GO BHACHAV SAMITTEE NALKHEDA Vs. STATE

JUDGEMENT

(1.) This revision petition by the Go Bachav Samittee, Nalkheda, District Rajgarh is directed against the order dt. 2-11-1988 passed by the IInd Additional Sessions Judge, Shajapur in Criminal Revision No. 120 of 1988 whereby reversing the order passed by the Magistrate under S.451 of the Criminal Procedure Code, 1973 (for short 'the Code'). Interim custody of the cattle in question has been ordered to be given to the non-applicant Babukhan.

(2.) Circumstances giving rise to the revision petition are these. According to the prosecution the cattle including cows which are all claimed by the non-applicant Babukhan as his own, were being taken to Sarangpur, District Rajgarh for being slaughtered there and were seized by the police. The cattle in question are 'agricultural cattle' as defined in S.2(1) of the M. P. Agricultural Cattle Preservation Act, 1959 (for short 'the Act') read with the Schedule according to which 5 categories of cattle are designated agricultural cattle. According to the prosecution the offence committed are under S.4(1)(a) and S.7 of the Act punishable respectively under Ss.10 and 11 ibid. It may be pointed out that the Act has been amended by Act No. 52 of 1984.

(3.) The contention of the learned counsel for the petitioner is that in respect of an offence under S.7 of the Act, in view of S.12, the burden of proof that there was no contravention of the provisions of the Act is on the accused and, therefore, the impugned order directing interim custody of the cattle in favour of non-applicant Babukhan is not at all justified. Reliance has been placed on a decision of the Bombay Nigh Court in Cr. Writ Petition No. 373/87 (reported in 1988 Mah LJ 273). It has been urged that the learned Additional Sessions Judge has proceeded only on the wrong footing that the offence involved was one of mere theft.