Garg, J.@mdashThis criminal misc. petition u/s 482 Cr.P.C. has been filed by the petitioner against the orders dated 5.5.1999 and 11.5.1999 passed by the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur by which he allowed the application of the respondent No. 2 Bhima Ram and ordered that 20 bovine animals seized in FIR No. 71/99 registered at Police Station Shastri Nagar, Jodhpur be given to the respondent No. 2 on Supurdginama.
2. It arises in the following circumstances :-
On 12th March, 1999 at about 12.30 AM when the petitioner got information that certain bovine animals were being taken out of the City, they immediately rushed towards ITI Circle, Jodhpur to catch-hold the trucks carrying bovine animals and Nakabandi was made by the police at about 12.30 AM in the night at ITI Circle and Trucks bearing No. RJI3-G-4614 and RJ/13-G-4624 were caught by the police, in which bovine animals were being carried by the accused without any licence, therefore, the case was registered against the accused under Sections 3, 4 & 5 of the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Magistrate or Export) Act, 1995 (hereinafter referred to as "the Act of 1995"). Thereafter, vide order dated 17.5.1999 passed by the learned Collector, Jodhpur, the custody of the seized bovine animals was given to the petitioner-Shri Jain Ratna Youvak Sangh to maintain them.
During trial, an application was submitted by the respondent No. 2 before the Court of Addl. Chief Judicial Magistrate No. 1, Jodhpur for handing over the 20 bovine, animals i.e. bullock to him.
The learned Addl. Chief Judicial Magistrate No. 1, Jodhpur through order dated 5.5.1999 allowed that application of the respondent No. 2 and ordered to release the 20 bovine animals on Supurdginama to the respondent No. 2 and furthermore, vide order dated 11.5.1999, the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur directed the SHO, Police Station Shastri Nagar, Jodhpur to hand over the 20 bovine animals to the respondent No. 2, if not required in any other case.
Aggrieved from the said orders dated 5.5.1999 and 11.5.1999 passed by the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur, this criminal misc. petition u/s 482 Cr.P.C. has been filed by the petitioner.
3. In this petition, it has been submitted by the learned counsel appearing for the petitioner that the impugned orders passed by the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur ordering to hand over the 20 bovine animals on Supurdginama to the respondent No. 2 are wholly illegal and without jurisdiction, as according to Section 7 of the Act of 1995, it is only the competent authority, which is Collector in the instant case, who may entrust the custody of the seized bovine animals to any such agency, Gaushala or Gosadan outside the area or to any other suitable person, who volunteers to maintain such animals. Sub-section (5) of Section 7 of the Act of 1995 further provides that whenever any bovine animal is seized under the Act of 1995, the Competent Authority or the Divisional Commissioner shall have jurisdiction to make orders with regard to possession, delivery, disposal or release of such animal. Thus, the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur had no power or jurisdiction to order for release of the 20 bovine animals on Supurdginama to respondent No. 2. Hence, it was prayed that this petition be allowed and the impugned orders dated 5.5.1999 and 11.5.1999 passed by the learned Addl, Chief Judicial Magistrate No. 1, Jodhpur be set aside.
4. On the other hand, it has been contended by the learned counsel appearing for the respondent No. 2 that the impugned orders passed by the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur are within the framework of law as since the bovine animals were seized under the provisions of the Code of Cri''minal Procedure, therefore, provisions of Code of Criminal Procedure would be applicable in the present case and therefore, the impugned orders for releasing the 20 bovine animals to the respondent No. 2 on Supurdginama are perfect one under the law and thus, this misc. petition be dismissed.
5. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and the learned Public Prosecutor and perused the materials available on record.
6. To appreciate the above contentions, Section 7 of the Act of 1995 has to be reproduced here :-
"7. Custody and disposal of bovine animal seized.
(1) Whenever as a result of search or seizure or as a result of inspection or otherwise the bovine animals are seized, the custody of the seized bovine animals pending final disposal of the case may be entrusted by an order of the Competent Authority to any recognized voluntary agency working for the welfare of such animals or to a Gaushala or a Gosadan governed under the provisions of the Rajasthan Gaushala Act, 1960 (Act 24 of 1960) :
Provided that where there is no such voluntary agency or Gaushala or a Gosadan in any local area, the Competent Authority may entrust the custody or bovine animals to any such agency, Gaushala or Gosadan outside the area or to any other suitable person, who volunteers to maintain such animal.
