaughtering or sale of agricultural cattle as neither slaughtering nor sale of agricultural cattle as alleged by prosecution has been made. It is alleged that the applicants have been found guilty for the offence under Section 6 of the Act, 1959, i.e., transporting agricultural cattle. Since the fact of transporting of agricultural cattle from State of Chhattisgarh to any place outside the State has not been established by the prosecution by leading appropriate legal evidence, therefore, the question of proving that transport of such agricultural cattle was not in contravention of provision of the Act, 1959 does not arise. As the prosecution has failed to discharge its initial burden of proving that such a transport of agricultural cattle was being made from the State of Chhattisgarh to any place outside the State of Chhattisgarh. Accordingly, the plea of the State counsel in this regard is rejected. (13) Thus, on the basis of the aforesaid discussion, it is held that the prosecution has absolutely failed to establish the important ingredient for commission of offence under Section 6 of the Act,

10 , i.e., transporting of agricultural cattle from any place within the State of Chhattisgarh to any place outside the State of Chhattisgarh for slaughtering in contravention of the provisions of the Act, 1959 and consequently, the trial Magistrate has committed a manifest error of law in convicting the applicants under Section 11 of the Act, 1959 for contravention of Section 6 of the Act, 1959 and the appellate Court has also perpetuated the illegality by affirming the judgment of the trial Court. The impugned judgment of conviction and order of sentence is set aside. (14) As a fall out and consequence of the aforesaid discussion, the revision is allowed. The applicants are acquitted of the charges framed against them under Section 6 of the Act, They are on bail. Their bail bonds shall remain in operation for a further period of 6 months from today in view of the provision contained in Section 437A of the CrPC. JUDGE Gopal

11 11 Head-Note To prove offence u/s 6 CG Agri.Cattle Preserv.Act, 1959 it is necessary to prove transportation of agri.cattle from CG to outside CG for slaughtering. NRrhlx<+ d`"kd i'kq ifjj{k.k vf/kfu;e] 1959 ds /kkjk 6 ds vijk/k dks lkfcr djus ds fy;s d`f"k ;ksx; i'kq dks NRrhlx<+ jkt; dh lhek ls ckgj o/k ds fy;s ys tkuk vko';d gs A By Order, (Gopal Singh) Deputy Registrar