(2) Whenever any case is finally disposed of, further orders, regarding custody or permanent entrustment of bovine animal shall be made by the competent Authority subject to such terms and conditions as may be deemed proper.
(3) Any person aggrieved by an order made under Sub-section (1) or Sub-section (2) may, within thirty days from the date of the said order, appeal against it to the Divisional Commissioner.
(4) On such appeal the Divisional Commissioner may after giving an opportunity to the appellant and the Competent Authority or any other officer authorised by him in this behalf to be heard, direct the order to be stayed pending disposal of the appeal or may modify, alter or annual the order and make any further orders that may be just.
(5) Whenever any bovine animal is seized under the Act the Competent Authority or the Divisional Commissioner shall have, and notwithstanding anything to the contrary contained in any other law for the time being in force, any other court, Tribunal or other Authority shall not have jurisdiction to make orders with regard to possession, delivery, disposal or release of such animal."
7. In Sub-section (5) of Section 7 of the Act of 1995, there is a non-obstente clause that notwithstanding anything to the contrary contained in any other law for the time being in force, any other court, Tribunal or other Authority shall not have jurisdiction to make orders with regard to possession, delivery, disposal or release of such animal. Thus, it has been argued by the learned counsel for the petitioner that because of that clause, the custody of bovine animals seized under the provisions of Act of 1995 has to be given as per the provisions of Section 7 of the Act of 1995.
8. The learned counsel for the respondent No. 2 has placed reliance on Sub-section (3) of Section 12 of the Act of 1995, which reads as follows :
"12. Power to enter and inspect places -
(3) For the purpose of enforcing the provisions of this Act, the Competent Authority or the authorized person, in exercising the powers of entry upon and inspection of, any place under this section, follow, as far as may be, the provisions of Section 100 of the Code, relating to the search or inspection of a place by a Police Officer."
9. In my considered opinion, Sub-section (3) of Section 12 of the Act of 1995 would not be helpful to the learned counsel for the respondent No. 2 in the sense that in resp''ect of search and inspection of a place by a police officer, provisions of Section 100 Cr.P.C. have been made applicable, but it does not mean that if the search has been conducted as per the provisions of Section 100 Cr.P.C., the disposal of such seized articles have to be made as per the provisions of the Code of Criminal Procedure because Act of 1995 is a special law and the provisions of Act of 1995 will prevail over the general law contained in Cr.P.C. In Section 7 of the Act of 1995, there is a clear mandate that the Competent Authority or the Divisional Commissioner shall have the power or jurisdiction to make orders with regard to possession, delivery, disposal or release of such animal.
10. It may be stated here that the provisions of the Code of Criminal Procedure will also not affect the special power conferred or special procedure prescribed under any other law in force. Since Act of 1995 is a its provisions will prevail over the provisions of the Code of Criminal Procedure.
11. In view of Sub-section (2) of Section 4 of the Code of Criminal Procedure, an order u/s 457 Cr.P.C. cannot come within the meaning of words investigated, enquired into, tried and otherwise dealt with. That being so, it is clear that the Magistrate cannot pass an order for disposal of the property u/s 457 Cr.P.C. in a case pertaining to the provisions of the Act of 1995.
12. Apart from that, when the local or special law makes provision for procedure and jurisdiction etc. and there is no specific provision to the contrary, the provision of local or special law would apply and that of Code of Criminal Procedure would not apply.
13. In The Administration of Dadra and Nagar Haveli and Ors. v. C.B. Shah and Anr. 1986 Cri. L.J. 1087, the Bombay High Court, held that in cases pertaining to Essential Commodities Act, the Magistrate had no power to grant relief u/s 457 Cr.P.C. because Essential Commodities Act was special law.
14. In view of the discussion made above, the Magistrate had no power or jurisdiction to make orders for release of the bovine animals seized under the provisions of Act of 1995 and thus, the impugned orders dated 5.5.1999 and 11.5.1999 passed by the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur directing release of the 20 bovine animals to the respondents No. 2 on Supurdginama are illegal and without jurisdiction and the same are liable to be set aside.
15. The learned counsel for the respondent No. 2 has placed reliance on the decision of the Hon''ble Supreme Court in
For the reasons stated above, this misc. petition u/s 482 Cr.P.C. filed by the petitioner deserves to be allowed and the same is hereby allowed and the impugned orders dated 5.5.1999 and 11.5.1999 passed by the learned Addl. Chief Judicial Magistrate No. 1, Jodhpur are set aside.
